When you’re a federal employee, learning you’re the subject of a proposed adverse action can be frustrating and confusing—especially if you think your agency is acting unjustly. However, unlike many private-sector workers, federal employees don’t necessarily have to accept unfair discipline at the hands of an employer.
Federal law prohibits government employers from firing or disciplining most civil servants without a good reason, such as poor performance or misconduct. When an agency doesn’t follow these rules, eligible federal employees can appeal to the Merit Systems Protection Board (MSPB) to challenge their adverse action and potentially have it reversed.
In this blog post, we’ll explain who can appeal adverse actions to the MSPB, which civil servants are exempt from appeal rights, and what disciplinary actions can be appealed.
Who Can Appeal Adverse Actions to the MSPB?
Not all government workers have the right to challenge an adverse action before the MSPB. The eligibility requirements for MSPB appeals rights are in Title 5 of the U.S. Code, the primary set of laws covering federal employees.
Whether you have the right to appeal depends on various factors, including your employment category, how long you’ve been working, and the type of adverse personnel action you’re facing.
Under Chapter 75 of Title 5, you are typically eligible to appeal adverse actions to the MPSB if you are:
- A competitive service employee who has completed their probationary or trial period and has at least one year of current continuous service;
- A preference-eligible veteran in the excepted service with at least one year of continuous employment in the same or similar positions in an executive agency or the United States Postal Service; and
- An employee in the excepted service who is not serving a probationary period under an initial appointment and has completed two years of continuous service in an executive agency.
Certain federal employees are also explicitly excluded from the right to appeal to the MSPB, including:
- Political appointees, such as those chosen by the President and often confirmed by the Senate;
- Individuals employed by the Central Intelligence Agency or the Government Accountability Office;
- Title 38 medical professionals who work for the Veterans Administration or National Institutes of Health; and
- Some employees of the United States Postal Service, the Postal Regulatory Commission, and the Federal Bureau of Investigation.
If you’re unsure whether you have MSPB appeal rights, consult with your agency’s Human Resources department or a federal employment lawyer.
Can You Appeal an Adverse Action If You Don’t Work for a Federal Agency?
Put simply, yes, you may still have the right to appeal an adverse action, even if a federal agency doesn’t employ you.
This question arose in a 2022 case involving an Office of Administration (OA) employee, which supports the Executive Office of the President. The employee had successfully appealed their case to an MSPB administrative judge, who reduced the OA’s proposed removal to a 60-day suspension.
In response, the OA argued that the employee didn’t have a right to appeal to the MSPB since the OA is not technically an “agency” as recognized by federal law.
However, the MSPB clarified in their final opinion that an employee’s right to appeal an adverse action is not strictly limited to employees of federal agencies. Instead, the MPSB clarified that appeals rights hinged on whether a civil servant met the eligibility requirements established by Title 5.
Ultimately, government employees who meet all these criteria and are not expressly excluded from appeals rights may still challenge an adverse personnel action before the MSPB.
What Is an Adverse Action for MSPB?
An adverse action is an unfavorable change to an employee’s job status or pay made by a federal employer. Adverse personnel actions include:
- Suspension—removing an employee from duty without pay for more than 14 days;
- Demotion—reduction in pay or grade;
- Furlough—removing an employee from duty without pay for less than 30 days; and
- Removal—terminating employment.
Unlike in the private sector, federal employers must have concrete, documented reasons (i.e., “cause”) for enforcing an adverse personnel action.
They also must follow specific procedures intended to ensure fairness in the disciplinary process, such as providing advance notice to an affected employee and allowing them an opportunity to respond. Employees may exercise their right to an MSPB appeal when employers don’t follow these rules.
Protect Your Rights with the Help of a Skilled Advocate
Understanding your rights is critical if you are a federal employee facing an adverse action. The MSPB appeal process can be complex, and having an experienced advocate by your side can make all the difference.
The Federal Employment Law Firm of Aaron D. Wersing has spent years empowering federal workers to understand and exercise their unique rights as employees. Our team has helped hundreds of clients navigate employment disputes, fight unfair discipline, and even reverse proposed removals.
We have extensive experience with MSPB appeals across virtually all aspects of the federal government, and we’re prepared to help ensure your voice is heard. Contact us today to schedule a consultation and learn how we can assist you.
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.
Rate this Post
Loading...