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U.S. Merit Systems Protection Board
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Home
	   Studies
		   	 Adverse Actions: A Primer in Pieces
      Second-Hand News Can be Misleading
      The Adverse Action Process - A Flowchart
      Performance-Based Actions under Chapters 43 and 75 of Title 5 - Similarities and Differences
      Different Types of Adverse Actions Use Different Rules
      Legal Sources for the Right to Notice and a Meaningful Opportunity to Reply
      Decision-Maker Must Listen and Have Power to Decide
      Connecting the Job and the Offense ("Nexus")
      Labels are Not Required, but if Used They Must be Proven
      Determining the Penalty
      How Employees Become Similarly Situated for Purposes of an Adverse Action Penalty
      Avoid Facilitating Prohibited Personnel Practices (PPPs)
      Agency Officials' Substantive and Procedural Errors and How to Fix Them
      Identifying Probationers and Their Rights
      The Limited Powers of the U.S. Merit Systems Protection Board
      Why Federal Employees Have the Right to a Hearing
      How a Hearing is Conducted
      Implementing or Challenging Initial Decisions
      Additional Resources
  Search and Site Index *Implementing or Challenging Initial Decisions*
An initial decision (ID) issued by an  administrative judge (AJ) will state if MSPB has jurisdiction, and if  jurisdiction is found, the ID will contain conclusions regarding nexus,  charges, and penalties – known as an assessment of the “merits” of the case.1  Among other possibilities, an ID on the  merits can state that some charges were sustained but not others.  It can state that a penalty was warranted,  but not a penalty as harsh as the agency initially implemented.  It can support the agency’s action  entirely.  It can order the entire action  cancelled.Depending upon what the ID says, the parties  each have decisions to make.  If both are  satisfied with the outcome, then they comply with the orders set forth in the  ID (such as the action standing entirely, being mitigated, or being canceled)  and the matter is concluded.  But, what  if one or both parties disagree with the ID in part or whole?For the appellant, the questions are then:  (1) whether to seek further review;  (2) if seeking review, for what issues; and (3) if seeking further  review, from whom?  (An appellant can  file a petition for review (PFR) with the Board, or file for judicial review  with the U.S. Court of Appeals for the Federal Circuit (“Federal Circuit”)  without first coming to the Board).For the agency, the questions are:  (1) whether to seek further review (with  the Board PFR as the only avenue); (2) if seeking review, for what issues;  and (3) what to do about the instructions in the ID in the meantime?**Filing  for Review with the Board**Either party that disagrees with the ID can  file a PFR with the three-member Board.2  MSPB’s regulations explain the process for  the parties to follow.3  Regardless of whether the agency or appellant  files the PFR first, the second party will be given the opportunity to respond.  If the second party did not prevail on one or  more issues below, that party may also file a PFR (called a “cross-PFR”).As explained in *How a Hearing is Conducted*, the three-member Board has the  authority to re-weigh the evidence and reach a different conclusion regarding  nearly every aspect of the case, including jurisdiction, charges, and  penalties.4On PFR, the Board will look at the issues  raised by the parties, but can also address other issues in the ID that it  identifies on its own.  If the parties do  not file a PFR, the ID becomes final on a date set forth in the ID.  At that time, the Board has the option to  reopen the appeal on its own and re‐examine any issue in the case.  However, the Board typically opts not to exercise  this power absent extraordinary circumstances.
                        **Filing  for Review with the Federal Circuit**
    If the agency does not file a PFR, then the  appellant has the option to file an appeal directly with the Federal Circuit  once the ID becomes final, bypassing the PFR process.5  The appellant can also use the PFR process  and, if dissatisfied with the PFR result, then proceed to seek judicial review  from the Federal Circuit.6In contrast, the agency cannot appeal directly  to the Federal Circuit at any stage.  The  only review opportunity available directly to the agency is the PFR to the  Board.  However, acting for the  Government, the Director of the Office of Personnel Management (OPM)  (represented by the Department of Justice) may file a petition for judicial review  with the Federal Circuit.  OPM must first  determine, “in the discretion of the Director, that the Board erred in  interpreting a civil service law, rule, or regulation affecting personnel  management and that the Board’s decision will have a substantial impact on a  civil service law, rule, regulation, or policy directive.”7  If OPM did not intervene in the case before  the Board, OPM must first petition the Board to reconsider its decision and  obtain a denial of that petition before OPM can proceed to the Federal Circuit.8**Interim  Relief**What happens to an employee pending resolution  of the PFR?  If the ID upholds the agency’s  action, then the action remains in effect.   For example, a removed employee remains removed.  However, 5 U.S.C. § 7701(b)(2) instructs that  if the ID is in the employee’s favor, the employee will obtain the granted  relief immediately in most circumstances.   This means that if an employee has been removed, the employee will be  returned to work.  The AJ has the  discretion to determine that granting such relief immediately is not  appropriate under the circumstances, but the default is that the ID will take  effect.9This does not mean that an agency is required  to place in the work unit an employee that the agency believes would be unduly  disruptive while it seeks a review of the case by the Board.  If the agency has concerns about the  employee, it has an *unreviewable* authority to keep the employee away pending resolution of the PFR.  By statute, the agency “must still give [the  employee] all pay, benefits, and other terms and conditions of employment” he  would have received if he had worked.10  But, even if the agency acts in bad faith  when deciding to prevent the employee’s return to duty during the PFR process,  “Congress did not provide for any [MSPB] review of this decision” by the  employing agency.11
  1              If MSPB lacks  jurisdiction, the process ends with that determination and there is no analysis  of the merits of the charges, penalty, or nexus.  *See  Schmittling v. Department of the Army*, 219 F.3d 1332, 1337 (Fed. Cir. 2000)  (explaining that “without jurisdiction, neither the Board nor this court is  empowered to decide the merits of a case”).
            2 The three members of  the Board are nominated by the President and confirmed by the Senate.  No more than two can adhere to the same  political party.  It takes two members  agreeing with each other to decide a case.   If there are less than two members in agreement (which can happen when  the Board is not fully staffed), the initial decision stands as the final decision  of the U.S. Merit Systems Protection Board.
            3 5 C.F.R. § 1201.114.  MSPB’s regulations can be found on its  website at https://www.mspb.gov/appeals/appeals.htm.
            4*See Tierney v. Department of Justice*, 717 F.3d 1374, 1378 (Fed.  Cir. 2013) (explaining that, with the exception of credibility determinations,  “the Board is generally free to substitute its judgment for that of the AJ”).
            5 In a few types of adverse action cases, the  appeal would go to a different court than the Federal Circuit.  Appeals  from actions taken under the following provisions:  Section 717(c) of the Civil Rights Act of  1964, as amended (42 U.S.C. § 2000e-16(c));  section 15(c) of the Age Discrimination in Employment Act of 1967, as amended  (29 U.S.C. § 633a(c)); and section 15(b) of the Fair  Labor Standards Act of 1938, as amended (29 U.S.C. § 216(b)) would go to the appropriate U.S.  district court.  *See* 5 U.S.C. § 7703(b)(2); 5 C.F.R. § 1201.175.  Additionally, if the appeal was filed as an  individual right of action, and not as an adverse action appeal, the provisions  of 5 U.S.C. § 7703(b)(1)(B) would apply.
            6 5 U.S.C. § 7703(a)(1).
            7 5 U.S.C. § 7703(d)(1).
            8*Id*.
            9*King v. Jerome*, 42 F.3d 1371, 1373-74 (Fed. Cir. 1994); 5 U.S.C.  § 7701(b)(2)(A)(i).
            10*King v. Jerome*, 42 F.3d 1371, 1374 (Fed. Cir. 1994).
            11*Id.*


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