U.S. Merit Systems Protection Board

Information Sheet No. 2

Initial Appeals Process

Purpose 

The purpose of this information sheet is to provide general guidance and 

background information. It does not represent an official statement approved by 

the Board itself, and is not intended to provide legal counsel or to be cited as legal 

authority. Instead, it is intended only to help the public become familiar with the 

MSPB and its procedures. In all instances, however, the Board’s regulations and 

current case law control with respect to the matters discussed here. 

What does the Board do after an appeal is received? 

The appeal is docketed and assigned to an AJ for adjudication. The AJ issues an 

Acknowledgment Order that lets you know the Board has received your appeal 

and orders the agency to file a response to the appeal. 

What is in the Acknowledgment Order? 

Read the Acknowledgment Order carefully because it contains important 

information about timeliness or jurisdiction (if apparent from the appeal), 

requesting a hearing, designation of a representative, settlement, discovery, 

motions and responses to motions, general instructions about filing pleadings 

before the Board, the need for a certificate of service for every pleading you file 

with the Board, and a citation to the Board’s regulations. For agencies, there is 

also a Schedule that instructs the agency how to compile its response to the appeal. 

There are also deadlines in the Order with which both parties must comply. The 

Board’s policy is to adjudicate cases in 120 days or less so it is important that you 

comply with the deadlines. 

What if the Acknowledgment Order contains a timeliness or jurisdictional 

section? 

If it is apparent from your appeal that your appeal may have been untimely filed or 

that the Board may not have jurisdiction (authority to hear your appeal), the 

Acknowledgment Order will contain a section called “Timeliness” or 

“Jurisdiction.” Those sections will specifically identify the jurisdictional or 

timeliness issue in your appeal and notify you that you have the burden of proof 

on those issues. Read those sections carefully and timely respond to the Order. 
What if the agency files a motion or sends you a request for discovery?

You must file a response or opposition to any motion within 10 calendar days of 

the date on the Certificate of Service. You must respond or object to discovery 

within 20 days of the date on the Certificate of Service. See the Information Sheets 

on motions practice and discovery for more information.

What if I need more time?

If you have a good reason to request an extension of time, you may file a written 

request called a “Motion for Extension of Time.” First, ask the opposing party if it 

will oppose your motion and include in your motion a statement of the response 

you receive. You must explain the reason(s) for your request and the amount of 

time you believe you need. In some situations, where there is a need for lengthy 

discovery or for other reasons, the Judge may suspend the processing of the appeal

for up to 30 days, and may suspend it a second time for another 30 if the need 

arises. See 5 C.F.R. § 1201.28

If I requested a decision on the written record and the Board has 

jurisdiction, what happens next?

The AJ will issue a Close of Record Order which sets a deadline for the parties’ 

final submissions to the Board. That Order also notifies you of the date and time of 

a telephonic status conference with both parties. 

If I requested a hearing, my appeal was timely filed, and the Board has 

jurisdiction, what happens next?

The AJ will issue an Order and Notice of Hearing and Prehearing Conference 

which notifies you of the date for filing prehearing submissions, the date and time 

of the prehearing conference, and the date, time and location of the hearing. 

Sometimes that Order also schedules a status conference. Read that Order 

carefully, as it contains important information, such as information about 

requesting witnesses and what you must show to prove that their testimony should 

be heard, what to include in your prehearing submission, and deadlines and 

scheduled times with which you must comply. In some cases, hearings may be 

conducted by telephone, and in others, by videoconferencing, or in person. Inperson hearings are usually conducted at fixed hearing sites referenced in the 

section of “The Appeal Process” called “Approved Hearing Sites” on the MSPB’s 

website.

What happens at a close of record status conference or a prehearing 

conference?

During both conferences, you will be notified of the burdens of proof and the 

issues in the case, and settlement, discovery, and any other relevant matters may 
be discussed. If you have questions or do not understand something discussed 

during the conference, ask the AJ to explain it. In the close of record status 

conference, you will also be notified of what you can send to the Board in your 

final submission (documentary and testimonial evidence and closing argument). In 

the prehearing conference, the AJ will also rule upon the admissibility of 

witnesses and exhibits and discuss what will happen at the hearing. 

What happens at a hearing?

Wear appropriate dress (business casual at a minimum). The party with the burden 

of proof presents its case first through questions presented to witnesses; then, the 

other party presents its case. Both parties will have an opportunity to question each 

other’s witnesses. After the presentation of evidence, the parties may have the 

opportunity to present a closing argument, in the discretion of the AJ which is a 

statement as to why you believe you should win. In most cases, a court reporter is 

present to record the hearing for the record. 

What happens after the hearing?

The AJ may issue a bench decision, which is an oral decision read into the record 

at the conclusion of the hearing and which is followed up with a written decision. 

If a bench decision is not issued, the AJ will issue a written decision after the 

hearing is concluded. All decisions will resolve all relevant issues, will contain an 

explanation of the AJ’s rulings, and will also contain a notice of appeal rights if 

you are dissatisfied with the AJ’s ruling. 

What if I have other procedural questions?

(1) Call the regional or field office in which your appeal is pending to ask your 

question.

(2) Send an email to the Board at mspb@mspb.gov, or telephone, toll free, and 

leave a message at 1-800-209-8960. 

(3) Call the regional office in which your appeal is pending and request a copy of 

the videotape/CD called “Introduction to MSPB.” 

(4) Go to the Board's website at www.mspb.gov to read the information contained 

in “The Appeals Process,” to access the Board’s regulations at 5 C.F.R. Part 1201 

(and Parts 1208 and 1209 if your appeal concerns the types of appeals they cover), 

and to find lots of other helpful information and links.