PART 1209—PRACTICES AND PROCEDURES FOR APPEALS AND STAY REQUESTS OF PERSONNEL ACTIONS ALLEGEDLY BASED ON WHISTLEBLOWING OR OTHER PROTECTED ACTIVITY Authority: 5 U.S.C. 1204, 1221, 2302(b)(8) and (b)(9)(A)(i), (B), (C), or (D), and 7701. Source: 55 FR 28592, July 12, 1990, unless otherwise noted. Subpart A—Jurisdiction and Definitions § 1209.1 Scope. This part governs any appeal or stay request filed with the Board by an employee, former employee, or applicant for employment where the appellant alleges that a personnel action defined in 5 U.S.C. 2302(a)(2) was threatened, proposed, taken, or not taken because of the appellant's whistleblowing or other protected activity activities. Included are individual right of action appeals authorized by 5 U.S.C. 1221(a), appeals of otherwise appealable actions allegedly based on the appellant's whistleblowing or other protected activity, and requests for stays of personnel actions allegedly based on whistleblowing or other protected activity. [78 FR 39546, July 2, 2013] § 1209.2 Jurisdiction. (a) Generally. (b) Appeals authorized. (1) Individual right of action (IRA) appeals. Example 1: An agency gives Employee X a performance evaluation under 5 U.S.C. chapter 43 that rates him as “minimally satisfactory.” Employee 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, Employee X must seek corrective action from the Special Counsel before appealing to the Board or before seeking a stay of the evaluation. If Employee X appeals the evaluation to the Board after the Special Counsel proceeding is terminated or exhausted, his appeal is an IRA appeal. Example 2: As above, an agency gives Employee X a performance evaluation under 5 U.S.C. chapter 43 that rates him as “minimally satisfactory.” Employee X believes that the agency has rated him “minimally satisfactory” because he previously filed a Board appeal of the agency's action suspending him without pay for 15 days. Whether the Board would have jurisdiction to review Employee X's performance rating as an IRA appeal depends on whether his previous Board appeal involved a claim of retaliation for whistleblowing. If it did, the Board could review the performance evaluation in an IRA appeal because the employee has alleged a violation of 5 U.S.C. 2302(b)(9)(A)(i). If the previous appeal did not involve a claim of retaliation for whistleblowing, there might be a prohibited personnel practice under subsection (b)(9)(A)(ii), but Employee X could not establish jurisdiction over an IRA appeal. Similarly, if Employee X believed that the current performance appraisal was retaliation for his previous protected equal employment opportunity (EEO) activity, there might be a prohibited personnel practice under subsection (b)(9)(A)(ii), but Employee X could not establish jurisdiction over an IRA appeal. Example 3: As above, an agency gives Employee X a performance evaluation under 5 U.S.C. chapter 43 that rates him as “minimally satisfactory.” Employee X believes that the agency has rated him “minimally satisfactory” because he testified on behalf of a co-worker in an EEO proceeding. The Board would have jurisdiction over the performance evaluation in an IRA appeal because the appellant has alleged a violation of 5 U.S.C. 2302(b)(9)(B). Example 4: Citing alleged misconduct, an agency proposes Employee Y's removal. While that removal action is pending, Employee 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 Employee 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. (2) Otherwise appealable action appeals. Example 5: Same as Example 4 above. While the OSC complaint with respect to the proposed removal is pending, the agency effects the removal action. OSC subsequently issues a letter notifying Employee Y that it has terminated its investigation of the alleged retaliation with respect to the proposed removal. With respect to the effected removal, Employee Y can elect to appeal that action directly to the Board or to proceed with a complaint to OSC. If she chooses the latter option, she may file an IRA appeal when OSC has terminated its investigation, but the only issue that will be adjudicated in that appeal is whether she proves that her protected disclosure was a contributing factor in the removal action and, if so, whether the agency can prove by clear and convincing evidence that it would have removed Employee Y in the absence of the protected disclosure. If she instead files a direct appeal, the agency must prove its misconduct charges, nexus, and the reasonableness of the penalty, and Employee Y can raise any affirmative defenses she might have. (c) Issues before the Board in IRA appeals. i.e. i.e. (d) Elections under 5 U.S.C. 7121(g). i.e. (2) In the case of an otherwise appealable action as described in paragraph (b)(2) of this section, an employee who files a complaint with OSC prior to filing an appeal with the Board has elected corrective action under subchapters II and III of 5 U.S.C. chapter 12, i.e. (e) Elements and Order of Proof. (1) The appellant must establish by preponderant evidence that he or she engaged in whistleblowing or other protected activity and that his or her whistleblowing or other protected activity was a contributing factor in a covered personnel action. An appellant may establish the contributing factor element through circumstantial evidence, such as evidence that the official taking the personnel action knew of the disclosure or protected activity, and that the personnel action occurred within a period of time such that a reasonable person could conclude that the disclosure or protected activity was a contributing factor in the personnel action. (2) If a finding has been made that a protected disclosure or other protected activity was a contributing factor in one or more covered personnel actions, the Board will order corrective action unless the agency demonstrates by clear and convincing evidence that it would have taken the same personnel action in the absence of such disclosure or activity. [78 FR 39546, July 2, 2013, as amended at 89 FR 72966, Sept. 9, 2024] § 1209.3 Application of 5 CFR part 1201. Except as expressly provided in this part, the Board will apply subparts A, B, C, E, F, and G of 5 CFR part 1201 to appeals and stay requests governed by this part. The Board will apply the provisions of subpart H of part 1201 regarding awards of attorney fees, compensatory damages, and consequential damages under 5 U.S.C. 1221(g) to appeals governed by this part. [78 FR 39547, July 2, 2013] § 1209.4 Definitions. (a) Personnel action (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; (11) The implementation or enforcement of any nondisclosure policy, form, or agreement; and (12) Any other significant change in duties, responsibilities, or working conditions. (b) Whistleblowing (c) Other protected activity (1) The exercise of any appeal, complaint, or grievance right granted by any law, rule, or regulation with regard to remedying a violation of 5 U.S.C. 2302(b)(8), i.e. (2) Testifying for or otherwise lawfully assisting any individual in the exercise of any right granted by any law, rule, or regulation; (3) Cooperating with or disclosing information to Congress, the Inspector General of an agency, or the Special Counsel, in accordance with applicable provisions of law; or (4) Refusing to obey an order that would require the individual to violate a law. (d) Contributing factor (e) Clear and convincing evidence (f) Reasonable belief. [55 FR 28592, July 12, 1990, as amended at 62 FR 17048, Apr. 9, 1997; 77 FR 62374, Oct. 12, 2012; 78 FR 39547, July 2, 2013; 89 FR 72966, Sept. 9, 2024] Subpart B—Appeals § 1209.5 Time of filing. (a) General rule. (1) No later than 65 days after the date of issuance of the Special Counsel's written notification to the appellant that it was terminating its investigation of the appellant's allegations or, if the appellant shows that the Special Counsel's notification was received more than 5 days after the date of issuance, within 60 days after the date the appellant received the Special Counsel's notification; or, (2) At any time after the expiration of 120 days, if the Special Counsel has not notified the appellant that it will seek corrective action on the appellant's behalf within 120 days of the date of filing of the request for corrective action. (b) Equitable tolling; extension of filing deadline. (c) Appeals after a stay request. [55 FR 28592, July 12, 1990, as amended at 59 FR 31110, June 17, 1994; 62 FR 59993, Nov. 6, 1997; 77 FR 62374, Oct. 12, 2012] § 1209.6 Content of appeal; right to hearing. (a) Content. (1) The nine (9) items or types of information required in 5 CFR 1201.24 (a)(1) through (a)(9); (2) Where the appellant first sought corrective action from the Special Counsel, evidence that the appeal is timely filed; (3) The name(s) and position(s) held by the employee(s) who took the action(s), and a chronology of facts concerning the action(s); (4) A description of each disclosure evidencing whistleblowing or other protected activity as defined in § 1209.4(b) of this part; and (5) Evidence or argument that: (i) The appellant was or will be subject to a personnel action as defined in § 1209.4(a) of this part, or that the agency has threatened to take or not to take such a personnel action, together with specific indications giving rise to the appellant's apprehensions; and (ii) The personnel action was or will be based wholly or in part on the whistleblowing disclosure or other protected activity, as described in § 1209.4(b) of this part. (6) An appellant who first sought corrective action from the Special Counsel may satisfy the requirements of paragraphs (a)(3) through (a)(5) of this section by filing with the appeal a copy of Part 2: Reprisal For Whistleblowing Complaint of Possible Prohibited Personnel Practice or Other Prohibited Activity, (b) Right to hearing. (c) Timely request. (d) Electronic filing. https://e-appeal.mspb.gov [55 FR 28592, July 12, 1990, as amended at 65 FR 67608, Nov. 13, 2000; 68 FR 59865, Oct. 20, 2003; 69 FR 57631, Sept. 27, 2004; 77 FR 62375, Oct. 12, 2012; 78 FR 39548, July 2, 2013] § 1209.7 Burden and degree of proof. (a) Subject to the exception stated in paragraph (b) of this section, in any case involving a prohibited personnel practice described in 5 U.S.C. 2302(b)(8) or (b)(9)(A)(i), (B), (C), or (D), the Board will order appropriate corrective action if the appellant shows by a preponderance of the evidence that the disclosure or other protected activity was a contributing factor in the personnel action that was threatened, proposed, taken, or not taken against the appellant. (b) However, even where the appellant meets the burden stated in paragraph (a) of this section, the Board will not order corrective action if the agency shows by clear and convincing evidence that it would have threatened, proposed, taken, or not taken the same personnel action in the absence of the disclosure or other protected activity. [78 FR 39548, July 2, 2013] Subpart C—Stay Requests § 1209.8 Filing a request for a stay. (a) Time of filing. (b) Place of filing. (c) Service of stay request. (d) Method of filing. [55 FR 28592, July 12, 1990, as amended at 58 FR 36345, July 7, 1993, 59 FR 65243, Dec. 19, 1994; 68 FR 59865, Oct. 20, 2003; 69 FR 57631, Sept. 27, 2004] § 1209.9 Content of stay request and response. (a) Only an appellant, his or her designated representative, or a party properly substituted under 5 CFR 1201.35 may file a stay request. The request may be in any format, and must contain the following: (1) The name, address, and telephone number of the appellant, and the name and address of the acting agency; (2) The name, address, and telephone number of the appellant's representative, if any; (3) The signature of the appellant or, if the appellant has a representative, of the representative; (4) A chronology of facts, including a description of the appellant's disclosure and the action that the agency has taken or intends to take; (5) Where the appellant first sought corrective action from the Special Counsel, evidence that the stay request is timely filed; (6) Evidence and/or argument showing that: (i) The action threatened, proposed, taken, or not taken is a personnel action, as defined in § 1209.4(a) of this part; (ii) The action complained of was based on whistleblowing or other protected activity as defined in § 1209.4(b) of this part; and (iii) There is a substantial likelihood that the appellant will prevail on the merits of the appeal; (7) Evidence and/or argument addressing how long the stay should remain in effect; and (8) Any documentary evidence that supports the stay request. (b) An appellant may provide evidence and/or argument addressing the question of whether a stay would impose extreme hardship on the agency. (c) Agency response. (2) The agency's response must contain the following: (i) Evidence and/or argument addressing whether there is a substantial likelihood that the appellant will prevail on the merits of the appeal; (ii) Evidence and/or argument addressing whether the grant of a stay would result in extreme hardship to the agency; and (iii) Any documentation relevant to the agency's position on these issues. [55 FR 28592, July 12, 1990, as amended at 59 FR 65243, Dec. 19, 1994; 78 FR 39548, July 2, 2013] § 1209.10 Hearing and order ruling on stay request. (a) Hearing. (b) Order ruling on stay request. (2) The judge's ruling on the stay request must set forth the factual and legal bases for the decision. The judge must decide whether there is a substantial likelihood that the appellant will prevail on the merits of the appeal, and whether the stay would result in extreme hardship to the agency. (3) If the judge grants a stay, the order must specify the effective date and duration of the stay. [55 FR 28592, July 12, 1990, as amended at 59 FR 65243, Dec. 19, 1994] § 1209.11 Duration of stay; interim compliance. (a) Duration of stay. (b) Interim compliance. Subpart D—Reports on Applications for Transfers § 1209.12 Filing of agency reports. When an employee who has applied for a transfer to another position in an Executive agency under 5 U.S.C. 3352 asks the agency head to review a rejection of his or her application for transfer, the agency head must complete the review and provide a written statement of findings to the employee and the Clerk of the Board within 30 days after receiving the request. Subpart E—Referrals to the Special Counsel § 1209.13 Referral of findings to the Special Counsel. When the Board determines in a proceeding under this part that there is reason to believe that a current Federal employee may have committed a prohibited personnel practice described at 5 U.S.C. 2302(b)(8) or (b)(9)(A)(i), (B), (C), or (D), the Board will refer the matter to the Special Counsel to investigate and take appropriate action under 5 U.S.C. 1215. [78 FR 39548, July 2, 2013]