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 complete list of the matters over which the Board has been given 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.
When you are ready to prepare and file an appeal, click
here.
This link will take you to the MSPB’s e-Appeal
Online web site, 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 will have the option of
downloading the Board’s Appeal Form and filing 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 document required to be filed
with most appeals is the notice of the decision to take the action being
appealed. 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.
Although other documents may be filed with the appeal, the Board would prefer
that other documents not 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.
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. (A link to a
Designation of Representative Form is provided on the left side of this page,
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
Acknowledgement 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.
As the proceeding progresses,
the Administrative Judge 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 (PFR)
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 web site (choose File a Pleading in an Existing Proceeding)
or by traditional means. A form is
provided
here, but no specific format is required.
Where to File.
A petition for review must be filed 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 PFR when one party has already submitted
a PFR 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. 5 C.F.R. § 1201.114(d).
Legal standards Governing
PFRs. 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 section 2302(b) of this
title; 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 of the Board’s regulations provides that a PFR “must state
objections to the initial decision that are supported by references to
applicable laws or regulations and by specific references to the record.”
This regulation further provides that a PFR may be granted when it is
established that:
1. New and material evidence is available that, despite due diligence, was not
available when the record closed; or
2. The decision of the judge is based on an erroneous interpretation of statute
or regulation.
Evidence is “material” when it
is of sufficient weight to warrant an outcome different from that of the initial
decision.
Russo v. Veterans Administration, 3 M.S.P.R. 345, 349 (1980). For
documents to be considered “new,” the information contained in the documents,
not just the documents themselves, must have been unavailable despite the
petitioner’s due diligence when the record closed.
Grassell v. Department of Transportation, 40 M.S.P.R. 554, 564 (1989).
Please do not submit
copies of documents that are already part of the record as attachments
to your petition for review. Such
documents are already included in the case file that will be reviewed by the
Board. When attachments are
included with a PFR, 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 web site
here.