Appellate Jurisdiction of the MSPB

In order for the Merit System Protection Board (MSPB) to have jurisdiction to hear an appeal it must have jurisdiction over the employee who is filing the appeal and the issue being appealed. While the majority of federal employees are within the jurisdiction of the MSPB, certain employees are excluded. The Merit Systems Protection Board estimates that it has jurisdiction over about two thirds of the full time federal government workforce, or about 2 million people.

MSPB Jurisdiction Over Federal Employees

Generally, the MSPB has appellate jurisdiction over employees who are in competitive service who have completed their probationary period and employees who are in the excepted service who have completed two years of continuous employment. That means that some political appointees are not covered by the MSPB.

Likewise, probationary employees have very limited rights to appeal to the MSPB and generally may only do so when their employment is terminated based on their political affiliation or marital status, for example. They may also appeal Office of Personnel Management (OPM) decisions related to retirement or OPM employment practices. Employees of certain intelligence agencies may also have limited rights to appeal. These employees are specifically excluded from the MSPB process because MSPB decisions are public and there may be national security issues involved in the personnel decision that make it unwise for the complaint to be heard by the MSPB.

MSPB Jurisdiction Over Issues

The purpose of the MPSB is to protect the rights of employees in the Federal Merit System. Accordingly, the MSPB has the legal jurisdiction to hear and decide matters related to:

• Prohibited Personnel Practices: the MSPB has jurisdiction to hear complaints alleging that an agency committed a prohibited personnel practice, such as firing an employee for whistleblowing activity. The employee may request that Special Counsel pursue the complaint with the MSPB or in some cases, such as whistleblowing, an employee may proceed directly to the MSPB.

• Agency Adverse Actions: the majority of cases brought before the MSPB involve agency adverse actions such as unfair removals, suspensions, reductions in pay or grade or extended furloughs.

• Retirement Matters: disputes about retirement matters are the second most common type of issue brought before the MSPB. Employees who allege that they were denied appropriate retirement benefits may have standing to bring a claim before the MSPB. • Performance Based Actions: such as performance based removals or denial of pay upgrades may be heard by the MSPB.

• Discrimination: the MSPB may hear discrimination issues but only if those issues are combined with an adverse action or other reason for appeal that is within the jurisdiction of the MSPB.

The MSPB has important jurisdiction over the majority of federal employees who suffer adverse employment actions. The Board provides important protections both to the employees filing complaints and to the American people who trust the MSPB to enforce important employment laws that ensure that our government is a fair place to work and does not unfairly exclude or discriminate against qualified employees.