Using the MSPB’s Online Appeal System

Merit Systems Protection Board Online Appeals

The Merit Systems Protection Board (MSPB) recently overhauled its electronic appeal system, e-Appeal. The new system is now the only way to electronically file MSPB cases as of October 2023. When pursuing a case before the MSPB, it is therefore important for a federal employee to understand the latest procedures for filing an appeal and accessing case records. The only alternative to filing online this way is to rely on physical mail, which can be slower, and which carries the risk of important documents getting lost in the mail. As a result, it is generally a good idea to use the e-Appeal system for an MSPB appeal as it is faster and more reliable.  It is also required for appellant attorney representatives to register as e-filers, meaning only self-represented (pro se) filers may rely solely on physical mail if desired.

Background for the Changes

In short, the old e-Appeal system was two decades old and needed revamping. Users could only access one case at a time, and overall, the system was clunkier and harder to use than it needed to be. As a result, the MSPB developed a better, newer e-Appeal portal and launched it in late 2023. While it is not perfect, it is a significant improvement upon the old system. The MSPB’s e-filing regulations were updated for the new system, and they are located at 5 C.F.R. § 1201.14.

Basics for Filing an E-Appeal

The basic procedures for filing an appeal have not changed much, but there are a few things that are still very important to keep in mind. Likely the most important aspect to understand is that an appeal and any supporting documents you may want to include—must be timely filed. This generally means filing within 30 days of the action that is being appealed. Exceptions or extensions for time to file can be made in unusual circumstances, but it is never a good idea to rely on such a request being granted, especially when a request is made close to or after the normal deadline has passed. For e-filing, technical issues with the e-Appeal system can also be grounds for extension of filing time under certain circumstances, but it is always a good idea to file with extra time to spare just in case you run into technical issues.

Filing the MSPB Online Appeal 

Filing an appeal on the e-Appeal system is fairly straightforward. The portal takes you through all the necessary steps to obtain the necessary information and allows you to include supplemental documents. While the process is designed to be accessible to individuals representing themselves, there are a few parts of the e-Appeal filing process where legal advice is necessary. For instance, there is a section that asks for details about the basis of your appeal. Here, it is usually a good idea to include at least a summary of your legal arguments for the appeal. The Form 185 summarizes the types of arguments or claims that may be applicable, but these can be more complex than they seem. So, it is generally a great idea to consult with an attorney as early as possible, so that you do not lose the opportunity to raise important arguments.

Two-Factor Authentication for MSPB Appeals 

The e-Appeal system uses email-based two-factor authentication (2FA) for added security. Once you register as an e-filer and begin working on a draft appeal, the system first presents you with important information about timeliness of filing, limitations on the MSPB’s jurisdiction, and similar preliminary items. Then, although there can be a lot of information to fill out, there are only three basic stages of drafting the appeal: “Appellant and Agency Information,” “Agency Action” (i.e., what happened that you are appealing), and “Representation” (i.e., whether you are pro se or designating a representative).

Note that if an attorney or other representative submits the form from their account on your behalf, you will have to separately register as an e-filer yourself and connect your account to the case—otherwise, case documents will be mailed to you even if your representative is a registered e-filer.

E-Appeal vs. Uploading a Completed Form 185: What’s the Difference?

When using the e-Appeal system, you can also upload a separately-completed PDF of Form 185 after filling out the webform, or you can just fill out the information requested by the portal. The portal essentially walks you through Form 185 and puts it together for you at the end. If you do both, your Initial Appeal document will appear to be a doubled copy, but that is not a problem—and in some cases it may be easier to format certain fields as desired, complete the Designation of Representative portion, or perform other actions on a PDF copy of the form that you can then upload. Either way, it is important to ensure all necessary information is included somewhere.

Effect of E-Filing an Appeal

The main reason to e-file an MSPB case is because, in addition to being the preferred system, you will then receive (and can file) all case documents electronically via the portal, with email notifications of new filings. As such, you will be informed of the latest developments in your case as soon as there is a new document available, and you can therefore react accordingly and plan your next steps as quickly as possible rather than waiting to learn of developments in the mail. Once your case is filed, the rest of the case’s filings will generally take place via electronic submissions to the portal by all parties. Additionally, the portal allows an e-filer to see the full case record, general case information including agency representative contact information, a list of pleadings you have submitted, and a “Case Associations” tab that shows any connected or otherwise related cases.

Caveats to E-Filing

While the e-Appeal system has many advantages to the alternative method of paper filings, there are a few potential pitfalls to watch out for. For example, you are still required to stay up to date on the electronic docket. This includes making sure that your email’s spam filter is not blocking notification of new submissions in the case. Similarly, you must keep your contact information up to date with any changes. There are also a few special categories of pleadings or other types of filings that cannot be completed on the e-Appeal portal. Additionally, you cannot file something with sensitive or classified information, you cannot serve a witness with a subpoena using the system, and you cannot request a case to be treated as a class (group) appeal via the electronic system. There are special rules that must be followed for these and other special types of filings.

Regarding the timeliness of filings, the rules may seem a bit inconsistent and there are also some exceptions. Generally, the system will stamp pleadings with the submission time in Eastern time, regardless of where the filer uploads it from—but the actual timeliness does depend where the filer uploads it from. (This default may be further modified if an Administrative Judge states, for example, that they will consider the timeliness of filings based on their own time zone and not the filer’s).

Conclusion

While the MSPB e-Appeal system is intended to be accessible regardless of whether you are represented, there are a variety of nuances and considerations for e-filing, between filing the appeal itself and proceeding with the case. Because of the often convoluted legal and procedural issues that may arise in the MSPB process, and because every case is different, it is a good idea to consult with legal counsel regarding this area of law and how best to pursue your situation and issues. MSPB online appeals are an important part of the appeals process.

If you are a federal employee seeking representation before the MSPB, you can contact us via our website, www.berrylegal.com, or by phone at (703) 668-0070, to arrange an individual consultation. We also maintain an MSPB-specific legal blog covering similar types of legal and practical issues.

Representing Current and Federal Employees in OPM Disability Reconsideration Appeals for Over 25 Years

Our federal retirement lawyers represent current and former federal employees nationwide seeking reconsideration following a disability retirement denial by the Office of Personnel Management (OPM). We represent federal employees in their retirement matters before their federal agencies and OPM. It is common for many current and former federal employees seek our legal assistance when OPM has issued a denial in their disability retirement application.  In such cases, the federal employee or retiree is provided with an opportunity to request reconsideration regarding OPM’s initial decision. Most disability retirement applicants do not realize that they may have a better chance of receiving disability retirement on reconsideration than in the initial application.

Understanding the OPM Reconsideration Process

Reconsideration is simply OPM’s method of reviewing its initial denial to ensure that the applicable laws, rules and regulations have been properly applied to a federal employee or retiree’s application for disability retirement. However, in order for OPM to begin its review, the federal employee or retiree must initiate a request for reconsideration. The OPM reconsideration process will then afford the federal employee or retiree an early opportunity to address any deficiencies and legal errors in OPM’s initial decision.  It is often the case that OPM will spend more time and resources reviewing the reconsideration application than the initial retirement package.

Disability Retirement Application by Current or Former Federal Employee

For the OPM disability retirement process to start, the first step is to apply. A current federal employee or former federal employee (within a year of separation) may seek disability retirement from OPM. Once the application and supporting documentation is submitted to OPM, the decision process will begin.

Initial Denial from OPM

Before reconsideration can start, OPM must first deny the individual’s request for disability retirement. OPM’s denial is referred to as an initial decision. This usually comes in the form of a 5-8 page denial letter explaining why the disability retirement application was denied. Much of the initial decision will contain boilerplate language denying the request for disability retirement. There will, however, be a section dedicated to discussing the basis of the OPM denial. The letter will also discuss how their determinations are made, your rights for reconsideration and it will also include a CSA Number which you will have to reference should you decide to appeal. The initial decision will provide the various rights on reconsideration afforded federal employees and applicants.

Review OPM’s Basis of the Denial

As a general principle, it is important to carefully review the basis for the OPM denial prior to seeking reconsideration. The denial could be based on errors on the part of OPM or it might be based on the fact that the individual did not provide enough medical proof for disability retirement. It is fairly common for the basis of denial to be related to the clarity of the medical proof and medical statements provided to OPM. OPM has published guidance regarding some of the problems which occur in the processing of disability retirement applications regarding documentation.

Requesting Reconsideration from OPM

Generally, a federal employee has 30 days within which to request reconsideration from the date of an adverse OPM decision. The deadline is critical and does not involve significant work to initiate. The reconsideration request must be received within 30 days (not just placed in the mail). As a result, it is critical to ensure that the request to OPM is timely. Otherwise, the request for reconsideration can be denied by OPM as untimely. OPM’s Request for Reconsideration of Disability form is fairly straightforward and easy to complete. It is usually important to check the last box in which the federal employee requests an extra 30 days to provide additional information about an individual’s qualification for disability retirement. It is important to include the CSA number attached to the denial on the form. Once the OPM Request for Reconsideration form is received, assuming that the form is completed correctly, additional information will need to be gathered in support of overturning OPM’s initial decision within the 30-day window.

Filing the Additional Information Needed on Reconsideration

After the OPM disability retirement reconsideration process has begun, the next step will be to add additional documentation to prove that the OPM decision was incorrect. There is a right to request a copy of the claim file which will normally include the information that the individual submitted to OPM in making the first decision in the case. Requesting this information can be helpful to see whether or not OPM reviewed any other information in issuing the OPM denial. In other instances, the claim file is not as useful.

In seeking reconsideration, the more information provided to OPM, the better. Because you are seeking disability retirement, the additional documentation is likely to be medical. Some of the more common reconsideration responses include:

(1) Complete histories of the medical or disabling condition at issue;

(2) Findings from previous medical examinations;

(3) Other records of medical treatment; and

(4) Other evidence supporting the disability, such as personal statements and letters of support from family and friends.

Once received, the reconsideration file will be sent to a new OPM specialist on review who will review the new materials, along with the existing file, and issue a determination either approving the disability retirement application or issuing a new denial. Reconsideration specialists tend to give substantial weight to new medical documentation so this can often be a key part of the reconsideration process. We find that the reconsideration stage yields a more meaningful review of the disability retirement claims. We have also found that OPM reconsideration specialists are typically quicker in issuing a reconsideration decision than specialists during the initial application review.

Additional Appeals

If OPM denies reconsideration, other rights, such as pursuing the case before the Merit Systems Protection Board, are available. The reconsideration decision will typically provide full instructions on how to appeal the decision to the appropriate field office of the MSPB. Usually, an individual will have 30 days in which to file an MSPB appeal regarding their retirement denial with the MSPB. Again, timing is important and an individual can lose their rights if the appeal is not timely filed. Once submitted, an administrative judge will be assigned to oversee the hearing in the case. In an MSPB retirement appeal, having counsel is critical to potential success. An MSPB appeal is similar to the civil action process, with attorneys on both sides and a judge. The same procedures that apply in regular court apply in MSPB appeals. This link provides more information on MSPB retirement appeals.

Contact Us

When seeking reconsideration from OPM in a disability retirement application, it is important to obtain legal representation.  You can contact our law firm through www.berrylegal.com, or by telephone at (703) 668-0070, to schedule a consultation to discuss your individual federal employment retirement matter.

Representing NSA Employees and Federal Contractors in NSA Security Clearance Appeals

Our security clearance lawyers represent government contractors before the National Security Agency (NSA) in security clearance matters. As those seeking cleared positions know, the NSA is an intelligence agency with its own unique security clearance process through Executive Order 12968 and Security Executive Agent Directive 4 (SEAD 4). SEAD 4 governs the general security clearance process for federal agencies. There are different procedures for security clearance appeals for every agency. Below, we discuss the appeals process for government contractors at the NSA for security clearance and Sensitive Compartmented Information (SCI) access denials or revocations.

The Security Clearance Process at the NSA

As mentioned above, the security clearance appeals process at the NSA is similar to the process used by other federal agencies. However, the NSA security clearance process has its own unique features. The NSA clearance procedure for federal employees and government contractors with security issues usually follows the process listed below.

1. NSA Issues a Clearance Decision Statement

When an individual has a security clearance or SCI access denial or revocation from the NSA (referred to as the Clearance Decision Statement), it will list the security concerns at issue. The Clearance Decision Statement will give the contractor 45 days from receipt of the letter to respond to the alleged security concerns. This is a pretty strict deadline. With the Clearance Decision Statement, the NSA will also send a copy of the Investigative File, which provides various information about the denial. The Investigative File will usually include various documents often including the clearance investigation, related documents, reports, interviews, polygraph records or other items relevant to the NSA’s security concerns.

2. Contractor Response to the NSA Clearance Decision Statement

In most cases, if the individual elects to reply to the Clearance Decision Statement they will need to respond to the NSA’s security concerns in a written submission. A thorough response must be prepared to address all of the security issues. It is critical to also provide exhibits, such as relevant evidence, declarations, character letters, declarations, affidavits, and other documentation related to the NSA’s security concerns or the character of the individual. Our security clearance lawyers typically represent individuals starting with this first step. The submission can often involve submitting a 10-15 page response, plus exhibits. As a result it is important to consult with an attorney that is familiar with the NSA security clearance process.

3. First Level Clearance Decision Issued by the NSA

Once the response to the Clearance Decision Statement is received by the NSA, the NSA Office of Personnel Security will review the response. They will then issue a decision as to whether or not the security concerns against the individual should be dismissed or mitigated. If so, the matter is then resolved and the clearance or SCI is restored. If not, the individual will be provided a decision briefly citing the reasons why the appeal was denied and informing the individual of their right to a final appeal before the NSA Access Appeals Panel (AAP). There is then a very short period of time (usually 15 days) in which to either request a hearing with the AAP or otherwise simply submit a secondary written appeal. Again, these timelines are critical.

4. Personal Appearance with the NSA Access Appeals Panel

If the individual has elected to present an in-person response (which is recommended), the next step is a meeting with the AAP. Any additional supporting documents must usually be submitted no later than 14 days prior to the AAP hearing. The AAP hearing is an in-person presentation. During this hearing before the AAP, counsel and the individual will present their case asking for a reversal of the negative security clearance or SCI determination. The panel normally has 5-7 people present (panel members and an NSA attorney/advisor) and typically asks several questions during the presentation so it is important to be prepared. We recommend legal counsel during this process to ensure adequate preparation for the AAP hearing. The presentations are usually conducted at the NSA and in person.

5. The NSA Access Appeals Panel Final Decision

Following the personal appearance hearing before the AAP, they will issue a decision, typically within 1-3 weeks. This makes the NSA unique among most of the intelligence community given how quickly they issue decisions. They will either grant or deny the clearance appeal. In a few cases, the AAP can seek additional information or ask for an additional response from the individual. If the AAP issues a final denial, the individual may re-apply for a security clearance or access a year later. The relatively quick clearance review process at the NSA is unique among intelligence agencies where the security clearance process can often take much longer.

     6.  Other Considerations.

If an adverse clearance decision is reached by the AAP it is important to plan for the reapplication process with the NSA and also to determine any impact that a final AAP clearance denial might have on other security clearances held by the contractor. Separate security clearances may require representation before other agencies. For example, a negative NSA decision could affect an individual with a Department of Defense security clearance. In those types of circumstances, it is critical to respond to the NSA Clearance Decision Statement.

Contact Us

When a government contractor is facing security clearance issues at the NSA it is important to obtain legal advice and representation from an experienced security clearance lawyer. Our law firm advises government contractors in the security clearance process before the NSA. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070.