Using the MSPB’s Online Appeal System

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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.

Douglas factors for federal employee disciplinary cases are critical. There are typically two parts to a federal employee’s disciplinary case: (1) whether the federal employee committed the offense charged; and (2) if they committed the offense, what should the penalty be? One of the most significant issues in defending a federal employee in disciplinary cases involves arguing for mitigation of the penalty in a disciplinary case.  Arguing for mitigation generally means that we argue for the application of the Douglas Factors in attempting to mitigate (or reduce) disciplinary penalties issued in a case.

msbp

The Douglas factors, in federal employee cases, are also referred to generally as mitigating factors.  These factors are used to argue that disciplinary charges for federal employees, even if true, should still result in a lower penalty than the one proposed. The Douglas factors originate from the case of Douglas v. VA, 5 MSPR 280, 5 MSPB 313 (1981).

In Douglas, the Merit Systems Protection Board (MSPB) established 12 different factors that should be considered by a deciding official when evaluating the reasonableness of a disciplinary penalty for a federal employee.  When our firm prepares an MSPB appeal for a federal employee client or in a case before a deciding official at the proposal stage it is important to set forth any and all mitigating factors that might be applicable to a federal employee’s case. Douglas factors can be used as mitigating or aggravating factors so it is important to fully understand the application of both types of legal arguments. In sum, it is critical for federal employees to understand the Douglas factors or to have counsel that does.

The following is a list of 12 Douglas factors that should be taken under consideration if a disciplinary action is warranted with explanations as to how they can apply to a particular federal employee case.

THE DOUGLAS FACTORS

(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, technical, or inadvertent; was committed maliciously or for gain; or was frequently repeated.

The first Douglas factor, nature and seriousness of the offense, generally refers to the connection between the seriousness of the allegation and the position that an individual federal employee holds.  This has often been considered one of the most important Douglas factors by the MSPB. For example, an allegation of dishonesty would be treated more seriously, under this Douglas factor, for a federal employee that holds a supervisory position.  The first Douglas factor also looks at whether an allegation is part of a pattern of similar conduct (i.e. a repeat offense) and whether the misconduct at issue was intentional.  Generally, this Douglas factor one tends to be used more by a federal agency to aggravate (increase) the proposed disciplinary penalty in a given case.

(2) The employee’s job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position.

The second Douglas factor for federal employees involves the level of federal employee a case involves. It is traditionally used to attempt to aggravate a disciplinary penalty, as opposed to mitigating one.  For example, a federal agency may attempt to use the particular position that a federal employee holds (e.g., high-level supervisor, such as GS-15) or type of position (e.g., law enforcement) as an aggravating factor. Many agencies may attempt to overplay their hand with this Douglas factor, but the MSPB will typically assess a position based on their own evaluation.

(3) The employee’s past disciplinary record.

The third Douglas factor involves an evaluation of a federal employee’s past record. The use of a federal employee’s past disciplinary record is one of the more commonly cited Douglas factors.  This factor is generally used for purposes of mitigation unless an employee has a past disciplinary action, which is cited.  Generally, however, this Douglas factor is argued for the purposes of arguing for a less severe penalty.  For instance, if the federal employee at issue has worked for the federal agency involved for 25 years and has never received prior discipline during that time this can be used as an argument in mitigating the disciplinary penalty. For example, one could argue that given the lack of prior discipline that a proposed removal should be mitigated to a suspension action. Sometimes, this third Douglas factor may be confused by federal agencies who attempt to aggravate a disciplinary penalty by basing it on previous misconduct that is not similar to the current action.

(4) The employee’s past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability.

The fourth Douglas factor is one of the most often used arguments we use in support of mitigation of a disciplinary penalty.  Generally, this argument is used by a federal employee to support a reduction in penalty based on their good record of service to their agency (e.g. past performance).  For instance, in the disciplinary cases that we handle we might attempt to seek mitigation of a proposed disciplinary penalty by arguing that an employee’s outstanding performance (e.g., performance ratings, commendations/awards and letters from supervisors/co-workers) during their years of service support a reduction in a disciplinary penalty.

It is important to argue Douglas factor four with supporting documentary evidence (e.g., commendations, awards, copies of performance records, letters of commendation, letters about performance by supervisors or members of the public, letters of support) as you move forward.

(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 work ability to perform assigned duties.

Loss of supervisory confidence as a Douglas factor is typically used by Federal agencies in serious disciplinary / adverse actions to issue a more serious disciplinary penalty.  This Douglas factor can be extremely helpful for purposes of mitigation where a federal employee has continued to work successfully in their normal position (i.e., not placed in light duty or administrative leave), over an extended period of time after the underlying allegation has occurred and been known.  The argument for mitigation here is that the federal employee continued to work in their normal position while the investigation was ongoing so that they must have been trustworthy.

(6) Consistency of the penalty with those imposed upon other employees for the same or similar offenses.

This Douglas factor comes into play when an agency picks and chooses different penalties for similar level federal employees. This occurs quite often. Usually the root cause of different treatment in terms of disciplinary penalties tends to be favoritism by a federal agency between different federal employees.  However, it is important to argue this Douglas factor where a prior federal employee case of a similar nature resulted in a lower disciplinary penalty.  For example, in this type of case we would argue that you cannot issue a light penalty (e.g., 7-day suspension) for one federal employee and propose a 60-day suspension for another employee where the nature of the alleged conduct is so similar.

(7) Consistency of the penalty with any applicable agency table of penalties.

Federal agencies may attempt to base a proposed or final penalty based on an agency’s table of penalties.  A federal agency’s table of penalties is typically a table with lists of individual offenses and the ranges of possible penalties for such offenses.  Generally, the ranges of penalties are fairly broad (e.g., Letter of Reprimand to Proposed Removal). We generally find that it is important to actually make sure that a proposed disciplinary action or a sustained final penalty has been listed appropriately under the agency’s table of penalties.  On occasion, we have found that the agency has not followed their table of penalties or has listed the misconduct under the wrong offense in their table.

(8) The notoriety of the offense or its impact upon the reputation of the agency.

This Douglas factor generally involves how much the public has been advised of a federal employee’s alleged misconduct.  Typically, this factor is used by an agency to support an increase in the proposed disciplinary penalty.  Generally, this factor comes into play when a federal employee’s alleged misconduct has been reported by the media (press or television).  We have also seen federal agencies use this Douglas factor to aggravate disciplinary penalties where other agencies (federal, state, local) have become aware of a federal employee’s misconduct, arguing that the employee’s actions have caused the federal agency’s reputation to somehow become tarnished.  It is important to rebut these issues in a Douglas factor defense.

(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.

The ninth Douglas factor is important and is used in many cases where the policy that has been allegedly violated is not clear.  In particular, the “lack of clarity” argument refers to the rules governing the underlying allegations at issue.  Typically, a federal employee will be proposed for a disciplinary action in a case based on a violation of a particular agency policy.  It can often be the case that a federal employee has been charged with a violation of agency rules but has not been properly trained with respect to these rules or regulations.  As a result, in defense cases our firm attempts to argue that the lack of clarity as to these rules warrants a reduction in a disciplinary penalty.  For example, we might argue that the lack of a clear agency policy on Internet usage should result in mitigation of a penalty for an employee that has been charged with misuse of a government resources.

(10) The potential for the employee’s rehabilitation.

The potential for an employee’s rehabilitation is an important Douglas factor for a federal employee, especially in cases of proposed removal. While some federal agencies attempt to use this Douglas factor in an effort to attempt to increase a federal employee’s disciplinary penalty, we have found that this factor is extremely helpful for purposes of a reduction in the employee’s penalty. For instance, if an employee has committed misconduct but fully discloses his or her actions prior to an investigator finding out about the misconduct, this can be deemed to be a significant mitigating factor.  Or in another case, if an employee has continued to work in their position over the course of a long period of time after the allegations are under investigation, this shows that the Agency continues to have trust in the employee and that the employee has continued to perform well despite the initial allegation.  We argue this factor, in most cases, to attempt to reduce a proposed removal to a lower form of disciplinary action.

(11) Mitigating circumstances surrounding the offense such as unusual job tensions, personality problems, mental impairment, or harassment; or bad faith, malice or provocation on the part of others involved in the matter.

This Douglas factor tends to be a general mitigation factor that can incorporate many different types of arguments for mitigating a penalty.  If a mitigation argument does not fit under the other 11 Douglas factors, it can, in most instances, be argued here. Our firms often uses this Douglas factor to highlight personality conflicts in issuing proposed discipline by the proposing official or harassment by others in the workplace which led to the proposed discipline against a federal employee.  Other times, when there are medical issues related to the offense we can use this argument to attempt to mitigate the proposed penalty.  Some federal employees have successfully argued for mitigation where stress or an anxiety condition contributed to the disciplinary misconduct issues. This is the most important Douglas factor for federal employees that we see.

(12) The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.

While not often used that often by federal agencies in their final decisions, this Douglas factor can and should be argued in significant disciplinary cases (e.g., proposed removals or significant suspension cases).  We have argued, in cases for federal employees, that a different penalty (i.e., other than the one proposed by an agency) is more than adequate in a certain case and still serve the same disciplinary purpose as a more steep penalty.  For instance, we have argued that instead of removing a federal employee that they should instead receive a suspension.  For example, where a federal employee has been placed in an unpaid suspension over the course of several months while an investigation was pending, we would argue that this should be considered as part of the penalty served so that the ultimate penalty issued should be reduced.  For this Douglas factor there are a number of ways in which to argue that a reduced penalty would serve the same purpose as something more serious (e.g. removal).

CONCLUSION

Douglas factors for federal employees to understanding potential penalties in pending adverse/disciplinary action or during the course of an MSPB appeal.  As a result, it is very important for a federal employee to argue all relevant Douglas factors and provide documentary evidence (e.g. declarations, affidavits, performance ratings, SF-50s, letters of commendation) for the record.

Douglas factor issues vary significantly from case to case and federal employees should consult with an attorney who is knowledgeable about these issues prior to responding to a proposed disciplinary action or filing an appeal with the MSPB.  Berry & Berry, PLLC represents federal employees in these types of federal employment matters and can be contacted at (703) 668-0070 or www.berrylegal.com to arrange for an initial consultation regarding Douglas factor and other federal employment issues.

If you wish to explore legal representation, please call our office or use this form to inquire about our consultation process.

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