Changes to MSPB Regulations Contained 

in 2012 Notice of Final Rulemaking

The three-column table starting on the next page is designed to make it easy to see exactly what the MSPB 

has changed in the regulations that govern the adjudication of appeals that come before it. The first column 

shows the text of the regulation (or relevant portion) as it exists prior to the effective date (November 13, 2012) 

of the final rule issued on October 12, 2012, 77 Fed. Reg.62349; the second column shows the text of the 

regulation as revised; and the third column contains a brief description of and the reasons for the revisions, with 

links to the notice of proposed rulemaking and the notice of final rulemaking where appropriate. To assist the 

public in seeing exactly what revisions have been made, pertinent text is highlighted in yellow in the first two 

columns. It should be noted that the description of and reasons for the revisions in the third column was prepared 

by MSPB employees as a shorthand summary of the longer explanations provided in the notice of proposed 

rulemaking, 77 Fed. Reg. 33663 (June 7, 2012), and the notice of final rulemaking. Unlike those two notices, the 

text of the third column was not reviewed and approved by the Board members, and is provided to help the public 

understand the nature of the changes. Accordingly, nothing in that column should be construed to constitute an 

official interpretation of the revised regulations. 

Contents (Links)

1200.4 Petition for Rulemaking 1201.114 Petition and cross petition for review – content 

and procedure

1201.3 Appellate Jurisdiction 1201.115 Criteria for granting petition or cross petition 

for review

1201.4 General definitions 1201.116 Compliance with orders for interim relief

1201.14 Electronic Filing Procedures 1201.117 Procedures for review or reopening

1201.21 Notice of appeal rights. 1201.118 Board reopening of final decisions

1201.22 Filing an appeal and responses to appeals 1201.122 Filing complaint; serving documents on parties

1201.23 Computation of time 1201.128 Filing complaint; serving documents on parties

1201.24 Content of an appeal; right to hearing 1201.134 Deciding official; filing stay request; serving 

documents

1201.28 Case suspension procedures 1201.137 Covered actions; filing complaint; serving 

documents on parties

1201.29 Dismissal without prejudice 1201.142 Actions filed by administrative law judges
2

1201.31 Representatives 1201.143 Right to hearing; filing complaint; serving 

documents on parties

1201.33 Federal witnesses 1201.153 Contents of appeal

1201.34 Intervenors and amicus curiae 1201.154 Time for filing appeal

1201.36 Consolidating and joining appeals 1201.155 Requests for review of arbitrators’ decisions

1201.41 Judges 1201.181 Authority and explanation

1201.42 Disqualifying a Judge 1201.182 Petition for enforcement

1201.43 Sanctions 1201.183 Procedures for processing petitions for 

enforcement

1201.51 Scheduling the hearing Subpart H - - Attorney Fees and Damages

1201.52 Public hearings 1201.201 Statement of purpose

1201.53 Record of proceedings 1201.202 Authority for awards

1201.56 Burden and degree of proof 1201.204 Proceedings for damages

1201.58 Closing the record 1203.2 Definitions

1201.71 Purpose of discovery 1208.3 Application of 5 CFR part 1201

1201.73 Discovery procedures 1208.21 VEOA exhaustion requirement

1201.81 Requests for subpoenas 1208.22 Time of filing

1201.93 Procedures 1208.23 Content of a VEOA appeal; request for hearing

1201.101 Explanation and definitions 1209.2 Jurisdiction

1201.111 Initial decision by judge 1209.4 Definitions

1201.112 Jurisdiction of judge 1209.5 Time of filing

1201.113 Finality of decision 1209.6 Content of appeal; right to hearing

Text of Previous Regulation Text of Revised Regulation Description and 

Reason for Revision

1200.4 Petition for rulemaking.

[This is a new regulation in part 1200.]

1200.4 Petition for rulemaking

(a) Any interested person may petition the MSPB for 

the issuance, amendment, or repeal of a rule. For 

purposes of this regulation, a “rule” means a 

regulation contained in 5 CFR parts 1200 through 

This new regulation authorizes petitions 

requesting the MSPB to amend its 

regulations, in accordance with 5 U.S.C. 

553(e), which states that “[e]ach agency 

shall give an interested person the right to 

petition for the issuance, amendment, or 
3

Text of Previous Regulation Text of Revised Regulation Description and 

Reason for Revision

1216. Each petition shall:

(1) Be submitted to the Clerk of the Board, 1615 

M Street, N.W., Washington, D.C., 20419;

(2) Set forth the text or substance of the rule or 

amendment proposed or specify the rule 

sought to be repealed;

(3) Explain the petitioner’s interest in the action 

sought; and 

(4) Set forth all data and arguments available to 

the petitioner in support of the action sought.

(b) No public procedures will be held on the petition 

before its disposition. If the MSPB finds that the 

petition contains adequate justification, a rulemaking 

proceeding will be initiated or a final rule will be 

issued as appropriate under the Administrative 

Procedures Act. If the Board finds that the petition 

does not contain adequate justification, the petition 

will be denied by letter or other notice, with a brief 

statement of the ground for denial. The Board may 

consider new evidence at any time; however, 

repetitious petitions for rulemaking will not be 

considered.

repeal of a rule.” Previously, the MSPB 

had no procedures in place for responding 

to such requests. This regulation ensures

that parties wishing to petition the Board 

for regulatory changes are aware of their 

right to make such a request and the 

MSPB's procedures for filing and 

responding to such requests. 

Numerous commenters objected that the 

proposed regulation does not mandate 

notice and comment rulemaking in every 

instance. The Administrative Procedure 

Act does not require notice and comment 

in all instances of agency rulemaking. 5 

U.S.C. 553(b). Publication of a direct 

final rule remains an important tool to 

quickly implement minor technical 

amendments. However, in an effort to 

address the concerns raised by these 

commenters, the regulation states that 

final rules will be issued “consistent with 

the Administrative Procedure Act.” 

NOPR (notice of proposed rulemaking; 

NOFR (notice of final rulemaking).

1201.3 Appellate jurisdiction.

(a) Generally. The Board has jurisdiction over appeals 

from agency actions when the appeals are authorized 

by law, rule, or regulation. These include appeals from 

the following actions:

(1) Reduction in grade or removal for 

unacceptable performance ( 5 CFR part 432; 5 

U.S.C. 4303(e) );

1201.3 Appellate jurisdiction.

(a) Generally. The Board’s appellate jurisdiction is 

limited to those matters over which it has been given 

jurisdiction by law, rule or regulation. The Board’s 

jurisdiction does not depend solely on the label or 

nature of the action or decision taken or made but may 

also depend on the type of federal appointment the 

individual received, e.g., competitive or excepted 

service, whether an individual is preference eligible, 

The revised rule explains that this 

regulation is not itself a source of MSPB 

jurisdiction and that jurisdiction depends 

on the nature of the employment or 

position held by the employee as well as 

the nature of the action taken. The listing 

of appealable actions within the MSPB's 

appellate jurisdiction has been revised to: 

(1) make the regulations easier to 

understand (plain English where 
4

Text of Previous Regulation Text of Revised Regulation Description and 

Reason for Revision

(2) Removal, reduction in grade or pay, 

suspension for more than 14 days, or furlough 

for 30 days or less for cause that will promote 

the efficiency of the service. ( 5 CFR part 752, 

subparts C and D; 5 U.S.C. 7511-751 4);

(3) Removal, or suspension for more than 14 days, 

of a career appointee in the Senior Executive 

Service ( 5 CFR part 752, subparts E and F; 5 

U.S.C. 7541-754 3);

(4) Reduction-in-force action affecting a career 

appointee in the Senior Executive Service (5 

U.S.C. 3595 );

(5) Reconsideration decision sustaining a negative 

determination of competence for a general 

schedule employee ( 5 CFR 531.410; 5 U.S.C. 

5335(c) );

(6) Determinations affecting the rights or interests 

of an individual or of the United States under 

the Civil Service Retirement System or the 

Federal Employees' Retirement System ( 5 

CFR parts 831, 839, 842, 844, and 846; 5 

U.S.C. 8347(d)(1) -(2) and 8461 (e)(1); and 5 

U.S.C. 8331 note, Federal Erroneous 

Retirement Coverage Corrections Act)

(7) Disqualification of an employee or applicant 

because of a suitability determination ( 5 CFR 

731.501 );

(8) Termination of employment during probation 

or the first year of a veterans readjustment 

appointment when:

(i) The employee alleges discrimination because 

of partisan political reasons or marital status; 

and other factors. Accordingly, the laws and 

regulations cited below, which are the source of the 

Board’s jurisdiction, should be consulted to determine 

not only the nature of the actions or decisions that are 

appealable, but also the limitations as to the types of 

employees, former employees, or applicants for 

employment who may assert them. Instances in which 

a law or regulation authorizes the Board to hear an 

appeal or claim include the following: 

(1) Adverse Actions. Removals (terminations of 

employment after completion of probationary 

or other initial service period), reductions in 

grade or pay, suspension for more than 14 

days, or furloughs for 30 days or less for 

cause that will promote the efficiency of the 

service; an involuntary resignation or 

retirement is considered to be a removal (5 

U.S.C. 7511-7514; 5 CFR part 752, subparts 

C and D);

(2) Retirement Appeals. Determinations affecting 

the rights or interests of an individual under 

the federal retirement laws (5 U.S.C. 

8347(d)(1)-(2) and 8461(e)(1); and 5 U.S.C. 

8331 note; 5 CFR parts 831, 839, 842, 844, 

and 846);

(3) Termination of Probationary Employment. 

Appealable issues are limited to a 

determination that the termination was 

motivated by partisan political reasons or 

marital status, and/or if the termination was 

based on a pre-appointment reason, whether 

the agency failed to take required procedures. 

These appeals are not generally available to 

employees in the excepted service. (38 

possible); (2) give each category of 

appealable action a descriptive label; (3) 

list appealable actions in order from most 

common to least common; and (4) group 

like actions together, which resulted in a 

list of 11 appealable actions instead of the 

previous 20. 

NOPR; NOFR. 
5

Text of Previous Regulation Text of Revised Regulation Description and 

Reason for Revision

or

(ii) The termination was based on conditions 

arising before appointment and the employee 

alleges that the action is procedurally 

improper ( 5 CFR 315.806, U.S.C. 

4214(b)(1)(E));

(9) Termination of appointment during a 

managerial or supervisory probationary period 

when the employee alleges discrimination 

because of partisan political affiliation or 

marital status ( 5 CFR 315.908(b) );

(10) Separation, demotion, or furlough for more 

than 30 days, when the action was effected 

because of a reduction in force ( 5 CFR 

351.901 );

(11) Furlough of a career appointee in the Senior 

Executive Service ( 5 CFR 359.805 );

(12) Failure to restore, improper restoration of, or 

failure to return following a leave of absence 

an employee or former employee of an agency 

in the executive branch (including the U.S. 

Postal Service and the Postal Rate 

Commission) following partial or full 

recovery from a compensable injury ( 5 CFR 

353.304 );

(13) Employment of another applicant when the 

person who wishes to appeal to the Board is 

entitled to priority employment consideration 

after a reduction-in-force action, or after 

partial or full recovery from a compensable 

injury ( 5 CFR 302.501, CFR 330.209);

(14) Failure to reinstate a former employee after 

U.S.C. 2014(b)(1)(D); 5 CFR 315.806 & 

315.908(b));

(4) Restoration to Employment Following 

Recovery from a Work-Related Injury. 

Failure to restore, improper restoration of, or 

failure to return following a leave of absence 

following recovery from a compensable 

injury. (5 CFR 353.304);

(5) Performance-Based Actions Under Chapter 

43. Reduction in grade or removal for 

unacceptable performance (5 U.S.C. 4303(e); 

5 CFR part 432);

(6) Reduction in Force. Separation, demotion, or 

furlough for more than 30 days, when the 

action was effected because of a reduction in 

force (5 CFR 351.901); Reduction-in-force 

action affecting a career or career candidate 

appointee in the Foreign Service (22 U.S.C. 

4011);

(7) Employment Practices Appeal. Employment 

practices administered by the Office of 

Personnel Management to examine and 

evaluate the qualifications of applicants for 

appointment in the competitive service (5 

CFR 300.104); 

(8) Denial of Within-Grade Pay Increase. 

Reconsideration decision sustaining a 

negative determination of competence for a 

general schedule employee (5 U.S.C. 5335(c); 

5 CFR 531.410);

(9) Suitability Action. Action based on suitability 

determinations, which relate to an individual’s 

character or conduct that may have an impact 
6

Text of Previous Regulation Text of Revised Regulation Description and 

Reason for Revision

service under the Foreign Assistance Act of 

1961 ( 5 CFR 352.508 );

(15) Failure to re-employ a former employee after 

movement between executive agencies during 

an emergency ( 5 CFR 352.209 );

(16) Failure to re-employ a former employee after 

detail or transfer to an international 

organization ( 5 CFR 352.313 );

(17) Failure to re-employ a former employee after 

service under the Indian Self-Determination 

Act ( 5 CFR 352.707 );

(18) Failure to re-employ a former employee after 

service under the Taiwan Relations Act ( 5 

CFR 352.807 );

(19) Employment practices administered by the 

Office of Personnel Management to examine 

and evaluate the qualifications of applicants 

for appointment in the competitive service ( 5 

CFR 300.104 ); and

(20) Reduction-in-force action affecting a career 

or career candidate appointee in the Foreign 

Service (22 U.S.C. 4011 ).

* * * * *

on the integrity or efficiency of the service. 

Suitability actions include the cancellation of 

eligibility, removal, cancellation of 

reinstatement eligibility, and debarment. A 

non-selection or cancellation of eligibility for 

a specific position based on an objection to an 

eligible or a pass over of a preference eligible 

under 5 CFR 332.406 is not a suitability 

action. (5 CFR 731.501, 731.203, 

731.101(a));

(10) Various Actions Involving the Senior 

Executive Service. Removal or suspension for 

more than 14 days (5 U.S.C. 7543(d) and 5 

CFR 752.605); Reduction-in-force action 

affecting a career appointee (5 U.S.C. 3595); 

or Furlough of a career appointee (5 CFR 

359.805); and

(11) Miscellaneous Restoration and 

Reemployment Matters. 

(i) Failure to afford reemployment priority 

rights pursuant to a Reemployment 

Priority List following separation by 

reduction in force (5 CFR 330.214); 

(ii) Full recovery from a compensable injury 

after more than 1 year, because of the 

employment of another person (5 CFR 

302.501); 

(iii) Failure to reinstate a former employee 

after service under the Foreign Assistance 

Act of 1961 (5 CFR 352.508); 

(iv) Failure to re-employ a former employee 

after movement between executive 

agencies during an emergency (5 CFR 
7

Text of Previous Regulation Text of Revised Regulation Description and 

Reason for Revision

352.209); 

(v) Failure to re-employ a former employee 

after detail or transfer to an international 

organization (5 CFR 352.313); 

(vi) Failure to re-employ a former employee 

after service under the Indian SelfDetermination Act (5 CFR 352.707); or 

(vii) Failure to re-employ a former employee 

after service under the Taiwan Relations 

Act (5 CFR 352.807).

[Paragraphs (b) and (c) were unchanged.]

1201.4 General definitions.

(a) Judge. Any person authorized by the Board to hold 

a hearing or to decide a case without a hearing, 

including an attorney-examiner, an administrative 

judge, an administrative law judge, the Board, or any 

member of the Board. 

* * * * *

(j) Date of service. The date on which documents are 

served on other parties.

* * * * *

1201.4 General definitions.

(a) Judge. Any person authorized by the Board to 

hold a hearing or to decide a case without a hearing, 

including the Board or any member of the Board, or 

an administrative law judge appointed under 5 U.S.C. 

3105 or other employee of the Board designated by 

the Board to hear such cases, except that in any case 

involving a removal from the service, the case shall be 

heard by the Board, an employee experienced in 

hearing appeals, or an administrative law judge.

* * * * * 

(j) Date of service. “Date of service” has the same 

meaning as “date of filing” under paragraph (l) of this 

section.

* * * * *

(l) Date of filing. A document that is filed with a 

Board office by personal delivery is considered filed 

on the date on which the Board office receives it. The 

Paragraph (a) was revised to eliminate the 

phrase “attorney-examiner,” and to 

incorporate the statutory requirement of 5 

U.S.C. 7701(b)(1) that a removal case 

may only be heard by the Board, an 

administrative law judge, or an employee 

experienced in hearing appeals Paragraph

(j) was revised to clarify that the term 

“date of service” refers to when a 

document is sent out, not when it is 

received. Paragraph (o) was added to 

clarify that the term “grievance” is limited 

to matters covered by a negotiated 

grievance procedure under 5 U.S.C. 7121. 

NOPR; NOFR. 
8

Text of Previous Regulation Text of Revised Regulation Description and 

Reason for Revision

date of filing by facsimile is the date of the facsimile. 

The date of filing by mail is determined by the 

postmark date; if no legible postmark date appears on 

the mailing, the submission is presumed to have been 

mailed five days (excluding days on which the Board 

is closed for business) before its receipt. The date of 

filing by commercial delivery is the date the document 

was delivered to the commercial delivery service. The 

date of filing by e-filing is the date of electronic 

submission.

* * * * *

(o) Grievance. A complaint by an employee or labor 

organization under a negotiated grievance procedure 

covered by 5 U.S.C. 7121. 

1201.14 Electronic filing procedures.

* * * * *

(c) Matters excluded from electronic filing. Electronic 

filing may not be used to:

(1) File a request to hear a case as a class appeal 

or any opposition thereto ( § 1201.27 );

(2) Serve a subpoena ( § 1201.83 ); or

(3) File a pleading with the Special Panel ( 

§ 1201.173 ).

* * * * *

(m) Date electronic documents are filed and served. 

(1) As provided in § 1201.4(l) of this Part, the date of 

filing for pleadings filed via e-Appeal Online is the 

date of electronic submission. All pleadings filed via 

e-Appeal Online are time stamped with Eastern Time, 

but the timeliness of a pleading is assessed based on 

the time zone where the pleading is being filed. For 

1201.14 Electronic filing procedures.

* * * * *

(c) Matters excluded from electronic filing. Electronic 

filing may not be used to:

(1) File a request to hear a case as a class appeal 

or any opposition thereto (§ 1201.27);

(2) Serve a subpoena (§ 1201.83); 

(3) File a pleading with the Special Panel (§ 

1201.137); 

(4) File a pleading that contains Sensitive Security 

Information (SSI) (49 CFR parts 15 and 

1520);

(5) File a pleading that contains classified 

information (32 CFR part 2001); or

(6) File a request to participate as an amicus 

curiae or file a brief as amicus curiae pursuant 

Revised subsections (c)(4) and (c)(5) 

reflect current MSPB policy and 

procedures regarding Sensitive Security 

Information (SSI) and classified 

information. Subpararaph (c)(6) was 

added to provide that amici are not 

permitted to e-file. Paragraph (m) was 

revised to make it consistent with the 

intent expressed by the Board when it 

originally published this provision at 73 

Fed. Reg. 10127, 10128 (2008). 

NOPR; NOFR. 
9

Text of Previous Regulation Text of Revised Regulation Description and 

Reason for Revision

example, a pleading filed at 11 p.m. Pacific Time on 

August 20 will be stamped by e-Appeal Online as 

being filed at 2 a.m. Eastern Time on August 21. 

However, if the pleading was required to be filed with 

the Western Regional Office on August 20, it would 

be considered timely, as it was submitted prior to 

midnight Pacific Time on August 20.

(2) MSPB documents served electronically on 

registered e-filers are deemed received on the 

date of electronic submission.

* * * * *

to § 1201.34 of this part.

* * * * *

(m) * * * 

(1) As provided in § 1201.4(l) of this Part, the 

date of filing for pleadings filed via e-Appeal 

Online is the date of electronic submission. 

All pleadings filed via e-Appeal Online are 

time stamped with Eastern Time, but the 

timeliness of a pleading will be determined 

based on the time zone from which the 

pleading was submitted. For example, a 

pleading filed at 11 p.m. Pacific Time on 

August 20 will be stamped by e Appeal 

Online as being filed at 2 a.m. Eastern Time 

on August 21. However, if the pleading was 

required to be filed with the Washington 

Regional Office (in the Eastern Time Zone) 

on August 20, it would be considered timely, 

as it was submitted prior to midnight Pacific 

Time on August 20.

* * * * *

1201.21 Notice of appeal rights.

* * * * *

(d) Notice of any right the employee has to file a 

grievance, including:

(1) Whether the election of any applicable 

grievance procedure will result in waiver of 

the employee's right to file an appeal with the 

Board;

(2) Whether both an appeal to the Board and a 

grievance may be filed on the same matter 

1201.21 Notice of appeal rights.

* * * * * 

(d) Notice of any right the employee has to file a 

grievance or seek corrective action under subchapters 

II and III of 5 U.S.C. chapter 12, including:

(1) * * *

(2) Whether both an appeal to the Board and a 

grievance may be filed on the same matter 

and, if so, the circumstances under which 

proceeding with one will preclude proceeding 

Paragraph (d) was revised to reflect the

revision to 5 CFR 1209.2, which changes

longstanding Board jurisprudence 

concerning allegations of reprisal for 

whistleblowing under 5 U.S.C. 2302(b)(8) 

when an employee has been subjected to 

an otherwise appealable action. Revised 

paragraph (d) requires agencies to fully 

notify employees of their rights in these 

situations so that they can make an 

informed choice among the available 3 

options: (A) an appeal to the Board under 
10

Text of Previous Regulation Text of Revised Regulation Description and 

Reason for Revision

and, if so, the circumstances under which 

proceeding with one will preclude proceeding 

with the other, and specific notice that filing a 

grievance will not extend the time limit for 

filing an appeal with the Board; and

(3) Whether there is any right to request Board 

review of a final decision on a grievance in 

accordance with § 1201.154(d).

with the other, and specific notice that filing a 

grievance will not extend the time limit for 

filing an appeal with the Board; 

(3) Whether there is any right to request Board 

review of a final decision on a grievance in 

accordance with § 1201.155 of this part; and

(4) The effect of any election under 5 U.S.C. 

7121(g), including the effect that seeking 

corrective action under subchapters II and III 

of 5 U.S.C. chapter 12 will have on the 

employee’s appeal rights before the Board.

(e) Notice of any right the employee has to file a 

complaint with the Equal Employment Opportunity 

Commission or to grieve allegations of unlawful 

discrimination, consistent with the provisions of 5 

U.S.C. 7121(d) and 29 CFR 1614.301 and 1614.302. 

(f) The name or title and contact information for the 

agency official to whom the Board should send the 

Acknowledgment Order and copy of the appeal in the 

event the employee files an appeal with the Board. 

Contact information should include the official’s 

mailing address, email address, telephone and fax 

numbers. 

5 U.S.C. 7701; (B) a negotiated grievance 

under 5 U.S.C. 7121(d); or (C) corrective 

action under subchapters II and III of 5 

U.S.C. chapter 12, i.e., a complaint filed 

with OSC (5 U.S.C. 1214), which can be 

followed by an Individual Right of Action 

appeal filed with the Board (5 U.S.C. 

1221). 

Paragraph (e) was added to require notice

of all available options in mixed cases.

Paragraph (f) was added to require agency 

decision notices to include the name or 

title and contact information for the 

agency official to whom the Board should 

send the Acknowledgment Order and 

copy of the appeal should a Board appeal 

be filed. 

NOPR; NOFR. 

1201.22 Filing an appeal and responses to appeals.

* * * * *

(b) Time of filing. (1) Except as provided in paragraph 

(b)(2) of this section, an appeal must be filed no later 

than 30 days after the effective date, if any, of the 

action being appealed, or 30 days after the date of the 

appellant's receipt of the agency's decision, whichever 

is later. Where an appellant and an agency mutually 

1201.22 Filing an appeal and responses to appeals.

* * * * *

(b) * * *

(3) An appellant is responsible for keeping the 

agency informed of his or her current home 

address for purposes of receiving the agency’s 

decision, and correspondence which is 

Paragraph (b) was revised by adding a 

new subparagraph (3), which states the 

MSPB’s general rule about constructive 

receipt of agency decisions and included 

several illustrative examples. 

NOPR; NOFR.
11

Text of Previous Regulation Text of Revised Regulation Description and 

Reason for Revision

agree in writing to attempt to resolve their dispute 

through an alternative dispute resolution process prior 

to the timely filing of an appeal, however, the time 

limit for filing the appeal is extended by an additional 

30 days—for a total of 60 days. A response to an 

appeal must be filed within 20 days of the date of the 

Board's acknowledgment order. The time for filing a 

submission under this section is computed in 

accordance with § 1201.23 of this part.

(2) The time limit prescribed by paragraph (b)(1) 

of this section for filing an appeal does not 

apply where a law or regulation establishes a 

different time limit or where there is no 

applicable time limit. No time limit applies to 

appeals under the Uniformed Services 

Employment and Reemployment Rights Act 

(Pub. L. 103-353), as amended; see part 1208 

of this title. See part 1208 of this title for the 

statutory filing time limits applicable to 

appeals under the Veterans Employment 

Opportunities Act (Pub. L. 105-339). See part 

1209 of this title for the statutory filing time 

limits applicable to whistleblower appeals and 

stay requests.

* * * * *

properly addressed and sent to the appellant’s 

address via postal or commercial delivery is 

presumed to have been duly delivered to the 

addressee. While such a presumption may be 

overcome under the circumstances of a 

particular case, an appellant may not avoid 

service of a properly addressed and mailed 

decision by intentional or negligent conduct 

which frustrates actual service. The appellant 

may also be deemed to have received the 

agency’s decision if it was received by a 

designated representative, or a person of 

suitable age and discretion residing with the 

appellant. The following examples illustrate 

the application of this rule:

Example A: An appellant who fails to pick up 

mail delivered to his or her post office box may be 

deemed to have received the agency decision. 

Example B: An appellant who did not receive his 

or her mail while in the hospital may overcome 

the presumption of actual receipt. 

Example C: An appellant may be deemed to have 

received an agency decision received by his or her 

roommate. 

* * * * *

1201.23 Computation of time.

In computing the number of days allowed for filing 

a submission, the first day counted is the day after the 

event from which the time period begins to run. If the 

date that ordinarily would be the last day for filing 

falls on a Saturday, Sunday, or Federal holiday, the 

filing period will include the first workday after that 

1201.23 Computation of time.

In computing the number of days allowed for 

complying with any deadline, the first day counted is 

the day after the event from which the time period 

begins to run. If the date that ordinarily would be the 

last day for filing falls on a Saturday, Sunday, or 

Federal holiday, the filing period will include the first 

This regulation was revised, and an 

example added, to redress a perceived 

inequity resulting when a party receives a 

pleading from the opposing party by 

regular mail, decreasing the time the party 

has to file a responsive pleading. 

NOFR
12

Text of Previous Regulation Text of Revised Regulation Description and 

Reason for Revision

date.

Example: If an employee receives a decision notice 

that is effective on July 1, the 30-day period for filing 

an appeal starts to run on July 2. The filing ordinarily 

would be timely only if it is made by July 31. If July 

31 is a Saturday, however, the last day for filing 

would be Monday, August 2.

workday after that date. Unless a different deadline is 

specified by the Board or its designee, 5 days are 

added to a party’s deadline for responding to a 

document served on the party by mail.

Example 1: If an employee receives a decision notice 

that is effective on July 1, the 30-day period for filing 

an appeal starts to run on July 2. The filing ordinarily 

would be timely only if it is made by July 31. If July 

31 is a Saturday, however, the last day for filing 

would be Monday, August 2.

Example 2: The judge orders the appellant to file a 

response to a jurisdictional order no later than 

October 15, 2012, and that the agency’s response is 

due 10 days after the filing of the appellant’s pleading. 

If the appellant serves the agency with a pleading via 

regular mail on October 15, the agency’s deadline for 

filing a response will be October 30, not October 25. 

1201.24 Content of an appeal; right to a hearing.

(a) * * * * * All appeals must contain the following:

* * * * *

(7) The notice of the decision to take the action 

being appealed, along with any relevant 

documents; 

* * * * *

(d) Right to hearing. Under 5 U.S.C. 7701, an 

appellant has a right to a hearing. 

* * * * *

1201.24 Content of an appeal; right to a hearing.

(a) * * * * * All appeals must contain the following:

* * * * *

(7) Where applicable, a copy of the notice of 

proposed action, the agency decision being 

appealed and, if available, the SF-50 or 

similar notice of personnel action. No other 

attachments should be included with the 

appeal, as the agency will be submitting the

documents required by 1201.25 of this part, 

and there will be several opportunities to 

submit evidence and argument after the 

appeal is filed. An appellant should not miss 

the deadline for filing merely because he or 

she does not currently have all of the 

Paragraphs (a)(7) was revised to reduce 

the scope of requested attachments from 

“any relevant documents” to “a copy of 

the notice of proposed action, the agency 

decisions being appealed and, if available, 

the SF-50 or similar notice of personnel 

action.” The Board determined that these 

are only documents, in conjunction with 

the information required by 

§ 1201.24(a)(1)-(9), that are necessary in 

order to docket a new appeal and issue 

appropriate acknowledgment and 

jurisdictional orders. The primary reason 

for making this change was to eliminate 

some of the filing of copies of documents 

that will be included in the Agency File. 

Paragraph (d) was revised to clarify when 
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documents specified in this section. 

* * * * *

(d) Right to hearing. An appellant generally has a 

right to a hearing on the merits if the appeal has been 

timely filed and the Board has jurisdiction over the 

appeal. 

* * * * *

an appellant has a right to a hearing. 

NOPR; NOFR. 

1201.28 Case suspension procedures.

(a) Joint requests. The parties may submit a joint 

request for additional time to pursue discovery or 

settlement. Upon receipt of such request, an order 

suspending processing of the case for a period up to 

30 days may be issued at the discretion of the judge.

(b) Unilateral requests. In lieu of participating in a 

joint request, either party may submit a unilateral 

request for additional time to pursue discovery as 

provided in this subpart. Unilateral requests for 

additional time of up to 30 days may be granted for 

good cause shown at the discretion of the judge.

(c) Time for filing requests. The parties must file a 

joint request that the adjudication of the appeal be 

suspended within 45 days of the date of the 

acknowledgment order (or within 7 days of the 

appellant's receipt of the agency file, whichever date is 

later).

(d) Untimely requests. The judge may consider 

requests for suspensions that are filed after the time 

limit set forth in paragraph (c) of this section. Such 

requests may be granted at the discretion of the judge.

(e) Early termination of suspension period. The 

suspension period may be terminated prior to the end 

1201.28 Case suspension procedures.

(a) Suspension period. The judge may issue an order 

suspending the processing of an appeal for up to 30 

days. The judge may grant a second order suspending 

the processing of an appeal for up to an additional 30 

days. 

(b) Early termination of suspension period. The 

administrative judge may terminate the suspension 

period upon joint request of the parties or where the 

parties request the judge’s assistance and the judge’s 

involvement is likely to be extensive. 

(c) Termination of suspension period. If the final day 

of any suspension period falls on a day on which the 

Board is closed for business, adjudication shall 

resume as of the first business day following the 

expiration of the period. 

(d) Mediation. Whenever an appeal is accepted into 

the Board’s Mediation Appeals Program (MAP), the 

processing of the appeal and all deadlines are 

suspended until the mediator returns the case to the 

judge. This provision does not apply where the 

parties enter into other forms of alternative dispute 

resolution. 

As revised, this section allows for two 

suspension periods of up to 30 days each, 

instead of the current single suspension 

period, eliminates restrictions on when a 

request must be filed, and removes

separate paragraphs for unilateral requests 

and joint requests. Paragraph (d) was 

added to clarify that, when an appeal is 

accepted into the Board’s mediation 

program, processing of the appeal is 

suspended until the mediator returns the 

case to the judge. 

NOPR; NOFR. 
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of the agreed upon period if the parties request the 

judge's assistance relative to discovery or settlement 

during the suspension period and the judge's 

involvement pursuant to that request is likely to be 

extensive.

(f) Limitation on suspension period. No case may be 

suspended for more than a total of 30 days under the 

provisions of this section.

(g) Termination after 30 days. If the final day of the 

30-day suspension period falls on a day on which the 

MSPB is closed for business, adjudication shall 

resume as of the first business day following the 

expiration of the 30-day period.

1201.29 

[There was no section 1201.29 prior to the notice of 

final rulemaking.] 

1201.29 Dismissal without prejudice. 

(a) In general. Dismissal without prejudice is a 

procedural option that allows for the dismissal and 

subsequent refiling of an appeal. 

(b) Procedure. Dismissal without prejudice may be 

granted on the judge’s own motion or upon request by 

either party. The decision whether to dismiss an 

appeal without prejudice is committed to the sound 

discretion of the judge, and may be granted when the 

interests of fairness, due process, and administrative 

efficiency outweigh any prejudice to either party. 

(c) Refiling. Except in certain USERRA appeals 

under Part 1208 involving the use of military leave, a 

decision dismissing an appeal without prejudice will 

include a date certain by which the appeal must be 

refiled. The judge will determine whether the appeal 

must be refiled by the appellant or whether it will be 

automatically refiled by the judge as of a date certain. 

When a dismissal without prejudice is issued over the 

This is a new regulation, which in large 

part codifies existing case law.

NOPR; NOFR. 
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objection of the appellant, the appeal will be 

automatically refiled as of a date certain. 

(d) Waiver. When a dismissed appeal must be refiled 

by the appellant, requests for waiver of a late filing 

based upon good cause will be liberally construed.

1201.31 Representatives.

* * * * *

(b) A party may choose any representative as long as 

that person is willing and available to serve. The other 

party or parties may challenge the designation, 

however, on the ground that it involves a conflict of 

interest or a conflict of position. Any party who 

challenges the designation must do so by filing a 

motion with the judge within 15 days after the date of 

service of the notice of designation. The judge will 

rule on the motion before considering the merits of the 

appeal. These procedures apply equally to each 

designation of representative, regardless of whether 

the representative was the first one designated by a 

party or a subsequently designated representative. If a 

representative is disqualified, the judge will give the 

party whose representative was disqualified a 

reasonable time to obtain another one. 

* * * * *

(d)(1) A judge may exclude a party, a representative, 

or other person from all or any portion of the 

proceeding before him or her for contumacious 

misconduct or conduct that is prejudicial to the 

administration of justice. * * * * * [The remainder of 

paragraph (d) was revised and moved to paragraphs

(d) and (e) of section 1201.41, Sanctions.] 

1201.31 Representatives.

* * * * *

(b) A party may choose any representative as long as 

that person is willing and available to serve. The 

other party or parties may challenge the designation, 

however, on the ground that it involves a conflict of 

interest or a conflict of position. Any party who 

challenges the designation must do so by filing a 

motion with the judge within 15 days after the date of 

service of the notice of designation or 15 days after a 

party becomes aware of the conflict. The judge will 

rule on the motion before considering the merits of the 

appeal. These procedures apply equally to each 

designation of representative, regardless of whether 

the representative was the first one designated by a 

party or a subsequently designated representative. If a 

representative is disqualified, the judge will give the 

party whose representative was disqualified a 

reasonable time to obtain another one.

* * * * *

(d) As set forth in paragraphs (d) and (e) of section 

1201.43 of this part, a judge may exclude a 

representative from all or any portion of the 

proceeding before him or her for contumacious 

conduct or conduct prejudicial to the administration of 

justice. 

Paragraph (b) was revised to add the 

phrase “or after 15 days after a party 

becomes aware of the conduct” at the end 

of the third sentence to acknowledge that 

a representative’s conflict of interest may 

not be readily apparent to a party wishing 

to challenge the designation of a 

representative. 

The provisions governing exclusion and 

other sanctions for contumacious behavior 

by parties and representatives were

moved from paragraph (d) of this section 

to section 1201.43, which governs 

sanctions generally, and revised. 

NOPR; NOFR. 
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1201.33 Federal witnesses.

(a) Every Federal agency or corporation must make its 

employees or personnel available to furnish sworn 

statements or to appear as witnesses at the hearing

when ordered by the judge to do so. When providing 

those statements or appearing at the hearing, Federal 

employee witnesses will be in official duty status (i.e., 

entitled to pay and benefits including travel and per 

diem, where appropriate).

* * * * *

1201.33 Federal witnesses.

(a) Every Federal agency or corporation, including 

nonparties, must make its employees or personnel 

available to furnish sworn statements or to appear at a 

deposition or hearing when ordered by the judge to do 

so. When providing those statements or appearing at 

a deposition or at the hearing, Federal employee 

witnesses will be in official duty status (i.e., entitled to 

pay and benefits including travel and per diem, where 

appropriate). When a desired witness is employed by 

an agency who is not a party to the Board proceeding, 

the requesting party may avail itself of the provisions 

of sections 1201.81 to 1201.85 of this part regarding 

subpoenas to ensure the attendance of the witness. In 

addition, the Board and the parties will implement this 

provision, to the maximum extent possible, to avoid 

conflict with other regulations governing the 

production of Federal employees in matters in 

litigation.

* * * * *

Paragraph (a) was revised to clarify that 

an agency’s responsibility under this 

regulation includes producing witnesses at 

depositions as well as at hearings. 

Language was added to indicate that the 

Board and the parties will implement this 

provision, to the maximum extent 

possible, to avoid conflict with other 

regulations such as those issued pursuant 

to United States, ex rel. v. Touhy, 340 

U.S. 462, 467 (1951) regarding the 

production of evidence from Federal 

employees in matters in litigation. 

NOPR; NOFR.

1201.34 Intervenors and amicus curiae.

* * * * *

(e) Amicus curiae. An amicus curiae is a person or 

organization that, although not a party to an appeal, 

gives advice or suggestions by filing a brief with the 

judge regarding an appeal. Any person or 

organization, including those who do not qualify as 

intervenors, may, in the discretion of the judge, be 

granted permission to file an amicus curiae brief.

1201.34 Intervenors and amicus curiae.

* * * * *

(e) Amicus curiae. (1) An amicus curiae is a person or 

organization who, although not a party to an appeal, 

gives advice or suggestions by filing a brief with the 

judge or the Board regarding an appeal. Any person 

or organization, including those who do not qualify as 

intervenors, may request permission to file an amicus 

brief. The Board may solicit amicus briefs on its own 

motion. 

Paragraph (e) was revised to address the 

fact that it receives motions to file amicus 

briefs for the first time on petition for 

review and provide further explanation as 

to what an amicus is permitted to do. The 

proposed amendment also included 

general guidelines indicating when 

requests to file amicus briefs will be 

granted or denied. 

NOPR; NOFR.
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(2) A request to file an amicus curiae brief must 

include a statement of the person’s or 

organization’s interest in the appeal and how 

the brief will be relevant to the issues 

involved.

(3) The request may be granted, in the discretion 

of the judge or the Board, if the person or 

organization has a legitimate interest in the 

proceedings, and such participation will not 

unduly delay the outcome and may contribute 

materially to the proper disposition thereof.

(4) The amicus curiae shall submit its brief within 

the time limits set by the judge or the Board 

and must comply with any further orders by 

the judge or the Board. 

(5) An amicus curiae is not a party to the 

proceeding and may not participate in any 

way in the conduct of the hearing, including 

the presentation of evidence or the 

examination of witnesses. The Board, in its 

discretion, may invite an amicus curiae to 

participate in oral argument in proceedings in 

which oral argument is scheduled. 

1201.36 Consolidating and joining appeals.

(a) Explanation. (1) Consolidation occurs when the 

appeals of two or more parties are united for 

consideration because they contain identical or similar 

issues. For example, individual appeals rising from a 

single reduction in force might be consolidated.

(2) Joinder occurs when one person has filed two 

or more appeals and they are united for 

consideration. For example, a judge might 

1201.36 Consolidating and joining appeals.

(a) * * *

(2) Joinder occurs when one person has filed two 

or more appeals and they are united for 

consideration. For example, a judge might 

join an appeal challenging a 30-day 

suspension with a pending appeal challenging 

a subsequent removal if the same appellant 

filed both appeals.

Paragraph (a) was revised to substitute the 

term “removal” for “dismissal” as the 

latter is not a term used by the Board to 

describe an employee’s separation from 

employment for disciplinary reasons. 

NOPR; NOFR.
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Text of Previous Regulation Text of Revised Regulation Description and 

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join an appeal challenging a 30-day 

suspension with a pending appeal challenging 

a subsequent dismissal if the same appellant 

filed both appeals.

* * * * *

* * * * *

1201.41 Judges.

* * * * * 

(b) Judges will conduct fair and impartial hearings and 

will take all necessary action to avoid delay in all 

proceedings. * * * 

* * * * *

1201.41 Judges.

* * * * * 

(b) Authority. Judges will conduct fair and impartial 

hearings and will issue timely and clear decisions 

based on statutes and legal precedents. * * *

* * * * *

The first sentence of paragraph (b) was 

revised to reflect the language used in the 

MSPB Strategic Plan. 

1201.42 Disqualifying a judge.

(a) If a judge considers himself or herself disqualified, 

he or she will withdraw from the case, state on the 

record the reasons for doing so, and immediately 

notify the Board of the withdrawal.

* * * * *

1201.42 Disqualifying a judge.

(a) If a judge considers himself or herself disqualified, 

he or she will withdraw from the case, state on the 

record the reasons for doing so, and another judge will 

be promptly assigned.

* * * * *

Paragraph (a) was revised to reflect the 

fact that under current MSPB practice a 

judge who considers himself or herself 

disqualified notifies the Regional 

Director, not the Board. 

1201.43 Sanctions.

The judge may impose sanctions upon the parties 

as necessary to serve the ends of justice. This 

authority covers, but is not limited to, the 

circumstances set forth in paragraphs (a), (b), and (c) 

of this section.

* * * * *

_______________

[Text moved from § 1201.31]:

* * * * *

1201.43 Sanctions.

The judge may impose sanctions upon the parties 

as necessary to serve the ends of justice. This 

authority covers, but is not limited to, the 

circumstances set forth in paragraphs (a), (b), (c), (d), 

and (e) of this section. Before imposing a sanction, 

the judge shall provide appropriate prior warning, 

allow a response to the actual or proposed sanction 

when feasible, and document the reasons for any 

resulting sanction in the record.

* * * * *

(d) Exclusion of a representative or other person. A 

The introductory paragraph was revised to 

delete the requirement of a show cause 

order in favor a general requirement that, 

before imposing a sanction, the judge 

must provide a prior warning and 

document the reasons for any sanction. 

The reason for this change is that a formal 

show-cause order is not feasible when the 

misconduct occurs during a hearing. 

Paragraphs (d) of the previous regulation 

at 1201.31 regarding sanctions for 

contumacious conduct by parties and 

representatives was moved to section 
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Reason for Revision

(d)(1) A judge may exclude a party, a representative, 

or other person from all or any portion of the 

proceeding before him or her for contumacious 

misconduct or conduct that is prejudicial to the 

administration of justice. 

(2) When a judge determines that a person should 

be excluded from participation in a 

proceeding, the judge shall inform the person 

of this determination through issuance of an 

order to show cause why he or she should not 

be excluded. The show cause order shall be 

delivered to the person by the most 

expeditious means of delivery available, 

including issuance of an oral order on the 

record where the determination to exclude the 

person is made during a hearing. The person 

must respond to the judge's show cause order 

within three days (excluding Saturdays, 

Sundays, and Federal holidays) of receipt of 

the order, unless the judge provides a different 

time limit, or forfeit the right to seek 

certification of a subsequent exclusion order 

as an interlocutory appeal to the Board under 

paragraph (d)(3) of this section.

(3) When, after consideration of the person's 

response to the show cause order, or in the 

absence of a response to the show cause order, 

the judge determines that the person should be 

excluded from participation in the proceeding, 

the judge shall issue an order that documents 

the reasons for the exclusion. The person may 

obtain review of the judge's ruling by filing, 

within three days (excluding Saturdays, 

Sundays, and Federal holidays) of receipt of 

the ruling, a motion that the ruling be certified 

judge may exclude or limit the participation of a 

representative or other person in the case for 

contumacious conduct or conduct prejudicial to the 

administration of justice. When the judge excludes a 

party’s representative, the judge will afford the party a 

reasonable time to obtain another representative 

before proceeding with the case.

(e) Cancellation, suspension, or termination of 

hearing. A judge may cancel a scheduled hearing, or 

suspend or terminate a hearing in progress, for 

contumacious conduct or conduct prejudicial to the 

administration of justice on the part of the appellant or 

the appellant’s representative. If the judge suspends a 

hearing, the parties must be given notice as to when 

the hearing will resume. If the judge cancels or 

terminates a hearing, the judge must set a reasonable 

time during which the record will be kept open for 

receipt of written submissions. 

1201.43 and revised to become 

paragraphs (d) and (e). The revised 

regulation gives explicit authority for 

suspending or terminating a hearing that 

has begun. In addition, the revised 

regulation eliminates the provision for the 

automatic approval of a request for an 

interlocutory appeal of a sanction for 

contumacious behavior, even when the 

requirements of § 1201.92, including that 

the “ruling involves an important question 

of law or policy about which there is 

substantial ground for difference of 

opinion,” have not been satisfied. Review 

of sanctions of this nature via petition for 

review was considered to be sufficient, 

and that delaying the entire proceeding to 

adjudicate the appropriateness of a 

sanction is not warranted. 

NOPR; NOFR.
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to the Board as an interlocutory appeal. The 

judge shall certify an interlocutory appeal to 

the Board within one day (excluding 

Saturdays, Sundays, and Federal holidays) of 

receipt of such a motion. Only the provisions 

of this paragraph apply to interlocutory 

appeals of rulings excluding a person from a 

proceeding; the provisions of §§ 1201.91 

through 1201.93 of this part shall not apply.

(4) A proceeding will not be delayed because the 

judge excludes a person from the proceeding, 

except that:

(i) Where the judge excludes a party's 

representative, the judge will give the 

party a reasonable time to obtain another 

representative; and

(ii) Where the judge certifies an interlocutory 

appeal of an exclusion ruling to the 

Board, the judge or the Board may stay 

the proceeding sua sponte or on the 

motion of a party for a stay of the 

proceeding.

(5) The Board, when considering a petition for 

review of a judge's initial decision under 

subpart C of this part, will not be bound by 

any decision of the judge to exclude a person 

from the proceeding below.

1201.51 Scheduling the hearing.

* * * * *

(d) The Board has established certain approved 

hearing locations, which are published as a Notice in 

the Federal Register. See appendix III. Parties, for 

1201.51 Scheduling the hearing.

* * * * *

(d) The Board has established certain approved 

hearing locations, which are listed on the Board’s 

public website (www.mspb.gov). The judge will 

Appendix III of the Part 1201 regulations, 

which contained a comprehensive list of 

fixed hearing locations, has been deleted. 

Instead, the MSPB will list approved 

hearing locations on its public website. 

The reason for this change is that the 
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Text of Previous Regulation Text of Revised Regulation Description and 

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good cause, may file motions requesting a different 

hearing location. Rulings on those motions will be 

based on a showing that a different location will be 

more advantageous to all parties and to the Board. 

advise parties of these hearing sites as appropriate. 

Parties, for good cause, may file motions requesting a 

different hearing location. Rulings on those motions 

will be based on a showing that a different location 

will be more advantageous to all parties and to the 

Board. 

current extensive list of fixed hearing sites 

causes administrative inefficiencies and 

can have adverse budgetary 

considerations for the MSPB and other 

agencies, as the cost of airfares are 

renegotiated by GSA each fiscal year, and 

the cost of court reporters varies 

considerably from one city to the next. 

Having the flexibility to change approved 

hearing sites from year to year by 

changing information on the Board’s 

public website should improve the 

situation. 

NOPR; NOFR.

1201.52 Public hearings.

Hearings are open to the public. The judge may 

order a hearing or any part of a hearing closed, 

however, when doing so would be in the best interests 

of the appellant, a witness, the public, or any other 

person affected by the proceeding. Any order closing 

the hearing will set out the reasons for the judge's 

decision. Any objections to the order will be made a 

part of the record. 

1201.52 Public hearings.

(a) Closing the hearing. Hearings are generally open 

to the public; however, the judge may order a hearing 

or any part of a hearing closed when doing so would 

be in the best interests of a party, a witness, the public, 

or any other person affected by the proceeding. Any 

order closing the hearing will set out the reasons for 

the judge's decision. Any objections to the order will 

be made a part of the record. 

(b) Electronic devices. Absent express approval from 

the judge, no two-way communications devices may 

be operated and/or powered on in the hearing room; 

all cell phones, text devices, and all other two-way 

communications devices shall be powered off in the 

hearing room. Further, no cameras, recording devices, 

and/or transmitting devices may be operated, 

operational, and/or powered on in the hearing room 

without the consent of the judge. 

This regulation was revised to give 

administrative judges express authority to 

control the use of electronic devices at a 

hearing. 

NOFR.
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1201.53 Record of proceedings.

(a) Preparation. A word-for-word record of the 

hearing is made under the judge's guidance. It is kept 

in the Board's copy of the appeal file and it is the 

official record of the hearing. Only hearing tape 

recordings or written transcripts prepared by the 

official hearing reporter will be accepted by the Board 

as the official record of the hearing. When the judge 

assigned to the case tape records a hearing (for 

example, a telephonic hearing in a retirement appeal), 

the judge is the “official hearing reporter” under this 

section.

(b) Copies. When requested and when costs are paid, 

a copy of the official record of the hearing will be 

provided to a party. A party must send a request for a 

copy of a hearing tape recording or written transcript

to the adjudicating regional or field office, or to the 

Clerk of the Board, as appropriate. A request for a 

copy of a hearing tape recording or written transcript

sent by a non-party is controlled by the Board's rules 

at 5 CFR part 1204 (Freedom of Information Act). 

Requests for hearing tape recordings or written 

transcripts under the Freedom of Information Act 

must be sent to the appropriate Regional Director, the 

Chief Administrative Judge of the appropriate MSPB 

Field Office, or to the Clerk of the Board at MSPB 

headquarters in Washington, DC. 

(c) Exceptions to payment of costs. A party may not 

have to pay for a hearing tape recording or written 

transcript if he has a good reason to support a request 

for an exception. If a party believes he has a good 

reason and the request is made before the judge issues 

an initial decision, the party must send the request for 

an exception to the judge. If the request is made after 

1201.53 Record of proceedings.

(a) Recordings. A recording of the hearing is 

generally prepared by a court reporter, under the 

judge's guidance. Such a recording is included with 

the Board's copy of the appeal file and serves as the 

official hearing record. Judges may prepare 

recordings in some hearings, such as those conducted 

telephonically. 

(b) Transcripts. A “transcript” refers not only to 

printed copies of the hearing testimony, but also to 

electronic versions of such documents. Along with 

recordings, a transcript prepared by the court reporter 

is accepted by the Board as the official hearing record. 

Any party may request that the court reporter prepare 

a full or partial transcript, at the requesting party's 

expense. Judges do not prepare transcripts.

(c) Copies. Copies of recordings or existing 

transcripts will be provided upon request to parties 

free of charge. Such requests should be made in 

writing to the adjudicating regional or field office, or 

to the Clerk of the Board, as appropriate. Non-parties 

may request a copy of a hearing recording or existing 

transcript under the Freedom of Information Act 

(FOIA) and Part 1204 of the Board's regulation. A 

non-party may request a copy by writing to the 

appropriate Regional Director, the Chief 

Administrative Judge of the appropriate MSPB Field 

Office, or to the Clerk of the Board at MSPB 

headquarters in Washington, DC, as appropriate. 

Non-parties may also make FOIA requests online at 

https://foia.mspb.gov. 

(d) Corrections to transcript. Any discrepancy 

between the transcript and the recording shall be 

The revised regulation clarifies and 

updates the terminology to reflect the 

difference between recordings (oral) and 

transcripts (written). The regulation 

provides that the Board will provide 

recordings and already existing transcripts 

free of charge. As drafted in the notice of 

propose rulemaking, the regulation would 

have also authorized administrative 

judges to order the agency to order and 

pay for a full or partial transcript, but this 

provision was deleted in the notice of 

final rulemaking. 

NOPR; NOFR.
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Text of Previous Regulation Text of Revised Regulation Description and 

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the judge issues an initial decision, the request must 

be sent to the Clerk of the Board, who shall have 

authority to grant or deny such requests. The party 

must clearly state the reason for the request in an 

affidavit or sworn statement.

(d) Corrections to written transcript. Corrections to 

the official written transcript may be made on motion 

by a party or on the judge's own motion. Motions for 

corrections must be filed within 10 days after the 

receipt of a written transcript. Corrections of the 

official written transcript will be made only when 

substantive errors are found and only with the judge's 

approval.

(e) Official record. Exhibits, the official hearing 

record, if a hearing is held, all papers filed, and all 

orders and decisions of the judge and the Board, make 

up the official record of the case.

resolved by the judge or the Clerk of the Board as 

appropriate. Corrections to the official transcript may 

be made on motion by a party or on the judge's own 

motion or by the Clerk of the Board as appropriate. 

Motions for corrections must be filed within 10 days 

after the receipt of a transcript. Corrections of the 

official transcript will be made only when substantive 

errors are found by the judge, or by the Clerk of the 

Board, as appropriate.

(e) Official record. Hearing exhibits and pleadings 

that have been accepted into the record, the official 

hearing record, if a hearing is held, and all orders and 

decisions of the judge and the Board, make up the 

official record of the case. Other than the Board’s 

decisions, the official record is not available for public 

inspection and copying. The official record is, 

however, subject to requests under both the Freedom 

of Information Act (5 U.S.C. 552) and the Privacy Act 

(5 U.S.C. 552a) pursuant to the procedures contained 

in 5 CFR parts 1204 and 1205.

1201.56 Burden and degree of proof; affirmative 

defenses.

1201.56 Burden and degree of proof; affirmative 

defenses.

The current regulation provides that 

appellants have the burden of proving 

jurisdiction by preponderant evidence. 

That regulation is in conflict with a fair 

amount of Board case law that provides 

for establishing some jurisdictional 

elements by making nonfrivolous 

allegations. Under the regulation in the 

notice of proposed rulemaking, the burden 

of proof would have varied depending on 

the type of jurisdictional element 

involved. The appellant would have been 

required to establish by preponderant 

evidence that he or she is a person entitled 
24

Text of Previous Regulation Text of Revised Regulation Description and 

Reason for Revision

to appeal rights under applicable law, 

rule, or regulation, and that he or she is 

appealing an agency action or decision 

covered by applicable law, rule, or 

regulation. The appellant would also 

have been required to prove by 

preponderant evidence a jurisdictional 

requirement to exhaust a required 

administrative procedure before filing a 

Board appeal. Other types of 

jurisdictional elements would have been 

established by making a nonfrivolous 

allegation, which was defined as “an 

allegation of facts that, if proven, would 

establish the jurisdictional element in 

question.” Two commenters objected to 

the proposed definition of a nonfrivolous 

allegation, with one arguing that the 

standard should be an allegation of facts 

and related legal contentions that could

establish the element in question. That 

commenter also questioned whether the 

Board has in some instances incorrectly 

regarded merits issues as jurisdictional 

requirements. After considering those 

comments, as well as additional 

comments from within the MSPB, the 

Board has determined that it needs to 

reexamine the legal framework it employs 

to identify jurisdictional requirements and 

how they are established. Accordingly, 

the Board decided to withdraw the 

proposed regulation and plans to 

reconsider the whole subject in early 

2013, and, if amendments are determined 

to be necessary, institute a new 
25

Text of Previous Regulation Text of Revised Regulation Description and 

Reason for Revision

rulemaking procedure. 

NOPR; NOFR.

1201.58 Closing the record.

* * * * *

(c) Once the record closes, no additional evidence or 

argument will be accepted unless the party submitting 

it shows that the evidence was not readily available 

before the record closed. The judge will include in the 

record, however, any supplemental citations received 

from the parties or approved corrections of the 

transcript, if one has been prepared. 

1201.58 Closing the record.

* * * * *

(c) Once the record closes, additional evidence or 

argument will ordinarily not be accepted unless:

(1) The party submitting it shows that the 

evidence or argument was not readily 

available before the record closed; or

(2) It is in rebuttal to new evidence or argument 

submitted by the other party just before the 

record closed.

(d) The judge will include in the record any 

supplemental citations received from the parties or 

approved corrections of the transcript, if one has been 

prepared. 

Paragraph (c) was revised to conform 

with case law indicating that, 

notwithstanding an order setting the date 

on which the record will close, a party 

must be allowed to submit evidence or 

argument to rebut new evidence 

submitted by the other party just prior to 

the close of the record. 

NOPR; NOFR.

1201.62 Producing prior statements. _______________ This regulation was eliminated, as it as it 

has never been invoked or applied and 

was believed to be unnecessary. 

NOPR. 

1201.71 Purpose of discovery.

Proceedings before the Board will be conducted as 

expeditiously as possible with due regard to the rights 

of the parties. Discovery is designed to enable a party 

to obtain relevant information needed to prepare the 

party's case. These regulations are intended to provide 

a simple method of discovery. They will be 

interpreted and applied so as to avoid delay and to 

facilitate adjudication of the case. Parties are expected 

1201.71 Purpose of discovery.

Proceedings before the Board will be conducted as 

expeditiously as possible with due regard to the rights 

of the parties. Discovery is designed to enable a party 

to obtain relevant information needed to prepare the 

party's case. These regulations are intended to provide 

a simple method of discovery. They will be 

interpreted and applied so as to avoid delay and to 

facilitate adjudication of the case. Parties are expected 

Language was added stating that 

discovery requests and discovery 

responses should not ordinarily be filed 

with the Board, as is currently done in 

standard orders. 

NOPR; NOFR. 
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Text of Previous Regulation Text of Revised Regulation Description and 

Reason for Revision

to start and complete discovery with a minimum of 

Board intervention. 

to start and complete discovery with a minimum of 

Board intervention. Discovery requests and responses 

thereto are not to be filed in the first instance with the 

Board. They are only filed with the Board in 

connection with a motion to compel discovery under 

1201.73(c) of this part, with a motion to subpoena 

discovery under 1201.73(d) of this part, or as 

substantive evidence to be considered in the appeal. 

1201.73 Discovery procedures.

(a) Initial disclosures. Except to the extent otherwise 

directed by order, each party must, without awaiting a 

discovery request and within 10 days following the 

date of the MSPB's acknowledgment order, provide 

the following information to the other party:

(1) The agency must provide:

(i) A copy of, or a description by category or 

location of all documents in the 

possession, custody, or control of the 

agency that the agency may use in support 

of its claims or defenses, and

(ii) The name and, if known, the address, 

telephone number, and e-mail address of 

each individual likely to have 

discoverable information that the agency 

may use in support of its claims or 

defenses, identifying the subjects of such 

information.

(2) The appellant must provide:

(i) A copy of, or a description by category or 

location of all documents in the 

possession, custody, or control of the 

appellant that the appellant may use in 

1201.73 Discovery procedures.

(a) Initiating discovery. A party seeking discovery 

must start the process by serving a request for 

discovery on the representative of the party or 

nonparty, or, if there is no representative, on the party 

or nonparty themselves. The request for discovery 

must state the time limit for responding, as prescribed 

in 1201.73(d) of this part, and must specify the time 

and place of the taking of the deposition, if applicable. 

When a party directs a request for discovery to the 

official or employee of a Federal agency that is a 

party, the agency must make the officer or employee 

available on official time to respond to the request, 

and must assist the officer or employee as necessary in 

providing relevant information that is available to the 

agency.

(b) Responses to discovery requests. A party or 

nonparty must answer a discovery request within the 

time provided under paragraph (d)(2) of this section, 

either by furnishing to the requesting party the 

information requested or agreeing to make deponents 

available to testify within a reasonable time, or by 

stating an objection to the particular request and the 

reasons for the objection. Parties and nonparties may 

respond to discovery requests by electronic mail if 

The revised regulation eliminates the 

initial disclosure requirement of 

§ 1201.73(a). It also eliminates the 

separate provisions that governed 

discovery from a party from those 

governing discovery from a nonparty. 

The only difference that remains would be 

the remedy when there are problems with 

discovery. When a party alleges that 

another party has failed to comply with its 

obligations, the appropriate procedure 

would be a motion to compel. When a 

party alleges that a nonparty has failed to 

comply, the appropriate procedure would 

be a motion to issue a subpoena. The 

time limit for initial discovery requests 

has been increased from 25 days to 30 

days after the date on which the judge 

issues the Acknowledgment Order. That 

Order requires the production of the 

Agency File within 20 days. The increase 

of time to 30 days should ensure that, in 

most cases, appellants have had the 

opportunity to see what is in the Agency 

File before they initiate discovery. 

Subsection (c)(1)(i) was revised the 

proper relevance standard for motions to 
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Text of Previous Regulation Text of Revised Regulation Description and 

Reason for Revision

support of his or her claims or defenses, 

and

(ii) The name and, if known, the address, 

telephone number, and e-mail address of 

each individual likely to have 

discoverable information that the 

appellant may use in support of his or her 

claims or defenses, identifying the 

subjects of such information.

(3) Each party must make its initial disclosure 

based upon the information then reasonably 

available to the party. A party is not excused 

from making its disclosures because it has not 

fully completed its investigation of its case, 

because it challenges the sufficiency of the 

other party's disclosures, or because the other 

party has not made its disclosures.

(b) Discovery from a party. A party seeking discovery 

from another party must start the process by serving a 

request for discovery on the representative of the other 

party or the party if there is no representative. The 

request for discovery must state the time limit for 

responding, as prescribed in § 1201.73(f), and must 

specify the time and place of the taking of the 

deposition, if applicable. When a party directs a 

request for discovery to an officer or employee of a 

Federal agency that is a party, the agency must make 

the officer or employee available on official time to 

respond to the request, and must assist the officer or 

employee as necessary in providing relevant 

information that is available to the agency.

(c) Discovery from a nonparty, including a nonparty 

Federal agency. Parties should try to obtain voluntary 

authorized by the requesting party.

(c) Motions to compel or issue a subpoena. (1) If a 

party fails or refuses to respond in full to a discovery 

request, the requesting party may file a motion to 

compel discovery. If a nonparty fails or refuses to 

respond in full to a discovery request, the requesting 

party may file a motion for the issuance of a subpoena 

directed to the individual or entity from which the 

discovery is sought under the procedures described in 

1201.81 of this part. The requesting party must serve 

a copy of the motion on the other party or nonparty. 

Before filing any motion to compel or issue a 

subpoena, the moving party shall discuss the 

anticipated motion with the opposing party or 

nonparty and all those involved shall make a good 

faith effort to resolve the discovery dispute and 

narrow the areas of disagreement. The motion shall 

include:

(i) A copy of the original request and a 

statement showing that the information 

sought is discoverable under section 

1201.72;

(ii) A copy of the response to the request 

(including the objections to discovery) or, 

where appropriate, a statement that no 

response has been received, along with an 

affidavit or sworn statement under 28 

U.S.C. 1746 supporting the statement 

(See appendix IV to part 1201); and

(iii) A statement that the moving party has 

discussed or attempted to discuss the 

anticipated motion with the nonmoving 

party or nonparty, and made a good faith 

effort to resolve the discovery dispute and 

compel discovery. 

NOPR; NOFR. 
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Text of Previous Regulation Text of Revised Regulation Description and 

Reason for Revision

discovery from nonparties whenever possible. A party 

seeking discovery from a nonparty Federal agency or 

employee must start the process by serving a request 

for discovery on the nonparty Federal agency or 

employee. A party may begin discovery from other 

nonparties by serving a request for discovery on the 

nonparty directly. If the party seeking the information 

does not make that request, or if it does so but fails to 

obtain voluntary cooperation, it may obtain discovery 

from a nonparty by filing a written motion with the 

judge, showing the relevance, scope, and materiality 

of the particular information sought. If the party seeks 

to take a deposition, it should state in the motion the 

date, time, and place of the proposed deposition. An 

authorized official of the MSPB will issue a ruling on 

the motion, and will serve the ruling on the moving 

party. That official also will provide that party with a 

subpoena, if approved, that is directed to the 

individual or entity from which discovery is sought. 

The subpoena will specify the manner in which the 

party may seek compliance with it, and it will specify 

the time limit for seeking compliance. The party 

seeking the information is responsible for serving any 

MSPB-approved discovery request and subpoena on 

the individual or entity, or for arranging for its service.

(d) Responses to discovery requests. A party, or a 

Federal agency that is not a party, must answer a 

discovery request within the time provided under 

paragraph (f)(2) of this section, either by furnishing to 

the requesting party the information or testimony 

requested or agreeing to make deponents available to 

testify within a reasonable time, or by stating an 

objection to the particular request and the reasons for 

the objection. Parties and non-parties may respond to 

discovery requests by electronic mail if authorized by 

narrow the areas of disagreement.

(2) The party or nonparty from whom discovery 

was sought may respond to the motion to 

compel or the motion to issue a subpoena

within the time limits stated in paragraph 

(d)(3) of this section.

(d) Time limits. (1) Unless otherwise directed by the 

judge, parties must serve their initial discovery 

requests within 30 days after the date on which the 

judge issues an order to the respondent agency to 

produce the agency file and response.

(2) A party or nonparty must serve a response to a 

discovery request promptly, but not later than 

20 days after the date of service of the request 

or order of the judge. Any discovery requests 

following the initial request must be served 

within 10 days of the date of service of the 

prior response, unless the parties are 

otherwise directed by the judge. Deposition 

witnesses must give their testimony at the 

time and place stated in the request for 

deposition or in the subpoena, unless the 

parties agree on another time or place.

(3) Any motion for an order to compel or issue a 

subpoena must be filed with the judge within 

10 days of the date of service of objections or, 

if no response is received, within 10 days after 

the time limit for response has expired. Any 

pleading in opposition to a motion to compel 

or subpoena discovery must be filed with the 

judge within 10 days of the date of service of 

the motion. 

(4) Discovery must be completed within the time 
29

Text of Previous Regulation Text of Revised Regulation Description and 

Reason for Revision

the requesting party.

(e) Motions to compel discovery. (1) If a party fails or 

refuses to respond in full to a discovery request, or if a 

nonparty fails or refuses to respond in full to a MSPBapproved discovery order, the requesting party may 

file a motion to compel discovery. The requesting 

party must file the motion with the judge, and must 

serve a copy of the motion on the other party and on 

any nonparty entity or person from whom the 

discovery was sought. Before filing any motion to 

compel discovery, the moving party shall discuss the 

anticipated motion with the opposing party either in 

person or by telephone and the parties shall make a 

good faith effort to resolve the discovery dispute and 

narrow the areas of disagreement. The motion shall 

include:

(i) A copy of the original request and a 

statement showing that the information 

sought is relevant and material; and

(ii) A copy of the response to the request 

(including the objections to discovery) or, 

where appropriate, a statement that no 

response has been received, along with an 

affidavit or sworn statement under 28 

U.S.C. 1746 supporting the statement 

(See appendix IV to part 1201.); and

(iii) A statement that the parties have 

discussed the anticipated motion and have 

made a good faith effort to resolve the 

discovery dispute and narrow the areas of 

disagreement.

(2) The other party and any other entity or person 

from whom discovery was sought may 

period designated by the judge or, if no such 

period is designated, no later than the 

prehearing or close of record conference.

(e) Limits on the number of discovery requests. (1) 

Absent prior approval by the judge, interrogatories 

served by parties upon another party or a nonparty 

may not exceed 25 in number, including all discrete 

subparts.

(2) Absent prior approval by the judge or 

agreement by the parties, each party may not 

take more than 10 depositions.

(3) Requests to exceed the limitations set forth in 

paragraphs (e)(1) and (e)(2) of this section 

may be granted at the discretion of the judge. 

In considering such requests, the judge shall 

consider the factors identified in §1201.72(d) 

of this part. 
30

Text of Previous Regulation Text of Revised Regulation Description and 

Reason for Revision

respond to the motion to compel discovery 

within the time limits stated in paragraph 

(f)(4) of this section.

(f) Time limits. (1) Parties who wish to make 

discovery requests or motions must serve their initial 

requests or motions within 25 days after the date on 

which the judge issues an order to the respondent 

agency to produce the agency file and response.

(2) A party or nonparty must file a response to a 

discovery request promptly, but not later than 

20 days after the date of service of the request 

or order of the judge. Any discovery requests 

following the initial request must be served 

within 10 days of the date of service of the 

prior response, unless the parties are

otherwise directed. Deposition witnesses must 

give their testimony at the time and place 

stated in the request for deposition or in the 

subpoena, unless the parties agree on another 

time or place.

(3) Any motion to depose a nonparty (along with 

a request for a subpoena) must be submitted 

to the judge within the time limits stated in 

paragraph (f)(1) of this section or as the judge 

otherwise directs.

(4) Any motion for an order to compel discovery 

must be filed with the judge within 10 days of 

the date of service of objections or, if no 

response is received, within 10 days after the 

time limit for response has expired. Any 

pleading in opposition to a motion to compel 

discovery must be filed with the judge within 

10 days of the date of service of the motion.
31

Text of Previous Regulation Text of Revised Regulation Description and 

Reason for Revision

(5) Discovery must be completed within the time 

the judge designates.

(g) Limits on the number of discovery requests. (1) 

Absent prior approval by the judge, interrogatories 

served by parties upon another party or a nonparty 

may not exceed 25 in number, including all discrete 

subparts.

(2) Absent prior approval by the judge or 

agreement by the parties, each party may not 

take more than 10 depositions.

(3) Requests to exceed the limitations set forth in 

paragraphs (g)(1) and (g)(2) of this section 

may be granted at the discretion of the judge. 

In considering such requests, the judge shall 

consider the factors identified in § 1201.72(d) 

of this part.

1201.81 Requests for subpoenas.

* * * * *

(c) Relevance. The request must be supported by a 

showing that the evidence sought is relevant and that 

the scope of the request is reasonable.

* * * * *

1201.81 Requests for subpoenas.

* * * * *

(c) Relevance. The request must be supported by a 

showing that the evidence sought is directly material 

to the issues involved in the appeal. 

* * * * *

To be consistent with the distinction made 

in § 1201.72(b) between discovery of 

parties and nonparties, paragraph (c) was 

revised to provide that a request for a 

subpoena to a nonparty “must be 

supported by a showing that the evidence 

sought is directly material to the issues 

involved in the appeal.” 

1201.93 Procedures.

* * * * * 

(c) Stay of hearing. The judge has the authority to 

proceed with or to stay the hearing while an 

interlocutory appeal is pending with the Board. 

Despite this authority, however, the Board may stay a 

hearing on its own motion while an interlocutory 

1201.93 Procedures.

* * * * *

(c) Stay of Appeal. The judge has the authority to 

proceed with or to stay the processing of the appeal

while an interlocutory appeal is pending with the 

Board. The passage of time during any stay granted 

under this section is not deemed, or accounted for, as 

Paragraph (c) was revised to replace 

“hearing” with the word “appeal” because 

there may or may not be a pending 

hearing in a case where an interlocutory 

appeal has been certified to the Board. 

The MSPB also substituted the phrase

“stay the processing of the appeal” for

“stay the appeal” to avoid any ambiguity. 
32

Text of Previous Regulation Text of Revised Regulation Description and 

Reason for Revision

appeal is pending with it. a case suspension under § 1201.28. If the judge does 

not stay the appeal, the Board may do so while an 

interlocutory appeal is pending with it. 

In addition, language was added to clarify 

that a stay under this provision does not 

count as a stay under section 1201.28. 

NOPR; NOFR.

1201.101 Explanation and definitions.

* * * * *

(b) * * *

(2) Decision-making official means any judge, 

officer or other employee of the Board 

designated to hear and decide cases. 

1201.101 Explanation and definitions

* * * * *

(b) * * *

(2) Decision-making official means any judge, 

officer or other employee of the Board 

designated to hear and decide cases except 

when such judge, officer, or other employee 

of the Board is serving as a mediator or 

settlement judge who is not the adjudicating 

judge. 

Paragraph (b)(2) was revised to clarify 

that Mediation Appeals Program 

mediators and settlement judges may 

discuss the merits of an MSPB case with a 

party without running afoul of the 

prohibition on ex parte communication. 

1201.111 Initial decision by judge.

(a) The judge will prepare an initial decision after the 

record closes, and will serve that decision on the Clerk

of the Board, on the Director of the Office of 

Personnel Management, and on all parties to the 

appeal, including named parties, permissive 

intervenors, and intervenors of right. 

* * * * *

1201.111 Initial decision by judge.

(a) The judge will prepare an initial decision after the 

record closes, and will serve that decision on all 

parties to the appeal, including named parties, 

permissive intervenors, and intervenors of right. The 

Board satisfies its legal obligation under 5 U.S.C. 

7701(b)(1) by making electronic copies of initial 

decisions available to the Office of Personnel 

Management. 

* * * * *

Paragraph (a) was revised to replace 

language requiring judges to serve initial 

decisions on OPM with language 

indicating that the Board satisfies its legal 

obligation in this regard by making 

electronic copies available to OPM. 

NOPR; NOFR. 

1201.112 Jurisdiction of judge.

(a) * * *

(4) Vacate an initial decision before that decision 

becomes final under § 1201.113 in order to 

accept a settlement agreement into the record. 

1201.112 Jurisdiction of judge.

(a) * * *

(4) Vacate an initial decision to accept into the 

record a settlement agreement that is filed 

prior to the deadline for filing a petition for 

Paragraph (a)(4) was revised to allow an 

administrative judge to vacate an initial 

decision to accept a settlement agreement 

into the record when the settlement 

agreement is filed by the parties prior to 

the deadline for filing a petition for 
33

Text of Previous Regulation Text of Revised Regulation Description and 

Reason for Revision

* * * * * review but is not received until after the date 

when the initial decision becomes final under 

1201.113 of this part. 

* * * * *

review, but is not received until after the 

date when the initial decision would 

become the Board’s final decision by 

operation of law. 

1201.113 Finality of decision.

* * * * *

(a) Exceptions. The initial decision will not become 

final if any party files a petition for review within the 

time limit for filing specified in § 1201.114 of this 

part, or if the Board reopens the case on its own 

motion.

* * * * *

1201.113 Finality of decision.

* * * * *

(a) Exceptions. The initial decision will not become 

the Board’s final decision if within the time limit for 

filing specified in 1201.114 of this part, any party files 

a petition for review or, if no petition for review is 

filed, files a request that the initial decision be vacated 

for the purpose of accepting a settlement agreement 

into the record. 

* * * * *

(f) When the Board, by final decision or order, finds 

there is reason to believe a current Federal employee 

may have committed a prohibited personnel practice 

described at 5 U.S.C. 2302(b)(8), the Board will refer 

the matter to the Special Counsel to investigate and 

take appropriate action under 5 U.S.C. 1215.

* * * * *

Paragraphs (a) was revised to conform 

this regulation to the revision to 5 CFR 

1201.112(a)(4). Paragraph (f) was added

to indicate that the Board will make a 

referral to OSC to investigate and take 

any appropriate disciplinary action 

whenever the Board finds that an agency 

has engaged in reprisal against an 

individual for making a protected 

whistleblowing disclosure. 

NOPR; NOFR.

Subpart C: Petitions for Review of Initial 

Decisions (1201.114 to 1201.120)

Subpart C: Petitions for Review of Initial 

Decisions (1201.114 to 1201.120)

Subpart C was reorganized so that: 

Section 1201.114 contains all the rules 

governing the content and procedures for 

pleadings on review, including some 

matters that had been covered in 

1201.115; section 1201.115 is limited to 

the criteria for granting petitions and cross 

petitions for review; and section 1201.116 

contains all the rules governing 

compliance with interim relief orders, 
34

Text of Previous Regulation Text of Revised Regulation Description and 

Reason for Revision

including those that were previously 

located at 1201.115(b) and (c). 

1201.114 Filing petition and cross petition for 

review.

(a) Who may file. Any party to the proceeding, the 

Director of the Office of Personnel Management 

(OPM), or the Special Counsel may file a petition for 

review. The Director of OPM may request review 

only if he or she believes that the decision is 

erroneous and will have a substantial impact on any 

civil service law, rule, or regulation under OPM's 

jurisdiction. 5 U.S.C. 7701(e)(2). All submissions to 

the Board must contain the signature of the party or of 

the party's designated representative.

(b) Cross petition for review. If a party, the Director 

of OPM, or the Special Counsel files a timely petition 

for review, any other party, the Director of OPM, or 

the Special Counsel may file a timely cross petition 

for review. The Board normally will consider only 

issues raised in a timely filed petition for review or in 

a timely filed cross petition for review.

(c) Place for filing. A petition for review, cross 

petition for review, responses to those petitions, and 

all motions and pleadings associated with them must 

be filed with the Clerk of the Merit Systems 

Protection Board, Washington, DC 20419, by 

commercial or personal delivery, by facsimile, by 

mail, or by electronic filing in accordance with § 

1201.14.

(d) Time for filing. Any petition for review must be 

filed within 35 days after the date of issuance of the 

initial decision or, if the petitioner shows that the 

initial decision was received more than 5 days after 

1201.114 Petition and cross petition for review –

content and procedure.

(a) Pleadings allowed. Pleadings allowed on review 

include a petition for review, a cross petition for 

review, a response to a petition for review, a response 

to a cross petition for review, and a reply to a response 

to a petition for review. 

(1) A petition for review is a pleading in which a 

party contends that an initial decision was 

incorrectly decided in whole or in part. 

(2) A cross petition for review has the same 

meaning as a petition for review but is used to 

describe a pleading that is filed by a party 

when another party has already filed a timely 

petition for review. 

(3) A response to a petition for review and a cross 

petition for review may be contained in a 

single pleading. 

(4) A reply to a response to a petition for review is 

limited to the factual and legal issues raised 

by another party in the response to the petition 

for review. It may not raise new allegations 

of error. 

(5) No pleading other than the ones described in 

this paragraph will be accepted unless the 

party files a motion with and obtains leave 

from the Clerk of the Board. The motion 

must describe the nature of and need for the 

pleading. 

(b) Contents of petition or cross petition for review. A 

The revised regulation institutes length 

limits on PFR pleadings: 30 pages or 

7500 words for PFRs and cross-PFRs and 

responses to either of those documents; 

and 15 pages or 3750 words for a reply to 

a response to a PFR or cross-PFR. The 

revised regulation provides for a reply to 

a response to a PFR, but limits such a 

reply to the factual and legal issues raised 

by the other party in the response to the 

PFR, and provides that no other pleadings 

will be allowed. 

NOPR; NOFR.
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Text of Previous Regulation Text of Revised Regulation Description and 

Reason for Revision

the date of issuance, within 30 days after the date the 

petitioner received the initial decision. If the petitioner 

is represented, the 30-day time period begins to run 

upon receipt of the initial decision by either the 

representative or the petitioner, whichever comes first. 

A cross petition for review must be filed within 25 

days of the date of service of the petition for review. 

Any response to a petition for review or to a cross 

petition for review must be filed within 25 days after 

the date of service of the petition or cross petition.

(e) Extension of time to file. The Board will grant a 

motion for extension of time to file a petition for 

review, a cross petition, or a response only if the party 

submitting the motion shows good cause. Motions for 

extensions must be filed with the Clerk of the Board 

before the date on which the petition or other pleading 

is due. The Board, in its discretion, may grant or deny 

those motions without providing the other parties the 

opportunity to comment on them. A motion for an 

extension must be accompanied by an affidavit or 

sworn statement under 28 U.S.C. 1746. (See appendix 

IV to part 1201.) The affidavit or sworn statement 

must include a specific and detailed description of the 

circumstances alleged to constitute good cause, and it 

should be accompanied by any available 

documentation or other evidence supporting the 

matters asserted.

(f) Late filings. Any petition for review, cross petition 

for review, or response that is filed late must be 

accompanied by a motion that shows good cause for 

the untimely filing, unless the Board has specifically 

granted an extension of time under paragraph (e) of 

this section, or unless a motion for extension is 

pending before the Board. The motion must be 

accompanied by an affidavit or sworn statement under

petition or cross petition for review states a party’s 

objections to the initial decision, including all of the 

party’s legal and factual arguments, and must be 

supported by references to applicable laws or 

regulations and by specific references to the record. 

Any petition or cross petition for review that contains 

new evidence or argument must include an 

explanation of why the evidence or argument was not 

presented before the record below closed (see 1201.58 

of this part). A petition or cross petition for review 

should not include documents that were part of the 

record below, as the entire administrative record will 

be available to the Board.

(c) Who may file. Any party to the proceeding, the 

Director of the Office of Personnel Management 

(OPM), or the Special Counsel (under 5 U.S.C. 

1212(c)) may file a petition or cross petition for 

review. The Director of OPM may request review 

only if he or she believes that the decision is 

erroneous and will have a substantial impact on any 

civil service law, rule, or regulation under OPM's 

jurisdiction. 5 U.S.C. 7701(e)(2). All submissions to 

the Board must contain the signature of the party or of 

the party's designated representative.

(d) Place for filing. All pleadings described in 

paragraph (a) and all motions and pleadings associated 

with them must be filed with the Clerk of the Merit 

Systems Protection Board, 1615 M Street, NW, 

Washington, DC 20419, by commercial or personal 

delivery, by facsimile, by mail, or by electronic filing 

in accordance with 1201.14 of this part.

(e) Time for filing. Any petition for review must be 

filed within 35 days after the date of issuance of the 

initial decision or, if the petitioner shows that the 
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28 U.S.C. 1746. (See appendix IV to part 1201.) The 

affidavit or sworn statement must include:

(1) The reasons for failing to request an extension 

before the deadline for the submission; and

(2) A specific and detailed description of the 

circumstances causing the late filing, 

accompanied by supporting documentation or 

other evidence.

Any response to the motion may be included in 

the response to the petition for review, the cross 

petition for review, or the response to the cross 

petition for review. The response will not extend 

the time provided by paragraph (d) of this section 

to file a cross petition for review or to respond to 

the petition or cross petition. In the absence of a 

motion, the Board may, in its discretion, 

determine on the basis of the existing record 

whether there was good cause for the untimely 

filing, or it may provide the party that submitted 

the document with an opportunity to show why it 

should not be dismissed or excluded as untimely.

(g) Intervention— (1) By Director of OPM. The 

Director of OPM may intervene in a case before the 

Board under the standards stated in 5 U.S.C. 7701(d). 

The notice of intervention is timely if it is filed with 

the Clerk of the Board within 45 days of the date the 

petition for review was filed. If the Director requests 

additional time for filing a brief on intervention, the 

Board may, in its discretion, grant the request. A party 

may file a response to the Director's brief within 15 

days of the date of service of that brief. The Director 

must serve the notice of intervention and the brief on 

all parties.

initial decision was received more than 5 days after 

the date of issuance, within 30 days after the date the 

petitioner received the initial decision. For purposes 

of this section, the date that the petitioner receives the 

initial decision is determined according to the standard 

set forth at 1201.22(b)(3) of this part, pertaining to an 

appellant’s receipt of a final agency decision. If the 

petitioner is represented, the 30-day time period 

begins to run upon receipt of the initial decision by 

either the representative or the petitioner, whichever 

comes first. A cross petition for review must be filed 

within 25 days of the date of service of the petition for 

review. Any response to a petition or cross petition 

for review must be filed within 25 days after the date 

of service of the petition or cross petition. Any reply 

to a response to a petition for review must be filed 

within 10 days after the date of service of the response 

to the petition for review. 

(f) Extension of time to file. The Board will grant a 

motion for extension of time to file a pleading 

described in paragraph (a) only if the party submitting 

the motion shows good cause. Motions for extensions 

must be filed with the Clerk of the Board on or before 

the date on which the petition or other pleading is due. 

The Board, in its discretion, may grant or deny those 

motions without providing the other parties the 

opportunity to comment on them. A motion for an 

extension must be accompanied by an affidavit or 

sworn statement under 28 U.S.C. 1746. (See 

Appendix IV.) The affidavit or sworn statement must 

include a specific and detailed description of the 

circumstances alleged to constitute good cause, and it 

should be accompanied by any available 

documentation or other evidence supporting the 

matters asserted.
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Text of Previous Regulation Text of Revised Regulation Description and 

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(2) By Special Counsel. (i) Under 5 U.S.C. 

1212(c), the Special Counsel may intervene as 

a matter of right, except as provided in 

paragraph (g)(2)(ii) of this section. The notice 

of intervention is timely if it is filed with the 

Clerk of the Board within 45 days of the date 

the petition for review was filed. If the Special 

Counsel requests additional time for filing a 

brief on intervention, the Board may, in its 

discretion, grant the request. A party may file 

a response to the Special Counsel's brief 

within 15 days of the date of service. The 

Special Counsel must serve the notice of 

intervention and the brief on all parties.

(ii) The Special Counsel may not intervene in 

an action brought by an individual under 

5 U.S.C. 1221, or in an appeal brought by 

an individual under 5 U.S.C. 7701, 

without the consent of that individual. 

The Special Counsel must present 

evidence that the individual has consented 

to the intervention at the time the motion 

to intervene is filed.

(3) Permissive intervenors. Any person, 

organization or agency, by motion made in a 

petition for review, may ask for permission to 

intervene. The motion must state in detail the 

reasons why the person, organization or 

agency should be permitted to intervene. A 

motion for permission to intervene will be 

granted if the requester shows that he or she 

will be affected directly by the outcome of the 

proceeding. Any person alleged to have 

committed a prohibited personnel practice 

under 5 U.S.C. 2302(b) may ask for 

(g) Late filings. Any pleading described in paragraph 

(a) that is filed late must be accompanied by a motion 

that shows good cause for the untimely filing, unless 

the Board has specifically granted an extension of 

time under paragraph (f) of this section, or unless a 

motion for extension is pending before the Board. 

The motion must be accompanied by an affidavit or 

sworn statement under 28 U.S.C. 1746. (See 

Appendix IV.) The affidavit or sworn statement must 

include: the reasons for failing to request an extension 

before the deadline for the submission; and a specific 

and detailed description of the circumstances causing 

the late filing, accompanied by supporting 

documentation or other evidence. Any response to the 

motion may be included in the response to the petition 

for review, the cross petition for review, or the 

response to the cross petition for review. The 

response will not extend the time provided by 

paragraph (e) of this section to file a cross petition for 

review or to respond to the petition or cross petition. 

In the absence of a motion, the Board may, in its 

discretion, determine on the basis of the existing 

record whether there was good cause for the untimely 

filing, or it may provide the party that submitted the 

document with an opportunity to show why it should 

not be dismissed or excluded as untimely. 

(h) Length limitations. A petition for review, a cross 

petition for review, or a response to a petition for 

review, whether computer generated, typed, or 

handwritten, is limited to 30 pages or 7500 words, 

whichever is less. A reply to a response to a petition 

for review is limited to 15 pages or 3750 words, 

whichever is less. Computer generated and typed 

pleadings must use no less than 12 point typeface and 

1-inch margins and must be double spaced and only 
38

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permission to intervene.

(h) Service. A party submitting a pleading must serve 

a copy of it on each party and on each representative, 

as required by paragraph (b)(2) of § 1201.26.

(i) Closing the record. The record closes on expiration 

of the period for filing the response to the petition for 

review, or to the cross petition for review, or to the 

brief on intervention, if any, or on any other date the 

Board sets for this purpose. Once the record closes, no 

additional evidence or argument will be accepted 

unless the party submitting it shows that the evidence 

was not readily available before the record closed.

use one side of a page. The length limitation is 

exclusive of any table of contents, table of authorities, 

attachments, and certificate of service. A request for 

leave to file a pleading that exceeds the limitations 

prescribed in this paragraph must be received by the 

Clerk of the Board at least 3 days before the filing 

deadline. Such requests must give the reasons for a 

waiver as well as the desired length of the pleading 

and are granted only in exceptional circumstances. 

The page and word limits set forth above are 

maximum limits. Parties are not expected or required 

to submit pleadings of the maximum length. 

Typically, a well-written petition for review is 

between 5 and 10 pages long.

(i) Intervention— (1) By Director of OPM. The 

Director of OPM may intervene in a case before the 

Board under the standards stated in 5 U.S.C. 7701(d). 

The notice of intervention is timely if it is filed with 

the Clerk of the Board within 45 days of the date the 

petition for review was filed. If the Director requests 

additional time for filing a brief on intervention, the 

Board may, in its discretion, grant the request. A party 

may file a response to the Director's brief within 15 

days of the date of service of that brief. The Director 

must serve the notice of intervention and the brief on 

all parties.

(2) By Special Counsel. (i) Under 5 U.S.C. 

1212(c), the Special Counsel may intervene as 

a matter of right, except as provided in 

paragraph (g)(2)(ii) of this section. The notice 

of intervention is timely if it is filed with the 

Clerk of the Board within 45 days of the date 

the petition for review was filed. If the Special 

Counsel requests additional time for filing a 

brief on intervention, the Board may, in its 
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Text of Previous Regulation Text of Revised Regulation Description and 

Reason for Revision

discretion, grant the request. A party may file 

a response to the Special Counsel's brief 

within 15 days of the date of service. The 

Special Counsel must serve the notice of 

intervention and the brief on all parties.

(ii) The Special Counsel may not intervene in 

an action brought by an individual under 

5 U.S.C. 1221, or in an appeal brought by 

an individual under 5 U.S.C. 7701, 

without the consent of that individual. 

The Special Counsel must present 

evidence that the individual has consented 

to the intervention at the time the motion 

to intervene is filed.

(3) Permissive intervenors. Any person, 

organization or agency, by motion made in a 

petition for review, may ask for permission to 

intervene. The motion must state in detail the 

reasons why the person, organization or 

agency should be permitted to intervene. A 

motion for permission to intervene will be 

granted if the requester shows that he or she 

will be affected directly by the outcome of the 

proceeding. Any person alleged to have 

committed a prohibited personnel practice 

under 5 U.S.C. 2302(b) may ask for 

permission to intervene.

(j) Service. A party submitting a pleading must serve a 

copy of it on each party and on each representative, as 

required by paragraph (b)(2) of § 1201.26. 

(k) Closing the record. The record closes on 

expiration of the period for filing the reply to the 

response to the petition for review or on expiration of 

the period for filing a response to the cross petition for 
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Text of Previous Regulation Text of Revised Regulation Description and 

Reason for Revision

review, whichever is later, or to the brief on 

intervention, if any, or on any other date the Board 

sets for this purpose. Once the record closes, no 

additional evidence or argument will be accepted 

unless the party submitting it shows that the evidence 

was not readily available before the record closed.

(l) Rejection for failure to comply. The Clerk of the 

Board may reject material submitted for filing that 

does not substantially conform to the procedural 

requirements of this subpart by issuing a rejection 

letter advising the parties of the nature of the 

nonconformity and the requirements and deadline for 

resubmission. Any deadlines affected by the rejection 

will be addressed in the rejection letter. 

1201.115 Contents of petition for review.

(a) The petition for review must state objections to the 

initial decision that are supported by references to 

applicable laws or regulations and by specific 

references to the record.

[Paragraphs (b) and (c), which related to the provision 

of interim relief, have been moved to § 1201.116.]

(d) The Board, after providing the other parties with 

an opportunity to respond, may grant a petition for 

review when it is established that:

(1) New and material evidence is available that, 

despite due diligence, was not available when 

the record closed; or

(2) The decision of the judge is based on an 

erroneous interpretation of statute or 

regulation.

1201.115 Criteria for granting petition or cross 

petition for review.

The Board normally will consider only issues 

raised in a timely filed petition or cross petition for 

review. Situations in which the Board may grant a 

petition or cross petition for review include, but are 

not limited to, a showing that:

(a) The initial decision contains erroneous findings of 

material fact;

(1) Any alleged factual error must be material, 

meaning of sufficient weight to warrant an 

outcome different from that of the initial 

decision. 

(2) A petitioner who alleges that the judge made 

erroneous findings of material fact must 

explain why the challenged factual 

determination is incorrect and identify 

specific evidence in the record that 

This regulation has been substantially 

rewritten so as to conform the regulation 

to the broader criteria by which the Board 

has actually reviewed PFRs, including 

situations where the Board has denied a 

PFR but “reopened” the appeal “on its 

own motion” to address a petitioner’s 

arguments or vacate, modify, or reverse 

an initial decision. The regulation states 

that the Board will grant a PFR or crossPFR when: (a) The initial decision 

contains erroneous findings of material 

fact; (b) the initial decision is based on an 

erroneous interpretation of statute or 

regulation or the erroneous application of 

the law to the facts of the case; (c) the 

judge’s rulings during either the course of 

the appeal or the initial decision were not 

consistent with required procedures or 

involved an abuse of discretion; and (d) 
41

Text of Previous Regulation Text of Revised Regulation Description and 

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demonstrates the error. In reviewing a claim 

of an erroneous finding of fact, the Board will 

give deference to an administrative judge's 

credibility determinations when they are 

based, explicitly or implicitly, on the 

observation of the demeanor of witnesses 

testifying at a hearing. 

(b) The initial decision is based on an erroneous 

interpretation of statute or regulation or the erroneous 

application of the law to the facts of the case. The 

petitioner must explain how the error affected the 

outcome of the case;

(c) The judge’s rulings during either the course of the 

appeal or the initial decision were not consistent with 

required procedures or involved an abuse of 

discretion, and the resulting error affected the 

outcome of the case;

(d) New and material evidence or legal argument is 

available that, despite the petitioner’s due diligence, 

was not available when the record closed. To 

constitute new evidence, the information contained in 

the documents, not just the documents themselves, 

must have been unavailable despite due diligence 

when the record closed. 

(e) Notwithstanding the above provisions in this 

section, the Board reserves the authority to consider 

any issue in an appeal before it. 

the petitioner has new and material 

evidence or legal argument that was not 

available when the record closed despite 

the petitioner’s due diligence. Categories 

(b), (c), and (d) all require a showing that 

the error (or new evidence) affected the 

outcome of the case. 

NOPR; NOFR. 

1201.116 Appellant requests for enforcement of 

interim relief.

(a) Before a final decision is issued. If the agency files 

a petition for review or a cross petition for review and 

has not provided required interim relief, the appellant 

1201.116 Compliance with orders for interim 

relief.

(a) Certification of compliance. If the appellant was 

the prevailing party in the initial decision, and the 

decision granted the appellant interim relief, any 

This section was revised to combine the 

contents of 5 CFR 1201.116 with what 

had been the provisions of 5 CFR 

1201.115(b) and (c). No substantive 

changes were made. 
42

Text of Previous Regulation Text of Revised Regulation Description and 

Reason for Revision

may request dismissal of the agency's petition. Any 

such request must be filed with the Clerk of the Board 

within 25 days of the date of service of the agency's 

petition. A copy of the response must be served on the 

agency at the same time it is filed with the Board. The 

agency may respond with evidence and argument to 

the appellant's request to dismiss within 15 days of the 

date of service of the request. If the appellant files a 

motion to dismiss beyond the time limit, the Board 

will dismiss the motion as untimely unless the 

appellant shows that it is based on information not 

readily available before the close of the time limit.

(b) After a final decision is issued. If the appellant is 

not the prevailing party in the final Board order, and if 

the appellant believes that the agency has not provided 

full interim relief, the appellant may file an 

enforcement petition with the regional office under § 

1201.182. The appellant must file this petition within 

20 days of learning of the agency's failure to provide 

full interim relief. If the appellant prevails in the final 

Board order, then any interim relief enforcement 

motion filed will be treated as a motion for 

enforcement of the final decision. Petitions under this 

subsection will be processed under § 1201.183.

[Paragraphs (b) and (c) of § 1201.115 also contained 

provisions relating to interim relief:]

(b)(1) If the appellant was the prevailing party in the 

initial decision, and the decision granted the appellant 

interim relief, any petition for review or cross petition 

for review filed by the agency must be accompanied 

by a certification that the agency has complied with 

the interim relief order either by providing the 

required interim relief or by satisfying the 

requirements of 5 U.S.C. 7701(b)(2)(A)(ii) and (B).

petition for review or cross petition for review filed by 

the agency must be accompanied by a certification 

that the agency has complied with the interim relief 

order either by providing the required interim relief or 

by satisfying the requirements of 5 U.S.C. 

7701(b)(2)(A)(ii) and (B).

(b) Challenge to certification. If the appellant 

challenges the agency’s certification of compliance 

with the interim relief order, the Board will issue an 

order affording the agency the opportunity to submit 

evidence of its compliance. The appellant may 

respond to the agency’s submission of evidence within 

10 days after the date of service of the submission.

(c) Allegation of noncompliance in petition or cross 

petition for review. If an appellant or an intervenor 

files a petition or cross petition for review of an initial 

decision ordering interim relief and such petition 

includes a challenge to the agency’s compliance with 

the interim relief order, upon order of the Board the 

agency must submit evidence that it has provided the 

interim relief required or that it has satisfied the 

requirements of 5 U.S.C. 7701(b)(2)(A)(ii) and (B).

(d) Request for dismissal for noncompliance with 

interim relief order. If the agency files a petition for 

review or a cross petition for review and has not 

provided required interim relief, the appellant may 

request dismissal of the agency’s petition. Any such 

request must be filed with the Clerk of the Board 

within 25 days of the date of service of the agency’s 

petition. A copy of the response must be served on 

the agency at the same time it is filed with the Board. 

The agency may respond with evidence and argument 

to the appellant’s request to dismiss within 15 days of

the date of service of the request. If the appellant files 

NOPR; NOFR. 
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Text of Previous Regulation Text of Revised Regulation Description and 

Reason for Revision

(2) If the appellant challenges the agency's 

certification of compliance with the interim 

relief order, the Board will issue an order 

affording the agency the opportunity to 

submit evidence of its compliance. The 

appellant may respond to the agency's 

submission of evidence within 10 days after 

the date of service of the submission.

(3) If an appellant or an intervenor files a petition 

or cross petition for review of an initial 

decision ordering interim relief and such 

petition includes a challenge to the agency's 

compliance with the interim relief order, upon 

order of the Board the agency must submit 

evidence that it has provided the interim relief 

required or that it has satisfied the 

requirements of 5 U.S.C. 7701(b)(2)(A)(ii) 

and (B).

(4) Failure by an agency to provide the 

certification required by paragraph (b)(1) of 

this section with its petition or cross petition 

for review, or to provide evidence of 

compliance in response to a Board order in 

accordance with paragraph (b)(2) or (b)(3) of 

this section, may result in the dismissal of the 

agency's petition or cross petition for review.

(c) Nothing in paragraph (b) of this section shall be 

construed to require any payment of back pay for the 

period preceding the date of the judge's initial decision 

or attorney fees before the decision of the Board 

becomes final.

a motion to dismiss beyond the time limit, the Board 

will dismiss the motion as untimely unless the 

appellant shows that it is based on information not 

readily available before the close of the time limit.

(e) Effect of failure to show compliance with interim 

relief order. Failure by an agency to provide the 

certification required by paragraph (a) of this section 

with its petition or cross petition for review, or to 

provide evidence of compliance in response to a 

Board order in accordance with paragraphs (b), (c), or 

(d) of this section, may result in the dismissal of the 

agency’s petition or cross petition for review.

(f) Back pay and attorney fees. Nothing in this section 

shall be construed to require any payment of back pay 

for the period preceding the date of the judge’s initial 

decision or attorney fees before the decision of the 

Board becomes final.

(g) Allegations of noncompliance after a final decision 

is issued. If the initial decision granted the appellant 

interim relief, but the appellant is not the prevailing 

party in the final Board order disposing of a petition 

for review, and the appellant believes that the agency 

has not provided full interim relief, the appellant may 

file an enforcement petition with the regional office 

under 1201.182 of this part. The appellant must file 

this petition within 20 days of learning of the agency's 

failure to provide full interim relief. If the appellant 

prevails in the final Board order disposing of a 

petition for review, then any interim relief 

enforcement motion filed will be treated as a motion 

for enforcement of the final decision. Petitions under 

this subsection will be processed under 1201.183 of 

this part.
44

Text of Previous Regulation Text of Revised Regulation Description and 

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1201.117 Procedures for review or reopening.

(a) * * * 

(1) Issue a single decision that denies or grants a 

petition for review, reopens an appeal, and 

decides the case;

1201.117 Board decisions; procedures for review or 

reopening.

(a) * * *

(1) Issue a decision that decides the case;

Subparagraph (a)(1) was revised to reflect 

the revision to 5 CFR 1201.118, which 

restricts “reopening” to situations in 

which the Board members have 

previously issued a final order or the 

initial decision has become the Board’s 

final order by operation of law. 

NOPR; NOFR. 

1201.118 Board reopening of case and 

reconsideration of initial decision.

The Board may reopen an appeal and reconsider a 

decision of a judge on its own motion at any time, 

regardless of any other provisions of this part. 

1201.118 Board reopening of final decisions.

Regardless of any other provision of this part, the 

Board may at any time reopen any appeal in which it 

has issued a final order or in which an initial decision 

has become the Board’s final decision by operation of 

law. The Board will exercise its discretion to reopen 

an appeal only in unusual or extraordinary 

circumstances and generally within a short period of 

time after the decision becomes final.

The purpose of this revision was to 

change the previous Board practice of 

reopening an appeal on the Board’s own 

motion under 5 C.F.R. § 1201.118 when a 

party’s petition for review is denied, but 

the Board deems it appropriate to issue an 

Opinion and Order for some reason. 

Under the revised regulation, “reopening” 

only applies to, and is reserved for, 

instances in which the Board has already 

issued a final order or the initial decision 

has become the Board’s final decision by 

operation of law. 

NOPR; NOFR. 

1201.119 OPM petition for reconsideration.

(a) Criteria. Under 5 U.S.C. 7703(d), the Director of 

the Office of Personnel Management may file a 

petition for reconsideration of a Board final order if he 

or she determines:

(1) That the Board erred in interpreting a civil 

service law, rule, or regulation affecting 

personnel management, and

(2) That the Board's decision will have a 

1201.119 OPM petition for reconsideration.

(a) Criteria. Under 5 U.S.C. 7703(d), the Director of 

the Office of Personnel Management may file a 

petition for reconsideration of a Board final decision if 

he or she determines:

(1) That the Board erred in interpreting a civil 

service law, rule, or regulation affecting 

personnel management, and

(2) That the Board's decision will have a 

In paragraphs (a), (b), and (d), the words 

“final decision” replaced the words “final 

order.” This was done in light of the 

language used in 5 CFR 1201.117 and 

1201.118, and to eliminate any confusion 

between “Final Order” as the document 

title of a particular type of final Board 

decision and the generic term “final 

decision,” which applies to any type of 

final decision, whether it is an Opinion 
45

Text of Previous Regulation Text of Revised Regulation Description and 

Reason for Revision

substantial impact on a civil service law, rule, 

regulation, or policy directive.

(b) Time limit. The Director must file the petition for 

reconsideration within 35 days after the date of 

service of the Board's final order.

(c) * * * 

(d) Stays. If the Director of OPM files a petition for 

reconsideration, he or she also may ask the Board to 

stay its final order. An application for a stay, with a 

supporting memorandum, must be filed at the same 

time as the petition for reconsideration.

substantial impact on a civil service law, rule, 

regulation, or policy directive.

(b) Time limit. The Director must file the petition for 

reconsideration within 35 days after the date of 

service of the Board's final decision.

(c) * * * 

(d) Stays. If the Director of OPM files a petition for 

reconsideration, he or she also may ask the Board to 

stay its final decision. An application for a stay, with a 

supporting memorandum, must be filed at the same 

time as the petition for reconsideration. 

and Order or a “Final Order.” 

NOPR. 

1201.122 Filing complaint; serving documents on 

parties.

(a) * * * 

(b) Initial filing and service. The Special Counsel 

must file two copies of the complaint, together with 

numbered and tabbed exhibits or attachments, if any, 

and a certificate of service listing each party or the 

party's representative. The certificate of service must 

show the last known address, telephone number, and 

facsimile number of each party or representative. The 

Special Counsel must serve a copy of the complaint 

on each party or the party's representative, as shown 

on the certificate of service. The initial filing in a 

complaint may not be submitted in electronic form. 

(c) * * * 

(d) Method of filing and service. Filing may be by 

mail, by facsimile, or by personal or commercial 

delivery to the Clerk of the Board. Service may be by 

mail, by facsimile, or by personal or commercial 

delivery to each party or the party's representative, as 

1201.122 Filing complaint; serving documents on 

parties.

(a) * * * 

(b) Initial filing and service. The Special Counsel 

must file a copy of the complaint, together with 

numbered and tabbed exhibits or attachments, if any, 

and a certificate of service listing each party or the 

party's representative. The certificate of service must 

show the last known address, telephone number, and 

facsimile number of each party or representative. The 

Special Counsel must serve a copy of the complaint 

on each party or the party's representative, as shown 

on the certificate of service. 

* * * * *

Paragraph (b) was revised to correct an 

oversight in the MSPB’s regulations 

relating to the use of e-Appeal in original 

jurisdiction actions. Paragraphs (d) and 

(e) were deleted as unnecessary.
46

Text of Previous Regulation Text of Revised Regulation Description and 

Reason for Revision

shown on the certificate of service.

(e) Electronic filing. All pleadings, other than the 

complaint, may be filed and served in electronic form 

at the Board's e-Appeal site (https://eappeal.mspb.gov), provided the requirements of 

§ 1201.14 are satisfied. 

1201.128 Filing complaint; serving documents on 

parties.

* * * * *

(b) Initial filing and service. The Special Counsel 

must file two copies of the complaint, together with 

numbered and tabbed exhibits or attachments, if any, 

and a certificate of service listing the respondent 

agency or the agency's representative, and each person 

on whose behalf the corrective action is brought. The 

certificate of service must show the last known 

address, telephone number, and facsimile number of 

the agency or its representative, and each person on 

whose behalf the corrective action is brought. The 

Special Counsel must serve a copy of the complaint 

on the agency or its representative, and each person on 

whose behalf the corrective action is brought, as 

shown on the certificate of service. The initial filing in 

a complaint may not be submitted in electronic form.

(c) Subsequent filings and service. Each party must 

serve on every other party or the party's representative 

one copy of each of its pleadings, as defined by § 

1201.4(b). A certificate of service describing how and 

when service was made must accompany each 

pleading. Each party is responsible for notifying the 

Board and the other parties in writing of any change in 

name, address, telephone number, or facsimile number 

1201.128 Filing complaint; serving documents on 

parties.

* * * * *

(b) Initial filing and service. The Special Counsel 

must file a copy of the complaint, together with 

numbered and tabbed exhibits or attachments, if any, 

and a certificate of service listing the respondent 

agency or the agency's representative, and each person 

on whose behalf the corrective action is brought. 

* * * * *

Same revisions as in section 1201.122. 
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of the party or the party's representative.

(d) Method of filing and service. A filing may be by 

mail, by facsimile, or by personal or commercial 

delivery to the office determined under paragraph (a) 

of this section. Service may be by mail, by facsimile, 

or by personal or commercial delivery to each party or 

the party's representative, as shown on the certificate 

of service.

(e) Electronic filing. All pleadings, other than the 

complaint, may be filed and served in electronic form 

at the Board's e-Appeal site (https://e-appeal.mspb.gov 

), provided the requirements of § 1201.14 are 

satisfied.

1201.134 Deciding official; filing stay request; 

serving documents on parties.

* * * * *

(d) Initial filing and service. The Special Counsel 

must file two copies of the request, together with 

numbered and tabbed exhibits or attachments, if any, 

and a certificate of service listing the respondent 

agency or the agency's representative. The certificate 

of service must show the last known address, 

telephone number, and facsimile number of the 

agency or its representative. The Special Counsel 

must serve a copy of the request on the agency or its 

representative, as shown on the certificate of service. 

The initial filing in a request for a stay may not be 

submitted in electronic form.

(e) * * * 

(f) Method of filing and service. A filing may be by 

mail, by facsimile, or by personal or commercial 

delivery to the Clerk of the Board. Service may be by 

1201.134 Deciding official; filing stay request; 

serving documents on parties.

* * * * *

(d) Initial filing and service. The Special Counsel 

must file a copy of the request, together with 

numbered and tabbed exhibits or attachments, if any, 

and a certificate of service listing the respondent 

agency or the agency's representative. The certificate 

of service must show the last known address, 

telephone number, and facsimile number of the 

agency or its representative. The Special Counsel 

must serve a copy of the request on the agency or its 

representative, as shown on the certificate of service. 

* * * * *

Same revisions as in section 1201.122. 
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Reason for Revision

mail, by facsimile, or by personal or commercial 

delivery to each party or the party's representative, as 

shown on the certificate of service. 

(g) Electronic filing. All pleadings may be filed and 

served in electronic form at the MSPB e-Appeal site 

(https://e-appeal.mspb.gov/ ), provided the 

requirements of § 1201.14 are satisfied. 

1201.137 Covered actions; filing complaint; serving 

documents on parties.

* * * * *

(c) Initial filing and service. The agency must file two 

copies of the complaint, together with numbered and 

tabbed exhibits or attachments, if any, and a certificate 

of service listing each party or the party's 

representative. The certificate of service must show 

the last known address, telephone number, and 

facsimile number of each party or representative. The 

agency must serve a copy of the complaint on each 

party or the party's representative, as shown on the 

certificate of service. The initial filing in a complaint 

may not be submitted in electronic form.

(d) * * * 

(e) Method of filing and service. A filing may be by 

mail, by facsimile, or by personal or commercial 

delivery to the Clerk of the Board. Service may be by 

mail, by facsimile, or by commercial or personal 

delivery to each party or the party's representative, as 

shown on the certificate of service.

(f) Electronic filing. All pleadings may be filed and 

served in electronic form at the MSPB e-Appeal site 

(https://e-appeal.mspb.gov/ ), provided the 

requirements of § 1201.14 are satisfied.

1201.137 Covered actions; filing complaint; serving 

documents on parties.

* * * * *

(c) Initial filing and service. The agency must file a 

copy of the complaint, together with numbered and 

tabbed exhibits or attachments, if any, and a certificate 

of service listing each party or the party's 

representative. The certificate of service must show 

the last known address, telephone number, and 

facsimile number of each party or representative. The 

agency must serve a copy of the complaint on each 

party and the party's representative, as shown on the 

certificate of service. 

* * * * *

Same revisions as in section 1201.122. 
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1201.142 Actions filed by administrative law 

judges.

An administrative law judge who alleges a 

constructive removal or other action by an agency in 

violation of 5 U.S.C. 7521 may file a complaint with 

the Board under this subpart. The filing and serving 

requirements of 5 CFR 1201.37 apply. Such 

complaints shall be adjudicated in the same manner as 

agency complaints under this subpart. 

1201.142 Actions filed by administrative law 

judges.

An administrative law judge who alleges a 

constructive removal or other action by an agency in 

violation of 5 U.S.C. 7521 may file a complaint with 

the Board under this subpart. The filing and service 

requirements of 1201.137 of this part apply. Such 

complaints shall be adjudicated in the same manner as 

agency complaints under this subpart. 

This section was revised to correct a 

typographical error. 

1201.143 Right to hearing; filing complaint; 

serving documents on parties.

* * * * *

(c) Initial filing and service. The appointee must file 

two copies of the request, together with numbered and 

tabbed exhibits or attachments, if any, and a certificate 

of service listing the agency proposing the appointee's 

removal or the agency's representative. The certificate 

of service must show the last known address, 

telephone number, and facsimile number of the 

agency or its representative. The appointee must serve 

a copy of the request on the agency or its 

representative, as shown on the certificate of service. 

The initial filing may not be submitted in electronic 

form.

(d) * * *

(e) Method of filing and service. A filing may be by 

mail, by facsimile, or by personal or commercial 

delivery, to the office determined under paragraph (b) 

of this section. Service may be by mail, by facsimile, 

or by personal or commercial delivery to each party or 

the party's representative, as shown on the certificate 

of service.

1201.143 Right to hearing; filing complaint; 

serving documents on parties.

* * * * *

(c) Initial filing and service. Except when filed 

electronically under 1201.14, the appointee must file 

two copies of the request, together with numbered and 

tabbed exhibits or attachments, if any, and a certificate 

of service listing the agency proposing the appointee's 

removal or the agency's representative. The certificate 

of service must show the last known address, 

telephone number, and facsimile number of the 

agency or its representative. The appointee must 

serve a copy of the request on the agency or its 

representative, as shown on the certificate of service. 

* * * * *

The revisions to this regulation are similar 

to the revisions to section 1201.122. A 

minor technical amendment has been 

made to paragraph (c) to be consistent 

with requirements for filing new appeals 

under the Board’s appellate jurisdiction. 

Section 1201.26(a) provides that the 

appellant “must file two copies of both 

the appeal and all attachments with the 

appropriate Board office, unless the 

appellant files an appeal in electronic 

form under § 1201.14. Unlike the 

original jurisdiction appeals under 

1201.122, .128, and .134, the MSPB 

needs a second copy for service on the 

opposing party.
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(f) Electronic filing. All pleadings may be filed and 

served in electronic form at the MSPB e-Appeal site 

(https://e-appeal.mspb.gov/), provided the 

requirements of § 1201.14 are satisfied.

1201.153 Contents of appeal.

(a) * * * 

(2) The appeal must state whether the appellant 

has filed a formal discrimination complaint or 

a grievance with any agency. If he or she has 

done so, the appeal must state the date on 

which the appellant filed the complaint or 

grievance, and it must describe any action that 

the agency took in response to the complaint 

or grievance.

* * * * *

1201.153 Contents of appeal.

(a) * * * 

(2) The appeal must state whether the appellant 

has filed a grievance under a negotiated 

grievance procedure or a formal 

discrimination complaint with any agency 

regarding the matter being appealed to the 

Board. If he or she has done so, the appeal 

must state the date on which the appellant 

filed the complaint or grievance, and it must 

describe any action that the agency took in 

response to the complaint or grievance.

* * * * *

Subparagraph (a)(2) was revised to clarify 

that not all discrimination matters may be 

raised with the Board and substitute the 

term “under a negotiated grievance 

procedure” for the word “grievance” to 

reflect that these are the only types of 

grievances covered under the mixed cases 

regulations. 

1201.154 Time for filing appeal; closing record in 

cases involving grievance decisions.

Appellants who file appeals raising issues of 

prohibited discrimination in connection with a matter 

otherwise appealable to the Board must comply with 

the following time limits:

* * * * *

1201.154 Time for filing appeal.

For purposes of this section, the date an appellant 

receives the agency’s decision is determined 

according to the standard set forth at 1201.22(b)(3) of 

this part. Appellants who file appeals raising issues of 

prohibited discrimination in connection with a matter 

otherwise appealable to the Board must comply with 

the following time limits:

* * * * *

The introductory paragraph was revised to 

incorporate by reference the rules 

governing constructive receipt as 

proposed in 5 CFR 1201.22(b)(3). 

1201.155 Remand of allegations of discrimination.

The prior regulation was deleted as unnecessary. 

Paragraphs (d) and (e) of prior § 1201.154, which 

dealt with Board review of arbitration decisions, were

1201.155 Requests for review of arbitrators’ 

decisions.

(a) Source and applicability. (1) Under paragraph (d) 

of 5 U.S.C. 7121, an employee who believes he or she 

Paragraphs (d) and (e) were moved from 

former section 1201.154 and revised to 

become new section 1201.155. Section 

1201.155 contains two significant 
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Reason for Revision

revised and moved to become section 1201.155. has been subjected to discrimination within the 

meaning of 5 U.S.C. 2302(b)(1), and who may raise 

the matter under either a statutory procedure such as 5 

U.S.C. 7701 or under a negotiated grievance 

procedure, must make an election between the two 

procedures. The election of the negotiated grievance 

procedure “in no manner prejudices” the employee’s 

right to request Board review of the final decision 

pursuant to 5 U.S.C. 7702. Subsection (a)(1) of 

section 7702 provides that, “[n]otwithstanding any 

other provision of law,” when an employee who has 

been subjected to an action that is appealable to the 

Board and who alleges that the action was the result of 

discrimination within the meaning of 5 U.S.C. 

2302(b)(1), the Board will decide both the issue of 

discrimination and the appealable action in 

accordance with the Board’s appellate procedures 

under section 7701. 

(2) This section does not apply to employees of 

the Postal Service or to other employees 

excluded from the coverage of the Federal 

labor management laws at chapter 71 of title 

5, United States Code. 

(b) When filed. The appellant’s request for Board 

review must be filed within 35 days after the date of 

issuance of the decision or, if the appellant shows that 

he or she received the decision more than 5 days after 

the date of issuance, within 30 days after the date the 

appellant received the decision. 

(c) Scope of Board Review. If the negotiated 

grievance procedure permits allegations of 

discrimination, the Board will review only those 

claims of discrimination that were raised in the 

negotiated grievance procedure. If the negotiated 

revisions. First, the regulation now 

provides that, “If the negotiated grievance 

procedure permits allegations of 

discrimination, the Board will review only 

those claims of discrimination that were 

raised in the negotiated grievance 

procedure.” This overturns longstanding 

Board practice, based on Jones v. 

Department of the Navy, 898 F.2d 133 

(Fed. Cir. 1990), wherein appellants were 

allowed to raise discrimination claims for 

the first time when requesting Board 

review of an arbitration decision. Second, 

paragraph (d) provides that the “Board, in 

its discretion, may develop the record as 

to a claim of prohibited discrimination by 

ordering the parties to submit additional 

evidence or forwarding the request for 

review to a judge to conduct a hearing.” 

The reasoning behind this was the view 

that remand to the arbitrator would not be 

practical or feasible in most cases. 

Arbitration is a matter of contract and, 

once the arbitrator has issued an award, 

the contract has been performed and the 

arbitrator has been paid. The arbitrator 

could not become involved with the case 

on remand unless the union and the 

agency agreed to create a new contract. 

NOPR; NOFR.
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grievance procedure does not permit allegations of 

discrimination to be raised, the appellant may raise 

such claims before the Board. 

(d) Contents. The appellant must file the request with 

the Clerk of the Board, Merit Systems Protection 

Board, 1615 M Street, NW, Washington, DC 20419. 

The request for review must contain:

(1) A statement of the grounds on which review is 

requested;

(2) References to evidence of record or rulings 

related to the issues before the Board;

(3) Arguments in support of the stated grounds 

that refer specifically to relevant documents 

and that include relevant citations of 

authority; and

(4) Legible copies of the final grievance or 

arbitration decision, the agency decision to 

take the action, and other relevant documents. 

Those documents may include a transcript or 

recording of the hearing.

(e) Development of the Record. The Board, in its 

discretion, may develop the record as to a claim of 

prohibited discrimination by ordering the parties to 

submit additional evidence or forwarding the request 

for review to a judge to conduct a hearing.

(f) Closing of the Record. The record will close upon 

expiration of the period for filing the response to the 

request for review, or to the brief on intervention, if 

any, or on any other date the Board sets for this 

purpose. Once the record closes, no additional 

evidence or argument will be accepted unless the 

party submitting it shows that the evidence was not 
53

Text of Previous Regulation Text of Revised Regulation Description and 

Reason for Revision

readily available before the record closed. 

1201.181 Authority and explanation.

(a) Under 5 U.S.C. 1204(a)(2), the Board has the 

authority to order any Federal agency or employee to 

comply with decisions and orders issued under its 

jurisdiction, and the authority to enforce compliance 

with its orders and decisions. The parties are expected 

to cooperate fully with each other so that compliance 

with the Board's orders and decisions can be 

accomplished promptly and in accordance with the 

laws, rules, and regulations that apply to individual 

cases. The Board's decisions and orders will contain a 

notice of the Board's enforcement authority.

(b) In order to avoid unnecessary petitions under this 

subpart, the agency must inform the appellant 

promptly of the actions it takes to comply, and it must 

tell the appellant when it believes it has completed its 

compliance. The appellant must provide all necessary 

information that the agency requests in order to 

comply, and, if not otherwise notified, he or she 

should, from time to time, ask the agency about its 

progress.

1201.181 Authority and explanation.

(a) Authority. Under 5 U.S.C. 1204(a)(2), the Board 

has the authority to order any Federal agency or 

employee to comply with decisions and orders issued 

under its jurisdiction and the authority to enforce 

compliance with its orders and decisions. The Board's 

decisions and orders, when appropriate, will contain a 

notice of the Board's enforcement authority.

(b) Requirements for parties. The parties are expected 

to cooperate fully with each other so that compliance 

with the Board's orders and decisions can be 

accomplished promptly and in accordance with the 

laws, rules, and regulations that apply to individual 

cases. Agencies must promptly inform an appellant of 

actions taken to comply and must inform the appellant 

when it believes compliance is complete. Appellants 

must provide agencies with all information necessary 

for compliance and should monitor the agency’s 

progress towards compliance.

The MSPB made non-substantive changes 

to this regulation that merely reordered 

the information and added descriptive 

labels to each paragraph. 

1201.182 Petition for enforcement.

(a) Appellate jurisdiction. Any party may petition the 

Board for enforcement of a final decision or order 

issued under the Board's appellate jurisdiction. The 

petition must be filed promptly with the regional or 

field office that issued the initial decision; a copy of it 

must be served on the other party or that party's 

representative; and it must describe specifically the 

reasons the petitioning party believes there is 

noncompliance. The petition also must include the 

1201.182 Petition for enforcement.

(a) Appellate jurisdiction. Any party may petition the 

Board for enforcement of a final decision or order 

issued under the Board's appellate jurisdiction, or for 

enforcement of the terms of a settlement agreement 

that has been entered into the record for the purpose of 

enforcement in an order or decision under the Board’s 

appellate jurisdiction. The petition must be filed 

promptly with the regional or field office that issued 

the initial decision; a copy of it must be served on the 

Paragraphs (a) and (b) were revised to 

clarify that the Board’s enforcement 

authority under 5 U.S.C. 1204(a)(2) 

extends to situations in which a party asks 

the Board to enforce the terms of a 

settlement agreement entered into the 

record for purposes of enforcement as 

well as to situations in which a party asks 

the Board to enforce the terms of a final 

decision or order. 
54

Text of Previous Regulation Text of Revised Regulation Description and 

Reason for Revision

date and results of any communications regarding 

compliance. Any petition for enforcement that is filed 

more than 30 days after the date of service of the 

agency's notice that it has complied must contain a 

statement and evidence showing good cause for the 

delay and a request for an extension of time for filing 

the petition.

(b) Original jurisdiction. Any party seeking 

enforcement of a final Board decision or order issued 

under its original jurisdiction must file a petition for 

enforcement with the Clerk of the Board and must 

serve a copy of that petition on the other party or that 

party's representative. The petition must describe 

specifically the reasons why the petitioning party 

believes there is noncompliance.

* * * * *

other party or that party's representative; and it must 

describe specifically the reasons the petitioning party 

believes there is noncompliance. The petition also 

must include the date and results of any 

communications regarding compliance. Any petition 

for enforcement that is filed more than 30 days after 

the date of service of the agency's notice that it has 

complied must contain a statement and evidence 

showing good cause for the delay and a request for an 

extension of time for filing the petition.

(b) Original jurisdiction. Any party seeking 

enforcement of a final Board decision or order issued 

under its original jurisdiction or enforcement of the 

terms of settlement agreement entered into the record 

for the purpose of enforcement in an order or decision 

issued under its original jurisdiction must file a 

petition for enforcement with the Clerk of the Board 

and must serve a copy of that petition on the other 

party or that party's representative. The petition must 

describe specifically the reasons why the petitioning 

party believes there is noncompliance.

* * * * *

1201.183 Procedures for processing petitions for 

enforcement.

(a) * * *

(2) If the agency is the alleged noncomplying 

party, it shall submit the name and address of 

the agency official charged with complying 

with the Board's order, even if the agency 

asserts it has fully complied. In the absence of 

this information, the Board will presume that 

the highest ranking appropriate agency 

official who is not appointed by the President 

1201.183 Procedures for processing petitions for 

enforcement.

(a) * * *

(2) If the agency is the alleged noncomplying 

party, it shall submit the name, title, grade, 

and address of the agency official charged 

with complying with the Board's order, and 

inform such official in writing of the potential 

sanction for noncompliance as set forth in 5 

U.S.C. 1204(a)(2) and (e)(2)(A), even if the 

agency asserts it has fully complied. The

Paragraphs (a)(2), (a)(5) through (a)(7), 

(b), and (c) were revised; previous 

paragraphs (c) and (d) were redesignated 

as (e) and (f). The revised regulation 

changes the nature of an administrative 

judge’s decision in a compliance 

proceeding from a “recommendation” to a 

regular initial decision, which would 

become the Board’s final decision if a 

petition for review is not filed or is 

denied. The goal is to ensure, to the 

extent feasible, that all relevant evidence 
55

Text of Previous Regulation Text of Revised Regulation Description and 

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by and with the consent of the Senate is 

charged with compliance.

* * * * *

(5) If the judge finds that:

(i) The alleged noncomplying party has not 

taken, or has not made a good faith effort 

to take, any action required to be in 

compliance with the final decision, or

(ii) The party has taken or made a good faith 

effort to take one or more, but not all, 

actions required to be in compliance with 

the final decision; he or she will issue a 

recommendation containing his or her 

findings, a statement of the actions 

required by the party to be in compliance 

with the final decision, and a 

recommendation that the Board enforce 

the final decision.

(6) If a recommendation described under 

paragraph (a)(5) of this section is issued, the 

alleged noncomplying party must do one of 

the following:

(i) If it decides to take the actions required by 

the recommendation, it must submit to the 

Clerk of the Board, within 15 days after 

the issuance of the recommendation, 

evidence that it has taken those actions.

(ii) If it decides not to take any of the actions 

required by the recommendation, it must 

file a brief supporting its nonconcurrence 

in the recommendation. The brief must be 

filed with the Clerk of the Board within 

agency must advise the Board of any change 

to the identity or location of this official 

during the pendency of any compliance 

proceeding. In the absence of this 

information, the Board will presume that the 

highest ranking appropriate agency official 

who is not appointed by the President by and 

with the consent of the Senate is charged with 

compliance.

* * * * *

(5) If the judge finds that the alleged 

noncomplying party has not taken all actions 

required to be in full compliance with the 

final decision, the judge will issue an initial 

decision resolving all issues raised in the 

petition for enforcement and identifying the 

specific actions the noncomplying party must 

take to be in compliance with the Board’s 

final decision. A copy of the initial decision 

will be served on the responsible agency 

official.

(6) If an initial decision described under 

paragraph (a)(5) of this section is issued, the 

party found to be in noncompliance must do 

the following:

(i) To the extent that the party decides to take 

the actions required by the initial 

decision, the party must submit to the 

Clerk of the Board, within the time limit 

for filing a petition for review under 

§ 1201.114(e) of this part, a statement that 

the party has taken the actions identified 

in the initial decision, along with evidence 

establishing that the party has taken those 

is produced during the regional office 

proceeding, and that the initial decision 

actually resolves all contested issues. In 

addition, the regulation provides that the 

“responsible agency official” whose pay 

may be suspended should a finding of 

noncompliance become the Board’s final 

decision will be served with a copy of any 

initial decision finding the agency in 

noncompliance. To the extent that an 

agency found to be in noncompliance 

decides to take the compliance actions 

identified in the initial decision, the 

proposed regulation increases the period 

for providing evidence of compliance 

from 15 days to 30 days. This was done 

for a couple of reasons. First, when the 

initial decision is the first time that the 

agency learns definitively what actions it 

must take, 15 days would rarely be 

sufficient to have taken all required 

actions, e.g., the issuance of SF-52s 

and/or SF 50s and action taken by a 

payroll office. Second, the Board 

determined that there should not be 

different deadlines for submitting 

evidence of compliance as compared to 

contesting compliance actions with which 

the agency disagrees by filing a petition 

for review. New paragraph (d) codifies 

existing case law regarding the different 

burdens of proof that apply in 

enforcement actions depending on 

whether the Board is adjudicating a 

petition to enforce relief ordered by the 

Board (typically status quo ante relief 
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30 days after the recommendation is 

issued and, if it is filed by the agency, it 

must identify by name, title, and grade the 

agency official responsible for the failure 

to take the actions required by the 

recommendation for compliance.

(iii) If the party decides to take one or more, 

but not all, actions required by the 

recommendation, it must submit both 

evidence of the actions it has taken and, 

with respect to the actions that it has not 

taken, a brief supporting its disagreement 

with the recommendation. The evidence 

and brief must be filed with the Clerk of 

the Board within 30 days after issuance of 

the recommendation and, if it is filed by 

the agency, it must contain the identifying 

information required by paragraph 

(a)(6)(ii) of this section.

(7) The petitioner may file a brief that responds to 

the submission described in paragraph (a)(6) 

of this section, and that asks the Board to 

review any finding in the recommendation, 

made under paragraph (a)(5)(ii) of this 

section, that the other party is in partial 

compliance with the final decision. The 

petitioner must file this brief with the Clerk of 

the Board within 20 days of the date of 

service of the submission described in 

paragraph (a)(6) of this section.

(b) Consideration by the Board. (1) The Board will 

consider the recommendation, along with the 

submissions of the parties, promptly. When 

appropriate, the Board may require the alleged 

actions. The narrative statement must 

explain in detail why the evidence of 

compliance satisfies the requirements set 

forth in the initial decision.

(ii) To the extent that the party decides not to 

take all of the actions required by the 

initial decision, the party must file a 

petition for review under the provisions of 

§§ 1201.114 and 1201.115 of this part.

(iii) The responses required by the preceding 

two paragraphs may be filed separately or 

as a single pleading.

(7) If the agency is the party found to be in 

noncompliance, it must advise the Board, as 

part of any submission under this paragraph, 

of any change in the identity or location of the 

official responsible for compliance previously 

provided pursuant to paragraph (a)(2) of this 

section.

(8) The complying party may file evidence and 

argument in response to any submission 

described in paragraph (a)(6) by filing 

opposing evidence and argument with the 

Clerk of the Board within 20 days of the date 

such submission is filed.

(b) Final Decision of noncompliance. If a party found 

to be in noncompliance under paragraph (a)(5) does 

not file a timely pleading with the Clerk of the Board 

as required by paragraph (a)(6), the findings of 

noncompliance become final and the case will be 

processed under the enforcement provisions of 

paragraph (c)(1) of this section. 

(c) Consideration by the Board. (1) Following review 

when the Board has not sustained an 

agency action), or a petition to enforce a 

settlement agreement that a party is 

alleging that the other party breached. 

NOPR; NOFR. 
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noncomplying party, or that party's representative, to 

appear before the Board to show why sanctions should 

not be imposed under 5 U.S.C. 1204(a)(2) and 

1204(e)(2)(A). The Board also may require the party 

or its representative to make this showing in writing, 

or to make it both personally and in writing.

(2) The Board may hold a hearing on an order to 

show cause, or it may issue a decision without 

a hearing.

(3) The Board's final decision on the issues of 

compliance is subject to judicial review under 

§ 1201.120 of this part.

(c) Certification to the Comptroller General. When 

appropriate, the Board may certify to the Comptroller 

General of the United States, under 5 U.S.C. 

1204(e)(2)(A), that no payment is to be made to a 

certain Federal employee. This order may apply to any 

Federal employee, other than a Presidential appointee

subject to confirmation by the Senate, who is found to 

be in noncompliance with the Board's order.

(d) Effect of Special Counsel's action or failure to act. 

Failure by the Special Counsel to file a complaint 

under 5 U.S.C. 1215(a)(1)(C) and subpart D of this 

part will not preclude the Board from taking action 

under this subpart.

of the initial decision and the written submissions of 

the parties, the Board will render a final decision on 

the issues of compliance. Upon finding that the 

agency is in noncompliance, the Board may, when 

appropriate, require the agency and the responsible 

agency official to appear before the Board to show 

why sanctions should not be imposed under 5 U.S.C. 

1204(a)(2) and 1204(e)(2)(A). The Board also may 

require the agency and the responsible agency official 

to make this showing in writing, or to make it both 

personally and in writing. The responsible agency 

official has the right to respond in writing or to appear 

at any argument concerning the withholding of that 

official’s pay.

(2) The Board's final decision on the issues of 

compliance is subject to judicial review under 

1201.120 of this part.

(3) The Board’s final decision on the issues of 

compliance is subject to judicial review under 

§ 1201.120 of this part.

(d) Burdens of proof. If an appellant files a petition 

for enforcement seeking compliance with a Board 

order, the agency generally has the burden to prove its 

compliance with the Board order by a preponderance 

of the evidence. However, if any party files a petition 

for enforcement seeking compliance with the terms of 

a settlement agreement, that party has the burden of 

proving the other party’s breach of the settlement 

agreement by a preponderance of the evidence.

(e) Certification to the Comptroller General. When 

appropriate, the Board may certify to the Comptroller 

General of the United States, under 5 U.S.C. 

1204(e)(2)(A), that no payment is to be made to a 

certain Federal employee. This order may apply to any 
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Federal employee, other than a Presidential appointee 

subject to confirmation by the Senate, who is found to 

be in noncompliance with the Board's order.

(f) Effect of Special Counsel's action or failure to act. 

Failure by the Special Counsel to file a complaint 

under 5 U.S.C. 1215(a)(1)(C) and subpart D of this 

part will not preclude the Board from taking action 

under this subpart.

Subpart H – Attorney (Plus Costs, Expert Witness 

Fees, and Litigation Expenses, Where 

Applicable), Consequential Damages, and 

Compensatory Damages 

Subpart H - Attorney Fees (Plus Costs, Expert 

Witness Fees, and Litigation Expenses, 

Where Applicable) and Damages 

(Consequential, Liquidated, and 

Compensatory)

The title of this subpart was amended to 

reflect that it now covers liquidated 

damages as well as the other listed forms 

of relief. 

1201.201 Statement of purpose.

(a) This subpart governs Board proceedings for 

awards of attorney fees (plus costs, expert witness 

fees, and litigation expenses, where applicable), 

consequential damages, and compensatory damages. 

* * * * *

1201.201 Statement of purpose.

(a) This subpart governs Board proceedings for 

awards of attorney fees (plus costs, expert witness 

fees, and litigation expenses, where applicable), 

consequential damages, compensatory damages, and 

liquidated damages.

* * * * *

(e) An award equal to back pay shall be awarded as 

liquidated damages under 5 U.S.C. 3330c when the 

Board or a court determines an agency willfully 

violated an appellant’s veterans’ preference rights.

Paragraph (a) was revised, and paragraph 

(e) was added, to include provisions

relating to awards of liquidated damages 

under the Veterans Employment 

Opportunities Act of 1998. 

1201.202 Authority for awards.

* * * * *

(d) Definitions. For purposes of this subpart:

(1) A proceeding on the merits is a proceeding to 

1201.202 Authority for awards.

* * * * *

(d) Awards of liquidated damages. The Board may 

award an amount equal to back pay as liquidated 

damages under 5 U.S.C. 3330c when it determines 

A new paragraph (d) was added to include 

provisions relating to awards of liquidated 

damages under the Veterans Employment 

Opportunities Act of 1998. Existing 

paragraph (d) was redesignated as (e). 
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decide an appeal of an agency action under 5 

U.S.C. 1221 or 7701, an appeal under 38 

U.S.C. 4324, an appeal under 5 U.S.C. 3330a, 

a request to review an arbitration decision 

under 5 U.S.C. 7121(d), a Special Counsel 

complaint under 5 U.S.C. 1214 or 1215, or an 

agency action against an administrative law 

judge under 5 U.S.C. 7521.

(2) An addendum proceeding is a proceeding 

conducted after issuance of a final decision in 

a proceeding on the merits, including a 

decision accepting the parties' settlement of 

the case. The final decision in the proceeding 

on the merits may be an initial decision of a 

judge that has become final under § 1201.113 

of this part or a final decision of the Board.

that an agency willfully violated an appellant’s 

veterans’ preference rights. 

(e) Definitions. * * * 

1201.204 Proceedings for consequential damages 

and compensatory damages.

* * * * * 

(h) Request for damages first made in proceeding 

before the Board. Where a request for consequential 

damages or compensatory damages is first made on 

petition for review of a judge's initial decision on the 

merits and the Board waives the time limit for making 

the request in accordance with paragraph (a)(2) of this 

section, or where the request is made in a case where 

the only MSPB proceeding is before the 3-member 

Board, including, for compensatory damages only, a 

request to review an arbitration decision under 5 

U.S.C. 7121(d), the Board may:

* * * * *

1201.204 Proceedings for consequential, liquidated, 

and compensatory damages.

* * * * * 

(h) Request for damages first made in proceeding 

before the Board. Where a request for consequential, 

liquidated, or compensatory damages is first made on 

petition for review of a judge’s initial decision on the 

merits and the Board waives the time limit for making 

the request in accordance with paragraph (a)(2) of this 

section, or where the request is made in a case where 

the only MSPB proceeding is before the Board, 

including, for compensatory damages only, a request 

to review an arbitration decision under 5 U.S.C. 

7121(d), the Board may:

* * * * *

The section title and paragraph (h) were 

revised to include actions for liquidated 

damages. 
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1203.2 Definitions.

* * * * *

(e) Prohibited personnel practices are the 

impermissible actions described in 5 U.S.C. 

2302(b)(1) through 2302(b)(11).

1203.2 Definitions.

* * * * *

(e) Prohibited personnel practices are the 

impermissible actions described in 5 U.S.C. 

2302(b)(1) through 2302(b)(12).

Paragraph (e) was revised to reflect that 

there are now 12 prohibited personnel 

practices, not 11. 

1208.3 Application of 5 CFR part 1201.

Except as expressly provided in this part, the 

Board will apply subparts A (Jurisdiction and 

Definitions), B (Procedures for Appellate Cases), C 

(Petitions for Review of Initial Decisions), and F 

(Enforcement of Final Decisions and Orders) of 5 

CFR part 1201 to appeals governed by this part. The 

Board will apply the provisions of subpart H 

(Attorney Fees, and Litigation Expenses, Where 

Applicable), Consequential Damages, and 

Compensatory Damages) of 5 CFR part 1201 

regarding awards of attorney fees to appeals governed 

by this part. 

1208.3 Application of 5 CFR part 1201.

Except as expressly provided in this part, the 

Board will apply subparts A (Jurisdiction and 

Definitions), B (Procedures for Appellate Cases), C 

(Petitions for Review of Initial Decisions), and F 

(Enforcement of Final Decisions and Orders) of 5 

CFR part 1201 to appeals governed by this part. The 

Board will apply the provisions of subpart H 

(Attorney Fees (Plus Costs, Expert Witness Fees, and 

Litigation Expenses, Where Applicable) and Damages 

(Consequential, Liquidated, and Compensatory)) of 5 

CFR part 1201 regarding awards of attorney fees and 

liquidated damages to appeals governed by this part.

This section was revised to reflect the 

references to liquidated damages in 

subpart H of Part 1201. 

1208.21 VEOA exhaustion requirement.

Before an appellant may file a VEOA appeal with 

the Board, the appellant must first file a complaint 

under 5 U.S.C. 3330a(a) with the Secretary of Labor 

within 60 days after the date of the alleged violation 

and allow the Secretary at least 60 days from the date 

the complaint is filed to attempt to resolve the 

complaint.

1208.21 VEOA exhaustion requirement.

(a) General rule. Before an appellant may file a 

VEOA appeal with the Board, the appellant must first 

file a complaint under 5 U.S.C. 3330a(a) with the 

Secretary of Labor within 60 days after the date of the 

alleged violation. In addition, either the Secretary 

must have sent the appellant written notification that 

efforts to resolve the complaint were unsuccessful or, 

if the Secretary has not issued such notification and at 

least 60 days have elapsed from the date the complaint 

was filed, the appellant must have provided written 

notification to the Secretary of the appellant’s 

intention to file an appeal with the Board. 

Paragraph (a) of this regulation was 

revised to clarify an appellant’s burden of 

proving exhaustion in a VEOA appeal. 

Section 1208.21 had provided that, to 

exhaust his administrative remedies with 

DOL, an appellant must file a complaint 

with DOL and allow DOL 60 days to 

resolve the complaint. However, this was 

an incomplete picture of the exhaustion 

process, in that it did not include the 

requirement that DOL close the 

complaint, either on its own accord or 

based on a letter from the appellant after 

60 days have elapsed stating that the 
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(b) Equitable tolling; extension of filing deadline. In 

extraordinary circumstances, the appellant’s 60-day 

deadline for filing a complaint with the Secretary is 

subject to the doctrine of equitable tolling, which 

permits the Board to extend the deadline where the 

appellant, despite having diligently pursued his or her 

rights, was unable to make a timely filing. Examples 

include cases involving deception or in which the 

appellant filed a defective pleading during the 

statutory period. 

appellant intends to file a Board appeal. 

In addition, it did not account for the fact 

that DOL might close its investigation 

before 60 days have elapsed. The revised 

regulation provides a more accurate and 

complete picture of what is required to 

establish exhaustion in a VEOA appeal. 

The regulation adds a paragraph (b), 

which provides that the deadline for filing 

a claim with DOL can be excused under 

the doctrine of equitable tolling. 

NOPR. 

1208.22 Time of filing. 1208.22 Time of filing.

* * * * *

(c) Equitable tolling; extension of filing deadline. In 

extraordinary circumstances, the appellant’s 60-day 

deadline for filing an appeal with the MSPB is subject 

to the doctrine of equitable tolling, which permits the 

Board to extend the deadline where the appellant, 

despite having diligently pursued his or her rights, was 

unable to make a timely filing. Examples include 

cases involving deception or in which the appellant 

filed a defective pleading during the statutory period. 

Paragraph (c) was added to address the 

possibility of excusing an untimely filed 

appeal under the doctrine of equitable 

tolling. 

NOPR; NOFR.

1208.23 Content of a VEOA appeal; request for 

hearing.

(a) * * * 

* * * * *

(5) (i) Evidence that the Secretary has notified the 

appellant in accordance with 5 U.S.C. 

3330a(c)(2) that the Secretary's efforts have 

not resolved the complaint (a copy of the 

1208.23 Content of a VEOA appeal; request for 

hearing.

(a) * * * 

* * * * *

(5) Evidence identifying the specific veterans’ 

preference claims that the appellant raised 

before the Secretary; and

Existing paragraph (a)(5) was 

redesignated as (a)(6) and insert new 

paragraph (a)(5), which indicates that the 

Board will scrutinize the exhaustion issue 

in a VEOA appeal in the same way that it 

scrutinizes the exhaustion issue in an IRA 

appeal, i.e., the Board will only consider 

claims that were raised to the Department 

of Labor. 
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Secretary's notice satisfies this requirement); 

or

(ii) Evidence that the appellant has provided 

written notice to the Secretary of the 

appellant's intent to appeal to the Board, 

as required by 5 U.S.C. 3330a(d)(2) (a 

copy of the appellant's written notice to 

the Secretary satisfies this requirement).

* * * * * 

(6) (i) Evidence that the Secretary * * * 

* * * * *

NOPR. 

1209.2 Jurisdiction.

(a) Under 5 U.S.C. 1214(a)(3), an employee, former 

employee, or applicant for employment may appeal to 

the Board from agency personnel actions alleged to 

have been threatened, proposed, taken, or not taken 

because of the appellant's whistleblowing activities.

(b) The Board exercises jurisdiction over:

(1) Individual right of action appeals. These are 

authorized by 5 U.S.C. 1221(a) with respect 

to personnel actions listed in § 1209.4(a) of 

this part that are allegedly threatened, 

proposed, taken, or not taken because of the 

appellant's whistleblowing activities. If the 

action is not otherwise directly appealable to 

the Board, the appellant must seek corrective 

action from the Special Counsel before 

appealing to the Board.

Example: Agency A gives Mr. X a performance 

evaluation under 5 U.S.C. chapter 43 that rates 

him as “minimally satisfactory.” Mr. X believes 

that the agency has rated him “minimally 

satisfactory” because of his whistleblowing 

activities. Because a performance evaluation is 

1209.2 Jurisdiction.

(a) Under 5 U.S.C. 1221(a), an employee, former 

employee, or applicant for employment may appeal to 

the Board from agency personnel actions alleged to 

have been threatened, proposed, taken, or not taken 

because of the appellant’s whistleblowing activities. 

(b) The Board exercises jurisdiction over:

(1) Individual right of action (IRA) appeals. 

These are authorized by 5 U.S.C. 1221(a) 

with respect to personnel actions listed in 

1209.4(a) of this part that are allegedly 

threatened, proposed, taken, or not taken 

because of the appellant’s whistleblowing 

activities. If the action is not otherwise 

directly appealable to the Board, the appellant 

must seek corrective action from the Special 

Counsel before appealing to the Board.

Example 1: Agency A gives Mr. X a performance 

evaluation under 5 U.S.C. chapter 43 that rates 

him as “minimally satisfactory.” Mr. X believes 

that the agency has rated him “minimally 

satisfactory” because he reported that his 

supervisor embezzled public funds in violation of 

As revised, the regulation overrules a 

significant body of Board case law. 

Starting with its decision in Massimino v. 

Department of Veterans Affairs, 58 

M.S.P.R. 318 (1993), the Board had 

consistently maintained the position that 

an individual who claims that an 

otherwise appealable action was taken 

against him in retaliation for making 

whistleblowing disclosures, and who 

seeks corrective action from the Special 

Counsel before filing an appeal with the 

Board, retains all the rights associated 

with an otherwise appealable action in the 

Board appeal. In an adverse action, for 

example, the agency must prove its 

charges, nexus, and the reasonableness of 

the penalty by a preponderance of the 

evidence, and the appellant is free to 

assert any affirmative defense he might 

have, including harmful procedural error 

and discrimination under Title VII or the 

Rehabilitation Act. In an IRA appeal, 

however, the only issue before the Board 

is whether the agency took one or more 
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not an otherwise appealable action, Mr. X must 

seek corrective action from the Special Counsel 

before appealing to the Board or before seeking a 

stay of the evaluation. If Mr. X appeals the 

evaluation to the Board after the Special Counsel 

proceeding is terminated or exhausted, his appeal 

is an individual right of action appeal.

(2) Otherwise appealable action appeals. These 

are appeals to the Board under laws, rules, or 

regulations other than 5 U.S.C. 1221(a) that 

include an allegation that the action was based 

on the appellant's whistleblowing activities. 

The appellant may choose either to seek 

corrective action from the Special Counsel 

before appealing to the Board or to appeal 

directly to the Board. (Examples of such 

otherwise appealable actions are listed in 5 

CFR 1201.3 (a)(1) through (a)(19).)

Example: Agency B removes Ms. Y for alleged 

misconduct under 5 U.S.C. 7513 . Ms. Y believes 

that the agency removed her because of her 

whistleblowing activities. Because the removal 

action is appealable to the Board under some law, 

rule or regulation other than 5 U.S.C. 1221(a) , 

Ms. Y may choose to file an appeal with the 

Board without first seeking corrective action from 

the Special Counsel or to seek corrective action 

from the Special Counsel and then appeal to the 

Board.

(3) Stays. Where the appellant alleges that a 

personnel action was or will be based on 

whistleblowing, the Board may, upon the 

appellant's request, order an agency to 

suspend that action. 

Federal law and regulation. Because a 

performance evaluation is not an otherwise 

appealable action, Mr. X must seek corrective 

action from the Special Counsel before appealing 

to the Board or before seeking a stay of the 

evaluation. If Mr. X appeals the evaluation to the 

Board after the Special Counsel proceeding is 

terminated or exhausted, his appeal is an IRA 

appeal. 

Example 2: As above, Agency A gives Mr. X a 

performance evaluation under 5 U.S.C. chapter 43 

that rates him as “minimally satisfactory.” Mr. X 

believes that the agency has rated him “minimally 

satisfactory” because he previously filed a Board 

appeal of the agency’s action suspending him 

without pay for 15 days and because he testified 

on behalf of a co-worker in an EEO proceeding. 

The Board would not have jurisdiction over the 

performance evaluation as an IRA appeal because 

the appellant has not made an allegation of a 

violation of 5 U.S.C. 2302(b)(8), i.e., a claim of 

retaliation for a protected whistleblowing 

disclosure. Retaliation for filing a Board appeal 

would constitute a different prohibited personnel 

practice, 5 U.S.C. 2302(b)(9), retaliation for 

having exercised an appeal, complaint, or 

grievance right granted by any law, rule, or 

regulation. Similarly, retaliation for protected 

EEO activity is a prohibited personnel practice 

under subsection (b)(9), not under subsection 

(b)(8). 

Example 3: Citing alleged misconduct, an agency 

proposes Employee Y’s removal. While that 

removal action is pending, Y files a complaint 

with OSC alleging that the proposed removal was 

covered personnel actions against the 

appellant in retaliation for making 

protected whistleblowing disclosures. In 

1994, the year after Massimino was 

issued, Congress amended 5 U.S.C. § 

7121 to add paragraph (g). Subsection 

(g)(3) provides that an employee affected 

by a prohibited personnel practice “may 

elect not more than one” of 3 remedies: 

(A) an appeal to the Board under 5 U.S.C. 

§ 7701; (B) a negotiated grievance under 

§ 7121(d); or (C) corrective action under 

subchapters II and III of 5 U.S.C. chapter 

12, i.e., a complaint filed with OSC (§ 

1214), which can be followed by an IRA 

appeal filed with the Board (§ 1221). 

Under subsection (g)(4), an election is 

deemed to have been made based on 

which of the 3 actions the individual files 

first. A plain reading of § 7121(g) 

indicates that, contrary to Massimino, an 

individual who has been subjected to an 

otherwise appealable action, but who 

seeks corrective action from OSC before 

filing an appeal with the Board, has 

elected an IRA appeal, and is limited to 

the rights associated with such an appeal, 

i.e., the only issue before the Board is 

whether the agency took one or more 

covered personnel actions against the 

appellant in retaliation for making 

protected whistleblowing disclosures; the 

agency need not prove the elements of its 

case, and the appellant may not raise other 

affirmative defenses. 
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initiated in retaliation for her having disclosed that 

an agency official embezzled public funds in 

violation of Federal law and regulation. OSC 

subsequently issues a letter notifying Y that it has 

terminated its investigation of the alleged 

retaliation with respect to the proposed removal. 

Employee Y may file an IRA appeal with respect 

to the proposed removal. 

(2) Otherwise appealable action appeals. These 

are appeals to the Board under laws, rules, or 

regulations other than 5 U.S.C. 1221(a) that 

include an allegation that the action was based 

on the appellant’s whistleblowing activities. 

(Examples of such otherwise appealable 

actions are listed in 5 CFR 1201.3(a).) An 

individual who has been subjected to an 

otherwise appealable action must make an 

election of remedies as described in 5 U.S.C. 

7121(g) and paragraphs (c) and (d) of this 

section. 

Example 4: Same as Example 3 above. While the 

OSC complaint with respect to the proposed 

removal is pending, the agency effects the 

removal action. OSC subsequently issues a letter 

notifying Y that it has terminated its investigation 

of the alleged retaliation with respect to the 

proposed removal. With respect to the effected 

removal, Employee Y can elect to appeal that 

action directly to the Board or to proceed with a 

complaint to OSC. If she chooses the latter 

option, she may file an IRA appeal when OSC has 

terminated its investigation, but the only issue that 

will be adjudicated in that appeal is whether she 

proves that her protected disclosure was a 

contributing factor in the removal action and, if 

The long-term consequences of the 

change to this regulation should be 

straightforward. When taking an 

otherwise appealable action, agencies will 

be required, per revised section 1201.21, 

to advise employees of their options under 

§ 7121(g) and the consequences of such 

an election, including the fact that the 

employee would be foregoing important 

rights if he or she seeks corrective action 

from OSC before filing with the Board. 

There would be difficult interim questions 

concerning cases that are already in the 

pipeline. One issue would be whether, 

despite the seemingly clear language and 

consequences of § 7121(g), the appellant 

should be deemed to have made a valid 

and binding election. An argument might 

be made that an election is not binding 

unless it constitutes a knowing and 

informed decision. Cf. Atanus v. Merit 

Systems Protection Board, 434 F.3d 1324, 

1326-27 (Fed. Cir. 2006) (concluding that 

the appellant made a knowing and 

informed, and therefore binding election 

under § 7121(e)). The proposed 

regulation does not resolve this question, 

which would be resolved in particular 

appeals. If the Board were to hold that 

some elections were not binding, a related 

question would be whether the Board 

should excuse the untimely filing of the 

Board appeal, which would be filed well 

after the 30-day deadline of 5 C.F.R. 

§ 1201.22(b)(1). Again, this would be 
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so, whether the agency can prove by clear and 

convincing evidence that it would have removed 

Y in the absence of the protected disclosure. If 

she instead files a direct appeal, the agency must 

prove its misconduct charges, nexus, and the 

reasonableness of the penalty, and Y can raise any 

affirmative defenses she might have. 

(c) Issues before the Board in IRA appeals. In an 

individual right of action appeal, the only merits 

issues before the Board are those listed in 5 U.S.C. 

1221(e), i.e., whether the appellant has demonstrated 

that one or more whistleblowing disclosures was a 

contributing factor in one or more covered personnel 

actions and, if so, whether the agency has 

demonstrated by clear and convincing evidence that it 

would have taken the same personnel action(s) in the 

absence of the protected disclosure(s). The appellant 

may not raise affirmative defenses other than reprisal 

for whistleblowing activities, such as claims of 

discrimination or harmful procedural error. In an IRA 

appeal that concerns an adverse action under 5 U.S.C. 

7512, the agency need not prove its charges, nexus, or 

the reasonableness of the penalty, as a requirement 

under 5 U.S.C. 7513(a), i.e., that its action is taken 

“only for such cause as will promote the efficiency of 

the service.” However, the Board may consider the 

strength of the agency’s evidence in support of its 

adverse action in determining whether the agency has 

demonstrated by clear and convincing evidence that it 

would have taken the same personnel action in the 

absence of the protected disclosure(s).

(d) Elections under 5 U.S.C. 7121(g). 

(1) Under 5 U.S.C. 7121(g)(3), an employee who 

believes he or she was subjected to a covered 

resolved in particular appeals. 

NOPR; NOFR. 
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personnel action in retaliation for protected 

whistleblowing “may elect not more than 

one” of 3 remedies: an appeal to the Board 

under 5 U.S.C. 7701; a negotiated grievance 

under 5 U.S.C. 7121(d); or corrective action 

under subchapters II and III of 5 U.S.C. 

chapter 12, i.e., a complaint filed with the 

special counsel (5 U.S.C. 1214), which can be 

followed by an IRA appeal filed with the 

Board (5 U.S.C. 1221). Under 5 U.S.C. 

7121(g)(4), an election is deemed to have 

been made based on which of the 3 actions the 

individual files first. 

(2) In the case of an otherwise appealable action 

as described in paragraph (b)(2) of this 

section, an employee who files a complaint 

with OSC prior to filing an appeal with the 

Board has elected corrective action under 

subchapters II and III of 5 U.S.C. chapter 12, 

i.e., a complaint filed with OSC, which can be 

followed by an IRA appeal with the Board. 

As described in paragraph (c) of this section, 

the IRA appeal in such a case is limited to 

resolving the claim(s) of reprisal for 

whistleblowing activities. 

1209.4 Definitions.

* * * * *

(b) Whistleblowing is the disclosure of information by 

an employee, former employee, or applicant that the 

individual reasonably believes evidences a violation 

of law, rule, or regulation, gross mismanagement, 

gross waste of funds, abuse of authority, or substantial 

and specific danger to public health or safety. It does 

1209.4 Definitions.

* * * * *

(b) Whistleblowing is the making of a protected 

disclosure, that is, a disclosure of information by an 

employee, former employee, or applicant that the 

individual reasonably believes evidences a violation 

of law, rule, or regulation, gross mismanagement, 

gross waste of funds, abuse of authority, or substantial 

The Board's case law, as well as its 

acknowledgment and jurisdictional 

orders, speak in terms of “protected 

disclosures,” but this regulation defined

“whistleblowing” and the Part 1209 

regulations refer in several places to 

“whistleblowing activities.” This minor 

revision to the definition combines the 

two concepts so that the use of 
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not include a disclosure that is specifically prohibited 

by law or required by Executive order to be kept 

secret in the interest of national defense or foreign 

affairs, unless such information is disclosed to the 

Special Counsel, the Inspector General of an agency, 

or an employee designated by the head of the agency 

to receive it.

* * * * *

and specific danger to public health or safety. It does 

not include a disclosure that is specifically prohibited 

by law or required by Executive order to be kept 

secret in the interest of national defense or foreign 

affairs, unless such information is disclosed to the 

Special Counsel, the Inspector General of an agency, 

or an employee designated by the head of the agency 

to receive it.

* * * * *

“whistleblowing activities” is not 

ambiguous. 

1209.5 Time of filing.

(a) Individual right of action appeals. The appellant 

must seek corrective action from the Special Counsel 

before appealing to the Board. Where the appellant 

has sought corrective action, the time limit for filing 

an appeal with the Board is governed by 5 U.S.C. 

1214(a)(3). Under that section, an appeal must be 

filed:

(1) No later than 65 days after the date of issuance 

of the Office of Special Counsel's written 

notification to the appellant that it was 

terminating its investigation of the appellant's 

allegations or, if the appellant shows that the 

Special Counsel's notification was received 

more than 5 days after the date of issuance, 

within 60 days after the date the appellant 

received the Special Counsel's notification; or,

(2) If the Office of Special Counsel has not 

notified the appellant that it will seek 

corrective action on the appellant's behalf 

within 120 days of the date of filing of the 

request for corrective action, at any time after 

the expiration of 120 days.

1209.5 Time of filing.

(a) General rule. The appellant must seek corrective 

action from the Special Counsel before appealing to 

the Board unless the action being appealed is 

otherwise appealable directly to the Board and the 

appellant has elected a direct appeal. (See § 1209.2(d) 

regarding election of remedies under 5 U.S.C. 

7121(g)). Where the appellant has sought corrective 

action, the time limit for filing an appeal with the 

Board is governed by 5 U.S.C. 1214(a)(3). Under that 

section, an appeal must be filed:

(1) No later than 65 days after the date of issuance 

of the Special Counsel’s written notification 

to the appellant that it was terminating its 

investigation of the appellant’s allegations or, 

if the appellant shows that the Special 

Counsel’s notification was received more than 

5 days after the date of issuance, within 60 

days after the date the appellant received the 

Special Counsel’s notification; or,

(2) At any time after the expiration of 120 days, if 

the Special Counsel has not notified the 

appellant that it will seek corrective action on 

the appellant's behalf within 120 days of the 

Paragraphs (a) and (b) were revised to 

eliminate the distinction between IRA 

appeals and otherwise appealable actions

in light of the change made to 5 CFR 

1209.2, and to revise the language 

regarding equitable tolling consistent with 

the changes made in sections 5 CFR 

1208.21 and .22.. 

NOPR; NOFR. 
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(b) Otherwise appealable action appeals. The 

appellant may choose either to seek corrective action 

from the Special Counsel before appealing to the 

Board or to file the appeal directly with the Board. If 

the appellant seeks corrective action from the Special 

Counsel, the time limit for appealing is governed by 

paragraph (a) of this section. If the appellant appeals 

directly to the Board, the time limit for filing is 

governed by 5 CFR 1201.22(b).

* * * * *

date of filing of the request for corrective 

action. 

(b) Equitable tolling; extension of filing deadline. The 

appellant’s deadline for filing an individual right of 

action appeal with the Board after receiving written 

notification from the Special Counsel that it is 

terminating its investigation of his or her allegations is 

subject to the doctrine of equitable tolling, which 

permits the Board to extend the deadline where the 

appellant, despite having diligently pursued his or her 

rights, was unable to make a timely filing. Examples 

include cases involving deception or in which the 

appellant filed a defective pleading during the 

statutory period.

* * * * *

1209.6 Content of appeal; right to hearing.

* * * * *

(b) Right to hearing. An appellant has a right to a 

hearing. 

* * * * *

1209.6 Content of appeal; right to hearing.

* * * * *

(b) Right to hearing. An appellant generally has a 

right to a hearing if the appeal has been timely filed 

and the Board has jurisdiction over the appeal. 

* * * * *

Paragraph (b) was revised proposed to 

clarify that an appellant does not 

automatically have a right to a hearing in 

every Board appeal and that such a right 

exists, if at all, only when the appeal has 

been timely filed and the appellant has 

established jurisdiction over the appeal. 

NOPR.