MSPB Practice and 

Procedures
FOLEY HOAG MSPB Appeals 

Pro Bono Project – Introduction 

William L. Boulden

Chief Administrative Judge/Regional 

Director 

Northeastern Regional Office

U.S. Merit Systems Protection Board

Philadelphia, PA 
Appeal System Required By Law

A tenured public employee has a property 

interest in his or her employment that 

cannot be taken away without due 

process of law- notice, reply, counsel 

-- “Some kind of hearing” 

Cleveland Board of Education v. Loudermill, 

470 U.S. 532, 538 (1985).
The Merit Systems Protection Board

 Composed of 3 Presidential appointees; no 

more than 2 from same political party

 Most cases heard first by an Administrative 

Judge (AJ) in a Regional or Field Office

 Full Board review of AJ’s initial decision 

(ID) upon either side’s Petition for Review 

(PFR)

 Reviewing court almost always CAFC 
REGIONAL and FIELD OFFICE JURISDICTIONS
Legal Framework of MSPB

 MSPB established under 5 USC 1201 

 MSPB regulations at 5 CFR Part 1201 

- overhauled November 2012. 

- Look to Fed. Reg. or www.MSPB.gov 

 Jurisdiction only as granted by “law, rule, or 

regulation.” 5 USC 1204(a)(1).

 Created by Civil Service Reform Act of 1978 

– split former Civil Service Commission into

 MSPB, OPM, FLRA, OSC 
No MSPB authority to appoint 

counsel

 Appellant may have attorney or nonattorney representative of his or her 

choice (barring conflict), or proceed 

pro se.

 Representative only required in some 

cases of mental incompetence. French v. 

OPM, 810 F.2d 1118 (Fed. Cir. 1987). If no

representative, must dismiss w/o 

prejudice (DWOP). 
Cases may be complex or have 

national impact

 Kloeckner v. Solis, 133 S.CT. 596 (2012)

- MSPB timeliness dismissal of “mixed case” 

may be appealed to District Court even 

though discrimination merits not reached 

 Elgin v. Treasury, 132 S.CT. 2126 (2012)

- MSPB dismissal of appeal for lack of 

jurisdiction must be appealed to CAFC, not 

District Court, despite claim that military draft 

is unconstitutional 

 DOMA – cases awaiting S.Ct. decision
FOLEY HOAG Notice 

for Boston area appellants 

 Your appeal filed with this office shows you have not designated a 

representative for your appeal but are representing yourself. In certain limited 

circumstances, you may be eligible for pro bono representation. Foley Hoag 

LLP is a private law firm in Boston, Massachusetts that has a Pro Bono 

Program. Through Foley Hoag’s Pro Bono Program, you may be able to 

receive free legal representation. If you are interested in finding out more 

about Foley Hoag’s Pro Bono Program, you can go to 

http://www.foleyhoag.com/practices/litigation/pro-bono. If you are low-income, 

live in the Greater Boston area, and think that you might be eligible for pro 

bono legal services, you may contact Rebecca Cazabon, Foley Hoag’s Pro 

Bono Managing Attorney, for a free legal and income screening, and possible 

case intake. Rebecca can be reached at rcazabon@foleyhoag.com, or 617-

832-1755. Foley Hoag LLP is unaffiliated with the MSPB. The MSPB neither 

endorses the services provided by Foley Hoag, nor warrants that Foley Hoag 

will accept representation in a given case.
What kinds of cases?

 Adverse actions (generally for misconduct)—removals, 

demotions, suspensions more than 14 days [5 USC 

chapter 75]

 Performance actions [5 USC chapter 43]

 Whistleblower IRAs [5 USC 1221]

 VEOA and USERRA claims [5 USC 3330a & 38 USC 

chapter 43]

 Retirement cases [5 USC chapters 83 (CSRS) & 84 

(FERS)] – including disability retirement. 

See 5 CFR 1201.3 for a more complete list. May have to 

choose among various ways to challenge
Who may appeal?

 Generally only employees with more than one or 

two years of current service [5 USC 7511]

 Depends on competitive vs. excepted service 

and whether preference eligible [5 USC 2108]

 Some probationary employees have limited 

appeal rights [5 CFR 315.806, 315.908]

 Some applicants for positions

 Annuitants/survivors
 Generally, within 30 days after the effective date of 

the action being appealed or 30 days after the date 

of the appellant’s receipt of the agency’s decision, 

whichever is later. [5 CFR 1201.22]

 Different time limits if the appellant filed a 

discrimination complaint with the agency.

 If late, must show good cause (e.g., misinformation 

about rights, medical issues)

 Some actions have a different limit established by 

law or regulation (VEOA, WPA IRA) or no time limit 

(USERRA).

When is appeal due?
The MSPB process

 Appeal (paper or e-filed)

 Acknowledgment order and agency response

 Preliminary status conference

 Discovery

 Prehearing submissions and conference

 Hearing

 Initial decision - Goal 120 days after filing

 Further review

5 CFR 1201
Appeal Form

 Form asks for basic information relevant 

to jurisdiction, timeliness, and the issues 

being raised

 May be filed by e-appeal, fax, mail

 Can opt for electronic filing
Acknowledgment order

and agency file

 Identifies jurisdictional or timeliness 

problems and orders parties to respond 

(appellant generally has 15 days)

 Generally orders agency to submit its file 

within 20 days

 Agency file should include most of the key 

documents
Status conferences

 Often at least one unless appeal is obviously 

untimely or not within Board’s jurisdiction

 Usually telephonic—initiated by agency or judge, or 

call-in number

 May discuss logistics (schedule, hearing format), 

merits (issues, discovery disputes), or settlement

 Summary usually prepared—deadline for corrections 

or objections

 Hearing order with schedule may be issued before or 

after first status conference
Discovery

 Interrogatories, depositions, requests for production, 

requests for admissions

 Parties and third parties

 Fed. R. Civ. P. are instructive but not controlling

 May request subpoenas but up to party to serve. 

Agency has duty to produce agency employees who 

are witnesses. 

 Deadlines are tight! 5 CFR 1201.73

 30 days to initiate discovery; 20 days to respond; 10 

days for follow-up requests; 10 days for motion to 

compel from date of objections
Motions [5 CFR 1201.55]

 Generally in writing; must serve on agency

 Contact agency first to find out whether it objects

 Common motions:

– reschedule or extend a deadline for good cause

– suspend appeal or dismiss without prejudice

– compel discovery responses

 Objections due within ten days; judge may 

schedule status conference to discuss and may 

grant extensions without waiting for a response
Prehearing submissions 

and conference

 Written prehearing submissions due before prehearing 

conference - deadline in hearing order

 Must include all affirmative defenses, witness 

requests, and exhibits

 Common affirmative defenses: harmful error in 

application of procedures; discrimination on the basis of 

race, gender, disability, age, military status, or religion; 

retaliation for whistleblowing or other protected activities

 Prehearing conference usually held by telephone at least 

a week before the hearing

 Be prepared to discuss issues, witnesses, hearing 

exhibits, logistics, and settlement

 Summary of conference prepared—deadline for 

corrections and objections
Hearing

 Hearing may be telephonic, video, or in person

 Venue is usually designated hearing site closest to 

appellant’s work station

 Fed. R. Evidence is guidance, but hearsay generally 

allowed

 Usually no opening but may be an oral or written 

closing argument

 Agency generally has burden of proof, usually by a 

preponderance of the evidence

 Appellant has burden of proof on jurisdiction, 

timeliness, and affirmative defenses like 

discrimination

 May order transcript or CD of hearing (fee for 

transcript)
Initial Decision 

 Depending on type of case, judge may:

– dismiss for untimeliness, lack of jurisdiction, 

settlement, or voluntary withdrawal

– affirm, reverse, or mitigate the penalty

– grant or deny requests for particular kinds of 

remedies

 Instructions on how to seek enforcement if 

settled or appellant prevails

 Attorney fees and damages may be awarded 

in addendum proceeding
Further review

 Initial decision explains appeal rights

 Petition for review with the Board (within 35 

days)

 And/or appeal to CAFC

 Other options in cases involving 

discrimination or whistleblowing claims 

(Whistleblower Protection Enhancement Act 

of 2012) (WPEA). 
Settlement

 Mediation Appeal Program (MAP); 

Settlement Judge; or Adjudicating Judge

 More flexibility to design relief in settlement 

but still must follow the law—e.g., OPM may 

refuse to implement retirement provisions it 

finds contrary to law

 If the Board has jurisdiction, settlement can 

be enforced by Board
Common Settlement Terms

 Removal cancelled -- employee resigns

 Agency assists with OPM disability 

retirement

 Early retirement 

 Employee receives money in exchange for 

resigning and/or waiving discrimination 

claims

 Keep employee on rolls for specific time in 

LWOP to look for other employment

 Attorney Fees
Alternative Discipline—Agree in 

Writing to:

 Mandated drug testing or EAP counseling

 Employee serves suspension over the

course of multiple pay periods to soften

financial impact

 Employee serves “paper” suspension without

loss of pay
Last Chance Agreements

 Penalty held in abeyance

 If this is another incident as defined by the 

agreement, the penalty takes effect

 If no further incident during term of 

agreement, penalty does not take effect

 May include waiver of future MSPB appeal 

rights
Research

 MSPB website (info sheets, precedential & 

nonprecedential decisions)

 Statues (mostly 5 USC)

 Regulations (mostly 5 CFR)

 Published Board Cases - West M.S.P.R. 

 Court Cases (mostly Fed. Cir.)

 EEOC guidance/decisions for discrimination issues

 Initial decisions (nonprecedential)

 Peter Broida, A Guide to Merit Systems Protection 

Board Law and Practice (updated annually) & others
The end

 Questions?