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MSPB: What does it mean for the MSPB to lack jurisdiction over your appeal?

MSPB: What does it mean for the MSPB to lack jurisdiction over your appeal?

Even after you appeal to the Merit Systems Protection Board (MSPB), your case may be dismissed for “lack of jurisdiction”. This simply means that the MSPB does not have the authority to hear your appeal.

Here are some examples of situations where the MSPB lacks jurisdiction:

The MSPB does not have jurisdiction over employees whose positions have been specifically excluded. You can see a list of 12 government “positions” that do not have the authority to appeal adverse actions to the MSPB at 5 C.F.R. § 752.401(d)(12).

The MSPB lacks jurisdiction over voluntary resignations. The MSPB may hear cases alleging involuntary resignation. A resignation may be involuntary if it is the equivalent of a discharge or if the individual lacked the mental capacity to make a rational decision.

The MSPB lacks jurisdiction if the Agency’s action is “moot”. When the Agency completely rescinds its action and restores you to the status quo ante – which it may do anytime up until the decision of the Administrative Judge – there is no more appealable adverse action.

The MSPB lacks jurisdiction when an employee fails to allege an appealable action. For example, a lateral transfer or reassignment that does not result in a loss of grade or pay is not appealable to the Board

The MSPB lacks jurisdiction when an employee fails to allege a necessary element of a claim. For example, if you file a “restoration rights” appeal, but do not allege that you have an on-the-job injury compensable through OWCP funds, your appeal may well be dismissed.

The MSPB lacks jurisdiction when an employee fails to make a non-frivolous allegation of reprisal under the Whistleblower Protection Act, or failure to exhaust administrative remedies under that act.

These are not the only circumstances under which an appeal can be dismissed for lack of jurisdiction, however, they are some of the more common reasons.

If you have any questions whether the MSPB has jurisdiction over your appeal, it is best to contact a lawyer familiar with MSPB practice and procedure.