§ 1201.3 - Appellate jurisdiction.

§ 1201.3 Appellate jurisdiction.

Cross Reference

Link to an amendment published at 89 FR 72961, Sept. 9, 2024.

(a) Generally. The Board's appellate jurisdiction is limited to those matters over which it has been given jurisdiction by law, rule, or regulation. The Board's jurisdiction does not depend solely on the label or nature of the action or decision taken or made but may also depend on the type of Federal appointment the individual received, e.g., competitive or excepted service, whether an individual is preference eligible, and other factors. Accordingly, the laws and regulations cited below, which are the source of the Board's jurisdiction, should be consulted to determine not only the nature of the actions or decisions that are appealable, but also the limitations as to the types of employees, former employees, or applicants for employment who may assert them. Instances in which a law or regulation authorizes the Board to hear an appeal or claim include the following:

(1) Adverse actions. Removals (terminations of employment after completion of probationary or other initial service period), reductions in grade or pay, suspension for more than 14 days, or furloughs for 30 days or less for cause that will promote the efficiency of the service; an involuntary resignation or retirement is considered to be a removal (5 U.S.C. 7511-7514; 5 CFR part 752, subparts C and D);

(2) Retirement appeals. Determinations affecting the rights or interests of an individual under the Federal retirement laws (5 U.S.C. 8347(d)(1)-(2) and 8461(e)(1); and 5 U.S.C. 8331 note; 5 CFR parts 831, 839, 842, 844, and 846);

(3) Termination of probationary employment. Appealable issues are limited to a determination that the termination was motivated by partisan political reasons or marital status, and/or if the termination was based on a pre-appointment reason, whether the agency failed to take required procedures. These appeals are not generally available to employees in the excepted service. (38 U.S.C. 2014(b)(1)(D); 5 CFR 315.806 & 315.908(b));

(4) Restoration to employment following recovery from a work-related injury. Failure to restore, improper restoration of, or failure to return following a leave of absence following recovery from a compensable injury. (5 CFR 353.304);

(5) Performance-based actions under chapter 43. Reduction in grade or removal for unacceptable performance (5 U.S.C. 4303(e); 5 CFR part 432);

(6) Reduction in force. Separation, demotion, or furlough for more than 30 days, when the action was effected because of a reduction in force (5 CFR 351.901); Reduction-in-force action affecting a career or career candidate appointee in the Foreign Service (22 U.S.C. 4011);

(7) Employment practices appeal. Employment practices administered by the Office of Personnel Management to examine and evaluate the qualifications of applicants for appointment in the competitive service (5 CFR 300.104);

(8) Denial of within-grade pay increase. Reconsideration decision sustaining a negative determination of competence for a general schedule employee (5 U.S.C. 5335(c); 5 CFR 531.410);

(9) Suitability action. Action based on suitability determinations, which relate to an individual's character or conduct that may have an impact on the integrity or efficiency of the service. Suitability actions include the cancellation of eligibility, removal, cancellation of reinstatement eligibility, and debarment. A non-selection or cancellation of eligibility for a specific position based on an objection to an eligible or a pass over of a preference eligible under 5 CFR 332.406 is not a suitability action. (5 CFR 731.501, 731.203, 731.101(a));

(10) Various actions involving the Senior Executive Service. Removal or suspension for more than 14 days (5 U.S.C. 7543(d) and 5 CFR 752.605); Reduction-in-force action affecting a career appointee (5 U.S.C. 3595); Furlough of a career appointee (5 CFR 359.805); Removal or transfer of a Senior Executive Service employee of the Department of Veterans Affairs (38 U.S.C. 713 and 5 CFR part 1210); and

(11) Miscellaneous restoration and reemployment matters.

(i) Failure to afford reemployment priority rights pursuant to a Reemployment Priority List following separation by reduction in force (5 CFR 330.214);

(ii) Full recovery from a compensable injury after more than 1 year, because of the employment of another person (5 CFR 302.501);

(iii) Failure to reinstate a former employee after service under the Foreign Assistance Act of 1961 (5 CFR 352.508);

(iv) Failure to re-employ a former employee after movement between executive agencies during an emergency (5 CFR 352.209);

(v) Failure to re-employ a former employee after detail or transfer to an international organization (5 CFR 352.313);

(vi) Failure to re-employ a former employee after service under the Indian Self-Determination Act (5 CFR 352.707); or

(vii) Failure to re-employ a former employee after service under the Taiwan Relations Act (5 CFR 352.807).

(12) Actions Related to Placement or Movement into an Excepted Service Position Without Civil Service Protections.

(i) An agency assertion that an involuntary (including a facially voluntary, but alleged to be involuntary) movement or placement of a competitive service employee into the excepted service, will eliminate competitive status or any other procedural and appeal rights that the employee had previously accrued. (5 CFR 302.603(b); 5 CFR 302.603(d));

(ii) An agency assertion that an involuntary (including a facially voluntary, but alleged to be involuntary) movement or placement of an excepted service employee into a different schedule of the excepted service, will eliminate competitive status or any other procedural and appeal rights that the employee had previously accrued. (5 CFR 302.603(b); 5 CFR 302.603(d));

(iii) An agency's failure to provide the required notice, under 5 CFR 302.602(c)(1), of the effect of the above-described movements or placements on the employee's status or procedural and appeal rights. (5 CFR 302.603(c)).

(b)

(1) Appeals under the Uniformed Services Employment and Reemployment Rights Act and the Veterans Employment Opportunities Act. Appeals filed under the Uniformed Services Employment and Reemployment Rights Act (Public Law 103-353), as amended, and the Veterans Employment Opportunities Act (Public Law 105-339) are governed by part 1208 of this title. The provisions of subparts A, B, C, and F of part 1201 apply to appeals governed by part 1208 unless other specific provisions are made in that part. The provisions of subpart H of this part regarding awards of attorney fees apply to appeals governed by part 1208 of this title.

(2) Appeals involving an allegation that the action was based on appellant's whistleblowing or other protected activity. Appeals of actions appealable to the Board under any law, rule, or regulation, in which the appellant alleges that the action was taken because of the appellant's whistleblowing or other protected activity, are governed by part 1209 of this title. The provisions of subparts B, C, E, F, and G of part 1201 apply to appeals and stay requests governed by part 1209 unless other specific provisions are made in that part. The provisions of subpart H of this part regarding awards of attorney fees, compensatory damages, and consequential damages under 5 U.S.C. 1221(g) apply to appeals governed by part 1209 of this chapter.

(c) Limitations on appellate jurisdiction, collective bargaining agreements, and election of procedures:

(1) For an employee covered by a collective bargaining agreement under 5 U.S.C. 7121, the negotiated grievance procedures contained in the agreement are the exclusive procedures for resolving any action that could otherwise be appealed to the Board, with the following exceptions:

(i) An appealable action involving discrimination under 5 U.S.C. 2302(b)(1), reduction in grade or removal under 5 U.S.C. 4303, or adverse action under 5 U.S.C. 7512, may be raised under the Board's appellate procedures, or under the negotiated grievance procedures, but not under both;

(ii) An appealable action involving a prohibited personnel practice other than discrimination under 5 U.S.C. 2302(b)(1) may be raised under not more than one of the following procedures:

(A) The Board's appellate procedures;

(B) The negotiated grievance procedures; or

(C) The procedures for seeking corrective action from the Special Counsel under subchapters II and III of chapter 12 of title 5 of the United States Code.

(iii) Except for actions involving discrimination under 5 U.S.C. 2302(b)(1) or any other prohibited personnel practice, any appealable action that is excluded from the application of the negotiated grievance procedures may be raised only under the Board's appellate procedures.

(2) Choice of procedure. When an employee has an option of pursuing an action under the Board's appeal procedures or under negotiated grievance procedures, the Board considers the choice between those procedures to have been made when the employee timely files an appeal with the Board or timely files a written grievance, whichever event occurs first. When an employee has the choice of pursuing an appealable action involving a prohibited personnel practice other than discrimination under 5 U.S.C. 2302(b)(1) in accordance with paragraph (c)(1)(ii) of this section, the Board considers the choice among those procedures to have been made when the employee timely files an appeal with the Board, timely files a written grievance under the negotiated grievance procedure, or seeks corrective action from the Special Counsel by making an allegation under 5 U.S.C. 1214(a)(1), whichever event occurs first.

(3) Review of discrimination grievances. If an employee chooses the negotiated grievance procedure under paragraph (c)(2) of this section and alleges discrimination as described at 5 U.S.C. 2302(b)(1), then the employee, after having obtained a final decision under the negotiated grievance procedure, may ask the Board to review that final decision. The request must be filed with the Clerk of the Board in accordance with § 1201.154155.

[54 FR 53504, Dec. 29, 1989, as amended at 56 FR 41748, Aug. 23, 1991; 59 FR 65235, Dec. 19, 1994; 61 FR 1, Jan. 2, 1996; 62 FR 17044, 17045, Apr. 9, 1997; 62 FR 66814, Dec. 22, 1997; 65 FR 5409, Feb. 4, 2000; 66 FR 30635, June 7, 2001; 70 FR 30608, May 27, 2005; 72 FR 56884, Oct. 5, 2007; 74 FR 9343, Mar. 4, 2009; 77 FR 62363, Oct. 12, 2012; 78 FR 39545, July 2, 2013; 79 FR 48943, Aug. 19, 2014; 89 FR 24681, Apr. 9, 2024; 89 FR 72961, Sept. 9, 2024]