Adverse Action Appeals

The vast majority of the appeals filed with the Merit Systems Protection Board (MSPB) are of agencies’ decisions to take adverse actions (such as removals, demotions, and suspensions of more than 14 days) against federal employees. 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 (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.

File Appeal/Establish Jurisdiction

Once the appeal is filed, the MSPB will assign an Administrative Judge within a matter of days, and you will receive a document entitled “Acknowledgment & Order,” which will contain 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 MSPB appeal, and also a narrative response to the MSPB appeal from the agency. Following this, the parties engage in discovery, where, typically, each party send the other requests including interrogatory, requests for documents, requests for 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 at the deposition.

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 what information each has to produce to the other party.

Pre-hearing/Hearing

Often very shortly after discovery begins, the Administrative Judge issues a Hearing Order setting for deadlines for important procedures up to and including the hearing. The Administrative Judge will require the parties to file Pre-hearing Statements identifying the issues present in the MSPB 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 at the hearing.

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 at feel 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 Merit Systems Protection Board, or MSPB, prides itself on its efficient appeal processing, and under its rules, the Administrative Judges are supposed to issue decisions within 120 days of the filing of the appeal, which typically occurs although not always.

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, although 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.

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.