U.S. flagAn official website of the United States government
      Here's how you know **The .gov means it’s official.**
            
            Federal government websites often end in .gov or .mil. Before sharing sensitive information, make sure you’re on a federal government site.
 **The site is secure.**
            
            The **https://** ensures that you are connecting to the official website and that any information you provide is encrypted and transmitted securely.


U.S. Merit Systems Protection Board
 Menu


close HomeAbout
    About the MSPB	
			Contacts & Locations
			Equal Employment Opportunity
			Information Quality Standards
			No FEAR Act
			Open.Gov
			Organization
			Plans, Budget & Performance
			Privacy Program
           Merit System Principles
	Prohibited Personnel Practices
	 Site Index and SearchAppeals
    Appeal Process
						Appellant Q&A
    Electronic Filing
    Forms
    Hearing Sites
    Policy & Resources
    Regulations
    Whistleblower Q&A 
	Electronic Filing  
	Mediation Appeals ProgramDecisions
    Case Reports
Nonprecedential Decisions
		Precedential DecisionsStudies & Publications
       About & Contact Studies
		Latest Publications
		Newsletters
		Reports
          Research Briefs
		Search StudiesSurveys of Federal Employees Public & Information Services
    Accessibility
		   Contracting & Procurement
			  Federal Register Notices
		      FOIA Program
				 e-FOIA Reading Room
        Submit a FOIA Request
           FOIA Reports 
			Information Collections
			Jobs & Internships
	Press Releases & News
	Privacy Program
				Regulations
			    Technical Support Search small
Search




Home
       Appeal Process
    Appellant Q&A
      Electronic Filing
      Forms
      Hearing Sites
		Mediation Appeals Program
		Policy & Resources
     		Regulations
     Whistleblower Q&ASearch and Site Index Appellant Questions and Answers
	 **Introduction** As a Federal employee, you have an obligation to do your job efficiently,
  honestly and courteously. The Federal Government, as your employer, has an
  obligation to maintain a personnel system that balances the interests of its
  employees, the agencies that employ them, and the public they serve. In order to meet its obligation, the Government must sometimes take
  personnel actions that adversely affect employees. When it does so, it must
  ensure that those employees are protected from unfair or arbitrary treatment.
  Under the Civil Service Reform Act of 1978 (CSRA), most Federal employees may
  appeal various personnel actions affecting them to the U.S. Merit Systems Protection
  Board (MSPB or Board). This publication provides general information about your rights when such
  actions are taken against you and discusses the Board's appeals process. *The
  discussion applies to typical proceedings before the Board and is not all-inclusive,
  nor is the information regulatory in nature.* Specific appealable actions
  are governed by the pertinent statutes, regulations, and case law. *Some
  laws have specific requirements for handling appeals that differ from those
  described in this publication.* See question #27. Further, the
  Board’s regulations were substantially revised as of November 13,
  2012.  If your appeal was filed on
  or after that date, or if the Administrative Judge has informed you that the
  new regulations apply to your appeal, you must be sure that you are following
  the requirements of those regulations since printed versions to which you may
  have access may not be the current regulations.**1. What is the U.S. Merit Systems Protection Board?** The Merit Systems Protection Board is an independent, quasi-judicial
  agency in the Executive branch of the Federal Government that serves as the
  guardian of Federal merit systems. The Board is composed of three members who
  are appointed by the President and confirmed by the Senate. They serve
  overlapping, non-renewable 7-year terms. The Board is bipartisan. No more
  than two of its three members may be from the same political party. **2. Where is the Board located?** The Board's headquarters is in Washington, DC. It has regional and field
  offices in major cities. The Board's regional and field offices and the
  geographic areas they serve are listed on the MSPB Web site at **www.mspb.gov**.
  **3. How can I get information about the Board and the appeals
  process?** Information about the Board is available on the MSPB Web site at
  www.mspb.gov. You can send email to the Board at mspb@mspb.gov, or telephone,
  toll free, and leave a message at 1-800-209-8960. 
    **4. Does the Board hear all types of Federal employee appeals?**
  No. The CSRA authorized the Board to hear appeals of various agency
  actions, including most appeals previously heard by the Civil Service
  Commission and appeals arising from new causes of action created by the CSRA.
  Certain other actions may be appealed to the Board under regulations of the Office
  of Personnel Management (OPM). Since a principal purpose of the CSRA was to
  streamline Federal personnel management, Congress did not make all personnel
  actions appealable to the Board. **5. What kinds
  of actions may be appealed to the Board?** Under the CSRA, the majority of the cases are appeals of agency adverse
  actions--removals, suspensions of more than 14 days, reductions in grade or
  pay, and furloughs of 30 days or less. Other types of actions that may be
  appealed to the Board include: performance-based removals or reductions in
  grade, denials of within-grade salary increases, reduction-in-force actions,
  OPM suitability determinations, OPM employment practices, OPM
  determinations in retirement matters, denials of restoration or reemployment
  rights, and terminations of probationary employees under certain
  circumstances.  A more complete
  listing is found in the Board’s regulations at 5 CFR 1201.3(a).  See question #27 for descriptions of
  other statutes that provide for appeals to the Board. **6. What can I do if I am affected by a personnel action that is
  not appealable to the Board?** Some actions that are
       not appealable to the Board may be appealable to OPM or may be covered
       by agency grievance procedures.If you are a member of
       a bargaining unit, actions covered under a negotiated grievance
       procedure may be grieved in accordance with that procedure.If a personnel action
       (whether appealable to the Board or not) is taken or about to be taken
       as a result of a prohibited personnel practice, you may file a complaint
       with the Office of Special Counsel, asking the Special Counsel to seek
       corrective action from the Board on your behalf.**7. May all Federal employees file appeals with the Board?** No. The employees and others (e.g., applicants for employment, annuitants
  in retirement cases) who may appeal specific actions to the Board vary in
  accordance with the law and regulations governing those actions. In some
  cases, classes of employees, such as political appointees, are excluded.
  Employees of specific agencies are excluded with respect to certain actions. **8. Who may appeal an adverse action to the Board?** Employees who may appeal adverse actions are: 
    Employees in the competitive service who have completed a 1-year probationary or trial period and those who have completed one year of current continuous service under other than a temporary appointment limited to 1 year or less;Veterans
       preference-eligible employees with at least one year of continuous
       employment in the same or similar positions outside the competitive
       service;Postal Service
       supervisors and managers, and Postal Service employees engaged in
       personnel work (other than those in nonconfidential
       clerical positions), who have completed one year of current continuous
       service in the same or similar positions; andExcepted service employees,
       other than preference-eligibles, who are not
       serving a probationary or trial period under an initial appointment
       pending conversion to the competitive service and those who have
       completed two years of current continuous service in the same or similar
       positions in an Executive agency under other than a temporary
       appointment limited to two years or less.**9. Do agencies have to advise employees of their right to appeal
  personnel actions to the Board?** When an agency takes an appealable action against an employee, the agency
  must provide the employee with: (1) a notice of the time limits for appealing
  to the Board, (2) the address of the appropriate Board regional or field
  office for filing the appeal, (3) a copy or access to a copy of the Board's
  regulations, (4) a copy of the Board's appeal form, (5) a notice of any
  rights concerning the agency grievance procedure or a negotiated grievance
  procedure, whether an election must be made between available options, and
  the effect of such an election, and (6) notice of any right to file a
  complaint with the Equal Employment Opportunity Commission. You may not be
  advised of other potential rights. See question #27 for a description of
  other statutes that may apply. **10. Does the Board hear appeals from employees who are covered by
  a negotiated grievance procedure?** If an employee is a member of a bargaining unit that is represented by a
  union or an association, the bargaining agreement may have a negotiated
  grievance procedure available to the employee. Many times, the grievance
  procedure will cover personnel actions that by law may otherwise be appealed
  to the Board. If a bargaining unit employee is covered by such a "broad
  scope" grievance procedure, then the employee has a choice between
  filing either a grievance with the agency or an appeal with the Board, *but
  may not do both*. In some circumstances, however, an employee who filed a
  grievance and claims discrimination affected the grieved action may request
  the MSPB to review a final decision under the grievance system.(Under the terms of some union contracts, Postal Service employees may be
  able to pursue a grievance under the negotiated grievance procedure and also
  file an appeal with the Board.) **11. Does the Board hear complaints of discrimination in connection
  with personnel actions?** Generally, yes, if the personnel action can be appealed. See question 5.
  If an employee alleges discrimination in connection with most actions that
  are otherwise appealable to the Board, the Board has jurisdiction over the
  matter. Discrimination allegations that do not involve actions within the
  Board's jurisdiction may be pursued through the employing agency and the
  Equal Employment Opportunity Commission (EEOC). **12. How do I file an appeal with the Board?** You must 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.  Appeals of final retirement or
       suitability decisions issued by the Office of Personnel Management must
       be filed with the regional or field office serving the area where you
       live.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. If the 30th day falls on a
       Saturday, Sunday, or Federal holiday, the filing deadline is extended to
       the next working day.If you and the agency
       mutually agree *in writing* to submit your dispute to an
       alternative dispute resolution (ADR) process, the 30-day filing time
       limit is automatically extended to 60 days.Special statutory time
       limits apply to filing appeals under certain laws. See question #27.Appeals may be filed
       by mail, by facsimile, by commercial overnight delivery, by personal
       delivery, or by the Board’s electronic filing procedure, e-Appeal
       Online (https://e-appeal.mspb.gov/).  Appeals and other submissions may
       not be made by email. The date of filing by mail is considered to be the
       postmark date. The date of filing by facsimile is the date of the
       facsimile. The date of filing by commercial overnight delivery is the
       date you deliver the appeal to the commercial overnight delivery
       service.  The date of filing
       by e-Appeal is the date of the electronic submission.**13. Does the appeal have to be in a particular format?** 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.* A
  form that meets all of the Board’s requirements is available on the
  Board’s website, www.mspb.gov and may
  be available in agency personnel offices.  An appeal *must be signed by you or
  your representative*, if you have designated one. **14. Do I have any recourse if I miss the deadline for filing an
  appeal?** Yes, but if you file an appeal after the deadline for filing, you must
  show a good reason for the delay and include supporting evidence. The Administrative
  Judge will provide an opportunity for you to show why your appeal should be
  accepted even though you filed late. **15. May the agency respond to my appeal?** An agency has the right to respond to an appeal but must do so within 20
  calendar days of the date of the Board's order acknowledging receipt of the
  appeal. If a response is not submitted within the time limit, and the agency
  does not show good cause for an extension, the case will proceed and may be
  decided on the basis of the available information. **16. Who can represent me in an appeal before the Board, if I
  choose to have a representative?** You can choose any person to represent you as long as that person is
  willing and available to serve. You can also represent yourself. Typical
  representatives include private attorneys, union attorneys, and other union
  representatives. The agency may challenge your representative on the basis of
  conflict of interest or conflict of position. If your representative is
  disqualified, you will be given a reasonable time to obtain another
  representative. **17. Who decides my appeal?** When a Board regional or field office receives an appeal, the case is
  assigned to an Administrative Judge in that office. The Administrative Judge
  will issue a decision considering all of the relevant evidence in the case
  after allowing the parties to develop a record. **18. Are hearings held on all appeals?** Once it is established that your appeal was timely filed and that the
  Board has jurisdiction, you have a right to a hearing on the merits of your
  case for most types of appeals: You may present evidence, including the
  testimony of witnesses, at the hearing. However, you may waive the right to a
  hearing and choose instead to have the appeal decided on the basis of the
  written record, which will include all pleadings, documents and other
  materials filed in the proceeding. Sometimes hearings are conducted by
  telephone or video conferencing rather than in person. **19. Who has the burden of proof in appeals proceedings?** *The Agency:* The agency has the burden of proving that it was justified
  in taking the action. If the agency meets its burden of proof, the Board must
  decide in favor of the agency, unless you show that there was harmful error
  in the agency's procedures, that the agency decision was based on a
  prohibited personnel practice, or that the decision was not in accordance
  with the law. *The Appellant:* You have the burden of proving that your appeal is
  within the Board's jurisdiction and that it was timely filed. You also have
  the burden of proving any "affirmative defenses" that you raise,
  for example, discrimination or reprisal for whistleblowing. You also have the
  burden of proof on most issues in retirement cases. **20. Is the decision issued by the Administrative Judge final?**
  The initial decision of the Administrative Judge will become the final
  decision of the Board 35 days after the date of the decision unless a party
  files a petition for review with the 3-member Board in Washington. *A
  petition for review by the MSPB must be filed within 35 days after the date
  the initial decision is issued or within 30 days after the date you receive
  the initial decision, whichever is later.* If you are represented, the
  period begins to run from first receipt, whether it is by you or your
  representative.**21. How does the Board decide whether to grant a petition for
  review?** The Board may grant a petition for review when it is established that the
  initial decision contains erroneous findings of material fact; there is *new
  significant evidence or legal argument*that was not available when the
  record was closed; the Administrative Judge’s rulings were not
  consistent with procedures or constituted an abuse of discretion and the
  error affected the results; or that the Administrative Judge's decision is
  based on an *erroneous interpretation of law or regulation or an erroneous
  application of the law to the facts of the case.* The Board's decision on
  a petition for review constitutes final administrative action. **22. If the initial decision is in my favor, and the agency (or
  another party) files a petition for review, do I have to wait for relief
  until the Board issues a decision?** If you are the prevailing party, the agency will grant you any relief
  provided in the initial decision pending the outcome of any petition for
  review if the Administrative Judge orders “interim relief.” If
  the Administrative Judge determines that interim relief is appropriate and if
  the decision requires your return to the workplace, the agency does not have
  to take this action if it determines that such a return would be unduly
  disruptive. However, it still has to restore you to pay and benefits status.
  The granting of interim relief does not require the payment of back pay or
  attorney fees.  **23. What actions may Administrative Judges take on appeals?**
  The initial decision of the Administrative Judge may dismiss the appeal if
  the matter is not within the Board's jurisdiction or if the appeal was not
  filed within the required time limit and good cause for the untimely filing
  is not shown. Appeals that are not dismissed may be settled voluntarily by
  the parties. If the parties wish to have the settlement agreement enforceable
  by the Board, they must ask the Administrative Judge to enter the agreement
  into the record. In appeals that are decided on the merits (not dismissed or
  settled), the decision of the Administrative Judge may affirm the agency's
  action, reverse the action, or--in certain cases--mitigate (modify) the
  penalty imposed by the agency. **24. What actions may the Board take on petitions for review?**
  The Board may dismiss a petition if it determines that the matter is not
  within the Board's jurisdiction or if the petition was not filed within the
  required time limit and good cause for the untimely filing is not shown. The
  Board may deny a petition if it does not meet the criteria for review. See
  question #21 above. If the Board grants a petition, its final decision may
  affirm or reverse the initial decision of the Administrative Judge, in whole
  or in part. The Board may also modify the decision of the Administrative Judge,
  vacate it, or remand (send back) the case to the Administrative Judge for
  further processing. **25. What can I do if I am dissatisfied with the final decision of
  the Board?** You can request court review. Once an initial decision of an
  Administrative Judge has become final or the Board has issued a final
  decision on a petition for review, you can seek review of the final decision
  by the U.S. Court of Appeals for the Federal Circuit. Your request for review must be filed within 60 days after the Board issues notice of the final order or decision of the Board. The court normally will not waive this time limit, and
  filings that do not meet the deadline will be dismissed. In cases involving allegations of discrimination, you may seek review of
  the final Board decision by the Equal Employment Opportunity Commission
  (EEOC) or you may file a civil action in an appropriate U.S. district court
  within 30 days of your receipt of the decision. **26. What happens if I appeal a case involving an allegation of
  discrimination to the Equal Employment Opportunity Commission?** In a case appealable to the Board that involves an allegation of
  discrimination (a "mixed case"), you may
  ask the EEOC to review the Board's final decision on the discrimination
  issue. If the EEOC disagrees with the Board's decision on the discrimination
  issue, the case is returned to the Board. If the Board does not adopt the
  EEOC decision, then the case is referred to a Special Panel made up of a
  Chairman appointed by the President, one member of the Board, and one EEOC
  commissioner. The Special Panel issues the final decision in the case, which
  then may be appealed to an appropriate U.S. district court. **27. Do the procedures described in this publication apply to all
  appeals to MSPB?** Some laws that authorize appeals to MSPB include procedural requirements
  that differ from the general procedures described in this publication. Such
  laws may require that you first exhaust the procedures of another agency
  before filing with MSPB, and the time limits for filing differ from those
  discussed in this publication. Also, because the basis for an appeal to MSPB
  is an alleged violation of one of these laws, you cannot expect your agency
  to advise you of an alleged violation and a right to appeal to MSPB. Laws
  with different procedural requirements include the following: *Whistleblower
       Protection Act of 1989* (Public Law No. 101-12) - This law authorizes an
       appeal to MSPB if you allege that you were subject to an agency action
       that was taken or threatened (or is about to be taken or threatened)
       because of certain legal disclosures of information, commonly known as
       whistleblowing. Unless the matter is directly appealable to the Board
       under law, rule or regulation, you must first file a complaint with the
       Office of Special Counsel and exhaust the procedures of that office. The
       special provisions applicable to whistleblower appeals are discussed in
       the Whistleblower Q&A section of this web site. Also see Title 5 of
       the U.S. Code, section 1221, and the Board's regulations at Title 5 of
       the Code of Federal Regulations, Part 1209.*Presidential and
       Executive Office Accountability Act* (Public Law No. 104-331) - This law authorizes
       appeals to MSPB by employees of the Executive Office of the President,
       the White House Residence, and the official residence of the Vice
       President that allege violations of certain workplace laws, including
       the Family and Medical Leave Act and the Fair Labor Standards Act. You
       must first exhaust a mandatory period of counseling and mediation with
       the employing agency. Any subsequent appeal to MSPB must be filed no
       earlier than the 30th day and no later than the 90th day after you
       receive notice of the end of the mandatory period of counseling and
       mediation. See Title 3 of the U.S. Code, Chapter 5.*Uniformed Services
       Employment and Reemployment Rights Act (USERRA)* (Public Law No.
       103-353) - This law authorizes an appeal to MSPB based on an agency's
       alleged violation of your employment or reemployment rights following
       your service in a uniformed service (including discrimination based on
       such service or your obligation to perform it, or on your status as a
       veteran). You have the option of appealing directly to MSPB or filing a
       complaint with the Department of Labor's Veterans' Employment and
       Training Service (DOL/VETS). If you file with DOL/VETS, you must first
       exhaust that agency's procedure and may appeal to MSPB later if DOL/VETS
       cannot resolve the matter. See Title 38 of the U.S. Code, Chapter 43,
       and the Board's regulations at Title 5 of the Code of Federal
       Regulations, Part 1208.  In
       lieu of filing an appeal directly to the Board after receipt of the
       DOL/VETS’s notice, you may request that the Secretary of Labor
       refer the complaint to the Special Counsel.  If the Special Counsel agrees to
       represent you, then he or she will file your appeal to the Board; you
       may file it if the Special Counsel does not choose to represent you.*Veterans Employment
       Opportunities Act*
       (Public Law No. 105-339) - This law authorizes an appeal to MSPB based
       on an agency's alleged violation of any law or regulation relating to
       veterans' preference. You must first file a complaint with DOL/VETS and
       allow that agency 60 days to resolve the matter. If DOL/VETS advises you that it has been unable to resolve the
       matter, an appeal to MSPB must be filed within 15 days after the date
       you receive the DOL/VETS notice. See Title 5 of the U.S. Code, sections
       3330a, 3330b, and 3330c, and the Board's regulations at Title 5 of the
       Code of Federal Regulations, Part 1208.*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."  In addition, the agency's burden of proof is lowered to substantial evidence; the Board may not mitigate the action effected by the agency; and a final and complete decision must be issued within 180 days.
 Additional
  information on the appeal rights of veterans is available on the Web sites
  operated by the Office of Personnel Management (www.opm.gov, choose
  "Veterans" from the menu) and DOL/VETS (https://www.dol.gov/vets/).


Return to top


About MSPB
			  Accessibility
           Budget and Performance
          FOIA
          Info Quality Standards
          No FEAR Act
    
          Office of the Inspector General
          Privacy Program   
           Technical Support       USA.gov
		OSC.gov
				 Vote.gov


U.S. Merit Systems Protection Board
 Agency Contact Center (202) 653-7200
          mspb@mspb.gov