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    The US Merit Systems Protection Board (MSPB or the Board) has a jurisdiction over certain federal
    employment issues.  (For private employment cases, see EEOC process.)

    MSPB has a jurisdiction over federal Agency actions involving reduction in grade or pay, removal,
    suspension for more than 14 days, furlough for 30 days or less, and other appealable actions.  See Title 5
    C.F.R. § 1201 governing the MSPB and the hearing.

    Probationary federal employees can appeal on a limited bases (i.e., issues involving adverse actions
    mentioned above related to partisan politics and other violations, but not for discrimination under Title VII
    or violation of Douglas Factors; see Title 5 C.F.R., §315.806).  

    The MSPB appeal form (186), http://mspb.gov/howtoappeal.html, contains many useful informations
    regarding its jurisdiction and the types of federal employment laws the MSPB enforces.

    If an appeal is filed with MSPB, the Agency, the defendant, has the burden of proof before the Board to
    justify its action adversely taken against you for which you have appealed and over which it has
    jurisdiction.  In addition to discrimination matters, the Douglas Factors, the Prohibited Personnel Practices,
     and other issues under its jurisdiction are appealable before the Board.  

    MSPB may consider issues involving unlawful discrimination in a "mixed case" (including termination as
    result of denied reasonable accommodations in a disability case).  You must raise discrimination as part
    of your affirmative defense.  If you do, you assume the burden of proof.

    (Generally, "constructive discharge" issues involving non-probationary federal employees are appealable
    only to the MSPB, and not to EEOC.  See EEOC's Equal Employment Opportunity Management Directive;
    29 C.F.R. Part 1614, (EEO-MD-110) ("MD-110"), Chapter 4, Section II.B., pages 4-2 through 4-5.  "When
    allegations of discrimination are alleged in connection with an alleged involuntary resignation or
    retirement, they may be addressed only insofar as they are related to the issue of voluntariness.  The
    Board will not consider whether such evidence meets the test for proof of discrimination established
    under the civil rights laws ... or ... on prohibited personnel practices.  See ...71 MSPR 574, 578-80 (1996);
    ... 53 MSPR 434, 438-39 (1992)."  Sited from a Judge's conference report (SF 0752-07-0642-I-1).)

    Any and all disciplinary actions less than 15-day suspensions are not considered by MSPB except as a
    background information or as part of the affirmative defense, if raised, involving discrimination claims.  
    You can present disciplinary actions of less than 15-day suspensions to establish the pattern of
    discriminatory practice, if you want to argue that your removal or 15 day suspension was the culmination of
    the continuing discriminatory practice of the Agency in the past.  

    Note: MSPB does not recognize or may not be aware of the Agency's (EEO) Investigative File, including the
    Report of the Investigation or Final Agency Decision rendered on EEO matters, unless you submit it (or
    parts of it) to the Board as evidence before the hearing.  

    Once your appeal is accepted, the MSPB administrative judge issues an Acknowledgment Order and
    Scheduling Order to set up a pre-hearing conference and a hearing.  These Orders must be adhered to,
    as they contain important deadlines.  If you miss the deadlines, your case may be severely weakened as
    result.  This is so because the Orders govern the protocols pertaining to the entire hearing process and
    proceeding.  The Orders contain the important deadlines pertaining to filing a motion, responding to a
    motion, pre-hearing requirements, etc.  (See below for more information.)  See a sample of
    Acknowledgment Order.

    You have a right to request relevant and material information and documents from the Agency.  This right
    can be exercised by engaging in the discovery, by serving the Agency counsel your Interrogatories and
    Request for Production of Documents.  The discovery request must be initiated within 20 days of issuance
    of the Acknowledgment Order.  See discoveries for more information.

    The Agency is required to file its narrative response to your appeal within a certain days of your appeal.  Th
    e Agency narrative response, along with the attachments therein, is admitted as part of the Board's record,
    which can be referred to during the hearing or in your motions.  In a similar fashion, you will be asked to
    file a pre-hearing report.  Your pre-hearing report should include an inventory of documents and a list of
    witnesses and their contact information; statement of facts and argument; and supporting documents you
    want to submit as part of record.  Documents in your pre-hearing report should be marked with a set of
    tabs different from the Agency's tabs.  (See the Acknowledgment Order.)  

    All submissions must be served to the judge and to the Agency's designated counsel with a certificate of
    service attached.  There is a short discovery period within which you can send interrogatives for the
    Agency's decision maker to respond and can demand the Agency to produce documents.  The Agency will
    most likely require you to respond to its interrogatories and request for document production as well.  
    Discovery requests must be sent to the agency counsel, not to the judge.  Any problems or unresolved
    issues during the discovery period can be addressed by filing a motion to the judge.  More on discovery
    requests and how to obtain documents and information from the Agency.

    At the pre-hearing conference--which is usually conducted by phone among the judge, you (the appellant)
    and Agency counsel--the issues to be addressed at the hearing are identified and determined (issues
    involving discrimination, Douglas factors, Prohibited Personnel Practices, and others, if timely); and
    witnesses and evidence admission are agreed upon or ruled by the judge.  After the pre-hearing, the
    judge may issue a conference report summarizing the pre-hearing discussions, determinations, and on
    what was agreed upon by both parties.

    At the MSPB hearing (which can be also conducted via phone or video conference) the judge announces
    the issues to be examined.  The order of the witness appearance may be decided.  The witnesses are
    questioned, cross-examined, and re-addressed.  Evidence are presented or referred to from the prior
    submissions admitted into record.  The closing arguments from both sides are heard.  Judges like to
    complete the hearing within a day or two.  The hearing transcript may be purchased from the Board once it
    is made available.

    The judge's decision may be appeal for a further review by the Board.  The Board's review, however, will
    only address issues involving judge's legal errors involving application of law or procedures.

    If and when the Board issues a decision on a "mixed case," the appellant may petition EEOC for review of
    the Board decision concerning the claim(s) of discrimination.

    MSPB hearing is open to public, unless the judge closes it for protection of witness or for other valid
    reasons.

    Related website: US Office of Special Counsel (OSC)


    The information contained in this page are subject to change and update.  EEO 21 does not take responsibility for any
    errors or misrepresentation contained therein.
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