MSPB Appeals for Federal Employees: How to Challenge Adverse Actions and Protect Your Career

There isn’t always a justification for suspending, terminating, demoting, or otherwise disciplining a federal employee. Sometimes, authority figures trade fairness for disproportionality or retaliation.

Perhaps you’re concerned about whether you have the right to contest disciplinary actions that you don’t deserve—and how to go about doing it. Put simply, that’s what the Merit System Protection Board is designed to help you with. But your appeal must generally be filed within 30 days.

We can help you navigate this process. Call Capovilla & Williams at 866-951-0466 or send us a message to schedule a consultation. Our team stands ready to support you.

What is the Merit System Protection Board?

Established in 1978, the U.S. Merit Systems Protection Board is an independent federal agency tasked with enforcing fair treatment of federal employees. Only three members serve the board at any given time, and each is limited to a single seven-year term that overlaps with the other members. The President is responsible for choosing whom to appoint, and the Senate must approve them.

Although every case the board handles is unique, they must all comply with certain policies and requirements. Read on for details.

Who Can and Cannot File an Appeal?

To be eligible to file an appeal through the Merit System Protection Board, federal employees must meet at least one of the following criteria:

• Completion of one year’s worth of “current continuous service.”
• Completion of a one-year trial or probationary period.
• One year of continuous employment in the postal service.
• Preference-eligible veterans who have been consistently working for at least one year in a position like the one from their service.
• Excepted service employees who have two years of current continuous service and are not currently in a trial or probationary period.

Many federal employees may fit these descriptions, but other criteria could render them ineligible. These include:

• Temporary positions lasting a maximum of one year.
• Being preference-eligible in addition to excepted service.

What Actions Can and Cannot Be Appealed?

You may encounter numerous types of unjust treatment as a federal employee. However, the MSPB doesn’t have the authority to address all of them. Its focus is on undeserved adverse actions. Examples of these adverse actions include, but are not limited to:

• Demotions.
• Suspensions.
• Denying promotion or raises.
• Docking or lowering pay.
• Reducing benefits.
• Poor performance evaluations.
• Transferal or reassignments to a new location or position.
• Altering duties and/or the work environment.
• Revoking awards or certificates.

Sometimes, adverse actions and the motivations behind them are pieces of larger illegal policies and patterns. Nevertheless, the MSPB will decline to review any complaints pertaining to the following:

• Discrimination against a protected class (this falls under the jurisdiction of the Equal Employment Opportunity Commission).
• Workplace disputes, exceptions to arbitration awards, and dangerous or unfair labor practices (go to the Federal Labor Relations Authority for those).
• Counsel on staffing issues, such as examinations, employment policies, retirement benefits, and similar (those are addressed by the Office of Personnel Management (OPM)).
• Prohibited personnel practices, which covers nepotism, coercion, obstructing competition, violating the principles of the merit system, failing to disclose whistleblower rights, and more (the Office of Special Counsel handles such cases).
• Any disciplinary or adverse actions relating to non-federal employees, agencies, or industries.

There are other statutes to consider for specific types of appeals to the MSPB in accordance with the requirements of certain legislative acts, including:

• Presidential and Executive Office Accountability Act: Federal employees who work in the White House residence, the Vice President’s official residence, and/or the Executive Office of the President must undergo a mandatory period of mediation and counseling if their dispute alleges violation of the Fair Labor Standards Act, Family and Medical Leave Act, or other workplace laws. They can’t file an appeal with the MSPB sooner than 30 days or later than 90 days after the mandatory period ends.

• Veterans Employment Opportunities Act: If you’re a federal employee who’s also a veteran and allege that your employer’s disciplinary action breaches laws surrounding veterans’ preference, you must first file a complaint about it with the Department of Labor’s Veterans’ Employment and Training Service (DOL/VETS). They should inform you if they’re unable to resolve the issue within 60 days, at which point you have 15 days to file an appeal with the MSPB instead.

• Uniformed Services Employment and Reemployment Rights Act: Should a federal employee believe that an agency’s adverse action violates their employment or reemployment rights as former uniformed service workers, you’re required to let the DOL/VETS address it first. If they’re unsuccessful, you can file an appeal directly with the MSPB.

• Whistleblower Protection Act of 1989: You might have reason to believe that your employer’s adverse or disciplinary actions against you are in retaliation for whistleblowing. If so, this act stipulates that you must file a complaint with the Office of Special Counsel to see if they can fix it first. Failing that, send your appeal to the MSPB.

What is the Appeal Process Like?

The circumstances that provoke adverse actions for federal employees are always stressful enough on their own. When combined with the maze of legal paperwork and procedures involved in an MSPB appeal, it’s understandable to feel overwhelmed.

We’ll be fighting at your side every step of the way, but knowing what to expect will boost your confidence and help you prepare for success. What follows is a step-by-step description of the process.

1. Filing the Appeal

A downloadable appeal form is available for you to mail, fax, or deliver it in person at your regional or field MSPB office after filling it out. Alternatively, file online via MSPB e-appeal.

Either way, make sure you provide any documents that the MSPB would need to process your case, such as the SF-50, a notice of your employer’s proposed adverse action, and a written statement of their decision to take said action. If your appeal involves the IRA, VEOA, or USERRA, you’ll also need proof that they’ve begun the process of taking action against you.

This step is also a great time to inform the MSPB how you intend to arrange your defense. If you’re turning in a paper appeal, fill out a designation of representative form to let them know that Capovilla & Williams will advocate for you. The online version will give you that opportunity as part of its process.

For the best chances of success, file your appeal within 30 calendar days of when you found out about your employer’s disciplinary or retaliatory measures. The 30th day will be moved to the next weekday if it falls on a weekend or federal holiday.

Either way, if you wait until after the 30-day mark, you’ll need to have an acceptable reason, like a serious illness or urgent personal issues that took precedence. The judge may require evidence as to the truthfulness of your reason.

2. Receiving the Acknowledgment Order

An administrative judge will be assigned to handle your appeal. Within 10 days after you file, they’ll send you and your employer an acknowledgment order, which contains copies of the appeal form and all other relevant paperwork. If the judge deems that more information or evidence is necessary, the order will specify what else you need to provide. Your employer will have 20 days to craft their own response to the order.

3. Notices and Orders for Pleadings

As the administrative judge reviews your appeal, they’ll notify you and your employer about any requirements pleadings—documents that detail claims, arguments, statements, defenses, and other information pertaining to your case.

4. Formal Hearing

By law, you have the right to request a formal hearing to better present your case. You could also waive it. However, depending on the complexity of the case, the administrative judge may suggest holding a hearing anyway.

Whether virtual or in-person, this hearing could be your best chance to persuade the judge to rule in your favor, since you could directly argue your experience or perspective. It’s imperative to have your legal team from Capovilla & Williams with you during this step; they’ll drawn upon substantial knowledge and innovative strategies to represent your side.

5. Final Decision

Typically, you can expect the administrative judge to make a final decision regarding your appeal four months after the initial filing. In other words, the whole appeal process takes 120 days or fewer from start to finish.

The judge’s written decision should include an explanation for how they arrived to it. They should provide reasoning that effectively sums up the information and evidence available, describes the line of logic that led to the decision, and shows how it all fits with current law and/or legal precedence.

6. a) Petition for Review

If you’re dissatisfied with the outcome despite the judge’s reasoning, remember that you still have the option of filing a petition for review to the U.S. Federal Circuit Court of Appeals. The MSPB will accept such a petition if there’s evidence suggesting the administrative judge made an error in handling your case, or if new evidence or legal arguments come to light after the fact.

Generally, you would have 35 days from the issuance of the judge’s initial decision to file, or 30 days you receive notice of said decision—whichever is later. Whistleblowers always have the right to petition under the All Circuit Review Act.

However, keep in mind that the adjudicators in those cases usually just review the information already compiled from your appeal rather than ask for anything new. They’ll also evaluate your employer for:

• Policies, procedures, or work environments that violate laws or could be categorized as prohibited personnel practice.
• Mistakes or oversights in their decision-making process that led to the disciplinary action when it otherwise wouldn’t have happened.

7. b) Appeal to the EEOC

If your appeal to the MSPB involves discrimination—making it a “mixed case”—another option is to appeal the MSPB’s decision to the Equal Employment Opportunity Commission. The EEOC will return the case to the MSPB if it opposes the outcome.

However, if the EEOC and MSPB can’t agree on a ruling, the case will be passed to a Special Panel made up of an MSPB member, EEOC commissioner, and chairman appointed by the President. This panel will review the case and issue its own decision about it, which you can appeal again with a district court if you don’t wish to accept it.

What is the Timeline for MSPB Appeals?

The timeline for an MSPB appeal typically looks like this:

What Can Happen If You Win or Lose the Appeal?

Both winning and losing can take many forms, depending on the case and how well the appeal goes. Usually, the outcome could look like any of the following for you:

Come to Capovilla & Williams for Help with an MSPB Appeal

Federal careers demand diligence, resilience, and passion for the work. Doubtless, you’ve exemplified those traits, but some disciplinary actions could force you away from the rewarding path you’ve chosen to take. As soon as you receive notice of one against you, inform the legal team at Capovilla & Williams so that they can defend you with the skill, dedication, and rigor you deserve. Learn more by calling today at 866-951-0466 or filling out an online contact form.

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