The U.S. Merit Systems Protection Board (MSPB) is a forum in which federal employees may appeal an adverse personnel action, such as removal, reduction, suspension, whistle-blower reprisal, or other detrimental actions. The MSPB generally acts after a final decision has been rendered by an agency more directly involved with the matter. The MSPB functions in a similar manner to the federal courts and requires an attorney well-versed in federal law and personnel regulations for a successful appeal. The MSPB encourages parties to reach settlement rather than proceed further with legal actions.

For instance, in the case of whistleblowing,

Individual Right of Appeal (IRA) cases involving alleged whistleblowers continue to go to the Board. The current rules for [Merit Systems Protection] Board jurisdiction are an employee must establish by a preponderance of the evidence that (1) he engaged in whistleblower activitiy by disclosing information he reasonably believed evidenced violation of law, rule, or regulation, gross mismanagement, gross waste of funds, abuse of authority, or substantial and specific danger to public health and safety, (2) the agency took or failed to take, or threatened to take or failed to take, a personnel action, as statutorily defined, and (3) he raised the whistleblower issue before the Official (sic) of Special Counsel (OSC) and the proceedings before the OSC have been exhausted. The reasonable belief standard is met if a reasonable person in his position would believe that the condition reported was gross mismanagement, gross waste of funds, abuse of authority or a substantial and specific danger to either public health or safety. If the employee meets his burden that the disclosure was a contributing factor in the personnel action taken against him, the agency to win must prove by clear and convincing evidence it would have taken the same action absent the protested disclosure. These items are the basic framework for analysis in all IRA cases. Paul v. Department of Agriculture, 66 M.S.P.R. 643 (1995).
The Reporter, September 1995, Page 25.

More recent MSPB decisions have increased the burden of proof and made successful whistleblower cases more difficult.

...the MSPB held that, in order to establish that an employee has engaged in whistleblower reprisal, an agency or the Office of Special Counsel must prove: (1) the employee had authority to take, recommend or approve any personnel action; (2) the alleged victime retaliation made a protected disclosure; (3) the employee used his or her authority to take, or refuse to take, a personnel action against the alleged victim; and (4) the action was taken (or failed to be taken) because of the protected disclosure.

Furthermore, the MSPB held that, to prove the fourth element, the OSC or the agency must show, by a preponderance of the evidence, that the retaliation was a "significant factor" in the action or actions at issue. The MSPB defined this as a factor that plays an important role in the allegedly retaliatory action as opposed to a tangentially related motive. It held that the significant factor test was not met if the respondent would have taken the action in the absence of a protected disclosure. In order to prove the significant factor requirement, the MSPB held that the OSC or the agency must show that nonretaliatory motives would have been insufficient, in the absence of retaliatory motives, to cause the action to occur.

This is a substantial departure from prior case law, which had required merely a showing that retaliation had "contributed" to the decision to take (or fail to take) a personnel action. These cases had required the employee to prove, by clear and convincing evidence, that he or she would have taken (or failed to take) the personnel action in the absence of a retaliatory motive. Now, this is no longer an affirmative defense, but is part of the OSC's or agency burden.