Merit Systems Protection Board
The Merit Systems Protection Board (MSPB) is an independent, quasi-judicial agency in the Executive Branch whose primary mission is to ensure that federal employees are protected against abuses by agency management, that agencies make employment decisions in accordance with the merit system principles, and that federal merit systems are kept free of prohibited personnel practices. MSPB can be contacted at: 1615 M St. N.W., Washington, DC 20419; phone (202) 653-7200, fax (202) 653-7130, TDD (800) 877-8339, www.mspb.gov.
MSPB adjudicates appeals from federal personnel actions worldwide including individual right of action appeals brought by whistleblowers who have exhausted the procedures of the Office of Special Counsel, as well as cases brought by the Special Counsel involving alleged abuses of the merit systems or Hatch Act violations (see Section 4 of this chapter). It also produces reports on various personnel issues, conducts studies of the civil service and other merit systems to determine whether they are free of prohibited personnel practices, and reviews the significant actions and regulations of the Office of Personnel Management to determine whether they are in accord with the merit system principles.
The Board consists of a chairman, a vice-chairman and a member, with no more than two of its three members from the same political party. Board members are nominated by the President subject to confirmation by the Senate, and serve overlapping, nonrenewable, seven-year terms.
Merit System Principles
Civil service law (5 U.S.C. 2301(b)) requires that federal personnel management be implemented consistent with the following merit system principles:
• Recruitment should be from qualified individuals from appropriate sources to achieve a workforce from all segments of society, and selection and advancement should be determined solely on the basis of relative ability, knowledge, and skills, after fair and open competition which assures that all receive equal opportunity.
• All employees and applicants for employment should receive fair and equitable treatment in all aspects of personnel management without regard to political affiliation, race, color, religion, national origin, sex, marital status, age, or handicapping condition, and with proper regard for their privacy and constitutional rights.
• Equal pay should be provided for work of equal value, with appropriate consideration of both national and local rates paid by employers in the private sector, and appropriate incentives and recognition should be provided for excellence in performance.
• All employees should maintain high standards of integrity, conduct, and concern for the public interest.
• The federal workforce should be used efficiently and effectively.
• Employees should be retained on the basis of the adequacy of their performance, inadequate performance should be corrected, and employees should be separated who cannot or will not improve their performance to meet required standards.
• Employees should be provided effective education and training in cases in which such education and training would result in better organizational and individual performance.
• Employees should be protected against arbitrary action, personal favoritism, or coercion for partisan political purposes, and prohibited from using their official authority or influence for the purpose of interfering with or affecting the result of an election or a nomination for election.
• Employees should be protected against reprisal for the lawful disclosure of information which the employees reasonably believe evidences a violation of any law, rule, or regulation, or mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.
It is a prohibited personnel practice to take or fail to take any personnel action if the taking of or failure to take the action violates any law, rule or regulation implementing or directly concerning these merit system principles.
Prohibited Personnel Practices
Prohibited personnel practices are those that, if committed, undermine the federal merit system. Generally, under 5 U.S.C. 2302(b), a federal employee authorized to take, direct others to take, recommend or approve any personnel action (such as an appointment, promotion, reassignment, or suspension) may not:
1. discriminate against an employee or applicant based on race, color, religion, sex, national origin, age, handicapping condition, marital status, or political affiliation;
2. solicit or consider employment recommendations based on factors other than personal knowledge or records of job-related abilities or characteristics;
3. coerce the political activity of any person;
4. deceive or willfully obstruct anyone from competing for employment;
5. influence anyone to withdraw from competition for any position so as to improve or injure the employment prospects of any other person;
6. give an unauthorized preference or advantage to anyone so as to improve or injure the employment prospects of any particular employee or applicant;
7. engage in nepotism (i.e., hire, promote, or advocate the hiring or promotion of relatives);
8. engage in reprisal for whistleblowing—i.e., take, fail to take, or threaten to take or fail to take a personnel action against an employee or applicant for disclosing to the Special Counsel, or to an Inspector General or comparable agency official (or others, except when disclosure is barred by law, or by Executive Order to avoid harm to the national defense or foreign affairs), information that the employee or applicant reasonably believes evidences a violation of any law, rule or regulation; gross mismanagement; a gross waste of funds; an abuse of authority; or a substantial and specific danger to public health or safety);
9. take, fail to take, or threaten to take a personnel action against an employee or applicant for exercising an appeal, complaint, or grievance right; testifying for or assisting another in exercising such a right; cooperating with or disclosing information to the Special Counsel or to an Inspector General; or refusing to obey an order that would require the individual to violate a law, rule or regulation;
10. discriminate based on personal conduct that is not adverse to the on-the-job performance of an employee, applicant, or others;
11. take or fail to take, recommend, or approve a personnel action if taking or failing to take such an action would violate a veterans’ preference requirement;
12. take or fail to take a personnel action, if taking or failing to take action would violate any law, rule or regulation implementing or directly concerning merit system principles at 5 U.S.C. 2301;
13. implement or enforce any nondisclosure form that does not include a notice that whistleblower protections still apply; or
14. access the medical record of an employee or applicant for employment as part of any of the above practices.
Types of Appealable Actions
Under 5 U.S.C. 7512, most federal employees are entitled to appeal to the MSPB certain personnel actions taken by agencies, including adverse actions (removals, suspensions of more than 14 days, reductions in grade or pay, and furloughs of 30 days or fewer), performance-based removals or reductions in grade, denials of within-grade increases, certain reduction-in-force actions, denials of restoration to duty or re-employment rights, removals from the SES for failure to be recertified, and OPM determinations in employment suitability and retirement matters. Special rules apply to whistleblowers, as described below.
A list of the matters over which the Board has jurisdiction is at 5 CFR 1201.3.
Note: Under a U.S. Supreme Court decision, Department of the Navy v. Egan, 484 U.S. 518, 531 (1988), the Board may review the removal action of an employee who was denied a security clearance only to determine whether the clearance was a requirement for the position and whether the agency’s internal procedures—such as giving written notice stating the specific reasons for the action—were followed and if not, whether that was harmful error. The Board may not examine the underlying merits of the security clearance determination. A 2013 decision by the U.S. Court of Appeals for the Federal Circuit, Kaplan v. Conyers (733 F.3d 1148), held further that a determination concerning eligibility to occupy a “non-critical sensitive” position, even if it does not involve access to classified information, is not reviewable. The U.S. Supreme Court in 2014 declined to hear an appeal of that decision.
Whistleblower law protects most Executive Branch employees from workplace reprisal for making certain disclosures of wrongdoing. You are protected if you make such a disclosure to the Office of Special Counsel, the inspector general of an agency, or another employee designated by an agency to receive such disclosures. You are also protected if you make such a disclosure to other individuals or organizations (e.g., a congressional committee or the media), provided that the disclosure other than to the OSC, the IG or designated official is not specifically prohibited by law and the information does not have to be kept secret in the interest of national defense or the conduct of foreign affairs.
Whistleblower retaliation can be found if an agency takes or fails to take, or threatens to take or fails to take, a covered personnel action against a covered person because of a protected disclosure. That principle similarly applies to protect employees who refuse to follow an order that would require them to violate a law, regulation or rule.
Generally, the protections may be asserted in: employee appeals to MSPB as part of an agency’s adverse action against an employee; actions instituted by the Office of Special Counsel; an “individual right of action” case before the MSPB, which is allowed if the appellant first filed a complaint with the Office of Special Counsel and the Special Counsel did not seek corrective action from the Board; or grievances brought by the employee under negotiated grievance procedures (see Appeal Procedures, below).
The Whistleblower Protection Enhancement Act of 2012 (P.L. 112-199) extended individual right of action appeals to persons alleging that they suffered retaliation for bringing a whistleblower reprisal claim, those who assisted another person in that person’s appeal, complaint or grievance, those who cooperate with an inspector general or OSC investigation, and those who refuse to obey an order that would require them to violate law (expanded by P.L. 115-40 of 2017 to also apply to orders that would require violating a rule or regulation). The 2012 law also:
• specified that in an MSPB appeal the employee must be allowed to first present his or her case before the agency presents its case;
• provided for compensatory damages for whistleblowers who prevail after an administrative hearing, including retaliatory investigations;
• created a pilot program, later made permanent by P.L. 115-195 of 2018, of allowing appeals of MSPB final decisions to a regional circuit court rather than only to the U.S. Court of Appeals for the Federal Circuit;
• provided OSC with authority to file a “friend of the court” brief in support of an employee appealing an MSPB ruling in court;
• made it easier for OSC to discipline those responsible for illegal retaliation by modifying burdens of proof for reprisal and ending OSC’s prior liability for attorney fees of government managers if OSC did not prevail in a disciplinary action;
• extended standard protections to Transportation Security Administration screeners and associated employees; and
• contained several notification, study and reporting requirements.
The Act also barred agencies from imposing nondisclosure agreements or policies unless they include language informing employees that their rights under whistleblower law are unaffected.
Note: Under P.L. 115-73 of 2017, if the MSPB grants a stay in a whistleblower case, the agency must give priority to a request from the employee, including a probationary employee, for a transfer.
Covered Personnel Actions—Covered personnel actions include such actions as appointments, promotions, discipline, details, transfers, reassignments, reinstatement, restoration, re-employment, performance evaluations, decisions concerning pay, benefits and awards, decisions concerning education or training that may reasonably be expected to lead to a personnel action, decisions to order psychiatric testing or examination, and any other significant change in duties, responsibilities, or working conditions. (Note: The decision by an agency to revoke a security clearance—even when that clearance is a required condition of employment—is not subject to review by the Special Counsel or adjudication by MSPB. See below for administrative protections.)
Protected Disclosures—A protected disclosure is one that shows:
• a violation of law, rule, or regulation;
• gross mismanagement;
• a gross waste of funds;
• an abuse of authority; or
• a substantial and specific danger to public health and safety.
A disclosure of any violation of law, rule, or regulation is protected, even if the violation is minor or technical. The violation could be of a federal or state statute, a government-wide regulation or an internal agency regulation or rule.
The gross mismanagement and gross waste of funds categories require a showing of significant wrongdoing. For example, a disclosure of a management decision that creates a substantial risk of significant adverse impact on the agency’s ability to accomplish its mission is protected, but a disclosure of a decision that is merely debatable is not protected.
A gross waste of funds occurs when the amount spent is significantly out of proportion to the value of the benefit received. An abuse of authority is an exercise of power that adversely affects someone’s rights or results in an advantage or personal gain to the wrongdoer or to people he favors. A “substantial and specific danger to public health and safety” cannot be remote or speculative. The key is not how many people might be affected by the risk, but how big the risk is, how serious the harm is, and how directly the wrongdoing causes the harm.
It is an act of whistleblowing to make a disclosure: even though another person previously has made a similar disclosure; as part of regular job duties; to a supervisor who participated in the alleged wrongdoing; regarding protection of critical infrastructure; alleging censorship of scientific or technical information; or that challenges the consequences of an agency policy decision (although mere disagreements over the validity of policy decisions are not protected). See 5 CFR 1201 and 1209.
Persons Covered—Generally, current employees, former employees, or applicants for employment to positions in the Executive Branch in both the competitive and the excepted service, as well as positions in the Senior Executive Service, are considered covered employees.
Positions that are excepted from the competitive service because of their “confidential, policy-determining, policy-making, or policy-advocating character,” and any positions exempted by the President based on a determination that they are necessary and warranted by conditions of good administration, are not protected by the whistleblower statute. Moreover, the statute does not apply to workers employed by the Postal Service, Postal Regulatory Commission, Government Accountability Office, or any Executive Branch entity that primarily conducts foreign intelligence or counter-intelligence activities. Also excluded are “Title 42” employees, most of whom are research and medical experts hired under special appointing authority.
Separate procedures apply to employees of the FBI. Under 5 U.S.C. 2303 as amended by Public Law 114-302 of 2016, protected disclosures include those made to any supervisor in their direct chain of command, to certain offices of the FBI or Justice Department, to the Office of Special Counsel and to Congress; it is not necessary that a disclosure be made first to an immediate supervisor. Those revisions also updated the personnel actions deemed to be retaliatory to mirror those applying to other federal employees and made the Office of Inspector General the sole entity responsible for investigating reprisal complaints.
See below for policies applying to intelligence community employees.
Legal Standards—he standard of proof for judging whether an employee had a “reasonable belief” that the disclosed information qualifies for protection is whether a disinterested observer with knowledge of the essential facts available to the employee could reasonably conclude that the actions of the government evidence a violation, mismanagement, waste, abuse or danger under the law.
For an agency decision to be held retaliatory, the whistleblowing must be a contributing factor in the agency’s decision. That can be proven by: showing that the deciding official knew of the disclosure and that the adverse action was initiated within a reasonable time of that disclosure (with no evidence of a retaliatory motive necessary), or through the combination of other evidence such as the strength or weakness of the agency’s reasons for taking the personnel action, whether the whistleblowing was personally directed at the proposing or deciding officials, and whether those individuals had a desire or motive to retaliate.
However, retaliation won’t be found if the agency demonstrates by clear and convincing evidence that it would have taken the same personnel action in the absence of the whistleblowing. This is determined by: whether the agency had legitimate reasons for the personnel action; the existence and strength of any motive to retaliate on the part of the agency officials who were involved in the decision to take the personnel action; and any evidence that the agency takes similar personnel actions against employees who are not whistleblowers but who are otherwise similarly situated.
Mandatory Discipline—P.L. 115-73 of 2017 required discipline of management officials who are found—by the head of the agency, an administrative law judge, the MSPB, the Special Counsel, a federal judge, or the Inspector General of the agency—to have taken a retaliatory personnel action as described above against employee who made a protected disclosure. For a first offense, discipline must range between a three-day suspension and removal; for a second offense, removal is required. The period for notice and opportunity to respond is shortened to 14 days. Once the action is effective, standard appeal rights apply. Rules to put those requirements into effect had been proposed but not finalized as of the publication of this edition of the Federal Employees Almanac.
Monitoring of Communications—Under Office of Special Counsel memos to agencies of June 20, 2012 and February 1, 2018, agencies must assure that their policies regarding monitoring of communications including e-mails, computer files, or conversations do not interfere with or dissuade employees from whistleblowing. Deliberate targeting by an agency of an employee’s submission or draft submissions to the OSC or an inspector general, or deliberate monitoring of communications between the employee and the OSC or IG in response to such a submission by the employee, could lead to a determination that the agency has retaliated against the employee for making a protected disclosure. The same applies to disclosures to agency leadership, to officials outside their chain of command, to Congress, or to the media.
The latter memo further said that employees “should not be reported for making lawful disclosures, as this creates a false impression that they have engaged in misconduct. Moreover, reporting whistleblowers may suggest that they are being tracked by their agencies. Both of these circumstances discourage employees from making protected disclosures and impede efforts to reduce government waste, fraud, and abuse.”
Department of Veterans Affairs—Special whistleblowing-related policies apply at the Department of Veterans Affairs under P.L. 114-223 of 2016, which further ordered the department to create a central office—later designated as the Office of Accountability and Whistleblower Protection—to investigate disclosures made by VA employees.
The law set procedures for VA employees to make disclosures to their immediate supervisors (note: employees may still make disclosures in the ways described above). Within four days, the supervisor must provide a written report to the employee, the next higher supervisor and the central office on whether the supervisor determines there is a reasonable likelihood that the disclosure meets the standards for protection as described above. If the supervisor makes a positive determination, the notice must include steps the supervisor will take in response, and the supervisor must notify the employee of the right to request a transfer if desired; employees making such a request must be given preference to transfer. Supervisors also must produce monthly reports on disclosures they receive, including what actions were taken in response.
If the supervisor does not make a timely determination or if the employee believes the response did not adequately address the issue, the employee could pursue the matter through higher levels of supervision up to the department’s Secretary, with the same requirements applying at each level. Also, an employee may make the initial disclosure directly to a second-level supervisor if the first-level supervisor is a subject of the disclosure.
Further, performance evaluation criteria for supervisors must take into account their compliance with these obligations and any ruling against them of taking retaliation. Supervisors further would be ineligible for awards within one year of such a ruling, and the department could compel a supervisor to repay an award already paid for the pertinent time after such a finding. (Note: The law also required the VA to take disciplinary action against those found to have taken retaliation, under standards similar to those later applied government-wide under P.L. 115-73 of 2017, as described above.)
P.L. 115-41 of 2017 gave the Office of Accountability and Whistleblower Protection the authority to receive whistleblower disclosures and refer them to the pertinent investigative entity within the department if there is reason to believe those disclosures qualify as protected whistleblowing; investigate allegations whistleblower retaliation by supervisors; and issue reports on whistleblower protections and recommend policy changes. That law also revised many disciplinary and appeals practices at the department including separate policies if whistleblower retaliation is alleged, as described in Appeal Procedures, below.
Intelligence Community—An October 10, 2012 White House order to agencies (Presidential Policy Directive 19) prohibited whistleblower retaliation against employees of the intelligence community by an agency taking or failing to take, or threatening to take or fail to take, a range of personnel actions including decisions affecting eligibility for access to classified information.
The memo ordered agencies to provide a process for employees to seek review by the agency’s inspector general of personnel actions they allege to be retaliatory, using much the same policies and procedures used by MSPB to adjudicate whistleblower complaints by federal employees in general. The IG may recommend specific corrective action to return the employee, as nearly as practical and reasonable, to the position the employee would have held had the reprisal not occurred. This includes reinstatement, reassignment, back pay, legal fees, compensatory damages and other remedies. An agency head must “carefully consider” the IG’s findings and recommendations but compliance with those recommendations is not mandatory. Employees dissatisfied with the outcome of that process may request review by a three-member “external review panel” which can be convened at the discretion of the IG of the intelligence community on behalf of the Director of National Intelligence. Such a panel would consist of IG representatives from certain specified agencies, not to include the employee’s own agency. It would review the claim and within 180 days decide whether to recommend that the agency take corrective action on behalf of the employee.
An agency head similarly must consider any recommendations of the panel but is not required to comply.
Agencies must cooperate with both levels of review, including providing information and assistance requested by the reviewing officials, to the extent permitted by law. Classified information and intelligence sources and methods must be protected.
Also, 5 U.S.C. 2303, as amended by P.L. 113-126 of 2014, prohibits making adverse security clearance and access determinations against an intelligence community employee in reprisal for making a protected whistleblower disclosure to the Director of National Intelligence or designee, the inspector general of the intelligence community, the head of the employing agency or designee, the appropriate inspector general of the employing agency, a congressional intelligence committee, or a member of a congressional intelligence committee; and directed the DNI to create an appellate board to hear appeals alleging such retaliation. (Note: Certain terminations were specifically excluded from these appeal rights, including those the DNI or an intelligence community agency head determines to be in the interests of the United States or necessary for national security.)
Required due process protections include: the right to an independent and impartial fact-finder; notice and the opportunity to be heard, including the opportunity to present relevant evidence such as witness testimony; the right to be represented by counsel; and the right to receive a decision based on the record within 180 days, unless the employee and the agency agree to an extension, or the impartial fact-finder determines in writing that more time is needed in the interest of fairness or national security. Individuals may retain government employment, within limits, during the appeal process.
Classified information may be used in the process although the employee has no right to compel the production of classified information except as necessary to establish that the employee made a protected disclosure.
If whistleblower retaliation is found, the agency must take corrective action, which could include back pay, costs, and compensatory damages up to $300,000. Relief may not be granted if the agency demonstrates by a preponderance of the evidence that it would have taken the same personnel action absent the disclosure, giving high deference to the agency’s assessment of the particular threat to national security interests.
If the appellate board finds an improper adverse security clearance or access determination, it must separately determine whether reinstituting the security clearance or access determination is clearly consistent with national security, with any doubt resolved in favor of national security. The board may recommend, but may not order, reinstatement of the security clearance or access determination. Additionally, the board may recommend, but not order, reinstatement or the rehiring of a former employee. The board may order that the former employee be treated as though the employee were transferring from the most recent position held when seeking other federal employment. The agency would be required to take the actions ordered within 90 days, unless the DNI, Secretary of Defense, or Secretary of Energy determines that doing so would endanger national security.
For the Board to have jurisdiction over an appeal of a personnel action, it must possess jurisdiction over both the action and the individual filing the appeal. The appellant must meet the statutory definition of “employee” within the meaning of 5 U.S.C. 7511(a)(1), and second, the action must be an appealable one, as described above under Types of Appealable Actions and under Whistleblowing, above.
An individual who meets the definition of “employee” is entitled to certain procedural and appeal rights when he or she is the subject of an adverse action (such as removal, certain types of suspension, reduction in grade, reduction in pay, and furlough of 30 days or less). These rights include: at least 30 days’ advance written notice of the reason for a proposed adverse action; a reasonable time, but not less than seven days, to answer orally and in writing; the right to be represented by an attorney or other representative; a written decision and the specific reasons for the decision at the earliest practicable date; and a right to appeal to MSPB. Individuals who do not meet this definition are not afforded all of these rights.
Note: Under P.L. 115-41 of 2017, most employees of the Department of Veterans affairs have only seven business days to respond to the notice of an intended adverse action, and the department must make its final determination within 15 days of the notice regardless of whether the employee responds. Separate policies regarding appeals to the MSPB also apply, as described in Appeal Procedures, below.
The appellant has the burden of proving by a preponderance of the evidence that the Board has jurisdiction over his or her appeal (see 5 CFR 1201.56(a)(2)(I)).
The employees and others (for example, applicants for employment or annuitants in retirement benefits cases) who may appeal specific actions to the Board vary by the law and regulations governing the specific action. In general, employees who may appeal adverse actions are:
• employees in the competitive service who have completed a one-year probationary or trial period;
• veterans preference-eligible employees with at least one year of continuous employment in the same or similar positions outside the competitive service;
• Postal Service supervisors and managers, and Postal Service employees engaged in personnel work (other than those in non-confidential clerical positions), who have completed one year of current continuous service in the same or similar positions; and
• excepted service employees, other than preference-eligibles, who are not serving a probationary or trial period and who have completed two years of current continuous service in the same or similar positions in an executive agency. Note: The phrase “current continuous service” pertains to the period of employment immediately preceding the adverse action. “Current” service is the period of employment during which the adverse action took place; current service is “continuous” if there is no break in federal civilian employment; “similar positions” are positions in the same line of work where duties performed are similar in nature and character and require substantially the same or similar qualifications. See 5 U.S.C. 7511 and 5 CFR 752.402.
For some actions, classes of employees, such as political appointees and employees of specific agencies such as the intelligence and security agencies, are excluded, Under P.L. 114-328 of 2016 “dual status” military technicians have MSPB appeal rights if the appeal concerns activities that occurred when the technician was not in military pay status or the issue does not involve fitness for duty in the reserve component.
For special policies applying to Senior Executive Service members government-wide, with additional specific policies applying to executives at the VA, see Other Policies in Chapter 8, Section 9.
Probationary Employees—Probationary employees (see Candidate Assessment and Probation in Chapter 8, Section 1) have limited appeal rights. They generally may appeal a termination only based on political affiliation, marital status, or on conditions arising before employment on the grounds that the termination was not in accordance with regulations.
Under 5 CFR 315 and 752, the following individuals also are “employees” for purposes of MSPB appeal rights:
• competitive service employees currently serving a probationary or trial period who have already completed a probationary period for a prior position (for example, someone promoted to a supervisory or managerial position and now serving the probationary period required for that position) under other than a temporary appointment limited to one year or less, regardless of the position previously held; and
• excepted service employees (other than preference eligibles) currently serving a probationary or trial period when they have completed two years of current continuous service in the same or similar positions in an Executive agency under other than a temporary appointment limited to two years or less.
Voluntariness—For a removal to be appealable to MSPB, it must be involuntary (see 5 U.S.C. 7512). Resignations are presumed to be voluntary. However, the individual may prove a resignation was involuntary if: the agency effectively imposed the terms of the employee’s resignation or retirement; the employee had no realistic alternative but to resign or retire; and the employee’s resignation or retirement was the result of improper acts by the agency. Essentially, the issue is whether, under all the circumstances, an employee was deprived of free choice.
Situations in which a resignation may be deemed involuntary include where the employee resigns under duress brought by government action, the employee unsuccessfully attempted to withdraw the resignation before the effective date, the employee submitted the resignation under time pressure, the employee failed to understand the situation due to mental incompetence, or the resignation was obtained by agency misrepresentation or deception. If the employee was merely faced with a choice between two unpleasant alternatives, such as to either resign or be removed, then such a choice is not considered involuntary.
Bargaining Unit Employees—There are additional jurisdictional issues where an employee is a member of a bargaining unit that has a negotiated grievance procedure covering actions that may be appealed to the Board. In such instances, the employee normally must pursue a grievance through the negotiated grievance procedure. When a collective bargaining agreement specifically excludes from the negotiated grievance procedure actions that are appealable to the Board, such matters can be appealed to the Board.
When a negotiated grievance procedure covers adverse actions and/or performance-based actions, the employee may use the negotiated grievance procedure or may file an appeal with the Board, but may not do both. An employee also has the choice of pursuing a grievance or an appeal to the Board when the negotiated grievance procedure covers an action appealable to the Board and the employee raises an issue of prohibited discrimination in connection with that action. When an employee affected by an action appealable to the Board alleges that the action resulted from a prohibited personnel practice, the employee may use the negotiated grievance procedure, file an appeal with the Board, or seek assistance from the Special Counsel. (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.)
Note: Executive Order 13839 of May 25, 2018 instructed agencies to generally exclude from negotiated grievance procedures any dispute concerning decisions to remove any employee from federal service for misconduct or unacceptable performance. An August 2018 court injunction in a union-sponsored suit that blocked implementation of that provision among others in that order and two related orders was lifted in October 2019 following an appellate court ruling that any such challenge must be brought first to the Federal Labor Relations Authority. Numerous such challenges were pending there as of the publication of this edition of the Federal Employees Almanac. See Negotiated Grievance Procedures in Chapter 8, Section 6.
Appeals to the Board must be filed in writing with the Board regional or field office having geographical jurisdiction within 30 days of the effective date of the action. MSPB’s e-Appeal Online site (https://e-appeal.mspb.gov) has an interactive online application that guides appellants through the process of providing the Board with the necessary information. The MSPB does not accept new appeals via e-mail; e-Appeal Online is the only method allowed for electronic filing. If you do not want to file your appeal online, you may download an Appeal Form (and a Designation of Representative Form if desired) from www.mspb.gov/appeals/forms.htm or obtain one through your agency personnel office and submit the appeal by mail, fax, or personal or commercial delivery in the manners described on the form. Policies applying to Senior Executive Service members differ in certain ways. See Other Policies in Chapter 8, Section 9. Also see below for special policies applying in the Department of Veterans Affairs.
Where the notice of action does not set an effective date, the appeal must be filed within 35 days of the date of the notice. If the employee and the agency mutually agree in writing to submit the dispute to an alternative dispute resolution (ADR) process, the 30-day filing time limit is automatically extended to 60 days.
In the case of whistleblower appeals where a complaint has first been filed with the Special Counsel, the appellant may appeal directly to the Board within 65 days after the date of a written notice from the Special Counsel stating that the office will not seek corrective action. A direct appeal to the Board is also authorized if 120 days have passed since the filing of the complaint with the Special Counsel, and the Special Counsel has not advised the appellant that the office will seek corrective action on his or her behalf.
An appellant may also ask the Board to stay a personnel action allegedly based on whistleblowing. A stay request may be filed when an appellant is eligible to file a whistleblower appeal, and it may be filed before, at the same time as, or after the appeal is filed. Stay requests also are filed in writing with the Board regional or field office having geographical jurisdiction. By law, stay requests must be decided within 10 days of receipt of the request.
After an appeal has been received, the regional or field office issues an order acknowledging receipt of the appeal and raising any questions of timeliness or jurisdiction. The appeal is then assigned to an administrative judge for adjudication. The agency is required to provide its evidentiary file to the appellant and the administrative judge. The appellant and the agency then have the opportunity to present additional information for the administrative judge’s consideration. Once jurisdiction and timeliness have been established, the appellant has a right to a hearing on the merits.
The agency has the burden of proving that it was justified in taking the action being appealed. Discipline for misconduct is taken under “Chapter 75” procedures that require the agency support its case by the preponderance of the evidence—that is, the majority. Discipline for performance reasons may be taken under those procedures (if the performance is deemed so poor that it constitutes misconduct) or under “Chapter 43” procedures that require the employee be given a chance to improve first but that also require that the agency’s choice of discipline need be supported by only “substantial” evidence—that is, the agency’s case is plausible.
Note: Executive Order 13836 of May 25, 2018 set a series of principles for agencies to follow in disciplinary decisions, including emphasizing the use of Chapter 75 procedures in performance cases and use of the fullest range of managerial discretion in selecting penalties. See Discipline in Chapter 8, Section 4.
If the agency meets its burden of proof, the Board must decide in favor of the agency, unless the appellant shows that there was “harmful error” in the agency’s procedures, that the agency decision was based on a prohibited personnel practice, or that the decision was not in accordance with law. The appellant has the burden of proving that the appeal is within the Board’s jurisdiction and that it was timely filed. The appellant has the burden of proving any affirmative defenses (e.g., discrimination or reprisal for whistleblowing) raised. The appellant also has the burden of proof in retirement cases.
See Whistleblowing, above, for special legal standards in whistleblower retaliation complaints.
Once the record is closed, an initial decision is issued by the administrative judge. The Board’s policy calls for the administrative judge to issue an initial decision on an appeal within 120 days from the date the appeal was filed.
When an appellant prevails in an appeal, interim relief is provided pending the outcome of any petition for review, unless the administrative judge determines that interim relief is not appropriate. An exception to interim relief is also available if the administrative judge’s decision requires the return of the appellant to the workplace and the agency determines that such a return would be unduly disruptive, although the agency will still be required to provide all pay and benefits.
An administrative judge’s initial decision on an appeal becomes the final decision of the Board unless a party files a petition for review with the Board within 35 days of the date of the initial decision or the Board reopens the case on its own motion. The Board may grant a petition for review when it is established that the initial decision of the administrative judge was based on an erroneous interpretation of statute or regulation, or that new and material evidence is available that, despite due diligence, was not available when the record was closed. The Board also has the discretion to reopen and consider an initial decision on its own initiative.
The Board’s decision on a petition for review constitutes final administrative action. Further appeal then may be available in the U.S. Court of Appeals for the Federal Circuit or, in cases involving allegations of discrimination, with a U.S. district court or the Equal Employment Opportunity Commission.
The director of the Office of Personnel Management may intervene or petition the full Board for reconsideration of a final decision. The OPM director also may seek judicial review of a final Board decision involving the interpretation of a civil service law, rule, or regulation affecting personnel management where the Board decision will have a substantial impact on a civil service law, rule, regulation, or policy.
Department of Veterans Affairs—P.L. 115-41 of 2017 created policies that differ in certain ways for employees of the Veterans Affairs Department in cases of removal, demotion or suspension for more than 14 days.
•The employee has seven business days to respond to a notice of the proposed action and the department must make a final decision in writing within 15 business days from the date of the notice, providing the employee with the evidence in support of the decision.
•An appeal to the Merit Systems Protection Board must be filed within 10 business days. At both the administrative judge and board levels, the agency decision must be affirmed if there is only “substantial” evidence to support it regardless of whether the underlying issue involved performance or conduct, and the agency choice of penalty could not be mitigated, only affirmed or overturned.
•The administrative judge must issue a final decision within 180 days or else provide an explanation to Congress as to why that deadline could not be met.
•During an appeal, the MSPB could not stay the action, and the employee may not be placed on administrative leave, although the agency may grant use of other forms of leave such as annual leave. An employee who prevails is entitled to back pay.
An employee may appeal the MSPB’s final decision to the U.S. Court of Appeals for the Federal Circuit.
There are exceptions for whistleblowing situations. If the employee has a complaint before the Office of Special Counsel, the department could not remove, demote or suspend the employee without that agency’s consent until it has decided not to pursue corrective action on the employee’s behalf. Nor could the department take those actions if the employee has made a whistleblower disclosure to the VA’s Office of Accountability and Whistleblower Protection unless that office has determined not to refer the disclosure to an investigative entity or until such an entity has conducted an investigation and has decided not to pursue corrective action.
For special appeal procedures applying to senior executives at the VA, see Other Policies in Chapter 8, Section 9.
‘Mixed’ Appeals That Include Discrimination Issues
A “mixed case” is a complaint based on an action that is appealable to MSPB and includes one or more allegations of discrimination. Where a discrimination issue arises in connection with an action that is not appealable to the Board, the employee may pursue a remedy through internal agency procedures and the Equal Employment Opportunity Commission’s regulations (see Section 2 of this chapter).
When an appealable action has been taken against an employee and the employee raises an issue of discrimination, the employee may file a timely complaint with the agency or may file an appeal with MSPB. Employees who file a discrimination complaint with the agency then may appeal to the Board within 30 days after receipt of the agency’s decision. If the employee chooses to appeal to the Board without filing a discrimination complaint with the agency, the appeal must be filed no later than 30 days after the effective date of the agency action.
Employees who have filed a grievance with the agency under a negotiated grievance procedure may request the Board to review the final decision of the arbitrator within 35 days after the date of issuance of that decision. The discrimination issue need not have been raised before the arbitrator; it can be raised first at the Board level.
An agency has 120 days to resolve a complaint of discrimination that has been timely filed. If the agency fails to meet this time limit, the employee may file an appeal with the Board at any time after the expiration of 120 days. If the agency issues a decision before the 120-day time limit expires, an employee dissatisfied with the decision may file an appeal with the Board not later than 30 days after receipt of the agency decision.
When discrimination is an issue in an appeal, the Board must decide both the discrimination issue and the appealable action within 120 days. (Note: If MSPB holds that it lacks jurisdiction, that decision can be challenged in the pertinent U.S. district court.) If discrimination was not an issue when the appeal was filed with the Board, but became an issue after the proceedings began, the Board must decide both the issue of discrimination and the appealable action within 120 days after the issue was raised.
If an employee raises an issue of discrimination after filing an appeal with the Board, and if the parties file a written agreement with the administrative judge that the discrimination issue should be remanded to the agency, the issue will be remanded to the agency if the administrative judge determines that remand of the issue would be in the interest of justice. The remand order will specify the time within which agency action is to be completed, which can be no longer than 120 days. When an issue of discrimination has been returned to an agency for action, the Board’s processing of the appeal must be completed within 120 days after the agency action is completed and the case is returned to the Board.
Following a final decision by the Board in a mixed case, the appellant may: accept the decision of the Board; file a civil action in the appropriate U.S. district court within 30 days of receipt of the Board’s final decision; file a petition for review with the EEOC within 30 days of receipt of the Board’s final decision; or file a petition for review of the appealable action only (not the discrimination issues) with the U.S. Court of Appeals for the Federal Circuit.
If an appellant petitions the EEOC to review the Board’s decision on the discrimination issue, the EEOC must determine whether it will consider the case within 30 days or the Board’s decision becomes final. If the EEOC determines that it will review the decision of the Board, it must complete the process and, within 60 days, either concur in the decision of the Board or report to the Board the reasons why it disagrees with the Board’s decision.
If the EEOC disagrees with the Board’s decision on the discrimination issue, the Board has 30 days in which to concur in and adopt the decision of the EEOC, reaffirm its original decision, or reaffirm its original decision with whatever revisions are considered necessary. If the Board concurs in the decision of the EEOC, that decision becomes final. However, the decision may be appealed to the appropriate U.S. district court.
If the Board does not concur in the decision of the EEOC, the matter must immediately be referred to the Special Panel. The Special Panel must issue a final decision in mixed cases no later than 45 days after the matter was referred by the Board. The decision of the Special Panel is final and may then be appealed to the appropriate U.S. district court.
Other Complaint-Handling Processes
Prohibited Personnel Practices—If a personnel action is allegedly based on a prohibited personnel practice (including reprisal for whistleblowing), the employee may file a complaint with the Special Counsel, asking that the Special Counsel seek corrective action from the Board. If the Special Counsel does not seek corrective action from the Board, there is no further administrative recourse, except in the case of complaints alleging that the personnel action was taken because of the employee’s whistleblowing.
Whistleblower Protection Act—This law (P.L. 101-12) authorizes an appeal to MSPB if you allege that you were subject to an agency action that was taken or threatened (or is about to be taken or threatened) because of whistleblowing (see Whistleblowing, above). Unless the matter is directly appealable to the Board under law, rule, or regulation, you must first file a complaint with the Office of Special Counsel and exhaust the procedures of that office.
Presidential and Executive Office Accountability Act—This law (P.L. 104-331) authorizes appeals to MSPB by employees of the Executive Office of the President, the White House residence, and the official residence of the Vice President who allege violations of certain workplace laws, including the Family and Medical Leave Act and the Fair Labor Standards Act. You must first exhaust a mandatory period of counseling and mediation with the employing agency. Any subsequent appeal to MSPB must be filed no earlier than the 30th day and no later than the 90th day after you receive notice of the end of the mandatory period of counseling and mediation.
Uniformed Services Employment and Re-Employment Rights Act—This law (P.L. 103-353) authorizes an appeal to MSPB based on an agency’s alleged violation of employment or re-employment rights following service in a uniformed service (including discrimination based on such service or on your status as a veteran). You have the option of appealing directly to MSPB or filing a complaint with the Department of Labor’s Veterans’ Employment and Training Service (DoL/VETS). If you file with DoL/VETS, you must first exhaust that agency’s procedure and may appeal to MSPB later if DoL/VETS cannot resolve the matter.
Veterans Employment Opportunities Act—This law (P.L. 105-339) authorizes an appeal to MSPB based on an agency’s alleged violation of any law or regulation relating to veterans’ preference. You must first file a complaint with DoL/VETS and allow that agency 60 days to resolve the matter. If DoL/VETS advises you that it has been unable to resolve the matter, an appeal to MSPB must be filed within 15 days after the date you receive the DoL/VETS notice.
Matters Reviewable by OPM—Certain personnel matters that are not within the jurisdiction of either MSPB or the Special Counsel may be reviewable by the Office of Personnel Management. See Section 1 of this chapter.
Grievances—Generally, administrative grievances can be filed within an employing agency on matters not appealable to MSPB such as suspensions of less than 14 days, reprimands, denial of leave requests, unhealthy or uncomfortable working conditions, etc. See Administrative Grievances in Chapter 8, Section 4. Negotiated grievance procedures may be available for such matters, and as an alternative channel to challenge matters that otherwise would be appealable to MSPB. See Negotiated Grievance Procedures in Chapter 8, Section 6.