U.S. Merit Systems Protection Board
Information Sheet No. 2
Initial Appeals Process
The purpose of this information sheet is to provide general guidance and background information. It does not represent an official statement approved by the Board itself, and is not intended to provide legal counsel or to be cited as legal authority. Instead, it is intended only to help the public become familiar with the MSPB and its procedures. In all instances, however, the Board’s regulations and current case law control with respect to the matters discussed here.
The appeal is docketed and assigned to an AJ for adjudication. The AJ issues an Acknowledgment Order that lets you know the Board has received your appeal and orders the agency to file a response to the appeal.
Read the Acknowledgment Order carefully because it contains important information about timeliness or jurisdiction (if apparent from the appeal), requesting a hearing, designation of a representative, settlement, discovery, motions and responses to motions, general instructions about filing pleadings before the Board, the need for a certificate of service for every pleading you file with the Board, and a citation to the Board’s regulations. For agencies, there is also a Schedule that instructs the agency how to compile its response to the appeal. There are also deadlines in the Order with which both parties must comply. The Board’s policy is to adjudicate cases in 120 days or less so it is important that you comply with the deadlines.
If it is apparent from your appeal that your appeal may have been untimely filed or that the Board may not have jurisdiction (authority to hear your appeal), the Acknowledgment Order will contain a section called “Timeliness” or “Jurisdiction.” Those sections will specifically identify the jurisdictional or timeliness issue in your appeal and notify you that you have the burden of proof on those issues. Read those sections carefully and timely respond to the Order.
You must file a response or opposition to any motion within 10 calendar days of the date on the Certificate of Service. You must respond or object to discovery within 20 days of the date on the Certificate of Service. See the Information Sheets on motions practice and discovery for more information.
If you have a good reason to request an extension of time, you may file a written request called a “Motion for Extension of Time.” First, ask the opposing party if it will oppose your motion and include in your motion a statement of the response you receive. You must explain the reason(s) for your request and the amount of time you believe you need.
The AJ will issue a Close of Record Order which sets a deadline for the parties’ final submissions to the Board. That Order also notifies you of the date and time of a telephonic status conference with both parties.
The AJ will issue an Order and Notice of Hearing and Prehearing Conference which notifies you of the date for filing prehearing submissions, the date and time of the prehearing conference, and the date, time and location of the hearing. Sometimes that Order also schedules a status conference. Read that Order carefully, as it contains important information, such as information about requesting witnesses and what you must show to prove that their testimony should be heard, what to include in your prehearing submission, and deadlines and scheduled times with which you must comply. In some cases, hearings may be conducted by telephone, and in others, by videoconferencing, or in person. In-person hearings are usually conducted at fixed hearing sites referenced in 5 C.F.R. Part 1201, Appendix III.
During both conferences, you will be notified of the burdens of proof and the issues in the case, and settlement, discovery, and any other relevant matters may be discussed. If you have questions or do not understand something discussed during the conference, ask the AJ to explain it. In the close of record status conference, you will also be notified of what you can send to the Board in your final submission (documentary and testimonial evidence and closing argument). In the prehearing conference, the AJ will also rule upon the admissibility of witnesses and exhibits and discuss what will happen at the hearing.
Wear appropriate dress (business casual at a minimum). The party with the burden of proof presents its case first through questions presented to witnesses; then, the other party presents its case. Both parties will have an opportunity to question each other’s witnesses. After the presentation of evidence, the parties may have the opportunity to present a closing argument, in the discretion of the AJ which is a statement as to why you believe you should win. In most cases, a court reporter is present to record the hearing for the record.
The AJ may issue a bench decision, which is an oral decision read into the record at the conclusion of the hearing and which is followed up with a written decision. If a bench decision is not issued, the AJ will issue a written decision after the hearing is concluded. All decisions will resolve all relevant issues, will contain an explanation of the AJ’s rulings, and will also contain a notice of appeal rights if you are dissatisfied with the AJ’s ruling.
(1) Call the regional office in which your appeal is pending to ask your question.
(2) Send an email to the Board at mspb@mspb.gov, or telephone, toll free, and leave a message at 1-800-209-8960.
(3) Call the regional office in which your appeal is pending and request a copy of the videotape/CD called “Introduction to MSPB.”
(4) Go to the Board's website at www.mspb.gov to read the information contained in “The Appeals Process,” to access the Board’s regulations at 5 C.F.R. Part 1201 (and Parts 1208 and 1209 if your appeal concerns the types of appeals they cover), and to find lots of other helpful information and links.