[Code of Federal Regulations]
[Title 5, Volume 3]
[Revised as of January 1, 2001]
From the U.S. Government Printing Office via GPO Access
[CITE: 5CFR1209.2]

[Page 87-88]
 
                    TITLE 5--ADMINISTRATIVE PERSONNEL
 
               CHAPTER II--MERIT SYSTEMS PROTECTION BOARD
 
PART 1209--PRACTICES AND PROCEDURES FOR APPEALS AND STAY REQUESTS OF PERSONNEL ACTIONS ALLEGEDLY BASED ON WHISTLEBLOWING--Table of Contents
 
                 Subpart A--Jurisdiction and Definitions
 
Sec. 1209.2  Jurisdiction.

    (a) Under 5 U.S.C. 1214(a)(3), an employee, former employee, or 
applicant for employment may appeal to the Board from agency personnel 
actions alleged to have been threatened, proposed, taken, or not taken 
because of the appellant's whistleblowing activities.
    (b) The Board exercises jurisdiction over:
    (1) Individual right of action appeals. These are authorized by 5 
U.S.C. 1221(a) with respect to personnel actions listed in 
Sec. 1209.4(a) of this part that are allegedly threatened, proposed, 
taken, or not taken because of the appellant's whistleblowing 
activities. If the action is not otherwise directly appealable to the 
Board, the appellant must seek corrective action from the Special 
Counsel before appealing to the Board.
    Example: Agency A gives Mr. X a performance evaluation under 5 
U.S.C. chapter 43 that rates him as ``minimally satisfactory.'' Mr. X 
believes that the agency has rated him ``minimally satisfactory'' 
because of his whistleblowing activities. Because a performance 
evaluation is not an otherwise appealable action, Mr. X must seek 
corrective action from the Special Counsel before appealing to the Board 
or before seeking a stay of the evaluation. If Mr. X appeals the 
evaluation to the Board after the Special Counsel proceeding is 
terminated or exhausted, his appeal is an individual right of action 
appeal.

    (2) Otherwise appealable action appeals. These are appeals to the 
Board under laws, rules, or regulations other than 5 U.S.C. 1221(a) that 
include an allegation that the action was based on the appellant's 
whistleblowing activities. The appellant may choose either to seek 
corrective action from the Special Counsel before appealing to the Board 
or to appeal directly to the Board. (Examples of such otherwise 
appealable actions are listed in 5 CFR 1201.3 (a)(1) through (a)(19).)
    Example: Agency B removes Ms. Y for alleged misconduct under 5 
U.S.C. 7513. Ms. Y believes that the agency removed her because of her 
whistleblowing activities. Because the removal action is appealable to 
the Board under some law, rule or regulation

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other than 5 U.S.C. 1221(a), Ms. Y may choose to file an appeal with the 
Board without first seeking corrective action from the Special Counsel 
or to seek corrective action from the Special Counsel and then appeal to 
the Board.

    (3) Stays. Where the appellant alleges that a personnel action was 
or will be based on whistleblowing, the Board may, upon the appellant's 
request, order an agency to suspend that action.