AN INTRODUCTION TO THE U.S. 

MERIT SYSTEMS PROTECTION 

BOARD
HISTORY

Why does an agency 

that began doing 

business in 1979 

have the date 1883 

on its logo?

- Spoils system!

- Assassination!

- Pendleton Act

- Civil Service Reform Act of 

1978

- Reorganization Plans 1 

and 2 of 1978
EEO: FROM CIVIL SERVICE 

COMMISSION TO MSPB

Pre-1979, 18 agencies had authority over EEO

5 C.F.R. Part 713 - Federal employee EEO 

appeals were decided by the CSC; under the 

CSRA, EEOC gained a role

MSPB appellate jurisdiction - 5 U.S.C. § 7701

Mixed Cases – 5 U.S.C. § 7702

- MSPB vs. EEOC

- Special Panel

Merit Systems Principles & Prohibited 

Personnel Practices - 5 U.S.C. §§ 2301, 2302
MISSION & VISION

 MSPB Mission: Protect the Merit System 

Principles and promote an effective 

Federal workforce free of Prohibited 

Personnel Practices.

MSPB Vision: A highly qualified, diverse 

Federal workforce that is fairly and 

effectively managed, providing excellent 

service to the American people.
MSPB & OSC

 1979 – OSC was part of MSPB

 1989 – Whistleblower Protection Act - OSC 

became an independent agency.

 Responsibilities – 5 USC § 1212:

- Investigates alleged PPPs

- Petitions for stays and corrective action

- Brings complaints seeking disciplinary actions

- Investigates and brings actions re violations 

under § 1216 

- May bring corrective action under USERRA & 

disciplinary action under VEOA
MSPB ORIGINAL JURISDICTION

 OSC Disciplinary Actions

 OSC Corrective Actions

 OSC Stay Requests

 OSC and others’ requests for protective 

orders

 Hatch Act Appeals

 Actions against ALJs

 Removal from the SES
MSPB APPELLATE 

JURISDICTION – 5 C.F.R.

 Adverse action –Part 752

 Unacceptable performance –Part 432

 Reduction in force – Part 351

 Denial of within-grade increase – Part 531

 Suitability – Part 731

 Restoration to duty – Part 353

 Retirement – Parts 831, 837, 838, 839, 841 to 847

 IRA – Part 1209

 VEOA, USERRA – Part 1208

 Others - See § 1201.3
GENERAL RULES OF 

PROCEDURE

 Right to “due process”

 Right to a hearing and “transcript”

 Right to call and cross-examine witnesses

 Right to representation or selfrepresentation

 Right to discovery, subpoena

 If prevailing, perhaps right to interim relief, 

attorney fees & costs, enforcement of 

compliance
STATISTICS - FY2006 – FY2010: 34,115 appeals were decided in MSPB regional 

and field offices, an average of more than 6,800 per year, in an 

average of fewer than 88 days each. During that period, MSPB had 

between 56 and 60 Administrative Judges.

- Approximately 60% of the cases that were not dismissed were settled.

- Approximately 5,751 PfRs and other cases were decided by the 

Board members during these years, an average of 1,150 cases per 

year.

- Mixed Cases: During the same 5 years, 9,276 appeals raised a 

discrimination allegation; 1,481 were decided on the merits. Most 

commonly raised was disability discrimination, followed by race.
DISCIPLINE – ADVERSE 

ACTIONS

 Agency’s burden of proof: 

- Charges

- Nexus

- Penalty

 Appellant’s burden:

- Jurisdiction and 

Timeliness 

- Affirmative defenses

- - Harmful error, 

Prohibited personnel 

practices, Not in 

accordance with law
CHARGES REQUIRING PROOF 

OF INTENT

 Theft - intent to deprive the owner permanently of possession and 

use of the property. King v. Nazelrod, 43 F.3d 663, 665-67 (Fed. Cir. 

1994).

 Threat – reasonable person test applied to: listener’s reactions and 

apprehension of harm; speaker’s intent; the circumstances; and if 

conditional. Metz v. Treasury, 780 F.2d 1001, 1004 (Fed. Cir. 

1986).

 Insubordination - willful and intentional refusal to obey an 

authorized order of a superior officer which the officer is entitled to 

have obeyed. Phillips v. GSA, 878 F.2d 370 (Fed. Cir. 1989).

 Falsification – knowingly providing wrong information with the 

intention of defrauding, deceiving, or misleading the agency. Naekel 

v. DOT, 782 F.2d 975, 978 (Fed. Cir. 1986).
CHARGES WITH ELEMENTS, 

NOT REQUIRING INTENT

 Failure to Follow Instructions - Hamilton v. USPS, 71 M.S.P.R. 547 

(1996)

 Lack of Candor - Ludlum v. Justice, 278 F.3d 1280, 1284 (Fed. Cir. 2002)

 Misuse of Government Property – 5 C.F.R. § 2635.704

 AWOL – Johnson v. DLA, 54 M.S.P.R. 370 (1992)

 Failure to Follow Leave Requesting Procedures – Wilkinson v. Air Force,

68 M.S.P.R. 4 (1995).

 An alternative = the Narrative Charge.

But proceed with caution!!
NEXUS

An agency may take an adverse action only for such cause 

as will promote the efficiency of the service. 5 U.S.C. 

7513(a), 5 C.F.R. 752.403(a). It may show a nexus 

between off-duty misconduct and the efficiency of the 

service by:

(1) rebuttable presumption in egregious circumstances

(2) misconduct adversely affects the appellant's or 

coworkers' job performance or the agency's trust in the 

appellant's performance; or

(3) misconduct adversely affects the agency's mission or 

employee’s off-duty misconduct is directly opposed to 

the agency's mission. Kruger v. Department of Justice, 

31 MSPR 71 (1987).
EXAMPLES OF NEXUS

 Graham v. USPS, 49 MSPR 364 (1991) – sexual 

abuse of a minor = egregious.

 Doe v. Justice, 113 MSPR 128 (2010) -

unprofessional conduct of videotaping sexual 

encounters with co-workers = affected 

performance of co-workers and others in office.

 Wild v. HUD, 692 F.2d 1129 (7th Cir. 1982) -

HUD appraiser was a slumlord = contrary to the 

agency’s mission. 
PENALTY

Douglas,

Douglas,

Douglas,

And more 

Douglas

Douglas v. VA, 

5 MSPR 280 (1981)
IS THE PENALTY WITHIN THE 

BOUNDS OF REASONABLENESS?

The Rule: Board reviews whether the agency 

weighed the relevant factors or was 

unreasonable. Twelve factors include:

nature and seriousness of the offense

nature of the job

past work and disciplinary records

consistency with others’ penalties

table of penalties

rehabilitation potential

mitigating circumstances

alternative sanctions
ALLEGED INVOLUNTARY 

ACTIONS

 A voluntary action is not appealable. Where the appellant 

claims that an apparently voluntary action is involuntary, the 

Board may have jurisdiction over a constructive adverse 

action.

May include:

 Retirement 

 Resignation

 Suspension

 Demotion

 Disability Retirement
RETIREMENT/RESIGNATION

 Misinformation, deception, or coercion. Terban v. Energy, 216 

F.3d 1021 (Fed. Cir. 2000). Was the employee deprived of 

freedom of choice? Coufal v. Justice, 98 MSPR 31 (2004).

 Agency made working conditions so difficult or unpleasant that 

a reasonable person would have felt compelled to resign or 

retire. Evidence of discrimination or retaliation goes to the 

question of coercion and may not be examined under Title VII 

unless jurisdiction is proven. Markon v. State, 71 MSPR 574 

(1996).

 Threatened removal could not be 

substantiated, so is purely coercive.

Schultz v. Navy, 810 F.2d 1133

(Fed. Cir 1987).
CONSTRUCTIVE SUSPENSION

1. Enforced leave in order to inquire into ability to perform. Brehmer v. 

USPS, 106 MSPR 463 (2007). 

2. Employee, absent from work for medical reasons, requests to return 

with altered duties and the agency denies the request. If the agency 

is obligated by policy, regulation, or contract to offer available light- duty work but fails to do so, continued absence may constitute a 

constructive suspension. Baker v. USPS, 71 MSPR 680 (1996). 

3. Employee relies on agency’s misleading statements to request 

LWOP or other non-pay or non-work status.

4. Intolerable working conditions compelled absence on sick leave, 

annual leave, or leave without pay.

Must be more than 14 days to be appealable. 5 USC § 7512(2).
CONSTRUCTIVE DEMOTION

 Misinformation, deception, or coercion.

 Agency made working conditions so difficult 

or unpleasant that a reasonable person 

would have felt compelled to request 

assignment that resulted in a lower grade 

job.

 Position newly classified as worth a higher 

grade; employee met the requirements for 

promotion; and employee was reassigned 

rather than promoted.
INVOLUNTARY DISABILITY 

RETIREMENT

 Accommodation was available between the time a medical 

condition arose and the date of separation that would have 

allowed the appellant to continue employment; s/he 

communicated desire to continue working but that medical 

limitations required modifications; and agency failed to provide 

that accommodation. See Okleson v. USPS, 90 MSPR 415 

(2001).

 Why? Because an appellant who meets the statutory 

requirements for disability retirement has no true choice 

between working (with or without accommodation) and not 

working. If accommodation was impossible, 

the appellant's disability retirement was not

a constructive removal.
BUT ...

 In very unusual circumstances, the regular tests for 

involuntariness apply: 

 Hosford v. OPM, 107 MSPR 418 (2007) - disability 

retirement involuntary because of misinformation as 

to eligibility for an immediate optional retirement.

 Vaughan v. USDA, 2011 MSPB 61 (6/13/11) - where 

the appellant alleged he was coerced into retirement 

because the agency's discriminatory conduct 

caused him to become disabled, he is entitled to try 

to prove that his retirement was involuntary under 

the general principles for constructive discharge.
HEAR IT FROM AN AJ

 What happens when an 

appeal is filed?

 How is a record made?

 What is discovery?

 Is a hearing always held?

 Can both parties call 

witnesses?

 What happens at a 

hearing?
THE AJ’s VIEW

 Does the employee need an attorney?

 Can the agency be required to pay attorney fees 

and damages?

 How long does the process take?

 What are the parties’ options if they disagree 

with the AJ’s decision?

 What is the PFR process?

 What if the employee wins but the agency does 

not comply with the decision?

 Are there alternatives to adjudication?
WHISTLEBLOWING

An Individual Right of Action (IRA) appeal is a way for an employee or 

applicant to seek corrective action for personnel actions that are not 

otherwise appealable to MSPB.

For Board jurisdiction, appellant 

must: (1) prove exhaustion of 

OSC remedy; and (2) make 

non-frivolous allegations of 

(i) protected disclosure; & 

(ii) contributing factor to a

personnel action.

On merits, appellant must prove (i) and (ii) by preponderant evidence. 

Agency must prove by clear and convincing evidence that it would 

have taken personnel action absent the protected disclosures. 
WHISTLEBLOWING

 What is a Protected Disclosure? A disclosure of 

information that the individual reasonably 

believes evidences a violation of law, rule or 

regulation; gross mismanagement; gross waste 

of funds; abuse of authority; or substantial and 

specific danger to public health or safety. 

 What is a Contributing Factor? Any disclosure 

that affects an agency's decision to threaten, 

propose, take or not take a personnel action with 

respect to the individual making the disclosure. 5 

CFR § 1209.4(c). The appellant need 

demonstrate only that the fact of, not necessarily 

the content of, the protected disclosure was one 

factor that tended to affect the personnel action in 

any way.
VEOA

Two types of claims: 

 Violation of a preference eligible’s rights under 

any statute or regulation relating to veterans’ 

preference in employment. 5 USC §

3330a(a)(1)(A).

 Violation of the opportunity to compete for 

vacant positions for which the agency making 

the announcement will accept applications from 

individuals outside its own workforce under merit 

promotion procedures. 5 U.S.C. § 3304(f)(1).
USERRA

 “A person who is a member of, applies to be a 

member of, performs, has performed, applies to 

perform, or has an obligation to perform service in a 

uniformed service shall not be denied ... any benefit 

of employment on the basis of that membership ....”

 Discrimination or retaliation because a person: 

(1) took action to enforce a protection under ... 

(2) testified or made a statement in any proceeding 

under ... 

(3) participated in an investigation under ... 

(4) exercised a right provided for in ... 38 U.S.C. 

Chapter 43.

 Denial of re-employment after absence from civilian 

employment to perform uniformed service.
MIXED CASE COMPLAINTS & 

APPEALS

The EEOC defines a mixed case complaint as a 

complaint of employment discrimination related 

to or stemming from an action that can be 

appealed to the MSPB. 29 C.F.R. § 1614.302(a).

A mixed case appeal is an appeal filed directly with

the MSPB that alleges that an appealable action

was effected, in whole or in part, because of

discrimination on the basis of race, color,

religion, sex, national origin, disability, age or

reprisal for prior protected EEO activity. 29

C.F.R. § 1614.302(a)(2).
MIXED CASE PROCESS

If the EEOC finds that it has jurisdiction to consider a

petition to review an MSPB decision, it can either

concur with the MSPB’s decision, or issue a decision

that differs from that of the MSPB with regard to the

issue of discrimination. 29 C.F.R. § 1614.305(c).

When the Commission differs with the decision of the

MSPB, the Commission refers the matter back to the

Board. If the MSPB reaffirms its decision, with or without

modification, the matter is certified to the Special Panel

for consideration. The Special Panel must then issue a

decision in the matter within 45 days. 29 C.F.R. §§

1614.306; 1614.308(c).
SPECIAL PANEL

The Special Panel consists of a Chairman appointed by the President,

one member of the MSPB, and one member of the EEOC. MSPB

and EEOC each designate a member to serve each time the Special

Panel is convened.

The Special Panel will not disturb a Commission decision in which the

MSPB does not concur unless the decision depends upon civil

service law for its support, or is so unreasonable that it amounts to a

violation of civil service law. Ignacio v. USPS, 30 M.S.P.R. 471, 486

(Spec. Pan. 1986)
MERIT SYSTEM PRINCIPLES

 5 USC § 2301(b) lists “merit system principles” with which 

Federal personnel management “should be” consistent. The 

principles are “expressly stated to furnish guidance to Federal 

agencies in carrying out their responsibilities in administering 

the public business.” Wells v. Harris, 1 MSPR 208 (1979). 

 The CSRA’s legislative history states: “Unless a law, rule or 

regulation implementing or directly concerning the principles 

is violated (as under § 2302(b)(11)), the principles themselves 

may not be made the basis of a legal action by an employee 

or agency.” However, OPM must maintain oversight to 

“ensure” that activities under any personnel management 

authority it delegates to agencies are “in accordance with the 

merit system principles.”
WHAT ARE THE MSPs?

 (1) Recruitment should be from qualified individuals from 

appropriate sources in an endeavor to achieve a work force 

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. 

 (2) 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. 

 (3) 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. 

 (4) All employees should maintain high standards of integrity, 

conduct, and concern for the public interest. 
THE MSPs, cont’d

 (5) The Federal work force should be used efficiently and effectively. 

 (6) 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. 

 (7) Employees should be provided effective education and training 

[where it] would result in better organizational and individual 

performance. 

 (8) Employees should be -- (A) protected against arbitrary action, 

personal favoritism, or coercion for partisan political purposes, and 

(B) 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. 

 (9) Employees should be protected against reprisal for the lawful 

disclosure of information [they] reasonably believe evidences -- (A) a 

violation of any law, rule, or regulation, or (B) mismanagement, a 

gross waste of funds, an abuse of authority, or a substantial and 

specific danger to public health or safety. 
PROHIBITED PERSONNEL 

PRACTICES

 A prohibited personnel practice is a 

personnel action that is taken for a prohibited 

purpose by someone who has authority to take 

the personnel action. 

 If the conduct the employee is challenging falls 

within the scope of the prohibited personnel 

practices, then the CSRA's administrative 

procedures provide the only remedies and the 

federal court cannot resolve the claims under 

another statute, e.g., FTCA, Privacy Act, etc.
WAYS THAT PPPs MAY BE 

HEARD BY MSPB

1. OSC files complaint with Board.

2. Employee brings otherwise appealable action to MSPB and 

raises PPP as affirmative defense. See 5 USC §

7701(c)(2)(B) (“the agency’s decision may not be sustained 

... if the employee or applicant for employment ... shows 

that the decision was based on any prohibited personnel 

practice described in section 2302(b) of this title.”)

3. The Board may review an OPM rule or regulation on its own 

motion, or on the petition of OSC or “any interested person” 

and may declare the provision invalid if it either: (1) requires

an agency to commit a PPP, or (2) as implemented, 

requires an employee to commit a PPP. See 5 USC 

§ 1204(f)(1). 
PERSONNEL ACTIONS

 an appointment; 

 a promotion;

 an adverse action or other disciplinary or corrective action;

 a detail, transfer, or reassignment;

 a reinstatement;

 a restoration;

 a reemployment; 

 a performance evaluation;

 a decision concerning pay, benefits, or awards, concerning 

education or training if the education or training may reasonably be 

expected to lead to an appointment, promotion, performance 

evaluation, or other action described in this subparagraph; 

 a decision to order psychiatric testing or examination; and 

 any other significant change in duties, responsibilities, or working 

conditions.
FREQUENTLY RAISED PPPs

5 USC 2301(b)(1) Prohibits discrimination for or against an 

applicant or employee on the basis of race, color, religion, sex 

or national origin (Title VII), age (ADEA), sex (FLSA, pay 

parity), disabling condition (Rehabilitation Act and ADAAA), 

and marital status or political affiliation as prohibited under 

any law, rule, or regulation.

5 USC 2301(b)(8) Prohibits agency officials from taking, failing to 

take, threatening to take, or threatening to fail to take a 

personnel action, with respect to any employee or applicant 

for employment, because of a protected disclosure.

5 U.S.C. 2302(b)(9) Prohibits retaliation for protected activities: 

filing complaint, appeal, grievance; testifying for or lawfully 

assisting any individual in filing; cooperating with or disclosing 

information to the Inspector General or OSC; refusing to obey 

an order that would require an individual to violate a law.
FREQUENTLY RAISED PPPS, 

cont’d

5 USC 2302(b)(10) Prohibits discrimination for or 

against any employee or applicant on the basis 

of conduct which does not adversely affect his or 

her performance or the performance of others; 

conviction of any crime under the laws of any 

State, DC, or the US may be considered re 

fitness or suitability.

5 USC 2302(b)(11) Prohibits knowingly taking, 

recommending, or approving – or failing to take, 

recommend, or approve - any personnel action if 

the taking of or failure to take such action would 

violate a veterans’ preference requirement
OTHER PPPs – § 2302(b) ...

 (2) solicit or consider any recommendation as to any person 

under consideration for any personnel action unless based on 

personal knowledge or records and consists of an evaluation of 

the work performance, ability, aptitude, or general 

qualifications of the individual; or an evaluation of his/her 

character, loyalty, or suitability; 

 (3) coerce the political activity of any person or take any 

reprisal for a person’s refusal to engage in political activity; 

 (4) deceive or willfully obstruct any person with respect to 

his/her right to compete for employment; 

 (5) influence any person to withdraw from competition for any 

position for the purpose of improving or injuring the prospects 

of any other person for employment; 

 (6) grant any unauthorized preference or advantage to any 

employee or applicant for the purpose of improving or injuring 

the prospects of any particular person for employment; 
PPPs cont’d

(7) appoint, employ, promote, advance,

or advocate for those actions, in a civilian 

position any individual who is a relative 

(as defined in 5 USC 3110(a)(3)) if the 

position is in the agency in which the 

relative works or exercises jurisdiction 

or control as an official;

 (12) take or fail to take any other personnel action if the taking 

of or failure to take such action violates any law, rule, or 

regulation implementing, or directly concerning, the merit 

system principles in § 2301.
MERIT SYSTEMS STUDIES

 MSPB’s other main statutory function is noted in 

5 USC § 1204(a): 

 The MSPB “shall (3) conduct, from time to time, 

special studies relating to the civil service and to other 

merit systems in the executive branch, and report to 

the President and to the Congress as to whether the 

public interest in a civil service free of prohibited 

personnel practices is being adequately protected; 

and 

 (4) review, as provided in subsection (f), rules and 

regulations of the Office of Personnel Management.”
STUDIES PRODUCTS

 Issues of Merit newsletter 

 Reports

 All reports are thoroughly researched and analyzed.

 Based on an approved research agenda or are at the 

request of Members of Congress. 

 To the President and Congress but are distributed to 

wide audiences of agency leaders, including human 

capital officers; unions and employee groups; 

academicians and libraries, and those who have 

joined our Studies ListServ.

 Available on our website to the public. 
http://www.mspb.gov/studies/
SOME RECENT STUDIES

 Prohibited Personnel Practices: Employee Perceptions

 Women in the Federal Government: Ambitions and Achievements

 Making the Right Connections: Targeting the Best Competencies 

for Training

 Whistleblower Protections for Federal Employees

 A Call to Action: Improving First-Level Supervision of Federal 

Employees

 Prohibited Personnel Practices: A Study Retrospective

 Fair and Equitable Treatment: Progress Made and Challenges 

Remaining

 and many more

For topics to look for in future reports, see “MSPB Finalized 2011-2013 

Research Agenda.”
TO LEARN MORE ...

 The MSPB’s website has more information 

on all of the subjects you’ve just heard 

about: www.mspb.gov
QUESTIONS???
THANKS FOR YOUR ATTENTION!