As a public service, Gilbert Employment Law wishes to provide some basic instruction on how an aggrieved current or former federal employee or applicant for federal employment can file an appeal at the Merit Systems Protection Board (MSPB), should they have a meritorious reason for doing so.
The MSPB prefers to use a standard form appeal document (MSPB Form 185) for all appeals filed at the Board. The appellant fills out the portions of the form that are relevant to the specific appeal grounds cited and can attach pages if additional room is needed to fill in the information requested in the form. The form must be signed by the appellant before filing. What documents must be attached to the form will depend on what sort of appeal is being filed. For adverse action appeals, the appellant should attach a copy of the proposal and decision for the adverse action being appealed, as well as any SF-50 for the adverse action; reduction in force (RIF) appeals should include the RIF notice and any SF-50 for the RIF-based adverse action. A more detailed list of the appeal requirements (some of which are included in MSPB Form 185) can be found at 5 C.F.R. § 1201.24(a). For retirement appeals, the appellant should include a copy of OPM’s retirement denial decisions (both the original decision and the decision on request for reconsideration). For appeals of denial of within grade increases (WIGIs), the appellant should include a copy of the agency’s WIGI denial decisions (both the original decision and the decision on request for reconsideration). Appeals are due “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.” 5 C.F.R. § 1201.22(b)(1).
For whistleblower reprisal appeals of cases which have already been processed by the Office of Special Counsel (OSC), in addition to the contents required by 5 C.F.R. § 1201.24(a), the appellant is also required to provide evidence of the prior OSC complaint filing, as well as further argument regarding the relevant whistleblower disclosures and alleged retaliation; further details can be found at 5 C.F.R. § 1209.6(a). The appeal must be filed within 65 calendar days of when OSC issues a notice terminating its investigation or 60 days of receipt of that notice (whichever is later), but can be filed earlier so long as the complaint has been pending at OSC for 120 days at that time. See 5 C.F.R. § 1209.5(a). Different deadlines, filing and paperwork requirements apply to appeals under the Veterans Employment Opportunities Act (VEOA) and under the Uniformed Service Employment and Reemployment Rights Act (USERRA). See 5 C.F.R. §§ 1208.12–1208.13, 1201.22–1208.23. Special rules may apply to other categories of appeals or other special categories of appellants.
Individual appeals (as opposed to class appeals) can be filed either electronically on the MSPB’s eAppeal system, or can be filed by facsimile, mail, or commercial or personal delivery (i.e. by FedEx/UPS, or by personal delivery at the MSPB office by the appellant or a document courier). The appeal is filed with the MSPB regional office with geographic jurisdiction over the case.
If you are a current or former federal employee or applicant for federal employment, and think you may have grounds for a possible appeal to the MSPB, consider contacting Gilbert Employment Law to request an initial consultation.