MSPB original jurisdiction

The federal Merit Systems Protection Board (MSPB) is best known for its appellate jurisdiction over many federal employment matters. However, federal law does give the MSPB original jurisdiction to hear certain types of matters without a previous decision being reached on the issues.

Original Jurisdiction Cases

Original jurisdiction matters include the following types of cases that may be brought against agencies, or federal employees, by Special Counsel:

• Violations of the Hatch Act: The Hatch Act restricts the political activity of certain government employees. 1993 amendments to the Hatch Act made it possible for the majority of federal employees to take part in political campaigns and political management, although some federal employees still face greater restrictions. An employee who violates the Hatch Act can be fired. Special Counsel can file an appeal with the MSPB on behalf of an employee if it is alleged that the agency acted wrongfully and that the actions did not constitute a violation of the Hatch Act.

• Certain Violations of Prohibited Personnel Practices or Certain Civil Service Laws: Special Counsel can bring an original case before the MSPB against an agency or an employee if there are alleged violations of civil service laws or alleged prohibited personnel practices may have occurred.

• Requests for Stays of Personnel Actions: Special Counsel may request stays of personnel actions if it is alleged that prohibited personnel practices, such as a firing for whistleblowing activity, occurred. This is to prevent an employee from suffering the consequences of a firing or pay reduction due to prohibited practices. A stay would keep the employee’s pay status quo, for example, while the matter was resolved.

• Review of Office of Personnel Management (OPM) Regulations: An agency or an employee may request that the MSPB review (OPM) regulations or implementation of OPM regulations.

• Informal hearings about Proposed Performance Related Removals from Senior Executive Branch.

Procedures in Original Jurisdiction Cases

All MSPB original jurisdiction cases are heard in the central MSPB office and not by regional offices. The Board Administrative Law Judge issues an initial decision on the matter. If either party requests a review of the initial decision within 35 days, then the full Board will review the initial decision and then issue a final decision. If no such request is made, then the initial decision becomes the final decision of the Board.

The Merit Systems Protection Board hears more cases under its appellate jurisdiction than its original jurisdiction. However, the matters which come under the MSPB’s original jurisdiction include important and systemic issues that often have broad applicability to agencies and employees.