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U.S. Merit Systems Protection Board
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       Appeal Process
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    **APPELLATE JURISDICTION**The Civil Service Reform Act (CSRA) authorized   the Board to hear appeals of various agency actions, including 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 OPM regulations. Since a principal purpose of the CSRA was to   streamline Federal personnel management, the Congress did not make all personnel   actions appealable to the Board. However, some actions that are not appealable   to the Board may be appealed to OPM or may be covered by agency grievance   procedures.
If a personnel action involves a prohibited   personnel practice, regardless of whether the action is appealable to the Board,   the employee may file a complaint with the Special Counsel, asking that the   Special Counsel seek corrective action from the Board. Under the Whistleblower   Protection Act of 1989, an individual who alleges that a personnel action was   taken, or not taken, or threatened, because of "whistleblowing" may seek   corrective action from the Board directly if the Special Counsel does not seek   corrective action on his or her behalf.

    Most of the cases brought to the Board 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. The next largest   number of cases involve appeals of OPM determinations in retirement matters.   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 (the development and use of examinations, qualification   standards, tests and other measurement instruments), denials of restoration of   reemployment rights, and certain terminations of probationary   employees.
 
    Additional jurisdictional issues arise where the   employee alleges discrimination in connection with an action otherwise   appealable to the Board (e.g., mixed case). While the Board has jurisdiction   over such appeals, the employee, if dissatisfied with the final decision of the   Board, may ask the Equal Employment Opportunity Commission (EEOC) to review the   Board's decision. If the EEOC and the Board cannot agree, the case is referred   to the Special Panel for final resolution. The Special Panel consists of a   Chairman appointed by the President, one member of the Board appointed by the   MSPB Chairman, and one EEOC commissioner appointed by the EEOC Chairman.  A   discrimination complaint in connection with an action that is not appealable to   the Board may be pursued through internal agency procedures and the EEOC.
   
    There are also additional jurisdictional issues   when the employee is a member of a bargaining unit that has a negotiated   grievance procedure covering any of the actions that may be appealed to the   Board. In such instances, the employee normally must pursue a grievance through   the negotiated grievance procedure. There are three exceptions to this general   rule: (1) when the action is an adverse action or performance-based action; (2)   when the employee raises an issue of prohibited discrimination in connection   with the action; and (3) when the employee alleges that the action was the   result of a prohibited personnel practice other than discrimination. If any of   these exceptions apply, the employee has the choice of using the negotiated   grievance procedure or filing an appeal with the Board, but may not do both.   (Under the terms of some union contracts, Postal Service employees may be able   to pursue a grievance under the negotiated procedure and also file an appeal   with the Board.)

    For the Board to have jurisdiction over any   appeal of a personnel action, it must possess jurisdiction over both the action   and the employee filing the appeal. Approximately 2 million Federal employees,   or about two-thirds of the full-time civilian work force, currently have appeal   rights to the Board. Employees eligible to appeal specific actions 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, such as the intelligence agencies and the General Accounting   Office, are excluded with respect to certain actions.
   
    Generally, employees who may appeal adverse   actions and performance-based actions are those in the competitive service who   have completed a probationary period and those in the excepted service (other   than the Postal Service) with at least two years continuous service. Postal   Service employees who may appeal adverse actions are preference-eligible   employees with one year continuous service and certain Postal Service   supervisors, managers, and employees engaged in personnel work.
   
    Probationary employees have very limited appeal   rights. They may appeal a termination based on political affiliation or marital   status, and they may appeal a termination based on conditions arising before   employment on the grounds that the termination was not in accordance with   regulations. Employees and annuitants may appeal OPM decisions affecting   entitlements under the retirement systems. Certain actions, such as OPM   suitability determinations and OPM employment practices, may be appealed by   applicants for employment.
   
  An appellant files an appeal with the appropriate   MSPB regional or field office having geographical jurisdiction. An   administrative judge issues an initial decision. Unless a party files a petition   for review with the Board, the initial decision becomes final 35 days after   issuance. Any party, or OPM or the Special Counsel, may petition the full Board   in Washington to review the initial decision. The Board's decision on petition   for review is final and constitutes final administrative action.

    **ORIGINAL JURISDICTION**
    Cases arising under the Board's original   jurisdiction include:Disciplinary actions brought by the Special   Counsel alleging violation of the Hatch Act;Corrective and disciplinary actions brought   by the Special Counsel against agencies or Federal employees who are alleged to   have committed prohibited personnel practices, or to have violated certain civil   service laws, rules or regulations;Requests for stays of personnel actions alleged by   the Special Counsel to result from prohibited personnel practices;Requests for review of regulations issued by   OPM or of implementation of OPM regulations by an agency; andInformal hearings in cases involving proposed   performance-based removals from the Senior Executive Service. While the number   of original jurisdiction cases that come before the Board is small, these cases   often involve systemic issues with broad implications for both employees and   agencies. Most original jurisdiction cases are Special Counsel disciplinary   actions (both Hatch Act and non-Hatch Act) and Special Counsel requests for   stays.The relationship of the Special Counsel to the   Board is like that of a prosecutor to a judge; the Special Counsel prosecutes   cases before the Board. If, after an investigation, the Special Counsel   determines that there are reasonable grounds to believe that a violation has   occurred or may occur, the Special Counsel may bring a corrective action against   an agency. The Special Counsel may bring a disciplinary action against an   employee alleged to have committed a violation. The Special Counsel may also   seek a stay of a personnel action if there are reasonable grounds to believe   that the action was taken, or is about to be taken, as a result of a prohibited   personnel practice.
    In corrective action cases, the Board may order   the agency to take necessary action to correct the prohibited personnel practice   or pattern of such practices. In disciplinary actions other than those involving   Hatch Act violations, the Board may order the employee's removal, reduction in   grade, suspension, reprimand, debarment from Federal employment for a period not   to exceed five years, or a fine up to $1,000. In Hatch Act cases involving   Federal or District of Columbia government employees, the Board may order   removal of the employee or, if the Board unanimously finds that removal is not   warranted, may order a suspension of not less than 30 days. In Hatch Act cases   involving state or local government employees, the Board determines whether the   employee's removal is warranted; it cannot impose a different penalty.
    Original jurisdiction cases are processed at Board   headquarters. Special Counsel cases and actions against administrative law   judges are heard by the Board Administrative Law Judge, who issues an initial   decision. The parties may file a petition for review with the full Board within   35 days of the date of the initial decision. Otherwise, the initial decision   will become the final Board decision.


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