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An Introduction to MSPB
The Board's Mission
The U.S. Merit Systems Protection Board is an independent agency in the
Executive branch of the Federal Government whose mission is to ensure that Federal employees are protected against abuses
by agency management, that Executive branch agencies make employment decisions in accordance with the merit system principles,
and that Federal merit systems are kept free of prohibited personnel practices.
The Board accomplishes its mission by:
- Hearing and deciding employee appeals from agency actions,
- Hearing and deciding cases brought by the Special Counsel
involving alleged prohibited personnel practices, as defined in Title 5, Section 2302, of the United States Code, and other
cases arising under the Board's original jurisdiction; and
Conducting studies of the civil service and other merit systems
in the Executive branch to determine whether they are free of prohibited personnel practices.
MSPB Appellate Jurisdiction
The CSRA authorized the Board to hear appeals of various agency actions,
including appeals previously heard by the Civil Service Commission and appeals arising from new causes of action created by
the CSRA. Certain other actions may be appealed to the Board under OPM regulations. Since a principal purpose of the CSRA
was to streamline Federal personnel management, Congress did not make all personnel actions appealable to the Board. Some
actions that are not appealable to the Board may be appealable to OPM or may be covered by agency grievance procedures.
Actions that May Be Appealed to the Board
The majority of the cases brought to the Board are appeals of
agency adverse actions--that is, removals, suspensions of more than 14 days, reductions in grade or pay, and furloughs of
30 days or less. Appeals of OPM determinations in retirement matters are also a major category of appeals. Other types of
actions that may be appealed to the Board include: performance-based removals or reductions in grade, denials of within-grade,
salary increases, reduction-in-force actions, OPM suitability determinations, OPM employment practices (the development and
use of examinations, qualification standards, tests, and other measurement instruments), denials of restoration or reemployment
rights, and certain terminations of probationary employees.
While the Board has jurisdiction over mixed case appeals, the employee,
if dissatisfied with the final decision of the Board, may ask the Equal Employment Opportunity Commission (EEOC) to review
the Board's decision. If the EEOC and the Board cannot reach agreement, the case is referred to the Special Panel for final
resolution. (The Special Panel is made up of a Chairman appointed by the President, one member of the Board appointed by the
MSPB Chairman, and one EEOC commissioner appointed by the EEOC Chairman.) A discrimination complaint in connection with an
action that is not appealable to the Board may be pursued through internal agency procedures and the EEOC.
The Board also hears complaints of alleged violations of the Uniformed Services
Employment and Reemployment Rights Act (USERRA) and the Veterans Employment Opportunities Act (VEOA), and complaints from
White House employees of alleged violations of civil rights and employment laws under the Presidential and Executive Office
Accountability Act.
If a personnel action involves a prohibited personnel practice, regardless
of whether the action is otherwise appealable to the Board, the employee may file a complaint with the Special Counsel, asking
that the Special Counsel seek corrective action from the Board. Under the Whistleblower Protection Act of 1989, an individual
who alleges that a personnel action was taken, or not taken, or threatened, because of "whistleblowing" may seek corrective
action from the Board directly if the Special Counsel does not seek corrective action on his or her behalf.
Additional jurisdictional issues arise when the employee is a member of
a bargaining unit that has a negotiated grievance procedure covering any of the actions that may be appealed to the Board.
In such instances, the employee normally must pursue a grievance through the negotiated grievance procedure. There are three
exceptions to this general rule, however:
- When the action is an adverse action under Title 5,
Chapter 75 of the United States Code, or a performance-based action under Title 5, Chapter 43 of the United States Code;
- When the employee raises an issue of prohibited discrimination
in connection with the action; and
- When the employee alleges that the action was the result
of a prohibited personnel practice other than discrimination.
If any of these exceptions applies, the employee has the choice of using the negotiated grievance procedure or filing
an appeal with the Board, but may not do both. (Under the
terms of some union contracts, Postal Service employees may be able to pursue a grievance under the negotiated grievance procedure
and also file an appeal with the Board.)
Employees Who May Appeal to the Board
For the Board to have jurisdiction over any appeal of a personnel action,
it must possess jurisdiction over both the action and the employee filing the appeal. Whether employees are eligible to appeal
specific actions depends on the law and regulations governing those actions.
- Postal Service employees who may appeal adverse actions
are preference-eligible employees with at least one year of continuous service and certain Postal Service supervisors, managers,
and employees engaged in personnel work.
An appellant files
an appeal with the appropriate MSPB regional or field office having geographical jurisdiction. An administrative judge in
the regional or field office issues an initial decision. Unless a party files a petition for review with the Board, the initial
decision becomes final 35 days after issuance. Any party, or OPM or the Special Counsel, may petition the full Board in Washington to review the initial decision. The Board's decision on a petition for review is
final and constitutes final administrative action.
The Board's choice of
remedies or corrective actions depends on the type of case before it. In corrective action cases, the Board may order the
agency to take necessary steps to correct the prohibited personnel practices or pattern of such practices. In disciplinary
actions other than those involving Hatch Act violations, the Board may order the employee's removal, reduction in grade, suspension,
reprimand, debarment from Federal employment for a period not to exceed five years, or a fine up to $1,100. In Hatch Act cases
involving Federal or District of Columbia government employees, the Board may order removal of the employee
or, if the Board unanimously finds that removal is not
warranted, it may order a suspension of not less than 30 days. In Hatch
Act cases involving state or local government employees, the Board may determine only whether the employee's removal is warranted.
Most original jurisdiction
cases are processed at Board headquarters. Special Counsel disciplinary actions and actions against administrative law judges
are heard by the Board's Chief Administrative Law Judge. Special Counsel corrective actions and Senior Executive Service (SES)
performance-based removal cases may be assigned to the Chief Administrative Law Judge or to a judge in a regional or field
office. In Special Counsel corrective and disciplinary actions, and in actions against administrative law judges, an initial
decision is issued, and any party may petition the Board to review the decision. The Board acts on Special Counsel stay requests
and petitions to review OPM regulations. In Senior Executive Service performance-based removal cases, there is no action by
the Board and any recommendation issued is not binding on the agency.
Judicial Review
A final Board decision, whether it is an initial decision of a judge that
has become final, a Board decision on a petition for review, or a final decision issued by the Board, may be appealed to the
United States Court of Appeals for the Federal Circuit. The only exceptions are:
- Cases involving allegations of discrimination, which
may be appealed to a U.S. district court or the Equal Employment Opportunity Commission, and
- Hatch Act cases involving state or local government
employees, which may be appealed to a U.S. district court.
The Director of OPM may petition the full Board for reconsideration of a
final decision and may also seek judicial review of Board decisions that have a substantial impact on a civil service law,
rule, regulation, or policy.
Regional and Field Offices
A listing of MSPB regional and field offices is available at the MSPB World
Wide Web site at www.mspb.gov. You may contact those offices to file an appeal or if you have questions or need additional
information.
U.S. Merit Systems Protection Board, 1615 M Street, NW., Washington, DC 20419-0001, (202) 653-7124, Toll Free 1-800-209-8960, V/TDD 1-800-877-8339 (Federal Relay Service)
Format and Means of Filing. 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 Board appeals); 1203.11 (request for regulation review); 1208.13 (Uniformed Services Employment and Reemployment Rights Act (USERRA)); 1208.23 Veterans Employment Opportunities Act (VEOA)); 1209.6 (individual right of action (IRA) appeal - whistleblowing).
You may use the Board's form (Form 185) to
complete an appeal, but any written format is acceptable. A paper appeal (either
Form 185 or the appellant's letter or other written format) can be filed by regular mail, facsimile (fax), or commercial or
personal delivery.
e-Appeal. An appeal may be prepared and filed electronically
using e-Appeal, the Board's Internet filing procedure. e-Appeal is an interactive application that follows an interview
format, and includes Question and Answer and other Help links appropriate to each section of the interview. e-Appeal is the only means allowed for filing an appeal electronically.
On-going Electronic Filing. A party or representative who
wishes to engage in electronic filing on an ongoing basis may do so by registering as an e-filer at the Board's e-Appeal website.
Those who register as e-filers can file pleadings and receive Board documents and pleadings from other e-filers in electronic
form.
Where to File. You must file an appeal with the Board'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.
Northeastern Regional Office, William
L. Boulden, Regional Director and Chief Administrative Judge,
U.S. Customhouse, Room 501, Second & Chestnut Streets, Philadelphia, PA 19106-2987 Ph: (215) 597-9960 FAX (215) 597-3456
philadelphia@mspb.gov
When to File. Usually, 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).
Date of Filing. The date of filing for a paper appeal is
the date your appeal is postmarked, the date of the facsimile transmission, the date it is delivered to a commercial delivery
service, or the date of receipt if you personally deliver it to the regional or field office.
If you file an appeal or other pleading online
using e-Appeal, the filing date is the date that you electronically submit the document to the Board.
Designation of 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 copies of the designation must be served on all parties to
the appeal.
If you register as an e-filer, you can file
a Designation of Representative online at the Board's e-Appeal website.
Filing a Petition for Review. A petition for review of an
initial decision may be in any form, but must state objections to the initial decision that are supported by references to
applicable laws or regulations and by specific references to the record. Although no particular format is required for a petition
for review, you may use the Board's form by clicking the button on the left.
For more information, see 5 CFR §§ 1201.114 and 1201.115.
You may file a petition for review in electronic
form if you have registered as an e-filer in accordance with 5 C.F.R. º 1201.14.
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