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How to file an Appeal


How to File an Appeal

One of the MSPB's primary statutory functions is to protect Federal merit systems against partisan political and other prohibited personnel practices by adjudicating employee appeals over which the Board has been given jurisdiction.  A list of the matters over which the Board generally has jurisdiction is contained in section 1201.3 of Part 1201 of Title 5 of the Code of Federal Regulations (5 C.F.R.  1201.3) Links to specific sections of the law (United States Code or U.S.C.) and regulations (C.F.R.) are in blue text.  Links to "Parts"--major groupings of Board regulations -- are provided on the left side of this page.

Initial Appeal Process

When you are ready to prepare and file an appeal, visit the MSPB's e-Appeal Online website, which is an interactive online application that guides you through the process of providing the Board with the necessary information.  The MSPB does not accept new appeals via email; e-Appeal Online is the only method allowed for electronic filing.  If you do not want to file your appeal online, you may download the Board's Appeal Form and file your appeal by traditional means (by postal mail, fax, or personal or commercial delivery).  

Information Required.  An appeal must be in writing and contain all the information specified in the Board's regulations.  See 5 C.F.R. 1201.24 (most appeals); 1209.6 (individual right of action (IRA) appeals, which involve claims of retaliation for whistleblowing); 1208.13 (Uniformed Services Employment and Reemployment Rights Act (USERRA)); 1208.23 (Veterans Employment Opportunities Act (VEOA)); 1203.11 (request for regulation review).  Using the Board's Appeal Form or its e-Appeal Online application will ensure that all required information is provided, but using the form is not required. 

When to File.  Most Appeals.  In most types of cases, an appeal must be filed within 30 calendar days of the effective date of the action, if any, or within 30 calendar days after the date of receipt of the agency's decision, whichever is later. However, when an appellant and agency mutually agree in writing to attempt to resolve their dispute through an alternative dispute resolution process prior to the timely filing of an appeal, the time limit for filing the appeal is extended by 30 days--for a total of 60 days. See 5 C.F.R.  1201.22(b)(1)

IRA Appeals.  If you are filing a whistleblower appeal after first filing a complaint with the Office of Special Counsel (OSC), your appeal must be filed within 65 days of the date of the OSC notice advising you that the Special Counsel will not seek corrective action or, within 60 days after the date you receive the OSC notice, whichever is later (5 C.F.R.  1209.5).

USERRA Appeals have no time limit for filing (5 C.F.R.  1208.12).

VEOA Appeals.  You must first file a complaint with the Secretary of Labor and allow the Secretary at least 60 days to try to resolve the matter. On the 61st day, you may file an appeal with the Board. However, once you receive notice that the Secretary has been unable to resolve the matter you have 15 days in which to file your appeal with the Board (5 C.F.R.  1208.22).

Where to File.  You must file an appeal with the MSPB's regional or field office serving the area where your duty station was located when the action was taken, or, if the appeal relates to a final decision of the Office of Personnel Management regarding retirement benefits, or an adverse suitability determination, with the regional or field office that has jurisdiction over the area where you live.  For a complete listing of the coverage of our regional and field offices, see Appendix II of Part 1201 of the Board's regulations.

What to File.  In addition to the information required by our regulations, the only documents required to be filed with most appeals are the notice of proposed action, the agency decision to take the action being appealed, and if available, the SF-50 or similar notice of personnel action.  5 C.F.R.  1201.24(a)(7).  In IRA, VEOA and USERRA appeals, evidence that the administrative process has been exhausted is also required.  No other documents should be filed with the appeal.  As explained below, the agency must file all documents contained in the agency record of the action.  Filing numerous documents with a new appeal usually duplicates documents that will be filed by the agency.  It is important to remember that filing a new appeal is just the beginning of the adjudication process that results in a decision.  Both parties will have several opportunities to provide additional evidence and argument as the appeal proceeds toward a decision. You must not miss the filing deadline to await receipt of any document.

Designating a Representative.  An appellant may choose any person, who is willing and available to serve, as his or her representative before the Board, or may choose to represent him or her self. Any designation of a representative must be in writing and signed by the appellant.  See 5 C.F.R. 1201.31.  (You may use the Designation of Representative form, but no particular format is required)  If you submit your appeal online via e-Appeal, you may designate your representative as part of that process.

Additional Information and Resources.  The links on the left include Question and Answer (Q&A) documents relating to the appeals process in general, and on appeals that include claims of retaliation for whistleblowing.  An additional Q&A page relating to the MSPB's electronic filing system and online repository of adjudication documents is available when you click the "File Appeal" button at the left, which takes you to e-Appeal Online.

Procedures After an Appeal is Filed

The first thing that occurs following the filing of a new appeal is that the Administrative Judge (AJ) who has been assigned to the case will issue an Acknowledgment Order to both the appellant (and his or her representative, if any) and the agency.   The Acknowledgment Order transmits a copy of the appeal to the agency and directs the agency to submit a statement as to its reason for taking the personnel action or decision being challenged, together with all documents contained in the agency record of the action.  If there appear to be questions relating to the timeliness of the appeal, or whether the action or decision complained of is within the Board's jurisdiction, the Acknowledgment Order will order the appellant to submit evidence and argument on these matters. The AJ may also raise such issues later, during the adjudication of the appeal.

As the proceeding progresses, the AJ will issue notices and orders as to pleadings that must be filed.  Pleadings may be filed online at the Board's e-Appeal web site, or by regular mail, fax, or commercial or personal delivery.  Ordinarily, the AJ conducts one or more status or prehearing conferences to narrow and clarify the issues in the appeal.  Following a hearing, or the close of the record when an appeal is decided on the written record, the AJ will issue an initial decision.  An initial decision must identify all material issues of fact and law, summarize the evidence, resolve issues of credibility, and include the Administrative Judge's conclusions of law and his legal reasoning, as well as the authorities on which that reasoning rests.  Spithaler v. Office of Personnel Management, 1 M.S.P.R. 587, 589 (1980).

The Petition for Review Process

When appellants or agencies are dissatisfied with an initial decision, they may file a petition for review with the Clerk of the Board in Washington D.C. Appellants who are dissatisfied with an initial decision have the alternative of filing a petition with the United States Court of Appeals for the Federal Circuit as described below. Petitions for review are considered by the three Board members, who issue a final decision. Petitions for review may be filed via the e-Appeal website (choose File a Pleading in an Existing Proceeding) or by traditional means. No specific format is required for filing a petition for review.

Where to File.  A petition for review must be filed in writing with the Clerk of the Board.  This can be done via e-Appeal, by fax (202) 653-7130, or by postal mail or commercial or personal delivery at 1615 M Street, NW, Washington, DC 20419.

When to File.  A petition for review must be filed within 35 days after the date of issuance of the initial decision or, if the petitioner shows that the initial decision was received more than 5 days after the date of issuance, within 30 days after the date the petitioner received the initial decision. A cross petition for review must be filed within 25 days of the date of service of the petition for review. (A pleading is considered to be a cross petition for review when one party has already submitted a petition for review and the other party also objects to some aspect of the initial decision.) Any response to a petition for review or to a cross petition for review must be filed within 25 days after the date of service of the petition or cross petition. Any reply to a response to a petition for review must be filed within 10 days after the date of service of the response to the petition for review. A petition for review, cross petition for review, or response to a petition for review or cross petition for review is limited to 30 pages or 7500 words, whichever is less. A reply to a response to a petition for review is limited to 15 pages or 3750 words, whichever is less. 5 C.F.R.  1201.114(e), (h).

Legal standards Governing Petitions for Review.  The law provides that an agency's decision may not be sustained by the Board if the appellant:

(A) shows harmful error in the application of the agency's procedures in arriving at such decision;

(B) shows that the decision was based on any prohibited personnel practice described in 5 U.S.C. 2302(b); or

(C) shows that the decision was not in accordance with law.

5 U.S.C. 7701(c)(2).  Reversal for "harmful error" is appropriate only when the record shows that the procedural error was likely to have caused the agency to reach a conclusion different from the one it would have reached in the absence or cure of the error.  An agency action will be reversed as being "not in accordance with law" only when it is unlawful in its entirety, i.e., if there is no legal authority for the action. 

Section 1201.115 provides that situations in which a petition for review or cross petition for review may be granted include, but are not limited to, a showing that:

(a) The initial decision contains erroneous findings of material fact. (1) Any alleged factual error must be material, meaning of sufficient weight to warrant an outcome different from that of the initial decision. (2) A petitioner who alleges that the judge made erroneous findings of material fact must explain why the challenged factual determination is incorrect and identify specific evidence in the record that demonstrates the error. In reviewing a claim of an erroneous finding of fact, the Board will give deference to an administrative judge's credibility determinations when they are based, explicitly or implicitly, on the observation of the demeanor of witnesses testifying at a hearing.

 

(b) The initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case. The petitioner must explain how the error affected the outcome of the case.

 

(c) The judge's rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case.

 

(d) New and material evidence or legal argument is available that, despite the petitioner's due diligence, was not available when the record closed. To constitute new evidence, the information contained in the documents, not just the documents themselves, must have been unavailable despite due diligence when the record closed.

Please do not submit as attachments to your petition for review copies of documents that are already part of the record.  Such documents are already included in the case file that will be reviewed by the Board.  When attachments are included with a petition for review, the Board must determine whether the petitioning party is attempting to introduce new and material evidence, or is merely attaching additional copies of documents that are already in the record.  If you are submitting new documents, you should not only say so explicitly in your petition for review, you need to explain why the documents are new and material.

In Weaver v. Department of the Navy, 2 M.S.P.R. 129, 133 (1980), review denied, 669 F.2d 613 (9th Cir. 1982) (per curiam), the Board set forth what must be established to overturn an Administrative Judge's factual findings:

Board review of the [administrative judge's] fact finding will ordinarily be undertaken only when the petitioning party makes a showing consistent with 5 C.F.R. 1201.115[], which requires a demonstration that the initial decision is based on an erroneous interpretation (or application) of the statutory requirements governing the weight of the evidence.  While the language of the petition may be simply drawn, there must be at least enough specified in the petition to enable the Board to ascertain whether there may be a serious evidentiary question justifying a complete review of the record.  . . . .  Before the Board will undertake the burden of a complete review of the record, the petitioning party must, as the regulation plainly states, explain in the petition why the challenged factual determination is incorrect, and identify the specific evidence in the record which demonstrates the error. 

Judicial Review

Any employee or applicant for employment adversely affected or aggrieved by a final order or decision of the Merit Systems Protection Board may obtain review of the order or decision by filing a petition with the United States Court of Appeals for the Federal Circuit or, in cases involving allegations of discrimination, to the Equal Employment Opportunity Commission or to a U.S. District Court.  5 U.S.C.  7703.  The Director of OPM may petition the Board for reconsideration of a final decision, and may also seek judicial review of Board decisions that have substantial impact on a civil service law, rule, regulation or policy.  A petition to review a final decision of the Board must be filed with the Court of Appeals for the Federal Circuit within 60 days after the date the petitioner received notice of the final order or decision of the Board. 

For court rules and forms, we recommend that you visit the Federal Circuit's website.