C.F.R. » Title 5 » CHAPTER II—MERIT SYSTEMS PROTECTION BOARD › SUBCHAPTER A—ORGANIZATION AND PROCEDURES › PART 1201—PRACTICES AND PROCEDURES › Subpart E—Procedures for Cases Involving Allegations of Discrimination

5 C.F.R. § 1201.161

Action by the Equal Employment Opportunity Commission; judicial review

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(a) Time limit for determination. In cases in which an appellant petitions the Equal Employment Opportunity Commission (Commission) for consideration of the Board's decision under 5 U.S.C. 7702(b)(2), the Commission will determine, within 30 days after the date of the petition, whether it will consider the decision.

(b) Judicial review. The Board's decision will become judicially reviewable on:

(1) The date on which the decision is issued, if the appellant does not file a petition with the Commission under 5 U.S.C. 7702(b)(1); or

(2) The date of the Commission's decision that it will not consider the petition filed under 5 U.S.C. 7702(b)(2).

(c) Commission processing and time limits. If the Commission decides to consider the decision of the Board, within 60 days after making its decision it will complete its consideration and either:

(1) Concur in the decision of the Board; or

(2) Issue in writing and forward to the Board for its action under § 1201.162 of this subpart another decision, which differs from the decision of the Board to the extent that the Commission finds that, as a matter of law:

(i) The decision of the Board constitutes an incorrect interpretation of any provision of any law, rule, regulation, or policy directive related to prohibited discrimination; or

(ii) The evidence in the record as a whole does not support the decision involving that provision.

(d) Transmittal of record. The Board will transmit a copy of its record to the Commission upon request.

(e) Development of additional evidence. When asked by the Commission to do so, the Board or a judge will develop additional evidence necessary to supplement the record. This action will be completed within a period that will permit the Commission to make its decision within the statutory 60-day time limit referred to in paragraph (c) of this section. The Board or the judge may schedule additional proceedings if necessary in order to comply with the Commission's request.

(f) Commission concurrence in Board decision. If the Commission concurs in the decision of the Board under 5 U.S.C. 7702(b)(3)(A), the appellant may file suit in an appropriate United States district court.

Notes of Decisions
Cited in 12 cases (4 in the last 5 years), 1998–2025 · leading case: Perry v. Merit Sys. Prot. Bd., 2017 U.S. LEXIS 4044 (2017).
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Perry v. Merit Sys. Prot. Bd., 2017 U.S. LEXIS 4044 (2017). “596 (citing § 7702(a)(3), (b) ; 5 C.F.R. § 1201.161 ; 29 C.F.R. § 1614.303 ).”
Kloeckner v. Solis, 133 S. Ct. 596 (2012). “§§7702 (a)(3), (b); 5 CFR §1201.161 ; 29 CFR §1614.303 . The question in this case concerns where that judicial review should take place.”
Leslie Kerr v. Sally Jewell, 836 F.3d 1048 (9th Cir. 2016). “§§ 7702 (a)(3), (b); 5 CFR § 1201.161 ; 29 CFR § 1614.303 . Kloeckner, 133 S.”
Sloan v. West, 140 F.3d 1255 (9th Cir. 1998). “310 (c)-(d) (1997); 5 C.F.R. § 1201.161 (f) (1997). If, on the other hand, the EEOC disagrees with the MSPB’s resolution of the discrimination complaint, the case is immediately referred back to the MSPB.”
Stoll v. Principi, 449 F.3d 263 (1st Cir. 2006). “§ 7702 (b)(1) (providing for Commission review of certain Board decisions); see also 5 C.F.R. § 1201.161 ; 29 C.F.R. § 1614.303 (a).”
Jean Montgomery v. Patrick Donahoe, 602 F. App'x 638 (7th Cir. 2015). “§ 7702 (b)(1); 5 C.F.R. § 1201.161 (a); 29 C.F.R. § 1614.”
Holland v. Dep't of Health & Human Servs., 51 F. Supp. 3d 1357 (N.D. Ga. 2014). “310 (e)-(d); 5 C.F.R. § 1201.161 (f). c. Plaintiff Failed to Complete the Administrative Process When She Abandoned Her Appeal Before the MSPB Defendant contends that Plaintiff, by initially filing her appeal of the termination decision with the MSPB, elected to proceed there…”
Albert Schultz v. United States Postal Serv. (MSPB 2023). “See 5 C.F.R. § 1201.161 (f). Enforcement proceedings are not to be used to revisit the merits of an underlying appeal, thus we decline to consider any challenge to the attorney fee award in the underlying appeal.”
Ercole v. Wilkie (S.D.N.Y. 2020). “§ 7702(a)(3), (b); 5 C.F.R. § 1201.161 ; 29 C.F.R. § 1614.303 .”
Bond v. Wormuth (N.D. Okla. 2021). “§§ 7702 (a)(3), (b); 5 CFR § 1201.161 ; 29 CFR § 1614.303 . Kloeckner v.”
Kathrina Alexander v. Does (W.D. Ark. 2025). “§§ 7702 (a)(3), (b); 5 CFR § 1201.161 ; 29 CFR § 1614.303 . Kloeckner, 568 U.”
Johnson v. Little (D. Colo. 2025). “§§ 7702 (a)(3), (b); 5 C.F.R. § 1201.161 ; 29 C.F.R. § 1614.303 .”
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