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Home
       Appeal Process
    Appellant Q&A
      Electronic Filing
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     		Regulations
		     Whistleblower Q&ASearch and Site Index How to File an Appeal
	
	
	  
 	Zoom for Government Rules of Behavior for External Users (April 30, 2020)
	
	  One of the MSPB's primary statutory functions is to protect Federal merit
           systems against partisan political and other prohibited personnel practices
           by adjudicating employee appeals over which the Board has been given
           jurisdiction.  A list of the matters over which the Board generally has
           jurisdiction is contained in section 1201.3 of Part 1201 of Title 5 of the Code of Federal
           Regulations (5 C.F.R. § 1201.3) Links to specific sections of the law
           (United States Code or U.S.C.) and regulations (C.F.R.) are in blue
           text.  Links to "Parts"--major groupings of Board
    regulations -- are provided on the left side of this page.
 
    Initial
        Appeal Process
      Procedures
        After an Appeal is Filed
      Petition
        for Review Process
      Judicial
        ReviewInitial Appeal Process
  When you are ready to prepare and file an appeal, visit the MSPB's e-Appeal
  Online website, which is an interactive online application that guides
  you through the process of providing the Board with the necessary
  information.  The MSPB does not accept new appeals via email; e-Appeal
  Online is the only method allowed for electronic filing.  If you do not
  want to file your appeal online, you may download the Board's Appeal
  Form and file your appeal by traditional means (by postal mail, fax, or
  personal or commercial delivery).****  
 Information Required.  An appeal must be in writing and
    contain all the information specified in the Board's regulations.  See 5
    C.F.R. §§ 1201.24 (most appeals); 1209.6 (individual right of action (IRA) appeals, which
    involve claims of retaliation for whistleblowing); 1208.13 (Uniformed Services Employment and Reemployment Rights
    Act (USERRA)); 1208.23 (Veterans Employment Opportunities Act (VEOA)); 1203.11 (request for regulation review).  Using the
    Board's Appeal Form or its e-Appeal Online application will ensure that all
    required information is provided, but using the form is not required.   When to File.  Most Appeals.  In most types of cases, an
    appeal must be filed within 30 calendar days of the effective date of the
    action, if any, or within 30 calendar days after the date of receipt of the
    agency's decision, whichever is later. However, when an appellant and agency
    mutually agree in writing to attempt to resolve their dispute through an
    alternative dispute resolution process prior to the timely filing of an
    appeal, the time limit for filing the appeal is extended by 30 days--for a
    total of 60 days. See 5 C.F.R. § 1201.22(b)(1).  IRA Appeals.  If you are filing a whistleblower appeal after
    first filing a complaint with the Office of Special Counsel (OSC), your
    appeal must be filed within 65 days of the date of the OSC notice advising
    you that the Special Counsel will not seek corrective action or, within 60 days
    after the date you receive the OSC notice, whichever is later (5 C.F.R.
    § 1209.5). USERRA Appeals have no time limit for filing (5 C.F.R. § 1208.12). VEOA Appeals.  You must first file a complaint with the
    Secretary of Labor and allow the Secretary at least 60 days to try to resolve
    the matter. On the 61st day, you may file an appeal with the Board. However,
    once you receive notice that the Secretary has been unable to resolve the
    matter you have 15 days in which to file your appeal with the Board (5 C.F.R.
    § 1208.22). Appeals of removal, demotion, or suspension for more than 14 days based on performance or misconduct in the Department of Veterans Affairs.  Pursuant to 38 U.S.C. § 714(c)(4)(B) an appeal of one of these actions "may only be made if such appeal is made not later than 10 business days after the date of such removal, demotion, or suspension." Where to File.  You must file an appeal with the MSPB's
    regional or field office serving the area where your duty station was located
    when the action was taken, or, if the appeal relates to a final decision of
    the Office of Personnel Management regarding retirement benefits, or an
    adverse suitability determination, with the regional or field office that has
    jurisdiction over the area where you live.  For a complete listing of
    the coverage of our regional and field offices, see Appendix II of Part 1201 of the Board's regulations. What to File.  In addition to the information required by our
    regulations, the only documents required to be filed with most appeals are
    the notice of proposed action, the agency decision to take the action being
    appealed, and if available, the SF-50 or similar notice of personnel
    action.  5 C.F.R. § 1201.24(a)(7).  In IRA, VEOA and USERRA appeals, evidence
    that the administrative process has been exhausted is also required.  No
    other documents should be filed with the appeal.  As explained below,
    the agency must file all documents contained in the agency record of the
    action.  Filing numerous documents with a new appeal usually duplicates
    documents that will be filed by the agency.  It is important to remember
    that filing a new appeal is just the beginning of the adjudication process
    that results in a decision.  Both parties will have several
    opportunities to provide additional evidence and argument as the appeal
    proceeds toward a decision.  You must
    not miss the filing deadline to await receipt of any document. Designating a Representative.  An appellant may choose any
    person, who is willing and available to serve, as his or her representative
    before the Board, or may choose to represent him or her self. Any designation
    of a representative must be in writing and signed by the appellant.  See
    5 C.F.R. § 1201.31.  (You may use the Designation
      of Representative form, but no particular format is required)  If
    you submit your appeal online via e-Appeal, you may designate your
    representative as part of that process.  Additional Information and Resources.  The links on the left
    include Question and Answer (Q&A) documents relating to the appeals
    process in general, and on appeals that include claims of retaliation for
    whistleblowing.  An additional Q&A page relating to the MSPB's
    electronic filing system and online repository of adjudication documents is
    available when you click the "File Appeal" button at the left,
    which takes you to e-Appeal Online.
  
  Procedures
    After an Appeal is Filed
The first thing that occurs following the filing of a new appeal is that
  the Administrative Judge (AJ) who has been assigned to the case will issue an
  Acknowledgment Order to both the appellant (and his or her representative, if
  any) and the agency.   The Acknowledgment Order transmits a copy of the
  appeal to the agency and directs the agency to submit a statement as to its
  reason for taking the personnel action or decision being challenged, together
  with all documents contained in the agency record of the action.  If
  there appear to be questions relating to the timeliness of the appeal, or
  whether the action or decision complained of is within the Board's
  jurisdiction, the Acknowledgment Order will order the appellant to submit
  evidence and argument on these matters. 
  The AJ may also raise such issues later, during the adjudication of
  the appeal. As the proceeding progresses, the AJ will issue notices and orders as to
  pleadings that must be filed.  Pleadings may be filed online at the
  Board's e-Appeal web site, or by regular mail, fax, or commercial or personal
  delivery.  Ordinarily, the AJ conducts one or more status or prehearing
  conferences to narrow and clarify the issues in the appeal.  Following a
  hearing, or the close of the record when an appeal is decided on the written
  record, the AJ will issue an initial decision.  An initial decision must
  identify all material issues of fact and law, summarize the evidence, resolve
  issues of credibility, and include the Administrative Judge's conclusions of
  law and his legal reasoning, as well as the authorities on which that
  reasoning rests.  Spithaler v. Office of Personnel Management, 1 M.S.P.R. 587,
  589 (1980).
  The
    Petition for Review Process
When appellants or agencies are dissatisfied with an initial decision,
  they may file a petition for review with the Clerk of the Board in Washington
  D.C.  Appellants who are dissatisfied
  with an initial decision have the alternative of filing a petition with the
  United States Court of Appeals for the Federal Circuit as described
  below.  Petitions for review are
  considered by the three Board members, who issue a final decision.  Petitions for review may be filed via the e-Appeal website (choose File a
  Pleading in an Existing Proceeding) or by traditional means.  No specific format is required for filing a
  petition for review. 
	
	
	If an appellant or agency files a petition for review with the Board and later wishes to withdraw the petition, the party may file a request to withdraw with the Office of Clerk of the Board pursuant to the Board's PFR Withdrawal Policy.
	Where to File.  A petition for review must be filed in writing
  with the Clerk of the Board.  This can be done via e-Appeal, by fax (202) 653-7130, or by
  postal mail or commercial or personal delivery at 1615 M Street, NW, Washington, DC 20419.  When to File.  A petition for review must be filed within 35
    days after the date of issuance of the initial decision or, if the petitioner
    shows that the initial decision was received more than 5 days after the date
    of issuance, within 30 days after the date the petitioner received the
    initial decision.  A cross petition for
    review must be filed within 25 days of the date of service of the petition
    for review.  (A pleading is considered
    to be a cross petition for review when one party has already submitted a
    petition for review and the other party also objects to some aspect of the
    initial decision.)? Any response to a
    petition for review or to a cross petition for review must be filed within 25
    days after the date of service of the petition or cross petition.  Any reply to a response to a petition for
    review must be filed within 10 days after the date of service of the response
    to the petition for review.  A petition
    for review, cross petition for review, or response to a petition for review
    or cross petition for review is limited to 30 pages or 7500 words, whichever
    is less.  A reply to a response to a
    petition for review is limited to 15 pages or 3750 words, whichever is
    less.  5 C.F.R. § 1201.114(e),
    (h).   Legal standards Governing Petitions for Review.  The law
    provides that an agency's decision may not be sustained by the Board if the
    appellant: (A) shows harmful error in the application of the agency's procedures in
    arriving at such decision; (B) shows that the decision was based on any prohibited personnel practice
    described in 5 U.S.C. § 2302(b); or (C) shows that the decision was not in accordance with law.
    5 U.S.C. § 7701(c)(2).  Reversal for "harmful error" is
    appropriate only when the record shows that the procedural error was likely
    to have caused the agency to reach a conclusion different from the one it
    would have reached in the absence or cure of the error.  An agency
    action will be reversed as being "not in accordance with law" only
    when it is unlawful in its entirety, i.e., if there is no legal authority for
    the action.   Section
      1201.115 provides that situations in which a petition for review or cross
    petition for review may be granted include, but are not limited to, a showing
    that:  (a) The initial decision contains erroneous findings of
    material fact. (1) Any alleged factual error must be material, meaning of
    sufficient weight to warrant an outcome different from that of the initial
    decision. (2) A petitioner who alleges that the judge made erroneous findings
    of material fact must explain why the challenged factual determination is
    incorrect and identify specific evidence in the record that demonstrates the
    error. In reviewing a claim of an erroneous finding of fact, the Board will give
    deference to an administrative judge's credibility determinations when they
    are based, explicitly or implicitly, on the observation of the demeanor of
    witnesses testifying at a hearing.  (b) The initial decision is based on an erroneous
    interpretation of statute or regulation or the erroneous application of the
    law to the facts of the case. The petitioner must explain how the error
    affected the outcome of the case.  
    (c) The judge's rulings during either the course of the
    appeal or the initial decision were not consistent with required procedures
    or involved an abuse of discretion, and the resulting error affected the
    outcome of the case.  (d) New and material evidence or legal argument is
    available that, despite the petitioner's due diligence, was not available
    when the record closed. To constitute new evidence, the information contained
    in the documents, not just the documents themselves, must have been
    unavailable despite due diligence when the record closed. Please **do not submit**as attachments to your petition for
    review**copies of documents that are already part of the record**. 
    Such documents are already included in the case file that will be reviewed by
    the Board.  When attachments are included with a petition for review, the
    Board must determine whether the petitioning party is attempting to introduce
    new and material evidence, or is merely attaching additional copies of
    documents that are already in the record.  If you are submitting new
    documents, you should not only say so explicitly in your petition for review,
    you need to explain why the documents are new and material. In Weaver
      v. Department of the Navy, 2 M.S.P.R. 129, 133 (1980), review denied, 669
    F.2d 613 (9th Cir. 1982) (per curiam), the Board
    set forth what must be established to overturn an Administrative Judge's
    factual findings: 
    Board review of the [administrative judge's] fact finding will ordinarily
    be undertaken only when the petitioning party makes a showing consistent with
    5 C.F.R. § 1201.115[], which requires a demonstration that the initial
    decision is based on an erroneous interpretation (or application) of the
    statutory requirements governing the weight of the evidence.  While the
    language of the petition may be simply drawn, there must be at least enough
    specified in the petition to enable the Board to ascertain whether there may
    be a serious evidentiary question justifying a complete review of the
    record. Before the Board will undertake
    the burden of a complete review of the record, the petitioning party must, as
    the regulation plainly states, explain in the petition why the challenged
    factual determination is incorrect, and identify the specific evidence in the
    record which demonstrates the error.   Judicial
      Review
  
  Any employee or applicant for employment adversely affected or aggrieved
    by a final order or decision of the Merit Systems Protection Board may obtain
    review of the order or decision by filing a petition with the United States
    Court of Appeals for the Federal Circuit or, in cases involving allegations
    of discrimination, to the Equal Employment Opportunity Commission or to a
    U.S. District Court.  5 U.S.C. § 7703.  The
    Director of OPM may petition the Board for reconsideration of a final
    decision, and may also seek judicial review of Board decisions that have
    substantial impact on a civil service law, rule, regulation or policy. 
    A petition to review a final decision of the Board must be filed with the
    Court of Appeals for the Federal Circuit within 60 days after the date the
    Board issues notice of the final order or decision of the Board.**UPDATED INFORMATION FOR APPELLANTS  SEEKING JUDICIAL REVIEW OF WHISTLEBLOWER CLAIMS**
  The Whistleblower Protection Enhancement Act of 2012, and later the All Circuit Review Extension Act, provided that appellants could file petitions for judicial review of Merit Systems Protection Board (MSPB or Board) decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any circuit court of appeals of competent jurisdiction.  The provision that provided for judicial review of certain whistleblower claims by any circuit court of appeals expired on December 27, 2017. 
However, the All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any circuit court of appeals of competent jurisdiction. 
 

Accordingly, appellants who raise claims of reprisal for whistleblowing disclosures and/or protected activities under 5 U.S.C. § 2302(b)(8) or (b)(9)(A)(i), (B), (C), or (D) who wish to challenge only the Board’s rulings on their whistleblower and/or protected activities claims now may file their request for judicial review with the U.S. Court of Appeals for the Federal Circuit or any circuit court of appeals of competent jurisdiction.  The All Circuit Review Act is retroactive to November 26, 2017. 
Additional information about the U.S. Court of Appeals for the Federal Circuit and other circuit court of appeals can be found at their respective websites, which can be accessed through https://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.


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