The Merit Systems Protection Board (MSPB) serves as an independent and semi-judicial agency which is the guardian of Federal merit systems. It is a part of the Executive branch of the United States government. The Board was established by a 1978 law which became effective in 1979, the Civil Service Reform Act of 1978 (CSRA), Public Law No. 95-454.
Essentially, if you are a civil servant and you lose your job, you appeal to the Merit Systems Protection Board. The Board also handles appeals of suspensions lasting more than 14 days, pay or grade reductions, and furloughs which last 30 days or less. The MSPB tends to handle a lot of retirement matters.
Also, under the Whistleblower Protection Act of 1989, a Federal employee who alleges that a personnel action was taken (or was threatened) due to whistleblowing may seek corrective action from the Board directly.
In addition, if a case has a discrimination aspect, then it is heard by the Board, but an employee dissatisfied with the Board’s final decision can request that the Equal Employment Opportunity Commission review the Board’s decision. And then if the EEOC and the Board cannot come to an agreement, the case is then referred to the Special Panel for final resolution. The Special Panel consists of a Chairman who is appointed by the President, one member of the Board appointed by the MSPB Chairman, and finally one EEOC commissioner appointed by the EEOC Chairman.
Merit Systems Studies
Furthermore, the MSPB also conducts what are called merit systems studies. In the spring of 2017, the MSPB reported on its study about effective hiring practices within the civil service system. The Board analyzed data and examined all facets of the hiring process, including internal processes, advertising online, and candidate assessments.
Another recent study concerned how Federal employees perceived whether there was discrimination on the basis of sexual orientation. The Board is not afraid to tackle difficult questions or even to report when the United States government does not look so good.
The MSPB follows a list of Merit System Principles (5 USC § 2301). These principles include encouraging diversity in hiring practices; nondiscrimination on the basis of gender, race, religion, marital status, national origin, political affiliation or handicapping condition; equal pay for work of equal value; and protection from reprisals if an employee reports misdeeds such as waste of funds, mismanagement, or danger to public health.
The Board works out of Washington, DC with field offices in Denver and New York, and regional offices in cities such as Atlanta and San Francisco. Departments such as Financial and Administrative Management, and Information Resources Management, report to the Executive Director who reports directly to the Chairman.
Filing an Appeal
The Board maintains a website to file appeals online. The online form requires a free membership but it also allows for the appellant to follow their case’s status and view associated documents.
Most appeals are covered under 5 C.F.R. §§ 1201.24. The document’s requirements including basic identifying information and the reasons why an appellant feels the initial agency action is wrong.
Furthermore, the appellant can raise a claim or defense not included in the appeal at any time before the end of any conferences being held to define the issues in the case. After that time, an appellant may not raise a new claim or defense, except for a showing of good cause. Also, a claim or defense not included in the appeal can be excluded if a party shows that its inclusion would result in undue prejudice.
Most appeals must be filed within 30 days of the initial agency action, or within 30 days of receiving the agency’s decision, whichever comes last. If the parties agree to attempt alternative dispute resolution (e. g. mediation), then that triggers an extension. As a result, the amount of time to file is extended by 30 days. This brings the time frame to a total of 60 days.
Appellants are required to file an appeal with the MSPB’s regional or field office serving the area where their duty station was located when the action was taken. Or, if the appeal relates to a final decision of the Office of Personnel Management concerning retirement benefits, or an adverse suitability determination, then the appellant must file with the regional or field office which has jurisdiction over the area where they live.
Also, in addition to any information as required by the Merit Systems Protection Board’s own regulations, appellants must also file their notice of proposed action; a copy of the agency decision to take the action which is being appealed; and if it is available, a copy of the SF-50 or a similar notice of personnel action.
Appellants can represent themselves, or they can designate a representative.
Note: appeals for whistleblower actions and Uniformed Services Employment and Reemployment Rights Act (USERRA) matters; Veterans Employment Opportunities Act (VEOA) appeals; and requests for regulation review all have different specifics. For more details, check the MSPB website.
After Filing an Appeal
First, the Administrative Judge assigned to the case will issue an Acknowledgment Order to both the appellant and to the agency. This Acknowledgment Order sends a copy of the appeal to the agency and it directs the agency to submit a statement as to its reason for taking the action or decision which is being challenged. The Acknowledgment Order also contains all of the documents which make up the agency record of the action. This Acknowledgment Order will order the appellant to submit evidence and make arguments if there are any questions regarding whether the appeal has been made on a timely basis or if he Board’s jurisdiction is in question.
The Administrative Judge will issues notices and orders and will generally hold one or more status or pre-hearing conferences. The purpose of these conferences is to clarify and narrow down the issues being appealed. After a hearing or when the written record closes, the Administrative Judge will issue an initial decision. This decision is required to identify all material issues of fact and law, summarize the evidence, resolve any credibility issues, and include the Administrative Judge’s conclusions of law and legal reasoning, plus the authorities on which that reasoning rests.
Finally, the stated mission of the Merit Systems Protection Board is to “Protect the Merit System Principles and promote an effective Federal workforce free of Prohibited Personnel Practices.”
Janet Gershen-Siegel, Esq., has an MS in Communications from Quinnipiac University, and a JD from Widener Law School. She has been admitted to practice law for over 30 years, with a focus on litigation. She is the author of The Definitive Guide to the Merit Systems Protection Board, and regularly writes for MSPBAttorneys.com, whose attorneys focus on federal employee and whistleblower representation.