MSPB appeals attorney
Merit Systems Protection Board Administrative Law Attorneys
If you are dealing with a grievance in the workplace, an MSPB appeals attorney from the Federal Practice Group may be able to help you. For years, our team has been zealous in defending federal employees at all levels: before the Merit Systems Protection Board Administrative Law Judges, a full three-member MSPB panel, and all the way to the U.S. Supreme Court. All federal employees have several rights and protections under the Civil Service Reform Act of 1978. The MSPB oversees these rights, as well as the right to appeal things such as:
- Suspensions
- Discipline
- Demotion
- Wrongful termination
- Harassment
- Reductions in force
- Rejection of benefits
- Whistleblower retaliation
- Discrimination
- Unfair treatment
- + More
Our firm has defended many federal employees from all over the country and against all agencies. Our attorneys are considered to be some of the most knowledgeable and experienced. We can provide you with the legal representation you may be looking for.
Information About the Merit Systems Protection Board
Below we have included a brief, albeit general, information about the Merit Systems Protection Board. Because this topic is broad and complicated, we would encourage you to contact one of our attorneys to get more specific information on your case.
Understanding the Merit Systems Protection Board
The Merit Systems Protection Board (MSPB) is an independent agency within the Executive Branch. This agency serves as the “guardian” or overseer of the principles of the Federal merit system. All federal employees have very specific rights and protections, and some of these include the right to appeal adverse personnel actions to the MSPB. The board will consist of three members who have been appointed by the United States President and confirmed by the U.S. Senate.
Who Can File an Appeal with the MSPB
Not all federal employees have a right to file an appeal before the MSPB. Furthermore, not everyone who can file an appeal will have to be a federal employee. For example, sometimes applicants of non-political appointments who do not get a job because of a state-protected or federally protected characteristic may be able to appeal on the grounds of ‘failure to hire.’ In general, political appointees will be excluded. Some employees who can generally file an appeal with the MSPB include:
- Employees who have completed one year, or a trial period, in the competitive service
- Veterans with at least one year of employment
- Personnel, managers, and supervisors of the USPS
- Select service employees who have at least two years of continuous service
Even if you do not fit the description above, please call an attorney from the Federal Practice Group.
Frequently Asked Questions: Merit Systems Protection Board
As an attorney for MSPB appeals will tell you, no federal employee should find themselves facing retaliation or discrimination in the workplace. These are known as prohibited personnel practices that are illegal and considered violations of the federal merit system. The Merit Systems Protection Board’s primary focus is to employ a workforce that is free of prohibited personnel practices. If you are a federal employee who has experienced adverse employment actions, you may be able to file an appeal. The Federal Practice Group has the necessary experience to answer your questions and assist with the appeals process.
WHAT IS THE MSPB RESPONSIBLE FOR?
The US Merit Systems Protection Board is responsible for objectively evaluating and assessing policies and procedures in place by the Federal merit system. Most importantly, the MSPB allows federal employees a means to appeal adverse employee actions. There’s a wide range of adverse actions that may qualify for an appeal, such as misconduct, retaliatory actions, suspensions, furloughs, discriminatory actions, and more.
WHAT IS THE PROCESS TO INITIATE AN APPEAL WITH THE MSPB?
The MSPB website provides an e-Appeal website to initiate the appeals process. Federal employees are guided through the online application process. It’s essential to be aware that appeals must be filed within 30 days of the action or decision being appealed.
WHEN CAN A FEDERAL EMPLOYEE BE TERMINATED?
When a federal employee is in their probationary period, agencies can dismiss the employee for any reason. However, they must not violate the law, meaning; the decision can not be based upon discrimination, whistleblower retaliation, etc. Also, be aware that a probationary employee typically has very few appeal rights. Our attorney shares that, once the probationary period has passed, a federal employee can only be terminated for poor performance, misconduct, or inability to perform job duties.
IS IT POSSIBLE TO REPRESENT MYSELF (PRO SE)?
Pro se is the Latin term meaning “on one’s own behalf.” Pro se is the term used when referring to parties who are representing themselves in court. While a federal employee can certainly represent themselves during the MSPB appeals process, it may be in your best interest to contact an attorney.
WHY SHOULD I HAVE AN ATTORNEY REPRESENT ME?
While it’s possible to represent yourself during the MSPB process, you may not want to. However, it’s critical to be aware that the process is similar to traditional legal proceedings and can become complicated and overwhelming. Pursuing an appeal can require an extensive amount of preparation, which a lawyer can assist with. To ensure the best possible outcome, a lawyer will be in your best interest.
When an employer has engaged in prohibited personnel practices, you may have the right to take further action as a federal employee. No person should experience the impact these actions can have on a person. The Federal Practice Group, located in Washington, DC, has a long-standing reputation of providing clients with representation for federal employees that is both effective and affordable. When facing adverse actions, it’s critical to contact our office immediately. Contact our team as soon as possible so that we may begin reviewing your case and safeguarding your interests by carefully strategizing the next steps.
WHAT ARE THE DOUGLAS FACTORS?
The Douglas factors are a set of standards for when an agency decides whether to take adverse or disciplinary actions against a federal employee. Upon appeal, the MSPB shall review these factors to assess if the agency gave appropriate consideration when determining the type and severity of discipline imposed. In total, there are twelve Douglas factors. Generally, not all dozen are related to every single case. If it is decided to impose repercussions, the Douglas factors are used to decide what level of discipline is suitable, and what is not. The complete list of Douglas factors are listed as follows:
- The seriousness and nature of the offense
- The employee’s type of employment and job level
- The employees disciplinary record
- The employee’s work record history
- How the offense affected employee’s ability to perform their job at a satisfactory level (and impact on supervisor’s confidence in employees ability to perform duties)
- Whether the penalty is consistent with those imposed on other workers with similar or equivalent offenses
- Whether the penalty is consistent with the agencies table of offenses
- Whether the employee was aware of the rules they had supposedly violated
- Rehabilitation potential
- Impact upon the agency’s reputation for the offense
- Whether mitigating circumstances were present
- Effectiveness and adequacy of alternative sanctions (as a way to deter conduct of future employees or others)
Through the discovery process, you can get a copy of evidence related to your case that the agency has in its possession. Your lawyer can help you file discovery requests. It’ll be imperative that all the evidence necessary for your case is obtained. There may be strict time frames applied to filing for and answering requests, so if you fail to comply you may be sanctioned or lose the rights to get evidence for your case. If for some reason the agency refuses to turn over evidence, you can file a motion that compels a judge to require the agency’s compliance. Status conferences or hearings may be held over the phone, by video teleconference, or in person. It may be up to the judge to determine when and how a hearing will proceed.
WHAT IS THE MSPB APPEALS PROCESS?
Federal employees who feel they have been unfairly demoted, suspended, or fired, should contact an MSPB Appeals Attorney, such as Federal Practice Group, to help them file an appeal with the Merit Systems Protection Board. There are several steps involved in the process:
1. Filing of the Appeal
The Appellant must file the appeal, either online or on paper, within 30 days of the date of adverse action. While the filing can be done pro se, it is best to have an MSPB Appeals Attorney handle the procedure.
2. Acknowledgement Order
Within 1 to 2 weeks an Administrative Judge is assigned to the claim. They will send out an Acknowledgement Order and ask both parties to submit responses and supporting information. They will also set any ground rules for the case and a timeline.
3. Agency Documentation and Response
The Federal Agency then has 20 days to provide an initial response to the claim and send the Judge all their files pertaining to the case.
4. Status Conferences
The Judge schedules conferences where both parties have the chance to discuss the issues involved in the filing. At any time either party could call for a suspension of the case to complete other tasks, including examining discovery or engaging in settlement talks or mediation. Suspensions are at the discretion of the Judge and can last up to 30 days.
5. Filing of Discovery
Within 30 days of the Acknowledgement Order, the Appellant may request to obtain discovery of any documents, including correspondence, audio, or video, that the Agency may use during the hearing. They will also have the option to question witnesses under oath.
6. Pre-Hearing Submissions and Conference
The Judge requests both parties submit their versions of what happened, including any documents to be used as exhibits and lists of potential witnesses. They will rule on whether to accept the witnesses, exhibits, and other issues of the case. Each party will also be able to argue the relevance of each point.
7. The Hearing
The actual hearing usually takes 1 or 2 days depending on the number of witnesses scheduled to testify. The Agency bears the burden of proof and must provide justification that satisfies the Judge unless the appeal alleges discrimination or retaliation for whistleblowing – then it falls to the Appellant.
8. Decision
The Judge issues their written decision to both parties anywhere from 2 to 6 weeks later. They could order interim relief for the Appellant or reinstatement, but this will not necessarily include back pay or attorney fees.
If either party is dissatisfied with the judgement, they can file another appeal, called a Petition for Review (PFR), within 35 days of receiving the decision. The Federal Practice Group, an MSPB Appeals Attorney, can assist you with this process as well.
How to Appeal Wrongful Termination as a Federal Employee
As a federal employee, you have benefits and securities that are not afforded to many private sector employees on your level. However, this does not mean that you will never be discriminated against. It does not guarantee that you will never be terminated. If you find yourself in need of an MSPB Appeals Attorney from the Federal Practice Group, you likely need some guidance on how to appeal a discriminatory decision or action made against you at work. Read on to learn how to appeal a wrongful termination as a federal employee.
Find Out if You Can Appeal
Before you fill out any paperwork, consult your MSPB Appeals Attorney to find out if you can go forward with your appeal in the first place.
Some federal employees, such as those who work for the US Post Office, can appeal at any time. Others, such as politically appointed or elected officials cannot appeal a decision like this at all.
Your attorney will ask you if you are past your probationary period as a federal employee or not. If you are not yet past the first year mark of employment, you are still in the probationary phase. This means that you have no access to the appeal process through the US Merit Systems Protection Board. Once you pass the probationary period, your attorney at the Federal Practice Group can help you proceed with the appeal.
Gather Necessary Documents
There is one more step you should take prior to registering a formal appeal or complaint with the MSPB. Your attorney will advise and guide you through gathering any documents that will be relevant to your case.
The appeal process is often long and detailed. You will need a lot of documentation to build your case, and you may be asked to speak in front of the board.
Submit Your Appeal Online
Once you and your MSPB Appeals Attorney built your case and you have all the necessary documents on hand, it’s time to appeal through the online appeal system. Though normally you are expected to fill out all the necessary paperwork on your own, your MSPB Appeals Attorney can talk you through the whole process. Do not be afraid to ask any relevant questions about the appeal. Your lawyer may be able to answer some of your specific questions as you prepare for your hearing. He or she may also talk you through answering any questions that they may anticipate coming your way.
Pursuing a Whistleblower Retaliation Claim with an MSPB Appeals Attorney
The MSPB appeals attorneys at our firm aggressively protects whistleblowers who have experienced retaliation. The Federal Practice Group can help you get the justice you deserve if you have been mistreated in your federal agency workplace. It’s an unfortunate fact that on occasion, federal government whistleblowers experience retaliation for having come forward about fraud or other illegal activities. Fortunately, there is protection under the law for whistleblowers.
You have several options for pursuing justice after experiencing retaliation as a whistleblower. Depending on which path you choose, the steps for filing the complaint and other important details will vary. A MSPB appeals attorney from the Federal Practice Group can guide you through the entire process from start to finish and make sure your complaint is prepared and submitted accordingly. Your lawyer can also provide you the guidance you need in order to make informed decisions about how to move forward. This is important because once you choose a path for filing your claim, you cannot choose another.
Here are the three main choices for initiating a whistleblower retaliation claim:
- Merit System Protection Board (MSPB) affirmative defense appeal. If the federal agency for which you work retaliates against you in some way, you can file a claim with the MSPB. The process can be confusing for some, but our federal employee lawyer team has the experience necessary to assist you.
- Individual Right of Action. If the retaliation against you was in the form of a personnel action that is not appealable through the MSPB defense process, you may be eligible to appeal via an Individual Right of Action. First you must complete the complaint procedure through the Office of Special Counsel. After that, you can file a whistleblower retaliation claim with the MSPB.
- Union grievance. If you are the member of a union, you have the right to file a grievance for experiencing whistleblower retaliation. It will fall under the arbitration and grievance process related to your union’s collective bargaining agreement with the retaliatory agency.
When it comes to filing a claim of a prohibited personnel practice to the Office of Special Counsel, there is no time limit. However, there may be deadlines if you file via a union grievance or through the MSPB.
Victims of a Prohibited Personnel Practice for Whistleblowing Retaliation Can Do This
Congressional laws established in 1994 and 2012 provide specific remedies for those individuals who experienced a prohibited personnel practice as retaliation for whistleblowing. Depending on the nature of the actions taken against you, you may be eligible for one or more of the following actions:
- Payment of your federal employee lawyer’s fees.
- The restoration of your job position or job.
- Related travel expenses.
- Medical costs.
- Back pay and lost benefits.
- Reimbursement of costs that you incurred as a direct result of a retaliatory investigation related to your claim.
- Reimbursement of monetary damages that resulted from the prohibited practice.
- Compensatory damages that are considered recoverable against the U.S. government in relation to the retaliatory measures taken against you.
To learn more about pursuing a whistleblower retaliation claim, contact the experienced Washington DC legal team at the Federal Practice Group to speak with an MSPB appeals attorney about your situation today.
MSPB Appeals Infographic
6 Things to Know About Whistleblower Retaliation
Whistleblowers play a critical role in exposing the illegal actions of employers. However, sometimes employers retaliate against whistleblowers. These are some things you should know about whistleblower retaliation.
1. WHAT A WHISTLEBLOWER IS
A whistleblower is a person who reports unsafe or illegal behavior at their place of employment to authorities. For example, an employee who is aware that an employer is violating safety regulations and reports the violations to authorities is a whistleblower.
2. WHAT RETALIATION IS
Retaliation is when employers take adverse actions against employees for engaging in a protected activity, such as whistleblowing. Employers who attempt to forbid or discourage employees from participating in protected activities may also be guilty of retaliation. There are several types of adverse actions that may be considered retaliation:
- Termination
- Salary reduction
- Demotion
- Exclusion
- Loss of hours
- Loss of benefits
If you believe you have been illegally retaliated against by an employer, contact an MSPB Appeals Attorney.
3. WHO IS PROTECTED BY WHISTLEBLOWER LAWS
All employees, former employees and applicants who report illegal conduct by an employer, labor organization or employment agency are protected by whistleblower laws. These laws apply regardless of the citizenship or work authorization status of the employee. Victims of illegal employer retaliation should contact an MSPB Appeals Attorney.
4. WHISTLEBLOWING AND RETALIATION CLAIMS ARE DIFFERENT
Whistleblower claims often involve retaliation, but whistleblowing and retaliation claims are not the same. Whistleblowing complaints are focused on illegal conduct that is prohibited by a specific law or conduct that can harm the public, violate public trust or waste tax dollars. Retaliation complaints involve issues that affect individual workers, such as discrimination, union rights and wage disputes. If you have a whistleblower or retaliation claim, an attorney at The Federal Practice Group may be able to assist you.
5. THERE ARE TYPES OF ACTIVITIES THAT ARE NOT PROTECTED
Not every action an employee takes that is related to illegal activity by the employer is protected. Activities that are lawful and defensible are not punishable by employers under whistleblower laws. However, employees who engage in certain types of conduct, such as physical violence or verbal harassment, may lose their protected status. You may want to consult with an attorney at The Federal Practice Group before you take action against an employer to ensure that your planned activity is protected by law.
6. YOU DON’T HAVE TO BE TERMINATED TO HAVE A CLAIM
Some employers try to get around the law by making life difficult for whistleblowers instead of firing them. While these claims can be more difficult to prove, you can still bring a claim.
How the Federal Practice Group Can Help
Being wrongly terminated or disciplined from a federal position can have a significant impact on your career and overall life. If you are not ready for the likely repercussions – that could be extensive – you should retain an attorney as soon as possible. We understand the rules and process of the MSPB and can guide you through everything while facing many of the challenges you would face without an attorney at your side. Call an Appeals MSPB Attorney from the Federal Practice Group now for assistance.