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 jurisdiction over federal Agency actions involving reduction in grade or pay, removal, suspension of
more than 14 days, furlough of 30 days or less, and other appealable actions. See
Title 5 C.F.R. § 1201.3 governing MSPB jurisdiction.
S.C. Section 3330a(d)(1). The Board has jurisdiction over denied promotion in retaliation for
whistleblowing. See 5 U.S.C. § 2302(a)(2)(A)(i). It also has jurisdiction over denied promotion in
discrimination based on uniformed service. See 38 U.S.C. §§ 3311, 4324.
US Postal employees cannot appeal to MSPB unless he or she is a managerial employee, a
supervisory employee, or a personnelist; or is eligible for veterans' preference. See 5 U.S.C. Chapter 75
governing MSPB's jurisdiction. However, he or she may appeal to MSPB if he or she is partially
recovered from a compensable injury such as injuries pertaining to the Workers' Compensation
Program. See 5 C.F.R. Section 353.304(c). Under certain circumstances, a restoration (of light duty
position) may be so unreasonable as to constitute a denial of restoration that is within the MSPB's
jurisdiction. See Myrick v. US Postal Service, 21 M.S.P.R. 79, 81 n.2 (1984).
Probationary federal employees can appeal on a limited bases (i.e., on issues involving adverse actions
mentioned above involving 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).
decisions. See 5 U. S. C. § 8461(e)(2); 5 C. F. R. § 841.308.
The MSPB appeal form (186), http://mspb.gov/howtoappeal.html, contains useful information regarding its
jurisdiction and the types of federal employment laws the MSPB enforces.
action adversely taken against you for which you have appealed to the Board. In addition to discrimination
matters, the Douglas Factors, the Prohibited Personnel Practices, and other issues under the Board
jurisdiction are appealable to the Board.
US Code Title 5, Part III, Chapter 43 (check your SF-50 to see if Chapter 43 is cited), the Douglas Factors do not
apply. Rather, Agency in such cases must substantiate that: (1) the individual's performance failed to meet the
established performance standards in one or more critical elements of his position; (2) the agency established
performance standards and critical elements and communicated those to the individual at the beginning of the
performance appraisal period; (3) the agency warned the individual of the inadequacies of his performance
during the appraisal period and gave him an adequate opportunity to improve; and (4) after an adequate
improvement period, the individual's performance remained unacceptable in at least one critical element.
Removal Based on Unacceptable Conduct
When an individual is removed from federal employment based on unacceptable conduct issues under US
Code Title 5, Part III, Chapter 75, Agency must consider the Douglas Factors when considering the disciplinary
MSPB may consider appealable actions (by Agency) involving unlawful discrimination in a "mixed case"
(including removal as result of denied reasonable accommodations). You must raise discrimination as part of
your affirmative defense. If you do, you assume the burden of proof for establishing discrimination.
claims are raised as affirmative defense in MSPB appeal. Appellant must respond to the Order laying out the
facts and evidence along the line laid out by AJ in the Order. See an Order regarding affirmative defense and a
response to the Order.
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 (in a case
within the MSPB's jurisdiction such as a "mixed case"). 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
suspension of 15 days or more was the culmination of the continuing discriminatory practice by the Agency.
complaint or at any time after the expiration of 120 calendar days from the formal EEO complaint if the agency
has not resolved the matter or has not issued a final decision. See 5 C.F.R. Section 1201.154(b). See MSPB
AJ's decision accepting an appeal filed after 120 days of a formal EEO complaint with no issuance of Final
Agency Decision at the time of appeal.
on your removal within 45 days of removal, wait for 120 days for investigation to take place, and then file
an MSPB appeal on your removal (if Report of Investigation has not been issued). This way, you may
have MSPB hearing faster than EEOC hearing. (EEOC hearing can be requested after 180 days from
filing a formal EEO complaint).
by the Board’s administrative judges. See 5 U.S.C. § 7121(d); Ariza v. Department of Education, 36 M.S.P.R.
54, 55 n.1 (1988). Request for review must be sent to:
Merit Systems Protection Board
1615 M Street, NW.
Washington, DC 20419
A request for review of an arbitrator’s decision must be filed within 35 days after the date of issuance of the
decision, or, if the appellant shows that the decision was received more than five days after the date of
issuance, within 30 days after the appellant received the
decision. 5 C.F.R. § 1201.154(d).
The scope of the Board’s review of an arbitrator’s award is limited; such awards are entitled to a greater degree
of deference than initial decisions issued by the Board’s administrative judges. Weaver v. Social Security
Administration, 94 M.S.P.R. 447, ¶ 8 (2003); Higgs v. Social Security Administration, 71 M.S.P.R. 48, 50 (1996).
The Board will modify or set aside an arbitration decision only where the arbitrator has erred as a matter of law
in interpreting civil service law, rule, or regulation. Weaver, 94 M.S.P.R. 447, ¶ 8. Absent legal error, the Board
cannot substitute its conclusions for those of the arbitrator, even if it would disagree with the arbitrator’s
Note: MSPB (or "the Board") 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 MSPB as evidence before the hearing.
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.
The Order governs the protocols pertaining to the entire hearing process and proceeding. It contains the
important deadlines pertaining to filing a motion, responding to a motion, pre-hearing requirements, etc. (See
below for more detail.) See a sample of Acknowledgment Order.
MSPB hearings move swiftly.
exercised by engaging in the discovery authorized by the judge via Acknowledgment Order, which involves
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
The Agency is required to file its narrative response to your appeal along with Agency Flie within 20 days of
issuance of Acknowledgment Order. The 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. Discovery must begin within
30 days of issuance of Acknowledgment Order. But it is better to wait until Agency File is submitted (by Agency
counsel), so that you can requests documents and serve interrogatories on what Agency produced in its
narrative response and in Agency file.
After discovery period has elapsed, you will be asked to file a prehearing report. Your prehearing 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 the hearing record. Documents in your
prehearing report should be marked as exhibits in alphabetical order. (See the Acknowledgment Order for
the list of exhibits in the prehearing report and want actual copies at the hearing.
designed to avoid any "trial by ambush." No one wants to be surprised at the hearing. No hidden evidence is
allowed to be used at the hearing. (Exception: if a record was not available or could not be obtained by the
prehearing report submission date, and it had surfaced afterwards, you may be able to use it at the hearing.)
hearing record. AJ won't be able to use it as evidence. So, make sure that such records are submitted at the
hearing and accepted by AJ (over Agency's likely objection).
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 prehearing 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 the
adverse actions in question, affirmative defense if any, etc.); and the witnesses and the exhibits are disputed
and determined. After the prehearing conference, the judge should issue a conference report summarizing the
prehearing discussions, determinations, and the rulings if any.
At the MSPB hearing (which can also be conducted via phone or video conference) the judge announces the iss
ues to be examined. The order of the witness appearance may be decided between the parties. Since the
Agency has the burden of proof (for taking the adverse action in question), Agency management witnesses are
usually called first before Complainant or her witnesses. The witnesses are questioned, cross-examined, and
re-crossed 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 in order to cite
testimonies or AJ's conduct, if you want to file a Petition for Review (to challenge AJ's Initial Decision).
ress issues involving judge's legal errors involving application of law or procedural rulings, omission of facts or
evidence, misinterpretation of facts or evidence, and on judge's abuse of discretion, if any.
If and when the Board issues a decision on a "mixed case," the appellant may petition
EEOC (Office of Federal Operations) for review of the Board's decision concerning discrimination claims only.
other valid reasons.