Federal workers facing potential suspension, demotion, or removal often feel like the deck is stacked against them. Fortunately, federal law offers civil servants some key tools for challenging unfair agency actions, including the right to assert an affirmative defense before the Merit Systems Protection Board (MSPB). An affirmative defense can overturn or mitigate an agency’s disciplinary decision if successfully argued.
Read on to learn more about how affirmative defenses work, MSPB’s evolving approach to handling them, and how federal employees can use them to protect their job security.
What Is an Affirmative Defense?
An affirmative defense is a legal argument that federal employees can use to negate a federal agency’s adverse employment action. In an MSPB affirmative defense, an employee doesn’t just argue that an agency misinterpreted facts or lacked evidence for their decision. Instead, an affirmative defense tries to show that an agency’s action violated an employee’s rights or federal law.
Common affirmative defenses federal employees use when appealing to the MPSB include:
- Whistleblower retaliation. It’s illegal to discipline or punish federal employees who engage in protected activities under the Whistleblower Protection Act. If you face agency backlash after you reported fraud, waste, or abuse, you could defend yourself by proving they engaged in unlawful retaliation.
- Discrimination. Adverse employment actions motivated by race, religion, sex, national origin, age, or disability are also illegal. Federal employees who show that their discipline was based on a legally protected characteristic can also have their agency’s decisions overturned.
- Prohibited Personnel Practices (PPP). Federal employees can also challenge an agency whose proposed employment action engages in one of the 14 PPPs, such as nepotism, political favoritism, or retaliation for raising grievances.
- Harmful procedural errors. Agencies that fail to follow internal or legally required procedures for disciplinary or adverse actions can make it harder for employees to defend themselves successfully. For example, if an agency didn’t provide the mandated advance notice period before finalizing a removal, the employee doesn’t have a fair chance to respond with mitigating evidence.
Showing the MSPB that an agency engaged in misconduct in one of these acts is one of the most effective ways for federal employees to challenge and avoid career-damaging adverse actions.
How Do Affirmative Defenses Work?
Raising an affirmative defense is not just about making allegations—it requires evidence and legal arguments. The federal employee has the burden of proof to show that their agency’s action was improper by “a preponderance of the evidence.” Put simply, they need enough evidence to show the agency violated relevant laws and regulations.
This typically involves:
- Documentation—emails, letters, memos, policies, procedural manuals, and other evidence illustrating an agency’s alleged misconduct;
- Witnesses—testimony from coworkers or supervisors who can corroborate your story; and
- Prior case rulings—past MSPB opinions that support your claims.
For example, imagine a federal employee faces removal after reporting agency fraud to a law enforcement authority. This employee might build an affirmative defense based on whistleblower retaliation with emails establishing that the adverse action happened shortly after their report and testimony from coworkers confirming the agency’s hostile response.
If the employee presents enough evidence to demonstrate the agency was motivated by retaliation, they could have their removal reversed.
How Has the MSPB’s Approach to Affirmative Defenses Changed?
Recent decisions have altered how the MSPB evaluates affirmative defenses.
In a 2022 ruling, the MPSB revised certain procedural standards that had provided some advantages to federal employees pursuing these defenses.
For example, in the past, if an administrative judge made an error in ruling on a case involving an affirmative defense, the employee could automatically have their case reconsidered, even if their claim lacked substantive evidence or effort.
Under the MSPB’s new guidelines, employees must make a more intentional effort to pursue affirmative defense cases. Otherwise, the MSPB has much more flexibility to dismiss a defense that doesn’t meet procedural requirements or lacks legal backing.
Ultimately, federal employees must be careful and prepared when using affirmative defenses. Having the support of experienced legal counsel is essential for federal employees to ensure their case is presented correctly and given a fair chance.
Dedicated Defenders of Federal Employee Rights
Successfully asserting an affirmative defense before the MSPB requires deep knowledge of federal employment laws, procedural rules, and legal strategy. Fortunately, federal employees don’t have to take on the burden of building an affirmative defense alone.
The Federal Employment Law Firm of Aaron D. Wersing has provided dedicated and personalized service to federal employees and their families for years. Our team has extensive experience with MSPB cases and employee affirmative defenses, from harmful procedural errors to whistleblower retaliation claims. If you are facing an adverse action, contact our office today to schedule a consultation and learn more about how we can help.
Resources:
5 U.S.C. § 7701(c)(2)(A), link.
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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