MSPB Appeals Process: Overview

Practical Law Practice Note Overview 1-619-0319 (Approx. 24 pages)

MSPB Appeals Process: Overview

by Practical Law Labor & Employment

MSPB Appeal Rights

When an agency issues a notice to an employee that it will take a personnel action against the employee that is appealable to the MSPB, the agency must provide the employee with notice of the employee's right to file an appeal. This notice must include:

Information about the time limit for appealing to the MSPB, how to appeal, and the address of the appropriate MSPB office where the employee should file.
A copy of or access to a copy of the MSPB's regulations and appeal form.
The name and contact information for the agency official to whom the MSPB should send a copy of the employee's appeal.
Notice of any right the employee has to pursue an alternative avenue to contest the personnel action and the effect that electing one remedy has on the employee's rights under those alternative avenues, including filing:
- a grievance under a collective bargaining agreement (CBA) (see Practice Note, Grievances and Arbitration Under the Federal Service Labor-Management Relations Statute (FSLMRS));
- a complaint with the Office of Special Counsel (OSC) (see Practice Note, Prohibited Personnel Practices (PPP) Investigations at the Office of Special Counsel (OSC)); or
- a discrimination complaint through the federal sector equal employment opportunity (EEO) process (see Practice Notes, Discrimination in Federal Public Employment: Federal Sector EEO Program and Mixed Cases in Federal Public Employment).
(See Federal Sector Availability and Election of Remedies Chart.)

(5 C.F.R. § 1201.21.)

For more information about due process protections before an agency can take adverse or disciplinary actions against an employee, see Adverse Actions and Disciplinary Actions in Federal Employment Comparison Chart: Due Process Rights.

A federal employee who has the right to appeal a personnel action to the MSPB generally has the right to a hearing on the merits if the employee timely files the appeal and the MSPB has jurisdiction over the appeal (5 C.F.R. § 1201.24(d)). However, the employee must request the hearing in the notice of appeal or within the time period the administrative judge (AJ) sets for requesting it, or the employee may waive the right to a hearing (5 C.F.R. § 1201.24(e)).

The employee and agency may engage in discovery to obtain relevant information needed to prepare the party's case (5 C.F.R. § 1201.71). The AJ oversees the discovery process, holds a hearing, and issues an initial decision on the appeal.

Initiating the Appeal

A federal employee initiates an MSPB appeal by filing with the appropriate MSPB regional or field office having geographical jurisdiction. The employee must file the appeal within the later of 30 days after:

The effective date of the personnel action the employee is appealing.
The employee receives the agency's decision on the appealable personnel action.

(5 C.F.R. § 1201.22(b)(1).)

Appeal rights for employees of the Department of Veterans Affairs (VA) employees are limited and the deadlines are shorter than for employees of other agencies. For more information, see Practice Note, Adverse Action Appeals before the Merit Systems Protection Board: Employees of the Department of Veterans Affairs.

An employee (called the appellant during the MSPB appeal process) can use the MSPB's e-Appeal Online system or the official MSPB Form 185, though the MSPB strongly encourages filing electronically to avoid delays caused by the US mail. The appellant may also file an appeal in any written format, including a letter, if the appeal contains all the following information:

The name, address, telephone number, and email address of the appellant and representative, if the appellant is represented.
The name and address of the agency that took the action.
A description of the action the agency took and the effective date.
A request for a hearing, if the appellant wants one.
A statement of the reasons why the appellant believes the agency action is wrong.
A statement of the action the appellant wishes the judge to order.
A copy of the notice of proposed action or agency decision being appealed, on the official Notification of Personnel Action (SF-50), if available.
A statement whether the appellant or anyone acting on the appellant's behalf has filed a grievance or a formal discrimination complaint about the matter being appealed.

(5 C.F.R. § 1201.24(a).)

The appellant or representative must sign the appeal. If the appellant uses the MSPB's e-Appeal system, complying with the system's directions electronically signs the appeal (5 C.F.R. § 1201.24(a)(9)). Attorneys representing appellants must register as e-filers and file pleadings using the e-Appeal system (5 C.F.R. § 1201.14(e)(5), (f)).

Agency Response

The MSPB serves the appeal on the agency and provides the parties with a list of parties and their representatives (5 C.F.R. § 1201.26(a)(1)). The MSPB assigns the appeal to an AJ in a regional or field office, who issues an acknowledgment and order (AO) that lists deadlines for the appeal. MSPB AOs are standard across regional and field offices.

The agency must file a response to the appellant's appeal within 20 days of the date of the AO (5 C.F.R. § 1201.22(b)(1)). The agency's response to an appeal must contain:

The name of the appellant and the agency whose action the appellant is appealing.
A statement identifying the agency action taken against the appellant and the reasons for the action.
All documents contained in the agency's record of the action.
A designation of the authorized agency representative and the representative's signature.
Any other documents the MSPB requests.

(5 C.F.R. § 1201.25.)

Mediation

The MSPB has a Mediation Appeals Program (MAP) offered as an alternative to the appeal process. If both parties agree to mediation through the MAP, the appeal process is suspended until the mediation is concluded (5 C.F.R. § 1201.28(d)).

AJs also conduct settlement negotiations and parties are free to use a private mediator. However, if the parties engage in alternative dispute resolution procedures outside the MAP, the appeal deadlines are not suspended (5 C.F.R. § 1201.28(d)).

Discovery

Parties may use the same methods for obtaining discovery as are used in federal litigation. These include:

Written interrogatories.
Depositions.
Requests for the production of documents or things.
Requests for admission.

(5 C.F.R. § 1201.72(c).)

Parties serve their initial discovery requests within 30 days after the AJ issues the AO. Discovery responses are due 20 days after the date of service. Parties must serve any additional discovery requests within ten days of the prior response's date of service. (5 C.F.R. § 1201.73(d).) The number of discovery requests is generally limited to:

25 written interrogatories, including discrete subparts.
Ten depositions, unless the AJ approves or the parties agree to take more.

(5 C.F.R. § 1201.73(e).)

For more information on discovery deadlines, see Deadlines for MSPB Appeals Chart: Discovery and Hearings Deadlines.

The Federal Rules of Civil Procedure (FRCP) are used as a general guide in conducting discovery, but are instructive rather than strictly required (5 C.F.R. § 1201.72(a)). The AJ may order different deadlines for conducting discovery and may grant requests to exceed the limitations on the number of discovery requests (5 C.F.R. § 1201.73(d) and (e)). The AJ also conducts preliminary conferences to address discovery disputes or other motions that must be resolved before hearing (5 C.F.R. § 1201.41(b)).

Deadlines in MSPB appeals are measured in calendar days, beginning with the day after the event from which the time period begins to run. If the deadline day falls on a Saturday, Sunday, or federal holiday, the filing period includes the first workday after that day. If a party serves a document on another party by mail, the responding party has an additional five days to respond, unless the AJ orders a different deadline. (5 C.F.R. § 1201.23.)

Hearings

An appellant is entitled to a hearing on the merits of an appeal (5 U.S.C. §§ 7513(d) and 7701(a)(1)). MSPB regulations do not provide for summary judgment motions (Crispin v. Dep't of Commerce, 732 F.2d 919, 922 (Fed. Cir. 1984)). However, an AJ may dismiss an appeal with prejudice if an appellant fails to prosecute the appeal. The AJ may also rule in favor of the appellant without a hearing if the agency fails to defend the appeal. (5 C.F.R. § 1201.43(b).)

The MSPB's policy is to adjudicate appeals within 120 days after the AJ receives the appeal. This means that most hearings are held within 90 days after the appeal is filed. The AJ issues an Order and Notice of Hearing and Prehearing Conference and notifies the parties of the hearing date, usually at least 15 days after the date of the hearing notice. Either party may file a motion to postpone the hearing but must articulate good cause for the postponement in a sworn statement. The MSPB has several hearing locations around the country. (5 C.F.R. § 1201.51; see also MSPB Hearing Sites.)

In the hearing order, the AJ describes information the parties must address in a prehearing report. This information includes:

The issues to be decided in the appeal.
A concise statement of facts.
A statement of the facts to which the party is willing to stipulate.
A list of the witnesses each party plans to call.
A list of exhibits each party plans to introduce.
The remedies the appellant seeks.

The hearing order also schedules an in-person, video, or telephonic prehearing conference. The AJ notifies the parties of their respective burdens of proof, discusses the possibility of settling the appeal, identifies, narrows, or defines the issues for hearing, and resolves any discovery disputes or other prehearing issues that may affect how the case is presented. The AJ approves or disapproves the witness lists, but may put off until the hearing addressing the admissibility of the exhibits.

Hearings are generally open to the public, although the AJ may order part or all of a hearing closed when doing so is in the best interests of a party, witness, or anyone affected by the proceeding (5 C.F.R. § 1201.52). Hearings are recorded and transcribed by a court reporter (5 C.F.R. § 1201.53).

When the agency has taken the appealed action against the employee, the agency generally presents its case first. The appellant presents first if there is a question whether the MSPB has jurisdiction over the appeal or the appeal is untimely. (5 C.F.R. § 1201.58.) The parties may present closing arguments, if permitted by the AJ, or may submit written closing statements after the hearing within the deadline set by the AJ. The parties call witnesses to testify and introduce documents as exhibits.

The federal rules of evidence may guide the presentation of evidence at the hearing, but are not strictly followed (Crawford v. Dep't of Treas., 56 M.S.P.R. 224, 233 (1993)). Hearsay evidence is permitted if the circumstances give the evidence credibility and probative value. The credibility and probative value of proffered hearsay evidence is determined on a case-by-case basis (Sanders v. U.S. Postal Serv., 801 F.2d 1328, 1331 (Fed. Cir. 1986); Shannon v. Dep't of Veterans Affs., 121 M.S.P.R. 221, 229 ¶ 15 (2014).)

The appeal record closes at the end of the hearing, unless the AJ gives the parties additional time to submit post-hearing briefs or outstanding exhibits that were introduced at the hearing (5 C.F.R. § 1201.59). An appellant may waive the right to a hearing and request a decision on the written record instead. The AJ issues a Close of Record Order, which sets deadlines for the parties' final submissions to the judge. The AJ usually holds a telephonic status conference before closing the record, which covers similar information as the prehearing conference.

Initial Decisions

After the record closes, the AJ issues an initial decision on the appeal, usually within 120 days from the day the appeal was filed. The initial decision contains:

Findings of fact and conclusions of law addressing all material issues presented in the appeal.
The reasons for these findings and conclusions.
An order disposing of the appeal, including any appropriate relief.
If the appellant is the prevailing party, a statement on whether interim relief is to be provided while a petition for review is pending (see Interim Relief).
The date on which the initial decision becomes final (35 days after the date the initial decision is issued).
A statement describing any further options available on the appeal, including:
- a petition for review by the full Board (see Petition for Review of Initial Decision);
- a petition for enforcement (see Petitions for Enforcement);
- a motion for attorneys' fees under 5 C.F.R. § 1201.203;
- a motion for an addendum proceeding to determine consequential or compensatory damages under 5 C.F.R. § 1201.204; or
- a petition for judicial review (see Judicial Review).

(5 C.F.R. § 1201.111(b).)

Initial decisions are never precedential in future appeals but reviewing them may be useful to discern how a particular AJ adjudicates similar issues or fact patterns.

The OPM is entitled to a copy of all initial decisions (5 U.S.C. § 7701(b)(1); 5 C.F.R. § 1201.111(a)).

Petition for Review of Initial Decision

Any party can petition the full Board to review the AJ's initial decision. The petition for review (PFR) must be filed within:

35 days after the date of the initial decision.
30 days after the petitioner receives the initial decision, if the petitioner received it more than five days after it was issued.

(5 C.F.R. § 1201.114(e).)

The OPM Director may file a PFR in any case where OPM believes the AJ's decision is erroneous and will have a substantial impact on a civil service law, rule, or regulation under OPM's jurisdiction. OSC may also file a PFR in any appeal, although it must obtain consent to intervene in appeals brought by individuals. (5 C.F.R. § 1201.114(c).)

A PFR or cross PFR (filed by a party who petitions for review when another party has already filed a PFR) must:

State the party's objections to the initial decision.
Include all the party's legal or factual arguments.
Be supported by specific references to the record and applicable laws and regulations.
Explain why the party did not present any new evidence or argument before the hearing record closed.

(5 C.F.R. § 1201.114(b).)

If the agency files the PFR, the agency must also file a certification that it has complied with any interim relief order (5 C.F.R. § 1201.116(a)).

The Board has access to the full record before the AJ, so the parties should not include documents that are part of the record before the AJ (5 C.F.R. § 1201.114(b)).

Interim Relief

If any party files a PFR of an initial decision issued in favor of the appellant, the AJ may order appropriate interim relief to the appellant effective on the date of the initial decision until the PFR is adjudicated. Interim relief may include:

Restoring the appellant to the position lost when the agency took the appealed personnel action while a PFR is pending.
Appointing the appellant to a position the AJ determined the appellant was entitled to, pending the outcome of the PFR.
Paying the appellant the same pay, compensation, and benefits the appellant would have received had the appellant been returned to duty until the PFR is decided.

(McLaughlin v. OPM, 62 M.S.P.R. 536, 548-49 (MSPB 1994).)

An interim relief order does not reverse an adverse action or grant the appellant complete relief. It is intended to protect the appellant from hardship while a PFR is pending (Herrin v. Dep't of Air Force, 95 M.S.P.R. 536, 545 ¶ 15 (MSPB 2004)). An agency need not restore the appellant to a specific position if the appellant's return or presence in the workplace would be unduly disruptive. However, if the agency does not restore or appoint the appellant to the position, the agency must pay the appellant all compensation and benefits that accompany the position, including any premium pay, differentials, or allowances the appellant would be entitled to receive. (5 C.F.R. § 1201.111(c); Johnson v. Dep't of Justice, 71 M.S.P.R. 59, 66-67 (MSPB 1996).) An agency cannot restore the appellant to the position and put the appellant on leave without pay because the statutory obligation to pay the appellant during the interim relief period is the fundamental element of interim relief (Johnson v. Dep't of Veterans Affs., 2023 MSPB 9, , at *3 (MSPB Feb. 28, 2023)).

If an agency files a PFR but does not implement the interim relief ordered, the Board may dismiss the PFR and make the AJ's decision ordering full relief to the appellant the final MSPB decision (5 C.F.R. § 1201.116(e)). In these circumstances, the appellant should file a motion to dismiss the agency's PFR rather than a petition to enforce the interim relief (Johnson v. Dep't of Veterans Affs., , at *2).

If the agency does not file a PFR, the AJ's initial decision becomes the final MSPB decision 35 days after the date of the initial decision and the agency must implement the full relief ordered in the decision.

Board Decisions

If no PFR is filed, the AJ's initial decision becomes the MSPB's final decision 35 days after it was issued. If a PFR is filed, attorneys in the Office of Appeals Counsel (OAC) at the MSPB's headquarters review the record of proceedings before the AJ. OAC forwards its recommendations to the three Board members, each of whom has a staff of attorneys who review these recommendations. Board members vote on the disposition of the PFR and the Board members in the majority write the final MSPB decision. A minority Board member may write a concurring or dissenting opinion.

The Board normally grants a PFR only when:

The initial decision contains erroneous findings of material fact.
The initial decision is based on an erroneous interpretation of a statute or regulation.
The AJ erroneously applied the law to the facts of the case.
The AJ's rulings are not consistent with required procedures or involved an abuse of discretion and the resulting error affected the outcome of the case.
The petitioner shows that new and material evidence or legal argument was not available when the record closed, despite the petitioner's due diligence.

(5 C.F.R. § 1201.115.)

The Board must give special deference to an AJ's credibility determinations (Purifoy v. Dep't of Veterans Affairs, 838 F.3d 1367, 1372-73 (Fed. Cir. 2016)).

The Board may affirm, reverse, modify, or vacate the AJ's initial decision (5 C.F.R. § 1201.117(b)). The Board may also remand an appeal to the AJ to take further action. Board decisions are issued as either:

An Opinion and Order, which is a precedential MSPB decision that may be cited in future cases.
A nonprecedential Order, which the Board determines does not add significantly to the body of MSPB case law. Nonprecedential Orders may be cited in future cases but they are not binding, except when they have preclusive effect under the doctrines of claim preclusion, issue preclusion, judicial estoppel, or law of the case.

(5 C.F.R. § 1201.117(c).)

The Board may reopen any appeal but usually only exercises this discretion in unusual or extraordinary circumstances and generally within a short time after the decision becomes final (5 C.F.R. § 1201.118).

OPM Petition for Reconsideration of MSPB Decision

OPM can also file a petition for reconsideration of a final MSPB decision within 35 days of the decision if OPM believes the decision both:

Erred in interpreting a civil service law, rule, or regulation that affects personnel management.
Will have a substantial impact on a civil service law, rule, regulation, or policy directive.

(5 C.F.R. § 1201.119.)

If OPM files a petition for reconsideration, the MSPB makes the appeal record available for OPM's review. OPM must file its brief in support of reconsideration within 20 days. A party that opposes OPM's petition for reconsideration must file its brief within 25 days. (5 C.F.R. § 1201.119(c).)

OPM may also file for a stay of the MSPB's final decision at the same time as it files a petition for reconsideration (5 C.F.R. § 1201.119(d)).

Judicial Review

The appellant (but not the agency) may appeal a final MSPB decision to:

The US Court of Appeals for the Federal Circuit within 60 days from the date of the MSPB's final decision (5 U.S.C. § 7703(b)(1)(A)). For years, the Federal Circuit considered this deadline to be jurisdictional and not subject to equitable tolling (Fedora v. MSPB, 848 F.3d 1013 (Fed. Cir. 2017)). However, the US Supreme Court recently unanimously held that the deadline is a non-jurisdictional filing deadline that is presumptively subject to equitable tolling (Harrow v. Dep't of Defense, (U.S. May 16, 2024)).
The US Court of Appeals for any appropriate circuit within 60 days from the date of the final decision, if the case involved allegations of whistleblower or other retaliation under 5 U.S.C. § 2302(b)(8) or certain subsections of 5 U.S.C. § 2302(b)(9) (5 U.S.C. § 7703(b)(1)(B)).
The EEOC within 30 days of receiving the final decision, if the case involved allegations of discrimination under one of the statutes the EEOC enforces (5 U.S.C. § 7702(b)). For more information about the EEOC's role in reviewing MSPB decisions, see Practice Note, Mixed Cases in Federal Public Employment: Appealing a Mixed Case to the EEOC.
An appropriate US District Court within 30 days of receiving the final decision, if the case involved allegations of discrimination (5 U.S.C. § 7703(b)(2)).

The Director of OPM may also petition for judicial review of any final MSPB decision, if the OPM Director believes the decision both:

Erred in interpreting a civil service law, rule, or regulation that affects personnel management.
Will have a substantial impact on a civil service law, rule, regulation, or policy directive.

(5 U.S.C. § 7703(d)(1).)

If OPM did not intervene in the appeal while it was pending before the MSPB, it must first file a petition for reconsideration with the Board before filing a petition for judicial review.

Judicial review of most MSPB decisions is limited. The Federal Circuit must affirm an MSPB decision unless it is:

Arbitrary, capricious, an abuse of discretion, or not otherwise in accordance with the law.
Issued in violation of procedures required by law, rule, or regulation.
Unsupported by substantial evidence.

(5 U.S.C. § 7703(c); Dickey v. OPM, 419 F.3d 1336, 1339 (Fed. Cir. 2005).)

The Federal Circuit affirms an MSPB decision if the decision is supported by relevant evidence that a reasonable mind may accept as adequate to support a conclusion (Haebe v. Dep't of Justice, 288 F.3d 1288, 1298 (Fed. Cir. 2002)).

In discrimination cases, the appellant is entitled to a de novo trial in federal district court (5 U.S.C. § 7703(c)). If the appeal is a mixed case, the appellant should file in federal district court to obtain judicial review of both discrimination claims and civil service issues (Perry v. MSPB, 582 U.S. 420 (2017); Kloeckner v. Solis, 568 U.S. 41 (2012)).

The appellant can appeal to the Federal Circuit to review the civil service issues but must waive any discrimination claims because the Federal Circuit has no jurisdiction over discrimination claims (5 C.F.R. § 1201.157; Chappell v. Chao, 388 F.3d 1373, 1379 (11th Cir. 2004)).

Petitions for Enforcement

A party may petition to enforce a final MSPB decision or the terms of a settlement agreement that was entered into the record for the purpose of enforcement (5 C.F.R. § 1201.182(a)). Appellants commonly file petitions for enforcement to obtain remedies that an agency has delayed or disputed.

A petition for enforcement can also be used to enforce a settlement agreement or rescind it because of one party's material breach. However, a petition for enforcement of a settlement agreement is only available for settlements that were approved by the AJ and entered into the appeal record (5 C.F.R. § 1201.41(c)(2)).

A petition for enforcement must:

Be filed with the regional or field office that issued the initial decision.
Be served on the party accused of noncompliance.
Describe specifically why the petitioning party believes the other party has not complied with the final decision or settlement agreement.
Include dates and results of any communications the petitioner has had with the other party about compliance.

(5 C.F.R. § 1201.182(a).)

The regulations require a petition for enforcement be filed "promptly." If an agency has served a notice of compliance, then any petition for enforcement must be filed within 30 days of the notice of compliance or the petitioner must request an extension of time for filing the petition, along with evidence showing good cause for the delay in filing. (5 C.F.R. § 1201.182(a).)

An employee who was not a party in the MSPB appeal may sometimes have the right to file a petition for enforcement. These circumstances include when:

An employee is aggrieved by the failure of any other employee to comply with an MSPB order. The aggrieved employee must:
- file a motion to intervene in the appeal at the same time as the petition for enforcement;
- specifically describe why the employee believes there is noncompliance; and
- explain how the employee is affected by the noncompliance.
A witness has an order that the employing agency provide the witness with official time to testify in an MSPB proceeding.
A witness has an order entitling the witness to be paid witness fees and travel costs.
A witness or other individual has a protective order issued by an AJ in an MSPB proceeding.

(5 C.F.R. § 1201.182(c).)

The party accused of noncompliance must file one of the following within 15 days of the date the petition for enforcement is served:

Evidence that the party has completely complied with the MSPB order or settlement terms, including a narrative explanation of how back pay and other benefits were calculated, and supporting documents.
Evidence describing what compliance actions the party has completed, a statement of the actions that are in progress, and a reasonable schedule for full compliance.
A statement showing good cause for the party's failure to completely comply with the MSPB's decision.

(5 C.F.R. § 1201.183(a).)

If the agency is the alleged non-complying party, the agency must also submit the name, title, grade, and address of the agency official responsible for complying with the MSPB's order. The agency must also inform this official in writing of the potential sanction for noncompliance (5 C.F.R. § 1201.183(a)(2).) The MSPB has the authority to penalize agency officials (other than Presidential appointees that are confirmed by the Senate) for noncompliance by withholding the official's salary during any period of noncompliance (5 U.S.C. § 1204(e)(2)(a)).

The party that filed the petition for enforcement may file a reply within ten days after the opposing party serves its opposition statement (5 C.F.R. § 1201.183(a)(iii)).

An AJ reviews petitions for enforcement. If the appellant filed the petition to enforce an MSPB final order, the agency has the burden of proving its compliance with the MSPB's order. If the petitioner seeks compliance with the terms of a settlement agreement, the petitioner has the burden of proving the other party's breach. The standard of proof in either case is preponderance of the evidence. (5 C.F.R. § 1201.183(d).)

If the AJ finds that the party has complied or engaged in a good faith effort to fully comply, the AJ issues a decision that can be appealed to the full Board through a petition for review (5 C.F.R. § 1201.183(a)(4)). If the AJ finds that the party has not fully complied with the final decision, the AJ issues an initial decision that identifies the specific actions the party must take to be in compliance. The non-complying party must then either:

Submit a statement to the MSPB Clerk within 35 days of the AJ's decision that it has taken the actions identified in the decision, along with evidence proving that it has.
File a petition for review if the non-complying party declines to take all the actions required by the initial decision.

(5 C.F.R. §§ 1201.183(a)(5) and (6).)

If the non-complying party files a PFR to the full Board and the Board agrees that the party did not comply, the Board may require the agency and the responsible official explain why sanctions should be not imposed (5 C.F.R. § 1201.183(c)). The MSPB's final decision on a petition for enforcement is subject to judicial review under the same procedures as any other final MSPB decision (see Judicial Review).

MSPB Appeals Process: Overview | Practical Law