Appealing Suspensions to the MSPB
Federal employees that receive an unjust suspension from their agency have the right to appeal. The Merit Systems Protection Board (MSPB) has jurisdiction to review suspensions of federal employees of more than 14 days. We defend federal employees in suspension cases before the MSPB nationwide.
How do Suspensions of Federal Employees Occur?
Normally, a federal employee will be suspended after they have received due process. Due process normally comes in the form of the employee receiving a “notice of proposed suspension.” With the notice of the proposed suspension, the federal employee will have the right to review the materials relied upon in proposing the suspension. Additionally, the employee will have the right to present a written and oral response to the deciding official. Finally, the agency will decide whether to uphold the suspension. With the decision, the deciding official will also decide on the severity of any suspension.
Suspensions of Federal Employees Appealable to the MSPB
A suspension is the involuntary placement of a federal employee in a non-pay status. Suspensions of over 14 days in length are appealable to the MSPB. They are known as adverse actions. In some cases, agencies may attempt to issue a “paper suspension” to avoid jurisdiction. A paper suspension is simply a suspension where the misconduct is recorded, but the person does not lose pay. Most suspensions involve the loss of pay and duties.
Burden of Proof to Uphold a Suspension
In order to uphold a suspension of more than 14 days, a federal agency must prove by a preponderance of the evidence that the allegation occurred. This is defined as the degree of relevant evidence that a reasonable person, considering the record as a whole, would accept as sufficient to find that a contested fact is more likely to be true than untrue. Furthermore, the agency must show that there is a connection between the conduct and efficiency of the service. Lastly, the agency must show that the penalty issued was reasonable.
Reasonableness of the Penalty
Federal employee suspensions are also examined by the MSPB in terms of their severity. At that MSPB, the penalties issued should be reasonable. Reasonability is evaluated in terms of the type of misconduct and mitigating factors. It is well established that the MSPB’s jurisdiction for suspension cases includes the authority to review the agency’s penalty determination using the factors in Douglas v. Veterans Administration. The courts have found that the MSPB may mitigate an agency’s original penalty to the maximum reasonable penalty when it finds the agency’s original penalty too severe.
Douglas Factors
For reasonableness determinations, the Douglas factors are important. The Douglas factors include the following 12 considerations for suspension penalties:
1. The nature and seriousness of the offense, and its relation to the employee’s duties, position, and responsibilities, including whether the offense was intentional or technical or inadvertent, or was committed maliciously or for gain, or was frequently repeated;
2. The employee’s job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position;
3. The employee’s past disciplinary record;
4. The employee’s past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability;
5. The effect of the offense upon the employee’s ability to perform at a satisfactory level and its effect upon supervisors’ confidence in the employee’s ability to perform assigned duties;
6. Consistency of the penalty with those imposed upon other employees for the same or similar offenses;
7. Consistency of the penalty with any applicable agency table of penalties;
8. The notoriety of the offense or its impact upon the reputation of the agency;
9. The clarity with which the employee was on notice of any rules that were violated in committing the offense, or had been warned about the conduct in question;
10. Potential for the employee’s rehabilitation;
11. Mitigating circumstances surrounding the offense such as unusual job tensions, personality problems, mental impairment, harassment, or bad faith, malice or provocation on the part of others involved in the matter; and
12. The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.
Weighing these Douglas factors is key to determining the severity of the suspension that is issued.
Filing an Appeal with the MSPB Over the Suspension
A federal employee can file an appeal over a suspension of over 14 days in length with the MSPB. There is a short deadline of 30 days in which to file appeals. The MSPB operates like a civil court. It has established procedures. These procedures include conducting hearings, examining evidence, and issuing decisions. When the MSPB determines that a federal employee has been subject to an improper suspension, the MSPB can take action. The MSPB can issue orders compelling an agency to reverse the suspension. The MSPB can also order relief, including the elimination of the suspension, backpay, other losses and attorney’s fees.
Legal Representation in MSPB Appeals Involving Suspensions
When litigating a suspension before a MSPB judge, it is important to have an attorney. MSPB hearings are like civil trials. You are able to seek discovery from the agency. For example, it is possible to take the depositions of other individuals involved in your case. Additionally, it is often the case that you can seek discovery of documents that the agency has in their position. Often, we discover emails from managers that help disprove suspension allegations. Additionally, the agency will be represented by an attorney, so having your own attorney is important.
Settlement at the MSPB
Most cases involving suspensions of federal employees are resolved early in the process through settlement. Settlement involves negotiating with federal agencies to resolve the appeal on favorable terms for the federal employee. This is often a recommended approach following the filing of an MSPB appeal.
Other Suspension Appeal Options
If a suspension is shorter than 15 days, then it may still be appealable. Some appeals can be taken through union or administrative grievances. Additionally, a suspension may also be appealable by filing an Equal Employment Opportunity (EEO) complaint. Additionally, the federal employee, in a whistleblower case, may have the option to take their case to the Office of Special Counsel (OSC). There are many options to appeal an unjust suspension given to a federal employee. However, it is recommended that federal employees get legal advice before initiating any of these actions as they can impact one’s ability to file an appeal at the MSPB.
Contact Us
If you are a federal employee who has been suspended, demoted, or removed by your federal agency, please contact us for legal advice or representation. We can be reached here or by telephone at (703) 668-0070.
