Adverse Action Appeals
Adverse Action Appeals Attorneys
Most appeals filed with the Merit Systems Protection Board (MSPB) are of agencies’ decisions to take adverse actions against federal employees. Adverse action cases include removals, demotions, and suspensions of more than 14 days. If your agency has taken an adverse action against you, the Federal Practice Group will be in your corner to fight for your career and your reputation.
In an adverse action appeal at the MSPB, the agency – not the employee- bears the burden of proof. The agency’s particular burden of proof depends on whether the agency took the action because of misconduct charges pursuant to 5 U.S.C. Chapter 75 (which can also include the charge of unacceptable performance) or whether the agency took a performance-based action pursuant to 5 U.S.C. Chapter 43 (which typically follows the employee’s placement on a Performance Improvement Plan, or PIP).
MSPB Appeals Process
The MSPB outlines the appeals process on its website. As experienced federal employment attorneys, the Federal Practice Group recommends filing federal adverse action appeals through the site which will guide you through the questions you need to answer to file a proper appeal. Our team of appeals attorneys can help you navigate the process if needed. Before filing the appeal, it’s important to understand the charge against you.
What to Know about Misconduct Cases
If you have been charged with misconduct as a federal employee, there are some things to note to ensure you are treated fairly:
- Agency must prove charge(s): If your agency has taken an adverse action against you because of allegations of misconduct, the proposal to take the adverse action will identify the specific charges against you (e.g., lack of candor, insubordination, failure to follow leave policy, etc.). At the MSPB, the agency must establish by a preponderance of the evidence that the employee committed the misconduct as alleged in the proposal. Each charge has a burden of proof that the MSPB will use to determine whether the Agency proved its charge of misconduct.
- Action must promote the efficiency of the service: The agency must also establish that the adverse action it took against the employee “promotes the efficiency of the service.” This means there must be a clear and direct relationship demonstrated between the articulated grounds for an adverse personnel action and either the employee’s ability to accomplish his or her duties satisfactorily or some other legitimate governmental interest.
- Penalty must be reasonable: Finally, the agency bears the burden of establishing that its chosen penalty is reasonable in light of the Douglas factors, i.e., in light of any mitigating evidence such as length of service, performance on the job, and potential for rehabilitation.
What to Know about Performance-Based Actions
If you have received a federal adverse action based on performance, the following can help ensure you receive fair treatment.
- Placement on a PIP: If your agency places you on a Performance Improvement Plan, or PIP, and then takes an adverse action against you, it is most likely a performance-based action, otherwise referred to as a “Chapter 43” action, which has a different burden of proof than cases where the employee is charged with misconduct.
- Agency must have approved appraisal system: To meet its burden, the agency must establish by substantial evidence that its performance appraisal system was approved by the Office of Personnel Management (OPM)
- Valid performance standards: To meet its burden, the agency must establish. by substantial evidence. that its performance standards were valid. This is often a complicated analysis.
- Unacceptable Performance: To meet its burden, the agency must establish that your performance was deficient as charged, and is unacceptable as defined by the performance standards (must fail to meet the minimally satisfactory standard).
- Opportunity to improve: To meet its burden, the agency must establish that it provided the employee with a reasonable opportunity to demonstrate acceptable This typically requires the supervisor to meet regularly with the employee during the PIP.
- Douglas Factors do not apply: The Agency is not required to perform a Douglas factor analysis to take a performance-based action, nor to consider any mitigating evidence.
Adverse Action Appeals Attorneys You Can Trust
The Federal Practice Group is accomplished representing federal adverse action cases before the MSPB. A few of our successes include:
- A settlement during mediation with the U.S. Dept. of Navy which included a five-figure settlement and expunged removal record.
- A successful settlement negotiation for clean-record retirement, 5-months of back pay, six-figures in damages, and all attorneys’ fees and costs.
- A decision following a hearing before the MSPB reversing an adverse action against a DIA employee wrongfully charged with misconduct
- A decision following a hearing before the MSPB reversing the removal of a White House employee wrongfully charged with misconduct
If you were subjected to a disciplinary or federal adverse action, our team of highly skilled federal employment attorneys can help. Our team will help you gather the necessary information and provide experienced representation at all stages of the investigation. Contact us today to schedule a consultation.
Our Practice Focus
What Makes Us Different
From EEO complaints to adverse actions, our experienced federal employment attorneys ensure your entitlement to due process and legal representation every step of the way.
Represent government employees at all federal agencies, nationwide and overseas
Highly-skilled MSPB appeals attorneys with a proven track record
Notable success in EEO complaints and appeals
Frequently Asked Questions
Federal employees are protected from discrimination based on sex, gender, color, race, national origin, religion, age, and disability, and have the right to file an EEO complaint against their agency should they face discrimination. Federal employees also have the right to due process before being subjected to an adverse action.
Yes, federal employees can sue for discrimination, but first you must exhaust administrative remedies, which includes filing a formal complaint with your agency and letting 180 days pass. In many instances, federal employees elect to pursue their EEO complaints through the EEOC’s hearing process instead of filing a civil action.
Federal employees must initiate contact with an EEO Counselor within 45 days of any act of discrimination. After an informal complaint stage, you will be issued a Notice of Right to File a formal complaint, which will permit you 15 days to do so.
Federal employees do not have the right to sue for wrongful termination the way private sector employees do, but most federal employees have the right to appeal a removal to the MSPB, which will adjudicate whether the Agency can sustain any charges raised against you.
Yes, most federal employees can file a complaint against their agency with the U.S. Office of Special Counsel (OSC) if they are facing whistleblower retaliation. If OSC does not accept your complaint for investigation and prosecution, OSC will issue you an Individual Right of Action (IRA) notice giving you the right to pursue corrective action at the MSPB. Federal employees do not have the right to sue in court under the Whistleblower Protection Act.