MSPB Appeals: Q&A with a Federal Employment Lawyer

April 9, 2024
The Law Firm of J.W. Stafford

When you take a job with the federal government, the last thing you expect is to end up fighting for your legal rights. Out of all of the employers you could possibly have, the federal government seems like the one that is most likely to follow the law and respect your rights—both as an employee and as a private citizen.

Unfortunately, far too many federal employees find that this isn’t the case. Violations of employees’ legal rights in the federal sector are commonplace. As a result, many federal employees (and former federal employees) find themselves needing to navigate the Merit Systems Protection Board (MSPB) appeals process. If you think you may need to file an MSPB appeal, it will be important for you to learn about the process so that you can make informed decisions about your next steps.

10 Questions (and Answers) About Filing an MSPB Appeal

Here are the answers to 10 common questions about MSPB appeals:

When Can (and Should) I File an MSPB Appeal?

The MSPB hears appeals involving several types of violations of federal employees’ legal rights. This includes violations resulting in denial of job-protected leave, denial of overtime pay, and wrongful suspensions, removals, disqualifications, and terminations—among others. If you believe that you have experienced any form of wrongful adverse employment action as a federal employee, you should speak with a lawyer promptly. A lawyer who has experience representing federal employees will be able to determine whether filing an MSPB appeal is your best option, or whether you should seek to enforce your legal rights through other means.

What Can I Expect from the MSPB Appeal Process?

An MSPB appeal is sort of like a mini trial. Once you file an appeal, your lawyer will engage in discovery, and your case will be scheduled for a hearing. Before your hearing date arrives, your lawyer (and the federal government’s lawyers) will engage in various pre-hearing proceedings—including taking steps to resolve your appeal without a hearing if possible. If you do not receive a satisfactory resolution at this stage, your lawyer will argue your case before an administrative law judge (ALJ) at the MSPB, and then the ALJ will render a decision.

Is the MSPB Appeal Process Different for Current and Former Federal Employees?

The process for filing an MSPB appeal is generally the same for current and former federal employees. While you have the option of trying to navigate the process on your own, you also have the option to hire a lawyer to represent you.

What Should I Do to Prepare for My MSPB Appeal?

To prepare for your MSPB appeal, you will want to gather as much relevant information as possible, and you will want to clearly outline and organize your legal arguments. Due to the complexity of the legal issues involved (and the importance of the outcome), it is strongly in your best interests to have an experienced lawyer take these steps on your behalf. An experienced lawyer will also be able to prepare your testimony (if you will testify) and ensure that you take all of the necessary steps to preserve your legal rights both during and after the MSPB appeal process.

How Long Do I Have to File an MSPB Appeal?

Federal employees (and former federal employees) generally have 30 days to file an MSPB appeal. This 30-day period runs from the date that they experience the adverse employment action or prohibited personnel practice that is the subject of their appeal.

How Do I File an MSPB Appeal?

Filing an MSPB appeal starts with completing and submitting MSPB Form 185. You can submit the form via mail, fax, commercial delivery or courier, or you can file online. Accurately completing MSPB Form 185 is a critical step in the process, and, here too, it is best to rely on the advice and representation of a lawyer who has extensive experience representing federal employees (both current and former) in MSPB appeals.

What Are the “Douglas Factors,” and How Do They Come Into Play During an MSPB Appeal?

The Douglas Factors are a set of 12 facts and circumstances that federal employers are required to consider when determining appropriate disciplinary action. Failure to properly apply the Douglas Factors is a common ground for filing an MSPB appeal. Even if discipline was warranted in your case, if your agency applied the Douglas Factors incorrectly, you may be entitled to redress through the MSPB appeal process.

What if the Federal Government Has the Evidence I Need to File an MSPB Appeal?

This is a fairly common situation. If the federal government has the evidence you need to prove that your legal rights have been violated, you (or your lawyer) can obtain this evidence through the discovery process once you file your MSPB appeal.

What Are the Possible Outcomes of an MSPB Appeal?

The possible outcomes of an MSPB appeal depend on the circumstances involved. If you were denied a pay raise, promotion, or overtime pay, you may be entitled to back pay (plus interest)—and potentially other remedies as well. If you were wrongfully removed or terminated, you may be entitled to reinstatement or financial damages (or both). Of course, the ALJ could rule against you, and if this happens, you will have the option of taking your case to federal court.

Is It Possible to Obtain a Settlement from the Federal Government?

Yes, it is possible to obtain a settlement from the federal government (though there are no guarantees). Many MSPB appeals settle before the employee’s (or former employee’s) hearing date arrives. If you are interested in settling your case, this is an option that you will want to discuss with your lawyer before filing your appeal.

Discuss Your MSPB Appeal with a Knowledgeable Federal Employment Lawyer  

If you have more questions about filing an MSPB appeal as a current or former federal employee, we invite you to get in touch. To arrange a confidential consultation with a federal employment lawyer, please call 410-514-6099 or request an appointment online today.