C.F.R. » Title 5 » CHAPTER II—MERIT SYSTEMS PROTECTION BOARD › SUBCHAPTER A—ORGANIZATION AND PROCEDURES › PART 1201—PRACTICES AND PROCEDURES › Subpart B—Procedures for Appellate Cases

5 C.F.R. § 1201.57

Establishing jurisdiction in appeals not covered by § 1201.56; burden and degree of proof; scope of review

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(a) Applicability. This section applies to the following types of appeals:

(1) An individual right of action (IRA) appeal under the Whistleblower Protection Act, 5 U.S.C. 1221;

(2) A request for corrective action under the Veterans Employment Opportunities Act (VEOA), 5 U.S.C. 3330a(d);

(3) A request for corrective action under the Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. 4324, in which the appellant alleges discrimination or retaliation in violation of 38 U.S.C. 4311; and

(4) An appeal under 5 CFR 353.304, in which an appellant alleges a failure to restore, improper restoration of, or failure to return following a leave of absence (denial of restoration appeal).

(b) Matters that must be supported by nonfrivolous allegations. Except for proving exhaustion of a required statutory complaint process and standing to appeal (paragraphs (c)(1) and (3) of this section), in order to establish jurisdiction, an appellant who initiates an appeal covered by this section must make nonfrivolous allegations (as defined in § 1201.4(s)) with regard to the substantive jurisdictional elements applicable to the particular type of appeal he or she has initiated.

(c) Matters that must be proven by a preponderance of the evidence. An appellant who initiates an appeal covered by this section has the burden of proof, by a preponderance of the evidence (as defined in § 1201.4(q)), on the following matters:

(1) When applicable, exhaustion of a statutory complaint process that is preliminary to an appeal to the Board;

(2) Timeliness of an appeal under 5 CFR 1201.22;

(3) Standing to appeal, when disputed by the agency or questioned by the Board. (An appellant has “standing” when he or she falls within the class of persons who may file an appeal under the law applicable to the appeal.); and

(4) The merits of an appeal, if the appeal is within the Board's jurisdiction and was timely filed.

(d) Scope of the appeal. Appeals covered by this section are limited in scope. With the exception of denial of restoration appeals, the Board will not consider matters described at 5 U.S.C. 7701(c)(2) in an appeal covered by this section.

(e) Notice of jurisdictional, timeliness, and merits elements. The administrative judge will provide notice to the parties of the specific jurisdictional, timeliness, and merits elements that apply in a particular appeal.

(f) Additional information. For additional information on IRA appeals, the reader should consult 5 CFR part 1209. For additional information on VEOA appeals, the reader should consult 5 CFR part 1208, subparts A & C. For additional information on USERRA appeals, the reader should consult 5 CFR part 1208, subparts A and B.

(g) For additional information on denial of restoration appeals, the reader should consult 5 CFR part 353, subparts A and C.

[80 FR 4496, Jan. 28, 2015]
Notes of Decisions
Cited in 165 cases (119 in the last 5 years), 2005–2026 · leading case: Hessami v. MSPB, 979 F.3d 1362 (Fed. Cir. 2020).
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Hessami v. MSPB, 979 F.3d 1362 (Fed. Cir. 2020). · cites it 2× “In 2015, the Board codified the non-frivolous allegation standard in its regulations at 5 C.F.R. §§ 1201.57 (b) and 1201.4. See Practices and Procedures, 80 Fed.”
Dwyne Chambers v. Dep't of Homeland Sec., 2022 MSPB 8 (MSPB 2022). “§ 1214 (a)(3); 5 C.F.R. § 1201.57 (c)(1). ¶12 On appeal to the Board, the appellant submitted his OSC complaint and other correspondence with OSC, but did not explain his claims further.”
Iris Cooper v. Dep't of Vets. Affairs, 2023 MSPB 24 (MSPB 2023). · cites it 2× “We then turn to whether the appellant made a protected disclosure and whether a protected disclosure was a contributing factor in a personnel action.”
Adam Delgado v. Merit Sys. Prot. Bd., 880 F.3d 913 (7th Cir. 2018). “Instructing a whistle-blower to file a complaint via a simple webform and then dismissing a later appeal because he failed to print and retain a copy sets an arbitrary trap for unwary federal employees.”
Roseanne Cronin v. United States Postal Serv., 2022 MSPB 13 (MSPB 2022). “5 C.F.R. § 1201.57 (a)(4), (b). Accordingly, to establish Board jurisdiction over a restoration claim as a partially recovered employee, the appellant must make nonfrivolous allegations that: (1) she was absent from her position due to a compensable inj ury; (2) she recovered…”
Bryant v. Merit Sys. Prot. Bd., 878 F.3d 1320 (Fed. Cir. 2017). “2017) (citations and internal quotation marks omitted); see also 5 C.F.R. § 1201.57 (b). On appeal, Petitioners make several arguments challenging the Board’s dismissal of their second USERRA appeals.”
Randall Desjardin v. U.S. Postal Serv., 2023 MSPB 6 (MSPB 2023). “28, 2015) (codified in pertinent part at 5 C.F.R. § 1201.57 ), and is therefore inapplicable to this appeal.”
Rodriguez v. United States, 852 F.3d 67 (1st Cir. 2017). “28, 2015) (codified at 5 C.F.R. § 1201.57 (a)(4), (b)), as recognized in Lojewski v.”
Jorge Aviles v. Merit Sys. Prot. Bd., 799 F.3d 457 (5th Cir. 2015). “” 5 C.F.R. § 1201.57 (b); accord Kahn v. Dep’t of Justice, 528 F.”
Schucker v. Fed. Deposit Ins., 401 F.3d 1347 (Fed. Cir. 2005). “” Id. § 1201.58(b). “Once the record closes, no additional evidence or argument will be accepted unless the party submitting it shows that the evidence was not readily available before the record closed.”
Mark Jones v. MSPB, 103 F.4th 984 (4th Cir. 2024). · cites it 4× “5 C.F.R. § 1201.57 (c)(1)–(3). The MSPB does not allege that Petitioners failed to prove these requirements.”
George DeGrella v. Dep't of the Air Force, 2022 MSPB 44 (MSPB 2022). “5 C.F.R. § 1201.57 (c)(3). ¶9 Under 5 U.S.”
Show all 165 citing cases →
— 5 C.F.R. § 1201.57(a)(4) — 1 case
Lonnie Turner v. Dep't of Vets. Affairs (MSPB 2026).
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