Agency: Merit Systems Protection Board
Prerequisites Required Before Filing:
You must have first filed a prohibited personnel practice complaint with the U.S. Office of Special Counsel (OSC). An IRA appeal may be filed either (a) within 65 days of OSC's written final determination declining to pursue your complaint, or (b) after 120 days have passed since your OSC filing without a final determination. Filing at the MSPB before satisfying one of these conditions will result in dismissal.
What to Do
- Confirm you have met the OSC prerequisite. You must have a pending or completed OSC complaint. You may file an IRA appeal (a) within 65 days of OSC’s written final determination declining to pursue, or (b) after 120 days without a final OSC determination. Keep your OSC complaint number and any OSC correspondence ready.
- File through MSPB e-Appeal Online. Go to e-appeal.mspb.gov. Create an account and file electronically. Include your OSC complaint number, OSC’s determination letter (if any), a description of your protected disclosure, and documentation of the adverse personnel action (removal, demotion, suspension, etc.).
- Respond to initial MSPB processing. An MSPB administrative judge (AJ) will be assigned. The AJ may issue an acknowledgment order setting deadlines for discovery and the hearing. Respond to all orders promptly — missing an MSPB deadline can result in default judgment.
- Discovery. You are entitled to discovery: depositions, interrogatories, requests for documents, and requests for admissions. Use discovery to obtain personnel files, emails, and agency records documenting the timeline of your protected activity and the adverse action.
- Hearing before an Administrative Judge. The hearing is an evidentiary proceeding similar to a bench trial. You bear the initial burden of proving (1) you made a protected disclosure, (2) the agency took a personnel action, and (3) the agency official knew of your disclosure. The burden then shifts to the agency to prove by clear and convincing evidence that it would have taken the same action absent your disclosure.
- Initial Decision and further appeal. After the hearing, the AJ issues an Initial Decision. Either party may petition the full MSPB Board for review within 35 days. After the Board’s final decision, you may petition the U.S. Court of Appeals for the Federal Circuit for judicial review.
Important — Other Procedures May Be Affected:
Filing an IRA appeal at the MSPB generally precludes pursuing the same claims in federal district court while the MSPB proceeding is pending. If the MSPB issues a final order, subsequent judicial review goes to the Federal Circuit, not a district court. Consult an attorney before choosing between the MSPB/Federal Circuit track and any available district court pathway.