How to Win an MSPB Appeal (And What to Avoid Doing)
Thousands of federal employees file an appeal with the Merit Systems Protection Board (MSPB) each year. Over the past three years, only 3% of federal employees were successful. The success rate increases to 18% if you eliminate cases that settle before going to a hearing and those dismissed for procedural errors. Below are some tips on how to win an MSPB appeal, but first you should understand how the appeal process works. What Is an MSPB Appeal? If a federal employee is subject to a major adverse action by a federal agency, such as demotion, suspension of 15 days or more, or removal, he or she can generally appeal to the MSPB (note that certain agencies and/or positions are not eligible for MSPB appeals, such as a Title 38 employee at the VA). The MSPB is a quasi-judicial federal agency. Its duties include resolving certain employment-related disputes between federal agencies and their employees. What Is the MSPB Appeal Process? The MSPB appeal process is appropriate only after the agency notifies the employee of the proposed action, the employee responds verbally or in writing in an attempt to mitigate, if desired, and then the adverse action is subsequently sustained against the employee. Jurisdiction Before filing an appeal, the employee must determine whether the MSPB has jurisdiction over the action and the employee filing the appeal. The MSPB has jurisdiction to hear an appeal involving the following actions, but includes others as well: The MSPB will hear discrimination cases only if they are in connection with an action otherwise within MSPB’s jurisdiction. Some appeals will be heard only after you exhaust the procedures of another governing agency, such as veteran employment and whistleblower retaliation claims. Federal employees eligible to file an MSPB appeal include: An MSPB attorney can help determine your eligibility to file an appeal. Filing the Appeal Timing Typically, you must file your appeal within 30 calendar days of the date of the action or within 30 days after receiving the agency’s decision, whichever is later. There are exceptions, however, such as actions taken by the VA under 38 USC §714, which have a reduced deadline of 10 business days to file the appeal. If the appellant and agency mutually agree in writing, prior to the timely filing of an appeal, to use an alternative dispute resolution process, the time limit for filing the appeal is 60 days. Format The format and contents of your appeal must meet all the MSPB’s requirements. To ensure you do this, the MSPB provides an approved form if you wish to submit your claim in writing, or you can submit your appeal online through e-Appeal Online. Hearing The MSPB will assign an administrative law judge (ALJ) to your case, who will request additional information and responses from you and the agency. The ALJ will address settlement as well, which may involve the MSPB’s MAP program. If the case does not settle previously, an MSPB hearing will take place to allow the parties and witnesses to testify. The ALJ will issue an initial decision, which becomes final 35 days later unless a party petitions for review to the MSPB’s appellate division, known as the “Board”. Further appeal If you are dissatisfied with the ALJ’s initial decision, you may either file a petition for review to the Board or typically with the U.S. Court of Appeals for the Federal Circuit. Your appeal to the federal courts must be done within 60 days of the Board’s decision. How to Win an MSPB Appeal? The MSPB says the most common reason as to why employees lose their cases is because they fail to bring forth a proper case by misinterpreting the law or not providing important evidence. Here are some tips on what to do (and what not to do) to increase your chances of winning an MSPB appeal. Request All Material Used By the Agency When an agency takes adverse action against you, you have the right to review the material it relied on to make the decision. You should exercise this right and obtain all the material to build a strong case against the agency. To create a well-crafted argument, you need to know what information was used against you. File on Time The timeliness of filing your appeal is of utmost importance. Do not miss the filing deadline Generally, you have 30 days from the date the action is taken against you to file your appeal. Although the MSPB may excuse late filing if you have a good reason and provide supporting documentation, this rarely happens. The MSPB processes thousands of cases each year, and it is incredibly strict about deadlines. Remember, your initial appeal form only needs to include the basics, such as the facts and legal issues of your case. The ALJ will request additional information after you file. The important thing is to get the appeal in on time. Do not file too early You can only file your appeal after the effective date of the action against you or after the agency issues a final decision regarding your performance or conduct. File a Complete and Proper Form File with the correct regional or field office. You must file your written appeal with the MSPB’s regional or field office where your duty station is located at the time the action took place. From time to time, the jurisdiction of the offices changes, so check the MSPB website for the most up-to-date information. Pay attention to every detail on the appeal form Simple mistakes on your appeal form like an incorrect address, failing to sign, or not providing the accurate date of the action can cause delay or denial of your appeal. An MSPB attorney can be quite helpful with the filing process, ensuring all information is included and accurate. Tell a Good Story In 2019, the MSPB decided on 5,120 cases. Your appeal must stand out. Paint a clear picture of the adverse action with details and a theme. This is where MSPB attorneys are incredibly beneficial as they are trained and skilled at telling your story in a compelling way. Make Discovery Requests ...
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