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     Whistleblower Q&ASearch and Site Index Whistleblower Q&A
   IntroductionWhistleblowingTwo Types of Whistleblower AppealsQuestions and AnswersMSPB at Your Fingertips
		Introduction
			Whistleblowing means disclosing information  that you reasonably believe is evidence of a violation of any law, rule, or  regulation; gross mismanagement; a gross waste of funds; an abuse of authority;  or a substantial and specific danger to public health or safety.  Other  activities related to whistleblowing are also protected by whistleblower laws.  They include filing a complaint, grievance,  or appeal to remedy whistleblowing reprisal; testifying for or assisting someone  else with their complaint, grievance, or appeal; cooperating with or disclosing  information to an Inspector General or the Office of Special Counsel (OSC); or  refusing to obey an order that would require the individual to violate a law,  rule, or regulation.  For purposes of this discussion, all  protected activities under the whistleblower laws are referred to as  whistleblowing.
	   MSPB's regulations  governing appeals generally are contained in Title 5 of the Code of Federal  Regulations (C.F.R.), Chapter II, Part 1201. Additional regulations  applying to whistleblower appeals are contained in Part 1209. Because the Part  1209 regulations contain only the special provisions applying to whistleblower  appeals, they must be used in conjunction with Part 1201, except as expressly  provided by Part 1209. 5 C.F.R. § 1209.3.
	   This publication covers the  provisions of these laws and MSPB's regulations that apply to whistleblower  appeals. This discussion of whistleblower appeals is not all-inclusive, nor is  the information regulatory in nature. Such appeals are governed by the  pertinent statutes, regulations, and case law.
	   Further information about filing  whistleblower claims, an appeal form to complete when filing an initial appeal, and MSPB's regulations covering  whistleblower claims are available on the MSPB website. You can send email to MSPB at mspb@mspb.gov.
 **You  may not file an appeal with MSPB by email. To file an appeal electronically, go  to U.S. MSPB e-Appeal Online.**
	  Information applying to all  appeals to MSPB is contained in a separate MSPB publication entitled How  to File an Appeal.
	   Please see MSPB at Your Fingertips at the end of this  publication for information on how to locate MSPB decisions, case summaries,  press releases, addresses of MSPB regional and field offices, and other information  about MSPB.
  Whistleblowing 
	An agency official shall  not retaliate against an employee for whistleblowing.  This prohibited personnel practice prohibits agency  officials from taking, failing to take, or threatening to take a personnel  action because of an employee's whistleblowing.   Protected whistleblowing includes disclosures  that the employee reasonably believes to be:
     a  violation of law, rule, or regulation;
       gross  mismanagement;
       gross  waste of funds;
       an  abuse of authority; or
       a  substantial and specific danger to public health or safety.5 U.S.C. § 2302(b)(8).
       An agency official shall also  not retaliate because an employee engaged in other protected whistleblowing  activities, such as:
     filing  a complaint, grievance, or appeal to remedy whistleblowing reprisal (i.e., retaliation for  whistleblowing);
       testifying  for or helping someone else with one of these activities;
       cooperating  with or disclosing information to the Inspector General (or any other component  responsible for internal investigation or review) of an agency, or to OSC; or
       refusing  to obey an order that would require the employee to violate a law, rule, or  regulation.5 U.S.C. § 2302(b)(9).
       Two Types of Whistleblower Appeals 
       There are two types of whistleblower appeals  that can be filed with MSPB. The principal difference between them is how they  reach MSPB.
  Otherwise Appealable Action: The first type of appeal  involves a situation where the employing agency subjected the individual to a  personnel action directly appealable to MSPB, and the individual claims the  action was taken because of whistleblowing. This type of appeal is known as an  "otherwise appealable action" because the individual may file an  appeal directly with MSPB after the action has been taken. In such an appeal,  both the appealable matter and the claim of reprisal for whistleblowing will be  reviewed by MSPB. Personnel actions  that are directly appealable to MSPB include adverse actions (removals, reductions in grade or pay, suspensions for more than 14 days,  and furloughs for 30 days or less for cause that will  promote the efficiency of the service), removals or reductions in grade for unacceptable performance under chapter 43, denials of  within-grade pay increases, reduction-in-force actions, and denials of  restoration or reemployment rights.  5  C.F.R. § 1201.3(a).
  Individual Right of Action: The second type of appeal  is referred to as an individual right of action (IRA) appeal. The type of appeal  involves a situation where the agency subjected the individual to a covered personnel  action, and the individual claims the action was taken because of  whistleblowing. The action does not need to be directly appealable to MSPB. Personnel actions that can be raised in an IRA  appeal include:
     an appointment;
       a promotion;
       an adverse action  under chapter 75 of title 5, United States Code or other disciplinary or  corrective action;
       a detail, transfer, or  reassignment;
       a reinstatement;
       a restoration;
       a reemployment;
       a performance  evaluation under chapter 43 of title 5, United States Code;
       a decision concerning  pay, benefits, or awards, or concerning education or training if the education  or training may reasonably be expected to lead to an appointment, promotion,  performance evaluation, or other personnel action;
       a decision to order psychiatric testing or examination;
       the implementation or enforcement of any nondisclosure policy,  form, or agreement; and
       any other significant change in duties, responsibilities, or  working conditions.5 C.F.R. § 1209.4(a).
      An individual must seek corrective action  from the Office of Special Counsel (OSC) before appealing to MSPB unless the  action being appealed is otherwise appealable directly to MSPB and the  individual has elected a direct appeal. 5 C.F.R. § 1209.5(a).  If OSC does not seek corrective action on the  individual's behalf, the individual may then appeal to MSPB. Instead of filing a complaint with OSC, FBI  employees must seek corrective action through the Department of Justice by  following the procedures at 28 C.F.R. Part 27.
When an individual elects to file a complaint  with OSC regarding an otherwise appealable action prior to filing a direct  appeal with MSPB, the procedures of an IRA appeal will be followed.  The IRA appeal in such a case will be limited  to resolving the claim(s) of reprisal for whistleblowing or other protected  activity, and MSPB will not directly review the merits of the personnel action.  5 C.F.R. §§ 1209.2(d)(2), 1209.3, 1209.5(a).
  Questions and Answers
  **1.  What must I do before I can file an individual right of action appeal with the  MSPB?** 
     Before you can file an individual right of  action appeal with MSPB, you must first seek corrective action with the Office  of Special Counsel (OSC), as required by 5 U.S.C. § 1214(a)(3). This is done by filing  a complaint with OSC. OSC's Complaint Form and further information about their  procedures are available at the OSC website. For time limits on filing an appeal with  MSPB after seeking corrective action from OSC, please see the separate MSPB  publication entitled Initial Appeal Process for more information. Instead of filing a complaint with OSC, FBI  employees must seek corrective action through the Department of Justice by  following the procedures at 28 C.F.R. Part 27.
       In an otherwise appealable action, you have  the option of first seeking corrective action with OSC, as described above, or  you can file a direct appeal with MSPB without first seeking corrective action  from OSC.
			**2. How and when do I seek  correction action from the Office of the Special Counsel?**
			An employee, former employee, or applicant  for employment seeks corrective action from the Office of Special Counsel (OSC)  by filing a complaint of a prohibited personnel practice, including retaliation  for whistleblowing, by completing Form OSC-14 (Complaint of Prohibited  Personnel Practice or Other Prohibited Activity). OSC requires this form be  used. For more information, visit OSC's website.
  **3.  Who may file whistleblower appeals with MSPB?** 
      The right to file an  individual right of action (IRA) appeal with MSPB is determined by whether the  individual is an employee or former employee in, or applicant for, a  "covered position" in an agency as defined by 5 U.S.C. § 2302(a)(2)(B).  These positions generally include:
     positions in       the competitive service;
       a career       appointee position in the Senior Executive Service;
       most       positions in the excepted service; and
       most       positions in Government corporations and the Government Publishing OfficeAmong those individuals specifically excluded  from coverage are those in positions in the Government Accountability Office and various intelligence agencies. FBI employees have the right to file an IRA appeal after they have followed the internal procedures at 28 C.F.R. Part 27.
      In the case of an otherwise appealable  action, please see the separate MSPB publication Appellant Questions and Answers for more information on  who may generally file direct appeals to MSPB.
  **4.  How do I file a whistleblower appeal with MSPB?**
       Please see the separate  MSPB publication How to File an Appeal for information on filing  a whistleblower appeal with MSPB.  In  general, you must file an appeal with MSPB's regional or field office serving the area where  your duty station was located when the action was taken, or, if an applicant  for employment, with MSPB's regional or field  office  serving the area where the sought position is located.  This requirement applies to all whistleblower  appeals, both otherwise appealable actions and individual right of action (IRA)  appeals.
       An appeal must be in  writing and contain all the information specified in MSPB's regulations.  5 C.F.R. §§ 1201.24 (otherwise appealable  actions); 1209.6 (IRA appeals).  Using MSPB's Appeal Form or its e-Appeal Online application will ensure that all required  information is provided, but using the form is not required.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 electronically, you may download MSPB's Appeal Form and file your appeal by  mail, facsimile, or commercial or personal delivery.
  **5.  What are the required time limits for filing a whistleblower appeal?**
       The time limits are  different for an otherwise appealable action and for an individual right of  action appeal.  Please see the separate  MSPB publication entitled Initial Appeal Process for more information.
  **6.  What is a "stay" and how does it apply to whistleblower appeals?**
       A stay orders the agency to suspend the  personnel action being appealed. You may request a stay of a personnel action  allegedly based on whistleblowing in connection with either kind of  whistleblower appeal--an otherwise appealable action or an individual right of  action appeal--at any time after you become eligible to file an appeal with MSPB,  but no later than the time limit the administrative judge sets for the close of  discovery in the appeal. 5 C.F.R. § 1209.8(a). You may file a stay  request prior to, simultaneous with, or after the filing of a whistleblower  appeal. 5 C.F.R. § 1209.8(a).
       If you file the stay request first, the whistleblower  appeal must be filed within 30 days after the date you receive the order ruling  on the stay request. Failure to timely file the appeal will result in the  termination of any stay that has been granted unless a good reason for the  delay is shown. 5 C.F.R. § 1209.5(c).
  **7.  How do I file a stay request with MSPB?** 
       A stay request must be  filed with the same MSPB regional or field office where you should file your  whistleblower appeal, as described above, by mail, facsimile, commercial or  personal delivery, or electronic filing using MSPB's e-Appeal Online application.
        A stay request must be in  writing and contain all the information specified in MSPB's regulations.  5 C.F.R. § 1209.9(a). A stay request must be  simultaneously served upon MSPB's regional or field office and  upon the agency's local servicing personnel office or the agency's designated  representative, if any. A certificate of service stating how and when service  was made must accompany the stay request. 5 C.F.R. § 1209.8(c).
  **8.  How does MSPB decide a stay request?** 
       After a stay request has  been filed, the administrative judge will allow the agency an opportunity to respond  and submit evidence. After considering all the arguments and evidence, the  administrative judge will either grant or deny the request.
       If the stay request is  granted, the administrative judge will specify the duration for which the  agency must suspend the personnel action. 5 C.F.R. §§ 1209.10(b)(3), 1209.11(a). A typical stay order will  suspend the personnel action indefinitely, until it is later modified or  vacated by another MSPB order.
       If the stay request is denied,  a written request may be filed with the administrative judge asking that the stay  request and the decision denying the stay request be referred to MSPB's Board  members in Washington, D.C., for their review. This is called  "petitioning" the administrative judge to "certify" the decision  as an "interlocutory appeal." MSPB's regulations regarding  interlocutory appeals are found at Title 5 of the Code of Federal Regulations,  Part 1201, sections 1201.91 to 1201.93.
  **9.  What are the burdens of proof in whistleblower appeals?** 
      In whistleblower appeals, you have the burden  of proving by a preponderance of the evidence:
     you  engaged in whistleblowing or other protected activity; and
       the  whistleblowing or other protected activity was a contributing factor in the agency's  decision to threaten, propose, take, or not take a covered personnel action  with respect to you.5 C.F.R. § 1209.7(a).
       An appellant may establish the contributing  factor element through circumstantial evidence, such as evidence that the official  taking the personnel action knew of the disclosure or protected activity, and  that the personnel action occurred within a period of time such that a  reasonable person could conclude that the disclosure or protected activity was  a contributing factor in the personnel action.
      If you are filing an individual right of  action appeal, you must also prove by a preponderance of the evidence you  exhausted your claims of whistleblower  retaliation with  the Office of Special Counsel.  5 C.F.R.  § 1209.5(a).
        If a finding is made that a  protected disclosure or other protected activity was a contributing factor in  one or more covered personnel actions, MSPB will order corrective action unless  the agency demonstrates by clear and convincing evidence that it would have threatened,  proposed, taken, or not taken the same personnel action in the absence of such  disclosure or activity. 5 C.F.R. § 1209.7(b). The clear and convincing  standard of proof is a higher standard than the preponderance of the evidence.  5 C.F.R. § 1209.4(e).
  **10.  If I file a whistleblower appeal with MSPB after the Office of Special Counsel  has terminated an investigation of my complaint, will that termination  influence MSPB's decision?**
       No. When MSPB considers  your appeal, it may not consider the decision of the Office of Special Counsel  (OSC) to terminate an investigation of your complaint. If you file your IRA appeal  with MSPB because 120 days have passed without you being notified that OSC will  seek corrective action on your behalf, OSC may not proceed to seek corrective  action without your permission. Furthermore, OSC may not intervene in your MSPB  appeal without your permission.
  **11.  What can I do if I am not satisfied with the administrative judge's decision on  my whistleblower appeal?** 
       As with other decisions on  appeals to MSPB, you have the right to ask the 3-member Board in Washington to  review the initial decision of the administrative judge. Please see the separate  MSPB publication entitled Petition for Review Process for more information.
  MSPB At Your Fingertips
  **MSPB Regional and Field Offices** A listing of MSPB regional and field offices is available at the MSPB Website. You may contact those  offices to file an appeal or if you have questions or need additional  information.
  **Headquarters** For information on filing a petition for review with the Board, you may  contact the Clerk of the Board, U.S. Merit Systems Protection Board, 1615 M  Street, NW, Washington, DC 20419-0001. You may send e-mail to MSPB Headquarters  at mspb@mspb.gov, or by calling (202)  653-7200. You also may call, toll free, and leave a message at 1-800-209-8960.
  **MSPB  Regulations** MSPB's regulations are in  Title 5 of the Code of Federal Regulations (C.F.R.) at 5 C.F.R., Chapter  II, Parts 1200 through 1210 (5 C.F.R. Part 1200). They are available on the MSPB website as well as at any MSPB  office, agency libraries, agency personnel or administrative offices, and most  public libraries.  Part 1201 describes MSPB's appellate  procedures and requirements; Part 1208 describes the special  provisions applying to cases involving the Uniformed Services Employment and  Reemployment Rights Act of 1994 (codified as amended at 38 U.S.C. §§ 4301-4335) (USERRA) and Veterans  Employment Opportunities Act of 1998 (VEOA); and Part 1209 describes the special  provisions applying to "whistleblower" cases. MSPB's regulations were  substantially revised as of November 13, 2012, so printed copies may not  reflect the current regulations. You must rely only on the current regulations.
  **How  to Access Information about MSPB on its Website** MSPB decisions, MSPB  regulations, a form for filing appeals, Office of Policy and Evaluation  reports, a listing of regional and field offices and their geographic  jurisdictions, and background information about the MSPB are available on the MSPB Website.
       MSPB's Strategic Plan can  be found on the Agency Plans and Reports page.
    U.S.  Merit Systems Protection Board, 1615 M Street, NW., Washington, DC 20419-0001,  (202) 653-7200, Toll Free 1-800-209-8960, V/TDD 1-800-877-8339 (Federal Relay  Service)


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