5 C.F.R. § 1209.6

Content of appeal; right to hearing

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(a) Content. Only an appellant, his or her designated representative, or a party properly substituted under 5 CFR 1201.35 may file an appeal. Appeals may be in any format, including letter form, but must contain the following:

(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 of the complaint form submitted to the Office of Special Counsel (Form OSC-11, Complaint of Possible Prohibited Personnel Practice or Other Prohibited Activity, Rev. 8/00), together with a copy of any continuation sheet with answers to Part 2 questions filed with the Office of Special Counsel, and any supplement to Part 2 of the original complaint filed with the Office of Special Counsel or completed by the Office of Special Counsel and furnished to the appellant.

(b) Right to hearing. An appellant generally has a right to a hearing if the appeal has been timely filed and the Board has jurisdiction over the appeal.

(c) Timely request. The appellant must submit any request for a hearing with the appeal, or within any other time period the judge sets for that purpose. If the appellant does not make a timely request for a hearing, the right to a hearing is waived.

(d) Electronic filing. An appeal may be filed electronically by using the Board's e-Appeal site (https://e-appeal.mspb.gov) in accordance with § 1201.14 of this chapter.

[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]

Notes of Decisions

Cited in 6 cases (1 in the last 5 years), 2007–2022 · leading case: Adam Delgado v. Merit Sys. Prot. Bd., 880 F.3d 913 (7th Cir. 2018).

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Adam Delgado v. Merit Sys. Prot. Bd., 880 F.3d 913 (7th Cir. 2018). “See 5 C.F.R. §§ 1209.6 (a)(1), 1201.24(a)(1)-(9).”

Kirkendall v. Dep't of the Army, 479 F.3d 830 (Fed. Cir. 2007). “By contrast, in referring to the right to a hearing on the merits of an individual right of action appeal, the Board has stated that the appellant "has a right to a hearing,” 5 C.F.R. § 1209.6 (b), the same language that the Board has used in 5 C.”

Nasuti v. Merit Sys. Prot. Bd., 376 F. App'x 29 (Fed. Cir. 2010). “See 5 C.F.R. § 1209.6 (a)(6). The task of determining whether the February 7, 2009, letter should have been included in the record, and if so whether the appeal should be reopened to permit the inclusion of that letter in the record, is a matter for the Board to address in the…”

Nasuti v. Merit Sys. Prot. Bd., 445 F. App'x 355 (Fed. Cir. 2011). “See 5 C.F.R. § 1209.6 (a)(6). Since the February 7, 2009, letter is not part of the record, we find no error in the Board’s conclusion that Nasuti has failed to show that he exhausted his administrative remedies before the OSC.”

Darryl M. Lewis v. Dep't of Def., 2016 MSPB 13 (MSPB 2016). “Although a completed Form OSC-11 may demonstrate that an appellant has exhausted his claims with OSC, see 5 C.F.R. § 1209.6 (a)(6), the appellant’s recreated complaint form is not the actual completed Form OSC-11 he submitted to OSC.”

Susan Gelb v. Dep't of Vets. Affairs (MSPB 2022). “5 C.F.R. § 1209.6 (b); see Ormond v. Department of Justice, 118 M.”

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