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November 30, 2023 Employment Law

The MSPB Appeal Process for Federal Employees

The disciplinary process for federal employees is designed to ensure optimal performance and prevent misconduct while also protecting the rights of employees. To that end, federal employees going through the process have several opportunities to be heard and challenge the evidence against them. One of the most important of those opportunities is the right to file an appeal of an adverse action to the Merit Systems Protection Board (MSPB), an independent agency tasked with protecting federal employees from abuse by their employer. Federal employees facing adverse actions should consider speaking to a Norfolk federal employment attorney if they are considering pursuing an MSPB appeal. 

The Pre-Appeal Disciplinary Process 

Federal employees may be disciplined under one of two federal statutes that regulate the behavior of federal employees. Disciplinary actions under 5 U.S.C. Chapter 43 are those based on unacceptable performance, which the law defines as “performance of an employee which fails to meet established performance standards in one or more critical elements of such employee’s position.” Disciplinary actions under 5 U.S.C. Chapter 75 are those based on misconduct, such as excessive absences, criminal activity, or misuse of resources. 

The disciplinary process generally proceeds as follows: 

  1. Opportunity for improvement: For Chapter 43 actions, the employee is given an opportunity to improve their performance under a performance improvement plan. If they fail to improve, the process moves to Step 2. 
  2. Notice of proposed action: The employee’s supervisor issues a notice of proposed action at least 30 days prior to the date of the proposed action. 
  3. Opportunity to respond: The employee is given an opportunity to respond to the notice of proposed action and present evidence in their defense. 
  4. Decision: Within 30 days of the expiration of the 30-day notice period, the employee’s supervisor issues their written decision. 
  5. Appeal: The employee may then appeal their supervisor’s decision to the MSPB

Stage 5 of the disciplinary process — the appeal — is the focus of this post. 

Who Has the Right to File an MSPB Appeal? 

The MSPB has jurisdiction to hear a wide variety of appeals related to employment in the federal government. Its jurisdiction includes the following types of cases: 

  • Reductions in grade or removal for unacceptable performance under Chapter 43
  • Removals, reductions in grade or pay, and suspensions of more than 14 days for cause under Chapter 75
  • Retirement appeals 
  • Termination of probationary employment (limited to whether the termination was motivated by partisan political reasons or marital status)
  • Restoration to employment following recovery from a work-related injury 
  • Separation, demotion, or furlough for more than 30 days due to a reduction in force 
  • Employment practices appeals
  • Whistleblower retaliation cases 

These are just a few of the types of cases over which the MSPB has jurisdiction; for more information about the full scope of federal employment issues that may be appealed to the MSPB, please contact a Norfolk federal employment attorney

How to File an MSPB Appeal 

Employees who wish to file appeals (known as “appellants”) must do so within 30 calendar days of the effective date of the adverse action or within 30 days after the date of receipt of the agency’s decision, whichever is later. The notice of appeal must contain the following elements

  1. The name, address, and phone number of the appellant and the name and address of the agency that took the action
  2. The name, address, and phone number of the appellant’s representative
  3. A description of the action the agency took land its effective date
  4. A request for a hearing (if the appellant wants one)
  5. A statement of the reasons why the appellant believes the agency’s action was wrong
  6. A statement of the action the appellant would like the MSPB to order
  7. If available, a copy of the notice of proposed action or the agency decision being appealed
  8. A statement disclosing whether the appellant has filed a grievance or formal discrimination complaint with any agency concerning this matter
  9. The appellant’s signature or the signature of the appellant’s representative 

If this list seems intimidating, don’t worry — a Norfolk federal employment attorney can help you craft the strongest arguments possible. Also note that the appellant is not required to ask for a hearing. If the appellant believes the written record contains all of the relevant information, the judge will make a decision based only on the written record. 

How MSPB Hearings Are Conducted 

MSPB hearings are usually presided over by Administrative Judges (AJs). Prior to the hearing, the parties will engage in discovery (similar to ordinary litigation), and the AJ will hold a conference with the parties where he or she will pre-hearing matters. This can include facilitating discovery; identifying, narrowing, and defining the issues; obtaining stipulations, discussing settlement, and making rulings on witnesses and exhibits. The hearing itself is a quasi-judicial proceeding in which the AJ will assess the weight of the evidence and the credibility of the witnesses. At the conclusion of the hearing, the AJ issues a decision, which must contain (1) the AJ’s findings of fact and conclusions and (2) the reasons for those findings and conclusions. 

Challenging the Outcome of an MSPB Appeal 

The decision the AJ issues is merely an initial decision. If either party (i.e., the appellant or the agency) is dissatisfied with the initial decision, it may file a petition for review with the full three-member MSPB. The full MSPB has the authority to re-weigh the evidence and may reach different conclusions than the AJ on each aspect the initial decision addressed. If the appellant is dissatisfied with the MSPB’s decision, it may appeal it to the Court of Appeals for the Federal Circuit. Alternatively, If the agency does not file a petition for review with the MSPB, the appellant may bypass MSPB review and appeal directly to the Federal Circuit. 

Appeal an Adverse Action With Help From a Norfolk Federal Employment Attorney 

Federal employees wishing to appeal adverse actions are entitled to representation by an attorney in the appeals process. To get started, please contact a Norfolk federal employment attorney at Pierce Jewett by calling 757-624-9323 or using our online contact form.