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?
An appeal 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.
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:
- Performance-based actions,
- Reductions in grade or pay,
- Denial of within-grade pay increase,
- Suspensions for more than 14 days,
- Furloughs for 30 days or less,
- Denials of restoration or reemployment,
- Suitability actions,
- Reduction in force, and
- Misconduct actions.
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’s employment and whistleblower retaliation claims.
Federal employees eligible to file an MSPB appeal include:
- Competitive service employees who have completed a probationary period;
- Employees in the excepted service, other than preference-eligible employees, with at least two years continuous service in the same or similar position;
- Preference-eligible employees with one year of continuous employment in the same or similar position; and
- Postal Service supervisors, managers, and employees engaged in personnel work with one year continuous service in the same or similar position.
An MSPB attorney can help determine your eligibility to file an appeal.
Filing the Appeal
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.
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.
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, a 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”.
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 reasons 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 an 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
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 change, 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 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
The discovery phase of an MSPB appeal is the time where you request documents, recordings, electronic data, and any other relevant information from the federal agency. Unless you specifically request more, the agency only needs to provide the material it relied on to make its proposed action. You should not assume that this is all the information available. File a production request seeking all relevant information, and you may uncover just what you need to have a successful appeal.
Further, if you never make the discovery request, you cannot later argue you were harmed by the agency’s failure to provide the relevant information because you never asked for it.
Submit All Relevant Documents Prior to the Hearing
Even if you do not use the documents, you should submit any relevant material anyway as part of your prehearing submission. Ultimately, if you do not have the proof through documentation to support your claim, you will not succeed in winning your appeal. Err on the side of submitting more than you need or use.
Consider a Settlement Offer
Settling is not accepting defeat. Settling is a way for you to get guaranteed relief and move on with your life. Litigation is complex, lengthy, and draining, but in some cases it is necessary. In others, taking a settlement offer is a better option.
Consult an Experienced MSPB Lawyer
The team at the Law Offices of Aaron D. Wersing has years of experience assisting federal employees with their MSPB appeals. We know the ins and outs of the MSPB appeal filing process, and we will zealously represent you during the hearing.
Contact the Law Offices of Aaron D. Wersing, or give us a call at 833-833-3529 today to schedule a free consultation.