The Merit Systems Protection Board (MSPB) appeals process is vital for defending federal employees’ rights. But as with all other legal processes, the MSPB appeal timeline is strict.
For various reasons, it’s not uncommon for workers to inadvertently miss the deadline to file an MSPB appeal.
If you find yourself in this situation, don’t panic. Even if you miss a deadline, there are situations in which you can nevertheless submit your MSPB appeal successfully.
We will explore some of these situations in this article. However, it’s essential you phone a federal employment attorney immediately if you miss your appeal deadline.
Having legal representation may make all the difference between a triumphant appeal and a ruined career.
Understanding the MSPB Appeal Deadline Process
Federal employees may know that the MSPB allows them only 30 calendar days to file an appeal.
However, what most people don’t know is when that 30-day window begins.
Under federal regulations, the 30-day period begins either on the effective date of the action or on the date of receipt of the agency’s decision.
However, if the two conditions happen on different days, then the 30-day period begins on the day the last event happens.
Let’s use an example to illustrate this point.
On June 1, Joe receives a decision letter notifying him that he will be removed from the federal government on June 5 for alleged insubordination. Because the effective date of Joe’s removal is June 5, he has until July 5 to submit his appeal.
Conversely, if Joe was effectively removed on June 5 but did not receive the decision letter until June 8, he has until July 8 to file his appeal.
You should also remember a key point about holidays and weekends. If the 30th day of the appeal window falls on a weekend or federal holiday, then the window extends until the next working day.
So if Joe’s 30-day window was scheduled to end on Wednesday, December 25, he would actually have until the following day to file his appeal.
Exceptions to the Thirty-Day Rule
Even if you miss your filing deadline, there are three situations in which the MSPB will hear an untimely appeal. The first situation occurs when a statute or regulation allows the courts to waive the deadline.
For instance, MSPB regulations state that the 30-day deadline will be automatically extended to 60 days if you and your agency agree in writing to resolve your dispute with an alternative dispute resolution process, such as mediation or negotiation.
The second situation applies when the agency fails to inform you of your appeal rights. This situation happens quite often because of clerical errors or oversights in the agency decision letters.
Without being notified of your appeal rights, you have little or no information about how to contest their decision.
Consequently, the law will excuse your delayed filing if you can show your agency did not inform you of your appeal rights.
The third and most rare exception occurs when you rely on an erroneous statement by your agency, which causes you to miss the MSPB appeal deadline.
For instance, let’s imagine that a postal service worker named Jane is told by her agency that she has 45 days to appeal her removal to the MSPB appeal.
She filed her appeal 38 days later, at which point she learned that the real deadline for filing an MSPB appeal was 30 days after her removal.
Although Jane’s appeal is technically untimely, her delay was really the result of her agency’s misinformation.
What Do I Do If I Miss a Filing Deadline?
The first thing to do if you miss your deadline to file an MSPB appeal is to get legal help. A federal employment attorney can help you explore your options.
In addition, they can help you successfully petition the MSPB to waive your deadline. Second, try to determine why you did not file the appeal.
Was it because you misunderstood your appeal rights? Did your agency properly inform you of the relevant deadline? Or did someone give you misinformation that led you astray?
Whatever the case may be, make sure you save any relevant documentary evidence.
Did You Miss a Filing Deadline? We’ll Do Our Best to Preserve Your Rights
Our attorneys at The Federal Employment Law Firm of Aaron D. Wersing PLLC are passionate about defending your rights.
That means doing everything we can to give you the opportunity to appeal disciplinary action. Over the years, we have helped countless employees file successful appeals past the applicable filing deadlines.
When you consult with us, we’ll help develop a strategy to try to save your case. Along the way, we will work to provide you with outstanding customer service.
Contact us today so we can work together to set your MSPB appeal back on track.
Aaron Wersing, Attorney at Law
Aaron Wersing is the founder of the Law Office of Aaron D. Wersing. Mr. Wersing graduated from the Georgia State University College of Law with a Doctorate in Jurisprudence and was the recipient of the CALI Excellence for the Future Award. Mr. Wersing previously attended the University of Georgia, where he received a Bachelor of Business Administration degree in Accounting. Mr. Wersing is an active member of his local community. Mr. Wersing acts as a volunteer attorney with Houston Volunteer Lawyers, the pro bono legal aid organization of the Houston Bar Association. He is also a member of professional legal organizations such as the National Employment Lawyers Association and the American Inns of Court. To reach Aaron for a consultation, please call him at (833) 833-3529.
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