What is not within MSPB jurisdiction

The Merit Systems Protection Board (MSPB) has broad appellate jurisdiction over many federal personnel appeals. However, there are some types of federal employment related appeals that are not within its jurisdiction. Federal employees have different avenues of appeal for certain types of adverse employment actions. This article will provide an overview of the types of matters which are not within the jurisdiction of the MSPB, and provide federal employees with alternative means of appeal.

Matters Not Decided by the Merit Systems Protection Board

The most common employment issues raised by employees that are not within the jurisdiction of the MSPB include:

• Discrimination Complaints: Discrimination complaints may only be heard by the MSPB if the parties have another issue before the MSPB. When there are no issues, other than discrimination, then the MSPB does not have jurisdiction over the discrimination complaint. Instead, a federal employee may contact the Equal Employment Opportunity Commission (EEOC) to resolve the alleged discrimination.

• Unfair Labor Practice Complaints: Allegations of unfair labor practices and exceptions to arbitration awards are within the jurisdiction of the Federal Labor Relations Authority (FLRA) and not the MSPB.

• Provide Advice on Personnel Matters: Agencies or employees who seek advice on personnel matters such as staffing, employment, examinations, retirement, or benefits do not have a complaint to file with the MSPB. However, the Office of Personnel Management (OPM) may have the authority to hear these types of inquiries.

• Violations of Civil Service Laws: The MSPB does not investigate allegations of activities that are prohibited by civil service laws or regulations. The Office of Special Counsel (OSC) has authority to hear allegations of civil service violations.

• Whistleblowing Complaints by FBI Employees or Prospective Employees: While the MSPB generally has the authority to hear whistleblowing complaints, the MSPB does not have jurisdiction to hear whistleblowing complaints brought by employees, or prospective employees of the FBI. FBI whistleblowing complaints may instead be heard by the U.S. Department of Justice, Office of Attorney Recruitment and Management (OARM).

• Complaints Brought by Employees of State Government Agencies or Private Employers: The MSBP has jurisdiction over approximately 2 million federal employees but does not have authority over state government or private sector employees. Many state governments have established procedures to resolve state government employee complaints. Private sector employers may also have complaint resolution procedures or private employees may be able to file a lawsuit against their employer for certain transgressions.

While the MSPB has broad authority to hear federal employee complaints, that authority is not absolute. Instead, the federal government has decided that the specific issues described above are better resolved by other agencies.

If you have been the victim of an adverse federal employment action then you may have the right to file a complaint with the MSPB or another federal agency. An MSPB employment lawyer can help you understand your rights and advise you as to the where your complaint may be heard and adjudicated so that your issues may be properly resolved.