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.
