MSPB Publishes Final Rule Amending Appeals Process

by Carl Hobbs

On Monday, July 22, 2013, in the Federal Register, the Merit Systems Protection Board (MSPB) published a final rule that amended the requirement that agencies provide a copy of the MSPB appeal form when issuing a decision notice to an employee regarding any matter that is appealable to MSPB.

In April 2013, the MSPB published an interim final rule amending 5 C.F.R. § 1201.21(c). This regulation delineated the Notice of Appeal Rights for any matter appealable to the MSPB.  §1201 sets out what an agency must provide to an employee who has the right to appeal a decision to the MSPB.

In sum, the agency must provide:

1. Notice of time limits for appealing to MSPB;
2. Copy of MSPB’s regulations;
3.  MSPB appeal form;
4. Notice of the right the employee has to file a grievance or seek corrective action under subchapters II and III of 5 U.S.C. Chapter 12;
5. Notice of the right the employee has to file a complaint with the Equal Employment Opportunity Commission (EEOC);
6. Name, title, or contact information for the agency official to whom MSPB should send acknowledgment order and copy of appeal.

The MPSB received no comments regarding this interim rule. Accordingly, the MSPB has adopted the interim rule as final. 

The following is sample language from an “Appeal Rights” section of a decision letter describing the employee’s appeal rights, including the aforementioned six items, and a link to MSPB’s appeal form:

• You have the right to appeal this action to the MSPB within 30 calendar days after the effective date of the action or receipt of this decision, whichever is later.  If you do not file an appeal within the 30-day period, it will be dismissed as untimely filed unless good reason for the delay is shown.  The MSPB’s regulations may be accessed online at http://www.mspb.gov/appeals/appeals.htm or a hard copy may be provided upon request.  You may file an electronic appeal at https://e-appeal.mspb.gov/ or you may submit a written appeal to:  1800 Diagonal Road, Suite 205, Alexandria, VA 22314-2840.
• If you believe that this action is being taken as a result of reprisal for making a protected whistleblowing disclosure or for engaging in any of the protected activities outlined in 5 U.S.C. § 2302(b)(9), you may raise the matter by either filing a MSPB appeal as outlined above or by filing a complaint with the Office of Special Counsel (OSC), followed by an Individual Right of Action (IRA) appeal to the MSPB.  If you elect to file a complaint with OSC prior to filing an appeal with the MSPB, you will be deemed to have elected corrective action under subchapters II and III of 5 U.S.C. Chapter 12, which can be followed by an IRA appeal to the MSPB; your IRA appeal in such a case is solely limited to resolving the claim(s) of reprisal for whistleblowing or other protected activity.  For further information regarding your rights to seek corrective action, please refer to 5 U.S.C. § 1221 and 5 C.F.R. §§ 1209.2 and 1209.5.
• If you believe this action was motivated by unlawful discrimination based on race, color, religion, sex, national origin, age, disability, or genetic information, you may raise such allegations either in a mixed case appeal with the MSPB or in a mixed case complaint with the Department’s Office of Civil Rights.  You may not file both.
• A mixed case appeal is filed with the MSPB and must be made within the timeframe explained above.  A mixed case EEO complaint is initiated by contacting an EEO counselor within 45 days of the effective date of this action and filing a formal complaint of discrimination after EEO counseling is completed.  For further information on filing a mixed case appeal or a mixed case EEO complaint, or a formal EEO complaint, please contact John Smith, EEO Program Manager, at (202) 555-1212 to arrange for the assignment of an EEO counselor.
• You may select only one of the following avenues for redress: (1) file an appeal to the MSPB; (2) file a formal EEO complaint; or (3) file a complaint with OSC, which can be followed by an IRA appeal filed with the MPSB.  An election is deemed to have been made based on which of these three (3) actions you file first. 

If you have any questions about this memorandum or your appeal rights, please call Tom Brown, Employee Relations Specialist, at (202) 555-1313. An SF-50 documenting this action will be mailed to you as soon as it is available.