Adverse Action Appeals

The vast majority of 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 PROCEDURE

What Can I Expect to Happen when I File an MSPB Appeal?

To file an MSPB appeal, the federal employment law attorneys at The Federal Practice Group 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/, and which will guide you through the questions you need to answer to file a proper appeal.

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.

WHAT TO KNOW ABOUT 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 it’s the employee’s performance was deficient as charged, and is unacceptable as defined by the performance standards (meaning is must fail to meet the minimally satisfactory standard).
  • 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 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.

OUR RECENT CASES

The Federal Practice Group is accomplished in adverse action cases at the MSPB.  Our recent success in this category includes:

  • 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