MSPB Jurisdiction and Appealable Actions

The US Merit Systems Protection Board (MSPB or the Board) has a jurisdiction over certain federal employment issues.  (For private employment cases, see EEOC process.)

MSPB has  jurisdiction over federal Agency actions involving reduction in grade or pay, removal, suspension of more than 14 days, furlough of 30 days or less, and other appealable actions.

Most appealable actions fall into the following six categories:

1. 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).
2. 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.
3. Separation, reduction in grade, or furlough for more than 30 days, when the action was effected because of a reduction-in-force.
4. Reduction-in-force action affecting a career appointee in the Senior Executive Service.
5. Reconsideration decision sustaining a negative determination of competence for a general schedule employee.
6. 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.

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.

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.