The US Merit Systems Protection Board (MSPB or the Board, www.MSPB.gov) has a jurisdiction over certain federal employment personnel actions. (For private employment cases, see EEOC process.)
EEO claims can be filed as affirmative defense in a MSPB appeal. See mixed cases.
MSPB has jurisdiction over federal Agency’s personnel actions involving reduction in grade or pay, removal, suspension of more than 14 days, furlough of 30 days or less, and other appealable actions. See 5 U.S. Code § 7512. These actions are called “otherwise” appealable actions, appealable to MSPB.
Most appealable actions fall into the following six categories:
Reduction in grade or removal for unacceptable performance, including constructive discharge. See MSPB AJ's order regarding the standard for establishing constructive discharge claim (selections).
Removal, reduction in grade or pay, suspension for more than fourteen (14) days, or furlough for thirty (30) days or less for cause that will promote the efficiency of the service.
Separation, reduction in grade, or furlough for more than 30 days, when the action was effected because of a reduction-in-force.
Reduction-in-force action affecting a career appointee in the Senior Executive Service.
Reconsideration decision sustaining a negative determination of competence for a general schedule employee.
Disqualification of an employee or applicant because of a OWCP suitability determination (even for non-managerial US Postal Service employees). See a decision by MSPB AJ involving USPS worker and denial of light duty and reasonable accommodation.
From the EEOC Management Directive (EEO-MD-110)("MD-110"), Chapter 4, I(B)(2), as modified.
See Title 5 C.F.R. § 1201.3 governing MSPB jurisdiction.
The MSPB appeal form (185), contains useful information regarding its jurisdiction and the types of federal employment laws the MSPB enforces.
5 U.S. Code § 7511 (“Chapter 75”) requires at least 30-day advanced notice prior to issuing a “otherwise appealable” disciplinary action (such as removal or suspension of 15 days or more). It also requires that the employee be afforded at least 7 days “to answer orally and in writing” the charges leveled against him or her. This provision entitles the employee to appeal the disciplinary action in question to the Merit Systems Protection Board and requires the agency to maintain “any supporting material” and to furnish it to the employee upon request.
MSPB appeals generally involves two kinds of personnel actions: (1) 5 U.S. Code § 4303 (“Chapter 43”) allows the agency to remove or down grade a federal employee based on unacceptable performance. It sets forth procedural requirements that must be met prior to taking such an action. (2) 5 U.S. Code § 7511 (“Chapter 75”) allows the agency to take similar actions “to promote the efficiency of the service.” When disciplinary action involves conduct issues, Chapter 75 is generally invoked by the agency to take the action.
MSPB has jurisdiction over whistleblower retaliation claims. See Whistleblowing.
MSPB has jurisdiction over violations of Veterans' Preference in hiring/promotion pursuant to Title 5 U.S.C. Section 3330a(d)(1). The Board has jurisdiction over denied promotion in retaliation for whistleblowing. See 5 U.S.C. § 2302(a)(2)(A)(i). It also has jurisdiction over denied promotion in discrimination based on uniformed service. See 38 U.S.C. §§ 3311, 4324.
US Postal employees cannot appeal to MSPB unless he or she is a managerial employee, a supervisory employee, or a personnelist; or is eligible for veterans' preference. See 5 U.S.C. Chapter 75 governing MSPB's jurisdiction. However, he or she may appeal to MSPB if he or she is partially recovered from a compensable injury such as injuries pertaining to the Workers' Compensation Program. See 5 C.F.R. Section 353.304(c). Under certain circumstances, a restoration (of light duty position) may be so unreasonable as to constitute a denial of restoration that is within the MSPB's jurisdiction. See Myrick v. US Postal Service, 21 M.S.P.R. 79, 81 n.2 (1984).
Probationary federal employees can appeal on a limited bases (i.e., on issues involving adverse actions mentioned above involving partisan politics and other violations, but not for discrimination under Title VII or violation of Douglas Factors; see Title 5 C.F.R., §315.806).
MSPB has jurisdiction over appeals from Office of Personnel Management (OPM) reconsideration decisions.
See MSPB Hearing for more on jurisdiction. Also see mixed cases for related information.
A sample of MSPB appeal statement (involving removal for excessive absence in violation of Douglas Factors) can be purchased at the Store.
When you file an appeal with MSPB via online (MSPB.gov), you should fill out the online form and submit it along with supporting documents. However, you are afforded to submit your designation of representative form and only the following three documents (if appealing Agency’s removal action): the notice of proposed removal, the notice of removal decision, and the notice of personnel action (SF 50). However, other documents, such as Appeal Statement, can be combined with one of these documents and be submitted as a single file (containing several support documents).
Disclaimer
Mr. Lee is not an attorney but can represent clients in federal administrative processes, including EEOC hearings and MSPB hearings.
Mr. Lee does not practice law and cannot provide attorney-client protection privileges. However, as any union shop steward can, Mr. Lee can represent federal employees at any administrative proceeding including those referenced above.
Mr. Lee cannot and does not represent clients at court proceedings.