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Home
	  Training
     
    Search & Site Index Introduction to Federal Employee Appeals with MSPB
    **Captioned video formats:**
    Currently streaming in .mp4 format
      (.mov) (captions viewable in all operating systems)
      (.mp4) (captions  viewable only in Windows)Your browser does not support the video tag.
    **Important updates to   the content of this video:**
    *Since this video was produced in 2001, some of our procedures, the law,   and technology changed.  Please keep in mind the following information as you   view the video or read the transcript.***
      *You may   now file appeals electronically using e-Appeal Online.*
      *The   video also does not mention our Mediation Appeals Program (MAP) which is an option for   possibly settling appeals.  Settlement judges also may be available, which is   different from the settlement efforts by the adjudicating Administrative Judge   or a MAP mediator.*
      *The video states in Part 4 that if you request a hearing, one will be   held unless the Board clearly does not have jurisdiction.  That is generally   accurate, but not every type of appeal that is within MSPB's jurisdiction   results in a hearing, most notably appeals under the Veterans Employment   Opportunity Act (VEOA).*
      *The Acknowledgment Order was revised to encourage settlement and "urge"   parties to contact each other to discuss it rather than ordering the agency to   contact the appellant as described in Part 5 of the video.*
      *Video Teleconferencing of hearings now is more readily available and,   along with telephonic hearings, is used more often than depicted in Part 5 of   the video, depending on the specific circumstances in each   appeal.*
      *Regarding mixed cases, the video indicates in Part 7 that if you choose   to go to district court, you can get a trial de novo "on the discrimination   issues only."  Now, on-the-record review of all issues appears to be the rule in   many of the judicial circuits.  See, e.g., Ikossi v. Navy, 516 F.3d 1037 (D.C. Cir 2008); Seay v. TVA, 339 F.3d 454 (6th Cir. 2003).***Transcript: Introduction to Federal Employee Appeals with the    U.S. Merit Systems Protection Board**The Merit Systems Protection Board  (MSPB) was established by the Civil Service Reform Act of 1978, Public Law  95-454.  It is an independent,  quasi-judicial agency of the Executive Branch that serves as a guardian of  Federal merit systems.  The Board’s Mission is to ensure that  Federal employees are protected against abuses by agency management, that  Executive Branch agencies make employment decisions in accordance with the  merit system principles, and that Federal merit systems are kept free of  prohibited personnel practices.
 
    One of the Merit Systems  Protection Board’s duties is to hear and decide Federal employee appeals from  agency personnel actions.
                
      This video is especially designed  for pro se appellants, or agency or appellant representatives with little or no  experience with the Merit Systems Protection Board’s appeals process.  This summary of the key points of this video  is provided for you so you do not have to take notes while you are viewing.
    This is not legal advice,  but information that will help you during the MSPB appeals process.  This tape covers the subjects of:
    How  to file an appeal with MSPB;
      After  an appeal is filed: the Acknowledgement Order;
      “Discovery”—  that is, the exchange of information 
        between parties before a hearing;
      Pre-hearing  submissions;
      The  pre-hearing conference;
      The  hearing itself; and
      The  initial decision and further appeal rights.Information  about the Board, including MSPB regulations, appeal forms, summaries of case  law, reports, and addresses of MSPB regional and field offices is available on  the MSPB Web site at www.mspb.gov.
    You can E-mail the Board for  information at mspb@mspb.gov, or contact us by telephone, toll free at  1-800-209-8960.
    **Part 1 - How to File an Appeal with MSPB**
    When an agency takes an appealable action against an  employee, the agency must provide the employee with**:**
    A notice of  the time limits for appealing to the Board;
      The address  of the appropriate Board regional or field office for filing the appeal;
      A copy or  access to a copy of the Board's regulations;
      A copy of  the Board's appeal form; and
      A notice of  any rights concerning the agency or negotiated grievance  procedure.You must generally file an appeal in writing with the  Board's regional or field office serving the area where your duty station was  located when the action was taken.   Usually, 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.
    Prior to filing an appeal, if you and the agency mutually  agree to submit your dispute to an alternative dispute resolution (ADR)  process, the 30-day filing time limit is automatically extended to 60  days.  Different time limits apply, by  law or regulation, to certain types of appeals.
    Although an appeal may be in any format, it must be in  writing and contain all of the information specified in the Board's  regulations.  An appeal must be  signed by you or your representative, if you have designated one.
    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 copies of the  designation must be served on all parties to the appeal.
    The Board appeal form may assist you in presenting the information  required in an appeal.  The appeal  form  is available on the MSPB web site  and at most agency human resources offices.
    **Part 2 - After an Appeal is Filed: the Acknowledgement Order**
    Soon after you file your appeal with MSPB, you will receive  an acknowledgment order.  This  order confirms that the case has been received. It also explains the rules and  procedures that will be followed by the Board.
    The Board  does not have the jurisdiction or authority to decide every personnel issue  that might arise. It may only rule in those cases made appealable to MSPB by  law or regulation.
    Read the acknowledgment order very carefully.  Even if you have had experience with a case  with the Board before, you need to re-read the acknowledgment order: it may  contain different information from what was included in an acknowledgment order  in another case.
    There are many different types of acknowledgment orders  tailored to the specific appeal and related circumstances.  For example, many address jurisdiction or  timeliness issues and provide specific guidance on what the appellant must  prove regarding jurisdiction or timeliness.   The parties must respond to acknowledgment order issues, or the case  could be dismissed.
    Not all personnel actions can be handled by MSPB and that is  what we mean by “Jurisdiction.” You must file an appeal with the MSPB within  specified time limits, and that is what we mean by “Timeliness,” that is, being  “on time.”  If you don't understand what  it is you need to prove in order to establish jurisdiction or timeliness, you  may call the local MSPB office and speak with a paralegal or you may contact  the administrative judge, preferably in writing, in order to seek additional  clarification.
    You will be given an opportunity  to file all relevant documents.  Please  do not send documents to the MSPB judge unless the Judge asks you to do so; or  a motion filed by the opposing party requires you to respond.
    You have 10 days to respond to the opposing party's  motion, unless the administrative judge states a different time.  Your documents may be rejected if you  do not follow these rules.
    A Certificate of Service must be filed with each document submission. It tells the Judge that all  parties have been served with the document.   Without the Certificate of Service, the submission may be rejected.
    The term “Ex Parte  Communication” refers to any conversation or communication that takes place  between the administrative judge and a party, without the opposing party being  present or participating in the conversation.
    Some, but not all, ex parte  communications, are prohibited, such as an ex parte communication concerning  the merits of the case.  However, an ex  parte communication that involves procedural matters only is not prohibited.
    **Part 3 - Discovery**
    Discovery is the process  by which information is exchanged between parties before a hearing.  Discovery is available so that each side can  fully understand the evidence that the other party has.
    It’s not like courtroom dramas on  TV, where an attorney surprises his adversary with a question that the opposing  side is unprepared for.  In real life  litigation, that rarely happens. Rules about discovery enable each side to  fully understand what evidence the opposing side has before the hearing  begins.
    Under the MSPB's rules, you must begin asking for information no later  than 25 days after the judge issues the acknowledgment order.  You can ask for a wide range of information.  You can ask for any information that you believe is relevant to your case.  Relevant means that the information will help  you prove your case or disprove your opponent's case.  You can also ask for information that you  believe could show that other relevant information exists.
    These are the main discovery tools you can use to seek  information from the opposing party:
    Requests for the production  of documents.  You may ask the  opposing side to give you copies of documents that you believe can help you  prove your case or disprove your opponent's case.  You may also ask for any documents that you  believe can show that other relevant information exists. You need to describe  the documents you're requesting in enough detail so that the opposing side  knows what kind of documents to look for.
      Interrogatories (or written  questions).  You can send the opposing side a  list of written questions, which is called an interrogatory.  The opposing side will be required to answer  those questions to the best of its knowledge and belief.
      Requests for admission (or  denials) of assertions.  You can ask the  other party to agree or disagree to particular facts.  If the other party admits a fact, you don't  have to submit evidence at the hearing to prove that fact.  For example, an employee could submit a  request for admission asking the agency to admit or deny that during the past  three years the employee has received fully successful performance ratings. If  the agency admits that fact, the employee does not have to submit copies of his  performance ratings to prove that they were fully successful.
      Depositions -  Questions under oath.  Depositions give you the opportunity to ask  a prospective witness questions under oath.   In most cases, all parties will be present at a deposition, and it will  be recorded by a court reporter.  In some  cases, however, the parties may agree to more informal depositions, for  example, by telephone.Discovery is a way for you and your opponent to gather information to  prove your cases.  You should send your  discovery requests directly to your opponent and not involve the judge.  However, if the other party does not respond  to your request for information, or does not provide all the information you  requested, you may file a "Motion to Compel"...
    A motion to compel asks the judge to order the opposing party to provide  the information you requested.  You  should include a copy of your discovery request and any response that you have  received.  You should also explain why  you think the other party is not responding.
    (Remember that the opposing party may also request information from you  during discovery.  You may be asked to  answer a list of written questions or to come to a deposition and answer  questions under oath.  If you refuse to  provide information in response to a discovery request, the judge may not  permit you to use that information at the hearing.)
    If the judge agrees with you, the judge will issue an “Order  to Compel” discovery.  If the other party  continues to be non-responsive, the judge can impose sanctions.
    Please don’t send the judge a discovery response, unless it  is with a “Motion to Compel” or you are asked to do so, to prove you have  complied.
    **Part 4 - Pre-Hearing Submissions**.
    You have a right to request a hearing in your case. It will be granted unless the Board clearly  has no jurisdiction over the matter appealed or it is clearly untimely.
    If you do request a hearing, the judge will schedule one and  issue a scheduling order.  This  order includes the date of the pre-hearing conference, the date of the hearing,  and other specific requirements.
    The administrative judge may also schedule a status  conference or a settlement conference in addition to a prehearing  conference.  The scheduling order is a  critical document that should be examined carefully, because it imposes  specific requirements on the parties to file documents and present facts or  evidence to support the case.
    Each party’s prehearing submission will contain a statement  of issues, list of witnesses, list of exhibits and a list of material facts  that are not in dispute.
    Issues.  It is important to define issues carefully. For example, “Removal from service  in retaliation for whistleblowing;” or “The penalty was too severe.”
      Witnesses.  The witness list should include all witnesses you want to call and a brief summary of the expected testimony of each of these witnesses.  “Testimony” means the words “they will say”  and these words should be summarized sufficiently so that the judge can  determine if they are related to your case.   Saying “John Smith was a co-worker” doesn’t say enough for the judge to  determine if this witness is necessary.   But this short description does: “I was fired for disruption in the  workplace. John Smith was present and will testify that I was not disruptive.”  This is the type of summary the judge is looking for.
      Exhibits.  You should send the judge a list of exhibits  and a copy or description of each one.   If you do not identify proposed exhibits or do not submit copies of your  exhibits with your prehearing submission, you may not be permitted to do so  later.
      Material  Facts Not in Dispute. You should list key facts that you believe are not in  dispute.After the prehearing submissions are received, the  administrative judge will conduct a prehearing conference and may also conduct a  settlement conference and/or a status conference.  Ordinarily, these conferences will be  conducted by telephone, but in some cases you may be asked to appear in  person.  You must be available for these  conferences.  If you have a conflict,  notify the administrative judge immediately.
    **Part 5 – The Pre-Hearing Conference**.
    At the pre-hearing conference the judge will make specific  rulings on the pre-hearing submissions including proposed witnesses, issues,  exhibits, material facts not in dispute.   The judge’s rulings will narrow and define the issues in a case.  
                                   
      It is very important that you be prepared for the  prehearing conference.  It will not help  your case if you say, “I don’t know” or “I’ll have to see” or “I’m not sure  what the witness will say.”
    You must know what your witness will say; what your defense  will be; your opinion of the case--and you must talk about your facts clearly  to the judge.
    The judge will make pre-hearing rulings, and the  parties may state their objections.   After the pre-hearing conference, the judge will issue a summary of the  rulings including stated objections and the basis for each objection.  Read the summary carefully: you can add  objections, if you think the summary is incomplete or inaccurate.
    Regarding witness appearances, the agency is responsible for  ensuring agency employees to appear at the hearing.  If the witness is a non-Federal employee, you should ask the Judge for a subpoena when you are listing  witnesses.  Typically, you can request a  subpoena at the same time you file your prehearing submission.
    If you do request a subpoena, it will be your responsibility  to ensure that that subpoena is served on the witness in question, and you will  be responsible for any expense involved.   Subpoenas may also be issued for the appearance of witnesses at  depositions.
    Some judges will conduct settlement conferences and status  conferences in addition to the prehearing conference.  Other judges will discuss settlement during  the prehearing conference itself.  At some  point, it is likely that the subject of settlement may be raised by the  administrative judge.
    About 50 percent of MSPB cases that are not dismissed are  settled, and settlement will most likely be discussed in your case.  The acknowledgment order orders the agency to  discuss settlement with the appellant within 35 days of the order.  If the agency fails to bring it up, the best  thing for you to do is to call the agency to discuss settlement.
    If the parties arrive at a settlement and the Board has  jurisdiction over the case, the parties can request that the settlement  agreement be entered into the Board's record for purposes of enforcement.  That means that if you enter a settlement  agreement into the record and the opposing side doesn't comply with the terms  of the agreement, you can file a petition for enforcement with the Board and  use the Board's authority to ensure compliance with the agreement or to have  the agreement set aside.
    If the appellant requests a hearing, the hearing ordinarily  will be conducted in person. However, when it is appropriate, the Board also  conducts hearings by telephone or by video teleconference.
    **Part 6 – The Hearing**.
    A hearing before the Board is a formal proceeding.  It is very serious, and the parties should  consider it as such.  All judges will  have witnesses sworn in, so that they are testifying under oath.  A court reporter will record the hearing for  the judge.
    If you want a transcript of the hearing, it is your  responsibility to contact the court reporting service that handles the case and  arrange for the purchase of a transcript.   The Board typically does not purchase written transcripts.
    Most judges do not allow opening statements because the judge  already knows what the issues are from the pre-hearing conference.
    These rules are used for guidance only and the MSPB judge has discretion  on which rules to follow.  Most judges  apply the rules more strictly if both sides are represented by attorneys.  If one or both parties are not represented by  an attorney, the rules will be relaxed somewhat.  It is within the discretion of the  administrative judge to apply or not to apply the Federal Rules of Evidence.
    Hearsay is testimony given by a witness who relates  what another has said and not what the witness personally knows.  The Federal Rules of Evidence generally  prohibit the admission of hearsay unless the testimony can be admitted under  one or more specific exceptions.  Hearsay  is admissible before the Board if it is relevant, material, and not unduly  repetitious.
    The agency can call the appellant as a witness and the appellant will be  expected to testify truthfully in response to the agency's questions.  While an appellant can refuse in a criminal  case to be a witness against himself, this does not apply in an administrative  proceeding, such as a Board hearing, if there is no threat of criminal action.
    If an appellant does refuse to testify under such circumstances, the  administrative judge may draw a negative inference or may impose other  sanctions at the request of the agency. A negative inference, which means  drawing a negative conclusion, might result in the administrative judge  determining that the appellant's refusal was based on the fact that he had  something to hide relating to the subject of the agency's questioning.  Other sanctions that could be imposed include  not considering any of the appellant's evidence on the issue on which he  refused to testify.
    The agency usually presents its case first because the agency usually has  the burden of proof on the merits of the case.   In a typical case, the agency must present a preponderance of evidence,  that is, enough evidence that a reasonable person considering the record as a  whole would accept that a contested fact is more likely to be true than untrue.
    Sometimes the appellant will present the case first.  An example of such an exception is a hearing  on jurisdiction, or a whistleblower case, where the appellant has the burden of  proof.
    After the agency has finished presenting its case, it's the appellant's  turn to tell the judge their side of the case.   When both parties have called the same witness, the administrative judge  may require the appellant or the appellant's representative to question that  witness – called "direct examination"- at the same time the witness  is cross-examined, so that he or she is called only once.
    The appellant then presents his/her case, including a defense of the  charges and any affirmative defenses.   The appellant has the burden of proof on any affirmative defenses to the  agency's action, such as harmful error, discrimination, or retaliation based on  a prohibited personnel action.
    After the appellant presents his or her case, the agency may  present “rebuttal” evidence.  Normally,  the hearing is then over, although sometimes the appellant may respond to the  rebuttal.
    Each party usually presents a brief closing argument.  In some cases of extreme complexity, the  judge allows the parties to submit written closing arguments.
    **Part 7 - The  Initial Decision and Further Appeal Rights**.
    Most decisions are written but a judge may issue a “bench”  decision immediately following the hearing.   The advantage of a bench decision is that the parties know right away  who has won.  A bench decision is usually  not appropriate for cases in which issues are complex.
    After the hearing ends, no new evidence is allowed,  unless a motion is filed by a party showing that the evidence is “newly  discovered” and could not have been provided earlier.
    The administrative judge’s initial decision will contain a  detailed written explanation of your rights for further appellate review.  It is important to observe the time limits  for seeking Board review as set forth in the initial decision.  There are some matters you should be aware of  after the initial decision is issued.   Any final decision of the Board will also contain a detailed explanation  of your appeal rights.
    The judge’s decision is called “initial,” because it may be  appealed to the full Board through a Petition for Review, or PFR.  Either party may file a PFR.  After a PFR decision, an appellant can file a  petition with the U.S. Court of Appeals for the Federal Circuit.  The agency can file with the Court only in  limited circumstances.  The appellant may  by-pass the PFR process and file a petition directly with the Court, but the  agency cannot do this.  The appellant  must wait 35 days until the initial decision becomes the “final” MSPB decision.
    A mixed case is an action that is appealable to the Board,  in which the appellant is alleging prohibited discrimination or retaliation for  EEO activity.  In a mixed case, after  there is a final decision of the Board, the appellant will also have the right  to appeal the discrimination issues to the Equal Employment Opportunity Commission  and/or file for a trial de novo on the discrimination claims only to a U.S.  District Court.
    Mixed cases are often complex. Read the Board’s regulations  very carefully.  The initial decision  and/or the PFR decision will contain a detailed explanation of mixed case  appeal rights.
    An Administrative Judge may grant Interim Relief in a  decision.  For example, if the appellant  prevails in a removal case, the judge may order the agency to return the  appellant to his/her job on a temporary basis, while the agency exercises its  right to file a PFR.
    We hope that you found the information on this tape  helpful.  But remember: this is only an  “introduction” to the MSPB appellate process. There is a lot more to  learn.
    If you are watching this in an MSPB office, a staff member  is available to answer your questions.   The staff member cannot discuss the particular aspects of your case, and  cannot provide legal advice.
    You may want to access the Board’s web site at www.mspb.gov which contains information about  the Board, the Board’s regulations and Board decisions.
    Thank you for your interest.
    The End


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