Merit Systems Protection Board Lawyers
The Merit Systems Protection Board (MSPB) is an appeals board where federal employees challenge decisions made by federal agencies. Our lawyers represent employees before the MSPB. The MSPB protects federal employees by hearing federal employee appeals involving discipline, removal, performance matters (PIP), whistleblower retaliation, reduction in force, retirement, and many other issues.
Different Types of MSPB Appeals
The MSPB has the ability to review numerous different types of federal employee appeals, but the most frequent appeals include:
- Removals from the federal service or suspensions of over 14 days;
- Removals (or Reductions in Grade) for unacceptable performance under Chapter 43 of the U.S. Code (performance improvement plans);
- Whistleblower Retaliation cases, also known as Independent Right of Action (IRA) cases;
- USERRA military discrimination cases (appeals under the Uniformed Services Employment and Reemployment Rights Act and the Veterans Employment Opportunities Act [VEOA]);
- Retirement matters involving final determinations that affect current or former federal employees under the Civil Service Retirement System (CSRS) or the Federal Employees’ Retirement System (FERS) and the Federal Erroneous Retirement Coverage Corrections Act (FERCCA);
- Suitability Disqualifications;
- Probationary federal employee terminations based on partisan political reasons, marital status or conditions arising before appointment; and
- Reductions-in-Force (RIF) actions against federal employees and members of the Senior Executive Service (SES).
The MSPB Appeals Process
It is important to understand that the MSPB appeals process, which begins with the filing of a Form 185 or by e-filing, can be very similar to civil litigation and an attorney is likely needed. The MSPB administrative court process is much like being in civil litigation so it is important to have the representation of experienced counsel.
The Start of an MSPB Appeal
An appeal to the MSPB must usually be filed within 30 calendar days of the effective date of the agency’s action or within 30 calendar days after the date of receipt of the agency’s decision, whichever is later. The appeal must be filed in the correct regional or field office of the MSPB, based on geographic location. Once a federal employee’s appeal is filed, an MSPB Administrative Judge will be assigned to hear the case and an Acknowledgement Order will be issued, providing the ground rules for the MSPB appeals process in the individual’s case. The MSPB process can now be initiated online through the MPSB e-filing system.
The Discovery Phase of an MSPB Case
The discovery phase of an MSPB case can be crucial to the successful resolution of a federal employee’s appeal to the MSPB. Discovery takes place immediately after the filing of a case with the MSPB and generally must be initiated within 30 days following the issuance of the Acknowledgment Order by the Administrative Judge. In the discovery phase, the deposition process is extremely important since it is the time where agency officials relevant to a case, and potentially other individual witnesses, can be deposed in an effort to disprove the allegations made against a federal employee or to otherwise support an appeal brought to the MSPB.
Critical evidence in support of an appeal can be gained through traditional discovery techniques at the MSPB, such as through the use of interrogatories, requests for production of documents, and requests for admission during the discovery period.
Potential Settlement Options for Federal Employees
Settlement of MSPB cases is often possible, and clients sometimes find that it is preferable to negotiate a settlement instead of taking their case to a full hearing. Our attorneys can help clients evaluate the potential for settlement of their cases. Our attorneys will also seek settlement offers on behalf of clients or prepare for the hearing process should an acceptable offer not be provided by their agency.
The MSPB Pre-Hearing
If an MSPB case does not settle then the next stage of the MSPB appeals process is to prepare for the hearing. The parties will submit pre-hearing conference submissions, along with their exhibits in support of their appeal. The Administrative Judge will review the pre-hearing submissions of the parties and decide which witnesses and evidence will be heard at the hearing. By this time, the Administrative Judge will have also set the hearing date.
The MSPB Hearing
Following the pre-hearing conference, the hearing will take place, usually at the appropriate regional or field office of the MSPB, although hearings can also take place in other locations, such as at the agency’s location or by video conference.
At the hearing, the parties will typically start with opening statements, and then each party will put forth their case through witnesses and exhibits. Typically, the federal employee, in disciplinary cases, will argue that the Agency has not met their burden of proof and that the penalty is unreasonable under the Douglas Factors. The parties will generally then offer a closing argument. Following the close of the hearing, a ruling, called an Initial Decision, is issued and usually comes about 1-3 months after the hearing date.
The MSPB Petition for Review (PFR)
If a hearing in an MSPB case does not result in a favorable Initial Decision, a party can appeal the adverse decision to the full MSPB Board for a ruling by filing a Petition for Review (PFR). Generally, a PFR must be filed within 35 days after the date of issuance of the Initial Decision and articulate the errors made in the Administrative Judge’s decision.