MSPB Lawyers Representing federal employees for over 25 years
Our MSPB lawyers represent federal employees nationwide. 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
- Suspensions over 14 days
- Performance Improvement Plan (PIP) cases
- Whistleblower Retaliation cases
- USERRA military discrimination cases
- Retirement cases for 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 Cases
- Probationary terminations
- Reductions-in-Force (RIF) actions
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 hearing process is much like being in civil litigation so it is important to have the representation of an experienced MSPB lawyer. The MSPB hearing process can be fast paced and legal representation is definitely needed. Once the appeal is filed, the judge in the case will begin issuing orders and expect a federal employee to be prepared to respond to them. An MSPB appeal is not one where a federal employee should be representing themselves. They need an MSPB attorney to assist them in the process.
Article on Filing an MSPB Appeal
Filing an MSPB Appeal
MSPB appeals must be filed quickly. 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. This is based on the federal employee’s 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. The MSPB process can now be initiated online through the MPSB e-filing system. Through the e-filing system, you and your attorneys will be notified electronically of all filings before the MSPB.
Docketing of the MSPB Appeal
The first step in the MSPB Appeals process after filing is the receipt of the Acknowledgment Order. This order will provide the federal employee and agency the procedures for the processing of the appeal. The Acknowledgment Order will set for the deadlines for the case, including timelines for motions, responses and discovery. It is important to review this document carefully in order to not miss any important deadlines.
Initial Responses to the Administrative Judge
In many cases, employees will also be required to file responses to initial orders from an MSPB Judge. For example, an MSPB Judge may want to schedule an initial conference with the parties. The Administrative Judge may also ask the parties to file responses on jurisdiction in the case. For orders involving jurisdiction, the federal employee will be required to cite facts and evidence to prove that the MSPB can hear and rule upon the case. There are other types of orders that can be issued by the Administrative Judge but these are just a few examples.
Taking Depositions and Seeking Documents from the Agency
The discovery phase of an MSPB case can be crucial to the successful resolution of a federal employee’s appeal to the MSPB. Discovery is essentially the process of seeking information and documents from the federal agency. Discovery takes place almost 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 Judge. In the discovery phase, the deposition process is extremely important since it is the time to obtain statements from everyone related to the case under oath. These include agency officials relevant to a case, and potentially other individual witnesses. They 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.
Article on Taking Depositions at the MSPB
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 MSPB attorneys can help clients evaluate the potential for settlement of their cases. We 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. Settlement options can include the MSPB’s Mediation Appeals Program (MAP), using a Settlement Judge, or informal settlement talks between attorneys. Settlement is a possibility at all stages of the MSPB process.
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. The Administrative Judge usually focuses most of which witnesses will be allowed to testify and on what issues. By this time, the Administrative Judge will have also set the hearing date(s). It is often the case that a hearing will last 1-2 days. Following the pre-hearing stage, it is important for the federal employee’s attorney to prepare their case and the Appellant for the actual hearing.
Article on the MSPB Pre-Hearing Process
The MSPB Appeal 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. Video conference hearings, by Microsoft Teams, is becoming more of the typical procedure used for MSPB appeals.
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
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. A PFR takes the form of a legal brief where the losing party argues that the MSPB Administrative Judged made errors in their decision. After the MSPB Board rules on the PFR the losing party can further appeal to the U.S. Court of Appeals for the Federal Circuit.
How MSPB Attorneys Can Help
Our MSPB attorneys represent federal employees in appeals before the MSPB throughout the Unites States. Our attorneys can advise and represent federal employees in all stages of the MSPB process. Please contact us to schedule a consultation with one of our attorneys to discuss your MSPB matter.
