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. § 1201.91

Explanation

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An interlocutory appeal is an appeal to the Board of a ruling made by a judge during a proceeding. The judge may permit the appeal if he or she determines that the issue presented in it is of such importance to the proceeding that it requires the Board's immediate attention. Either party may make a motion for certification of an interlocutory appeal. In addition, the judge, on his or her own motion, may certify an interlocutory appeal to the Board. If the appeal is certified, the Board will decide the issue and the judge will act in accordance with the Board's decision.

Notes of Decisions
Cited in 15 cases (8 in the last 5 years), 2001–2026 · leading case: Tammika Richardson v. Dep't of Vets. Affairs, 2023 MSPB 1 (MSPB 2023).
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Tammika Richardson v. Dep't of Vets. Affairs, 2023 MSPB 1 (MSPB 2023). “5 C.F.R. § 1201.91 . An administrative judge may certify an interlocutory appeal to the Board on his own motion or upon the motion of either party.”
Chianelli v. Env't Prot. Agency, 8 F. App'x 971 (Fed. Cir. 2001). “42 (c), if an administrative judge denies a party’s motion to recuse himself, “the party requesting withdrawal may request certification of the issue to the Board as an interlocutory appeal under [ 5 C.F.R. § 1201.91 ]. Failure to request certification is considered a waiver of…”
Vera Davis-Clewis v. Dep't of Vets. Affairs, 2024 MSPB 5 (MSPB 2024). · cites it 2× “The administrative judge acknowledged the other arguments the appellant raised in her second motion for certification but found 1 The administrative judge indicated that she was certifying her ruling for interlocutory review on her own motion under 5 C.F.R. § 1201.91 , rather…”
Rodney Cowan v. Off. of Special Couns., 2022 MSPB 2 (MSPB 2022). “5 C.F.R. § 1201.91 . The Board’s regulations permit a judge, on his own motion, to certify an interlocutory appeal if the issue presented is of such importance to the proceeding that it requires the Board’s immediate attention.”
Mark Jones v. MSPB, 103 F.4th 984 (4th Cir. 2024). “Since the MSPB’s regulations allow for such interlocutory appeals only with an AJ’s certification, 5 C.F.R. § 1201.91 , Petitioners moved for certification.”
IN RE TINKER AFSC/DP v. Dep't of the Air Force, 2014 MSPB 51 (MSPB 2014). “5 C.F.R. § 1201.91 . Upon motion from either party, or by an administrative judge’s own motion, an administrative judge may certify an interlocutory appeal to the Board.”
IN RE TINKER AFSC/DP v. Dep't of the Air Force, 2014 MSPB 51 (MSPB 2014). “5 C.F.R. § 1201.91 . Upon motion from either party, or by an administrative judge’s own motion, an administrative judge may certify an interlocutory appeal to the Board.”
Lawrence E. Mattison v. Dep't of Vets. Affairs (MSPB 2016). “, PFR File, Tab 2 at 4; compare 5 C.F.R. § 1201.91 (explaining interlocutory appeals with the Board), with 5 C.”
Anthony J. Silveria v. Dep't of Vets. Affairs (MSPB 2017). “Because the appellant did not request certification of the issue to the Board as an interlocutory appeal under 5 C.F.R. § 1201.91 , he is considered to have waived the request for withdrawal.”
Kemper Watkins v. Dep't of Def. (MSPB 2023). “The administrative judge construed this motion as a motion to certify her ruling for interlocutory appeal, which she correctly denied because it did not meet the criteria for certification under 5 C.F.R. § 1201.91 . W-2 AF, Tab 68. The appellant, however, continued to file…”
Kevin Franken v. Dep't of the Army (MSPB 2024). “5 C.F.R. § 1201.91 . Board regulations require parties seeking interlocutory review to “file a motion for certification within 10 days of the date of the ruling to be appealed” with the administrative judge.”
Jones v. MSPB (Fed. Cir. 2026). “We see no abuse of discretion by the AJ in not in- dependently certifying the perceived-whistleblower issue for interlocutory review by the Board pursuant to 5 C.F.R. § 1201.91 . See Herman v. Department of Justice, 119 M.”
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