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Our Employment Law Firm Helps Protect Federal Employees in MSPB Matters

One of the advantages of working as a federal employee is the greater level of job security compared to private sector peers. At most companies, businesses and private organizations, workers are “at-will” employees. This generally means that they can be fired for no reason or any reason, as long as they are not fired for an illegal reason or for a reason that violates public policy.

In contrast, many federal employees are not at-will. Therefore, they can typically only be fired for cause, such as poor performance or misconduct. But just because an agency needs a good reason to fire an employee, doesn’t mean mistakes don’t happen. And sometimes, an improper personnel action is not a mistake, but a deliberate and wrongful act in violation of federal law.

To help deal with these situations, we have the U.S. Merit Systems Protection Board. If you believe that your employer has wrongfully fired or disciplined you, you might need to take your case up with the MSPB. To help you with this process, it’s nice to have the legal counsel of a Maryland MSPB attorney, such as one from the Law Firm of J.W. Stafford.

What Is the U.S. Merit Systems Protection Board?

The U.S. Merit Systems Protection Board, or MSPB, is a government agency that works to eliminate prohibited personnel practices which might undermine the ability of federal employees to serve the American people in an effective, fair and non-partisan way.

The MSPB is comprised of various divisions or departments, including:

  • The Office of the Administrative Law Judge
  • The Office of Appeals Counsel
  • The Office of the Clerk of the Board
  • The Office of Equal Employment Opportunity
  • The Office of Financial and Administrative Management
  • The Office of General Counsel
  • The Office of Information Resource Management
  • The Office of Policy Evaluation
  • The Office of Regional Operations

The MSPB carries out this mission in a variety of ways. Some of these include:

  • Adjudicating employment cases from the U.S. Office of Special Counsel (OSC) concerning prohibited personnel actions (including whistleblower retaliation cases) or violations of the Hatch Act.
  • Reviewing arbitration awards.
  • Holding informal hearings for Senior Executive Service (SES) employees removed for performance reasons.
  • Reviewing employment regulations.
  • Conducting studies of the federal merit system to assess its effectiveness and to make potential improvements.
  • Overseeing actions against Administrative Law Judges.
  • Handling appeals of employment decisions concerning the adverse actions against a federal employee, such as employee discipline due to poor performance or misconduct.

As a federal employee, one of the most likely reasons you may find yourself dealing with the MSPB is if you would like to appeal an adverse action from your agency or department.

Federal Employees Appealing an Adverse Action to the MSPB

The MSPB can handle a variety of appeals, but they often handle appeals involving the following types of adverse actions, many of which relate to issues with an employee’s performance or misconduct:

  • Removals (firings)
  • Suspensions of more than 14 days
  • Demotions (that result in reduced pay or grade)
  • Furloughs of 30 days or less
  • Pay increase denials
  • Reduction-in-force actions

The MSPB will sometimes handle “mixed cases,” where an employee alleges discrimination in addition to contesting the adverse action taken against them. After the MSPB decides the appeal in a mixed case, if the employee is not happy with the MSPB’s decision, the employee may ask the U.S. Equal Employment Opportunity Commission (EEOC) to review the MSPB’s decision. If the EEOC and the MSPB cannot reach an agreement, the case is sent to a Special Panel.

Who Can File an Appeal to the MSPB

Filing an appeal to the MSPB is not a right that all federal employees have. The MSPB estimates that about two million federal employees have appeal rights to the MSPB. This is roughly two-thirds of the full-time civilian workforce. Federal employees excluded from MSPB appeal rights can include:

  • Political appointees, such as those nominated by the President and confirmed by the Senate.
  • Certain employees who work for intelligence agencies.
  • Federal employees who are still in their probationary period and were fired for performance or misconduct reasons.

The primary deciding factor as to determining who can file an appeal to the MSPB will have to do with what law or regulation applies to the employee’s action. Also, if an agency makes a decision against an employee that can be appealed to the MSPB, the agency must convey the following information to the employee:

  • How much time the employee has to file an appeal.
  • The MSPB office where the employee should file an appeal.
  • A copy (or where to get a copy) of MSPB regulations.
  • A copy of the MSPB appeal form.
  • Any grievance rights the employee may have pursuant to 5 C.F.R. § 1201.21.

The MSPB Appeals Process

After an agency takes its adverse action against a federal employee, the employee will have a set amount of time to file his or her appeal.  The length of time varies depending on the law the employee is bringing the appeal under. This time period can range from as few as 10 days to as many as 65 days. However, the amount of time to file an appeal will usually be 30 calendar days from the effective date of the adverse action taken against the employee.

The employee can file an appeal at the appropriate MSPB regional office or online through the MSPB e-Appeal Online website. An appeal at an MSPB regional office can be filed by personal delivery, mail or fax.

After the MSPB receives the appeal, it will be assigned to an Administrative Judge who will then issue an Acknowledgement Order. If there are any potential issues with the appeal, this order will bring it to the attention of the employee and agency subject to the appeal. In these situations, the Acknowledgement Order will also ask the employee to submit additional information to explain why its appeal should still more forward despite possibly being deficient.

The pleadings process then begins, with each side submitting the pleadings as ordered by the Administrative Judge. At this time, the Administrative Judge may hold one or more conferences to gain a better understanding of what the appeal is about.

Discovery will then occur, where each side exchanges information relating to the appeal. There may also be settlement discussions or mediation to try and resolve the dispute before the hearing takes place.

After the discovery and pleadings processes are complete, there can be a hearing. This will be like a small trial where each side will present evidence, including witness testimony. Sometimes the hearing ill take place virtually, through telephone or video conferencing.

During the hearing, the agency has the burden of proving that it was justified in the action it took, such as firing or disciplining the employee. The employee has the burden of proving that the appeal was properly filed and presenting any affirmative defenses that may be used to show why the employer’s action was unlawful. Examples of affirmative defenses include whistleblower retaliation or illegal discrimination.

After the hearing, the Administrative Judge will issue an initial decision. This will identify all applicable laws and material facts and issues in the appeal. Also included will be the legal basis for the Administrative Judge’s decision.

The initial decision becomes final after 35 days, as long as no one files a petition for review.

Finally, an employee may have the option of appealing the decision of the MSPB. The appeals from the MPSB are usually sent to the U.S. Court of Appeals for the Federal Circuit. However, a “mixed case” appeal where the employee alleges discrimination goes to a U.S. District Court.

One thing to note about the above-discussed appeals process is that before filing an appeal to the MSPB, certain laws will require employees to complete specific administrative requirements first. For example:

  • Whistleblower Protection Act of 1989: Before filing an appeal with the MSPB, an employee will usually need to file a complaint with the OSC.
  • Presidential and Executive Office Accountability Act: The employee will need to wait for a mandatory waiting period to pass as well as go through counseling or mediation with the employing agency.
  • Uniformed Services Employment and Reemployment Rights Act:  Employees who choose to first file a complaint with the U.S. Department of Labor’s Veteran’s Employment and Training Service (DOL/VETS) must wait for the DOL/VETS process to finish before appealing to the MSPB.
  • Veterans Employment Opportunities Act:  An employee must file a complaint with the DOL/VETS and provide them with at least 60 days to resolve the complaint.

Think You Might Need to Talk with a Maryland MSPB Appeals Lawyer?

If you want to fight back against suspension, removal or other wrongful personnel action, you may need to consider filing an appeal with the U.S. Merit Systems Protection Board. And to make the most of this administrative process, it’s best to have the assistance of a Maryland MSPB employment attorney.

While an MSPB appeal doesn’t legally require you to have an attorney, given the complex nature of the appeals process, it’s strongly recommended that you have one. If you’re going go through the effort and cost of filing an MSPB appeal, you want to give yourself the best chance of succeeding.

To learn more about what a lawyer can do for your situation, please contact us at the Law Firm of J.W. Stafford or 410-514-6099 and set up a consultation. We’ll listen to your case and explain the MSPB appeals process, including what to expect and what you need to do to obtain a legal remedy for your employer’s wrongful actions against you.