The Merit Systems Protection Board, or MSPB, is an independent federal agency that has jurisdiction over several federal employment matters, including:

• Appeals of adverse action taken against federal employees including removals from federal service, demotions, and suspensions of more than 14 days;
• Individual Right of Action (IRA) appeals for retaliation against federal employees for protected whistle-blower disclosures;
• Appeals taken under the Uniformed Services Employment and Reemployment Rights Act (USERRA) or the Veterans Employment Opportunities act (VEOA); and
• Appeals of Office of Personnel Management (OPM) decisions concerning retirement and annuity calculations and entitlements.

The Federal Practice Group represents federal employees before the MSPB in all matters over which the MSPB has jurisdiction. While the MSPB was designed to protect you and your federal career, the laws and procedures are complex and can be confusing. It is very important that you have an experienced attorney in your corner to aggressively and professionally represent you before the MSPB.

Why You Need an Experienced MSPB Appeal Attorney

Finding the right attorney to guide you through the Merit Systems Protection Board appeal process is a big decision.  You may feel uncertain about the next step, and you need an experienced attorney to walk you through the MSPB appeal process.

Whatever you need, The Federal Practice Group can assist you in protecting your career. Our attorneys have decades of experience helping federal employees with MSPB appeals. We specialize in federal employment law, which means we have an extensive base of knowledge to draw on for your case.

Our attorneys know how daunting it can be to take on the federal government.  We also know that you can win against a government agency with the help of an experienced attorney. Think of The Federal Practice Group as your partner who wants to improve your position and ensure that you are never lost during any step of the process.  

There are no guarantees in federal employment law, and anyone who tells you otherwise is not telling the truth. However, we can pledge to work by your side and do all that we can to receive the most positive possible outcome. Read on to learn more about what steps you will experience, and what sort of timeline you can expect in an MSPB appeal.

What Can I Expect to Happen when I first File My MSPB Appeal?

To file an MSPB appeal, we  recommend that you use the MSPB’s e-appeal system, which can be accessed through the MSPB’s website at https://e-appeal.mspb.gov/.  Upon filing your appeal, the process will begin and jurisdiction will be established.

File Appeal/Establish Jurisdiction

Once the appeal is filed, the MSPB will assign an Administrative Judge within a matter of days. You will also receive a document entitled “Acknowledgment & Order,” which contains information about the appeal process as well as deadlines for both parties. Some of these deadlines come very quickly, so be sure to pay close attention to every page. In some cases, the MSPB Administrative Judge will also issue what is called an Order to Show Cause, which is issued when the Administrative Judge has a question concerning whether the MSPB has jurisdiction over the appeal. It is very important that you respond to any Order to Show Cause, and you are typically allowed only 10 days to file a response. An Order to Show Cause is always issued in IRA appeals (for whistleblower retaliation), as well as appeals under USERRA and/or VEOA.

Discovery

In all MSPB cases, the agency is ordered to file what is referred to as the Agency File, which should contain the basic documents relevant to the appeal and a narrative response from the agency’s perspective. The parties will then engage in discovery, in which each party sends the other requests for interrogatory, documents, admissions, and in some cases, notices of deposition. If your agency intends to depose you, The Federal Practice Group can provide you with representation to defend yourself.

The parties usually have only 20 days to respond to each other’s requests, although it is not uncommon that the parties must work out disputes over access to information.

Pre-Hearing/Hearing

The Administrative Judge will often issue a Hearing Order shortly after discovery begins, setting the  deadlines for future procedures . The parties will need to file pre-hearing Statements identifying the issues present in the appeal, the witnesses each party intends to call, and any exhibits a party wants introduced into the record.

The Administrative Judge will then hold a pre-hearing conference during which he or she will identify which witnesses are approved to testify at the hearing and clear up any disputes over what issues must be resolved.

Finally, the appeal will proceed to a hearing, which often takes place at the MSPB’s offices, although it may take place at an agency facility. The hearing will look very much like a trial, and it is open to the public. However, no witnesses are permitted to be present when other witnesses are testifying. Each witness will be asked to take an oath, and a court reporter will transcribe the testimony.

Decision

Following the hearing, the Administrative Judge will issue what is called an Initial Decision, which will then become the final Decision unless one of the parties files an appeal by the deadline. The MSPB prides itself on its efficient appeal process. Under MSPB rules, the Administrative Judges are supposed to issue decisions within 120 days of the initial appeal.

If either party is dissatisfied with the Initial Decision, it can file a Petition for Review with the Board itself, which will review the decision for factual or legal errors. Following that, there can be an appeal to the U.S. Court of Appeals for the federal circuit, though you may have different rights depending on whether your appeal involved any affirmative defenses of discrimination.

What to Know about Misconduct Cases

You should understand certain things about misconduct cases 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.

Performance Based Actions

You should also be versed in what performance-based actions may entail:

• 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 an often complicated analysis.
• Unacceptable Performance: To meet its burden, the agency must establish by substantial evidence that the employee’s performance was deficient as charged, and is unacceptable as defined by the performance standards 
• Opportunity to improve: To meet its burden, the agency must establish by substantial evidence that it provided the employee with a reasonable opportunity to demonstrate acceptable performance. 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.

Why Use a Lawyer to Assist You with the MSPB Appeal Process?

 Federal law can be messy, overwhelming far from intuitive. Having someone by your side who knows the system can make the difference between a successful and an unsuccessful outcome. We draw on our experience to give you the legal and personal support that you need during your appeal.

You will discover many advantages when choosing The Federal Practice Group. These include:

• Experience with all levels of federal government: We have dealt with the CIA, NSA, FBI and other members of the intelligence community.
• An ethical approach to every case: We believe in upholding legal, ethical codes while providing you the best representation available. We will never ask you to compromise your moral standards, either.
• An innovative approach to solving your problem: We employ creative thinkers who go outside the box to find remedies to our clients’ issues.
• A passion for people: Our attorneys know that when we deal with careers, we deal with people.  We will work with you in a personal way, listening and consulting to ensure that you feel in control of your case's outcome.

Contact Us Today to Set Up a Consultation.