Role of the Merit Systems Protection Board

(Information from MSPB website)

Individual Right of Action (IRA) Appeals to the MSPB.  This kind of case is referred to as an "Individual Right of Action." In this kind of case, the individual is subject to a personnel action and claims that the action was taken because of whistleblowing, but the action is not one that is directly appealable to the Board. In this kind of case, the individual can appeal to the MSPB only if he files a complaint with the Special Counsel first and the Special Counsel does not seek corrective action on the individual's behalf.

An individual who is subject to a personnel action that is directly appealable to the MSPB and who claims that the action was taken because of whistleblowing, may choose to file a complaint with the Special Counsel rather than appeal to the Board. If the Special Counsel does not seek corrective action on his behalf, the individual may then appeal to the Board. Although such an appeal concerns an "otherwise appealable action," the time limits for filing are the same as for an "individual right of action" and the case will be adjudicated as an individual right of action appeal.  See 5 C.F.R. §§ 1209.5(a), 1209.3(d)(2).  This means that the MSPB will not review the merits of the action but will resolve only the claim of reprisal for whistleblowing.  You should keep this in mind before you decide whether to file a complaint with the Special Counsel.

Issues before the MSPB in IRA appeals. In an individual right of action appeal, the only merits issues before the MSPB are those listed in 5 U.S.C. 1221(e), i.e.

  • whether the appellant has demonstrated that one or more whistleblowing disclosures was a contributing factor in one or more covered personnel actions and; if so,
  • whether the agency has demonstrated by clear and convincing evidence that it would have taken the same personnel action(s) in the absence of the protected disclosure(s). 

The appellant may not raise affirmative defenses other than reprisal for whistleblowing activities, such as claims of discrimination or harmful procedural error. In an IRA appeal that concerns an adverse action under 5 U.S.C. 7512, the agency need not prove its charges, nexus, or the reasonableness of the penalty, as a requirement under 5 U.S.C. 7513(a), i.e., that its action is taken "only for such cause as will promote the efficiency of the service." However, the MSPB may consider the strength of the agency's evidence in support of its adverse action in determining whether the agency has demonstrated by clear and convincing evidence that it would have taken the same personnel action in the absence of the protected disclosure(s).

MSPB’s Regulations Set Forth Key Definitions.  5 § C.F.R. 1209.4(a) states:

(a) Personnel action means as to individuals and agencies covered by 5 U.S.C.§  2302:

(1) An appointment;
(2) A promotion;
(3) An adverse action under chapter 75 of title 5, United States Code or other disciplinary or corrective action;
(4) A detail, transfer, or reassignment;
(5) A reinstatement;
(6) A restoration;
(7) A reemployment;
(8) A performance evaluation under chapter 43 of title 5, United States Code;
(9) A decision concerning pay, benefits, or awards, or concerning education or training if the education or training may reasonably be expected to lead to an appointment, promotion, performance evaluation, or other personnel action;
(10) A decision to order psychiatric testing or examination; or
(11) Any other significant change in duties, responsibilities, or working conditions.

(b) Whistleblowing is the making of a protected disclosure, that is, a disclosure of information by an employee, former employee, or applicant that the individual reasonably believes evidences a violation of law, rule, or regulation, gross mismanagement, gross waste of funds, abuse of authority, or substantial and specific danger to public health or safety. It does not include a disclosure that is specifically prohibited by law or required by Executive order to be kept secret in the interest of national defense or foreign affairs, unless such information is disclosed to the Special Counsel, the Inspector General of an agency, or an employee designated by the head of the agency to receive it.

(c) Contributing factor means any disclosure that affects an agency's decision to threaten, propose, take, or not take a personnel action with respect to the individual making the disclosure.

(d) Clear and convincing evidence is that measure or degree of proof that produces in the mind of the trier of fact a firm belief as to the allegations sought to be established. It is a higher standard than "preponderance of the evidence" as defined in 5 CFR 1201.56(c)(2).

Example 1:

Agency A gives Mr. X a performance evaluation under 5 U.S.C. chapter 43 that rates him as "minimally satisfactory." Mr. X believes that the agency has rated him "minimally satisfactory" because he reported that his supervisor embezzled public funds in violation of Federal law and regulation. Because a performance evaluation is not an otherwise appealable action, Mr. X must seek corrective action from the Special Counsel before appealing to the MSPB or before seeking a stay of the evaluation. If Mr. X appeals the evaluation to the MSPB after the Special Counsel proceeding is terminated or exhausted, his appeal is an IRA appeal.

Example 2:

As above, Agency A gives Mr. X a performance evaluation under 5 U.S.C. chapter 43 that rates him as "minimally satisfactory." Mr. X believes that the agency has rated him "minimally satisfactory" because he previously filed a MSPB appeal of the agency's action suspending him without pay for 15 days and because he testified on behalf of a co-worker in an EEO proceeding. The MSPB would not have jurisdiction over the performance evaluation as an IRA appeal because the appellant has not made an allegation of a violation of 5 U.S.C. 2302(b)(8), i.e., a claim of retaliation for a protected whistleblowing disclosure. Retaliation for filing a MSPB appeal would constitute a different prohibited personnel practice, 5 U.S.C. 2302(b)(9), retaliation for having exercised an appeal, complaint, or grievance right granted by any law, rule, or regulation. Similarly, retaliation for protected EEO activity is a prohibited personnel practice under subsection (b)(9), not under subsection (b)(8).

Example 3:

Citing alleged misconduct, an agency proposes Employee Y's removal. While that removal action is pending, Y files a complaint with OSC alleging that the proposed removal was initiated in retaliation for her having disclosed that an agency official embezzled public funds in violation of Federal law and regulation. OSC subsequently issues a letter notifying Y that it has terminated its investigation of the alleged retaliation with respect to the proposed removal. Employee Y may file an IRA appeal with respect to the proposed removal.

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