How do I file a stay request with the Board?
You file a stay request in writing with the same Board regional or field office where you file your appeal. Appeals may be filed by mail, by facsimile, by commercial overnight delivery, by personal delivery, or electronically by using the Board's online process at MSPB e-Appeal Online (https://e-appeal.mspb.gov/). The date of filing by mail is considered to be the postmark date. The date of filing by facsimile is the date of the facsimile. The date of filing by commercial overnight delivery is the date you deliver the appeal to the commercial overnight delivery service. The date of filing by e-Appeal is the date of electronic submission.
Your stay request must comply with 5 C.F.R. § 1209.9 and contain the following information:
- Your name and the names, addresses, and telephone numbers of the agency and your representative, if you have one.
- A chronology of the facts, including a description of the whistleblowing disclosure and the personnel action that the agency has threatened, taken, or failed to take.
- An explanation as to why you believe the personnel action is based on whistleblowing. You should support your explanation with documentary proof because a stay will be granted only if you show a "substantial likelihood" that your appeal will succeed.
- An explanation as to how long the stay should remain in effect and whether the stay will cause a hardship on the agency.
- If you first sought corrective action from the Special Counsel, evidence that the request is timely filed.
How does the Board decide a stay request?
After you have filed your stay request, the administrative judge will allow the agency an opportunity to comment and submit evidence. After considering all the arguments and evidence, the administrative judge will either grant or deny your request.
If your stay request is granted, the administrative judge will specify the time period during which the agency must suspend the personnel action. A typical stay order will suspend the personnel action indefinitely, until it is later modified or vacated by another Board order.
If your stay request is not granted, you may file a written request with the administrative judge asking that he refer your request and his decision denying your request to the Board members in Washington, D.C. for their review. This is called "petitioning" the administrative judge to "certify" his decision as an "interlocutory appeal." The Board's regulations regarding interlocutory appeals are found at Title 5 of the Code of Federal Regulations, Part 1201, sections 1201.91 to 1201.93.