As a federal employee, you are afforded various protections against unlawful and unfair treatment in your workplace. However, not all agency officials follow these guidelines and regulations as strictly as they need to. If you believe your federal agency has unfairly disciplined, demoted, or even wrongfully terminated you, there are legal options.
The U.S. Merit Systems Protection Board (MSPB) oversees issues related to the unfair treatment of federal employees across the country. To learn what legal options may be available in your situation, contact an experienced MSPB lawyer today.
At the Law Office of Aaron D. Wersing, we have years of experience helping federal employees successfully resolve complaints of removals, suspensions, demotions, and other adverse actions in the workplace.
While there is no legal requirement to retain an attorney to represent you, doing so can significantly improve outcomes. Pursuing a complaint against your employer is a complicated process, and a mistake could jeopardize your entire case.
What Does the Merit Systems Protection Board Do?
The U.S. Merit Systems Protection Board was established as part of the Civil Service Reform Act of 1978, which became effective in 1979. It is part of the government’s Executive branch and serves as an independent, quasi-judicial agency that oversees the federal merit systems.
The MSPB, together with the Federal Labor Relations Authority (FLRA) and the Office of Personnel Management (OPM), replaced the Civil Service Commission. MSPB’s mission is to “Protect the Merit System Principles and promote an effective Federal workforce free of Prohibited Personnel Practices.”
One primary function of the MSPB is to receive appeals from federal employees who allege certain adverse actions, such as being unfairly suspended, demoted, or terminated due to performance or conduct. It also conducts merit systems studies and provides oversight for actions taken by OPM.
If your employer has proposed discipline against you, you have legal rights. One of these rights is to receive notification before they sustain any disciplinary action against you. You also have the right to respond, both verbally and in writing, to any proposed discipline in an attempt to mitigate or avoid any fallout.
If adverse action is carried out against you, you may be able to contest the action through the MSPB appeals process as well as several other options. The MSPB is often the most advantageous route, as your agency generally bears the burden of proof.
We’ve handled numerous Merit Systems Protection Board cases. Some of the most common issues appealed to the MSPB include:
- Misconduct allegations, including illegal acts or behavior unbecoming to a federal employee;
- Performance-based actions that are actually a cover for other unlawful motivation;
- Discriminatory actions where employers took negative, adverse actions based on biased, unlawful beliefs; and
- Retaliatory discipline toward federal employees who filed complaints or acted as a whistleblower.
The MSPB doesn’t handle all appeals, however. Some actions fall within the jurisdiction of other agencies and are not within the purview of the MSPB. That is one reason why retaining an MSPB lawyer from the start is crucial. You could lose valuable time by filing a complaint with the wrong agency. Examples of issues the MSPB does not deal with include:
- Hearing or deciding whistleblower retaliation claims filed by applicants for, or employees of, the FBI (handled by the U.S. Department of Justice, Office of Attorney Recruitment);
- Providing advice on staffing, examinations, hiring, retirement, and benefits (handled by OPM);
- Hearing or deciding complaints involving discrimination, unless the issues are raised on appeal from personnel actions brought before the Board (otherwise handled by the Equal Employment Opportunity Commission);
- Investigating any allegations involving prohibited activities (handled by the Office of Special Counsel); and
- Negotiating and resolving unfair labor practice complaints, disputes, and exceptions to arbitration awards (handled by the Federal Labor Relations Authority).
The MSPB has no jurisdiction over non-federal appeals from private industry, city, county, local, or state employees.
Filing an Appeal with the MSPB
Due to continued mail delays, you should use the e-Appeal online portal to file and track your case. Those federal employees eligible to file an appeal with the Board include:
- Competitive service employees who have completed their one-year trial or probationary period;
- Excepted service employees, other than preference-eligible persons, who are not currently serving a trial or probationary period and have reached two years of current continuous service in the same or a similar employment positions within an Executive agency;
- Preference-eligible veterans who have a minimum of one year of continuous employment in the same or similar positions that fall outside competitive service; and
- Postal managers, supervisors, and employees at the Postal Service who are engaged in personnel work (excluding those in non-confidential clerical jobs), and who have finished one year of current continuous service in the same or similar positions.
In most cases, appeals to the MSPB must be filed within 30 calendar days of the effective date of the action, if applicable, or within 30 calendar days after the receipt date of the agency’s decision, whichever is later. There are exceptions to this timeline, such as actions taken by the Department of Veterans Affairs under the authority of 38 USC 714, which carry an appeal deadline of 10 business days from the effective date of the action.
In the event the last day falls on a federal holiday, Saturday, or Sunday, you will have until the next working day. The timeline can vary further if your case falls under specific statutory requirements. If you file using the e-Appeal system, your date of filing is the date of electronic submission.
If you miss the deadline, you may be allowed to submit your filing if you can explain the delay and show reasonable cause why you missed the deadline. Do not skip filing because you think you need additional time to gather evidence. You will still have time to get the necessary documents, and filing an initial appeal to meet the deadline can be done relatively quickly.
Once your case is assigned to a judge, they will order you to submit your proof at the required time. Adhering to stringent deadlines is essential. That is one reason you should consider retaining an MSPB lawyer to assist you with the appeals process.
Reasons the MSPB Rejects Appeals
Understandably, the stakes are high when you are at the stage of filing an appeal with the MSPB. Receiving notice that the MSPB has denied your appeal can be devastating. In some situations, you may be able to file your appeal elsewhere or refile with the MSPB. Some of the most common reasons the MSPB may reject your claim include:
- Wrong timing—You cannot apply until a final decision has been issued or the effective date of the agency’s action.
- Missed Deadlines—Your appeal may be dismissed if procedural deadlines have lapsed.
- No standing—You can appeal a decision only if it directly affected you or you are the personal representative of someone else who was directly affected.
- Lacks procedural information—You must follow all technical procedural requirements.
- Substantive information is missing—If you do not have a description of the action taken against you and supporting documents, the MSPB may reject it and request revisions.
- No stay request—If you request that the agency delay their actions pending your MSPB appeal, you are required to serve your agency with a copy of the stay request.
To avoid unnecessary delays, make sure that you have all the required information when filing your claim. Your MSPB lawyer can help you avoid common mistakes that can result in delays or denials.
How the MSPB Appeals Process Works
Once your appeal is filed, the MSPB will assign an administrative law judge to your case. The judge will issue an acknowledgment to you, your attorney, and your agency. The judge may also allow the parties to engage in the discovery process to obtain the necessary information for a hearing. As your case progresses, the judge will issue additional notices and orders.
Depending on the circumstances of your case, the judge has the right to conduct one or more hearings to obtain clarity on the written information. The judge may want to hear testimony from you, personnel from your agency, or other associated parties.
After the judge has reviewed all submitted information and listened to relevant testimony, they will issue their initial decision that addresses all legal and factual issues. Depending on the decision, you or the agency can file a petition to have it reviewed. This filing is done with the Clerk of the Board in Washington, D.C.
It’s important to repeat that the burden of proof in MSPB appeals belongs to your employer, meaning that the federal agency must show the judge satisfactory evidence to support their charges against the employee. You must show that the MSPB is the proper forum, that it has jurisdiction over your case, and that your appeal was filed within the deadline.
If your filing deals with whistleblower retaliation, discrimination harmful procedural errors, or other affirmative defenses, you must present proof of such claims.
MSPB Mediation Appeals Program (MAP)
One major advantage to pursuing a claim before the MSPB is their Mediation Appeals Program (MAP), which was launched as a pilot project in 2002, and expanded to all MSPB offices nationwide in 2005. To elect this program, both the employee and agency, through its representative, complete and submit the proper forms.
Once those forms are submitted, all deadlines in the case stay, and the appeal is put on the mediation docket. There are no deadlines to elect MAP mediation once an appeal is filed, and generally, such an election is supported by MSPB judges.
The MAP program provides many benefits, as an MSPB judge, although not the judge assigned to your appeal, will take on the role of mediator. This judge can use his or her experience and knowledge to assist the parties in understanding the value of their case, and in coming to a resolution that both parties are able to accept.
As with any opportunity to negotiate a settlement of your case, it is very important to engage the assistance of an experienced federal employment attorney, since the signing of a settlement agreement marks the end of a case, and often bars additional claims based upon facts known to the employee at the time of settlement.
In other words, if you are given one chance to finalize a settlement, make sure you are getting the best deal you can. Once the parties either settle or reach an impasse, the MAP judge will inform the appeal judge, who will either dismiss the case as settled, or place it back on the docket for further processing.
How Long Does It Take for MSPB to Make a Decision?
MSPB’s timeline for making a decision can vary. It depends on your case’s specifics and what the scheduling calendar looks like for the assigned judge. In general, the MSPB tries to resolve all issues within roughly 120 days. However, some cases may take longer.
You should expect that hiccups along the way will extend the amount of time it takes for the MSPB to issue its decision. You may have one or more case suspensions under which deadlines are extended due to the judge’s calendar. The judge also needs ample time to draft a well-thought-out opinion for your case.
Consult an MSPB Lawyer Today
If you need assistance with filing an MSPB appeal, let our skilled legal team help. Contact the Law Offices of Aaron D. Wersing or give us a call at (833) 833-3529 today to schedule an initial consultation. Let us put our experience and knowledge to work for you. We understand how much is at stake when you are filing an appeal. Let us protect your rights and help you fight for the outcome you deserve.