By John V. Berry, Esq., www.berrylegal.com
Many federal employees have a limited understanding of the Merit Systems Protection Board (MSPB) and what its role is in protecting federal employee rights. The MSPB is an independent federal agency that functions as a quasi-judicial court system protecting certain federal employee rights through an appeals process.
Types of Federal Employee MSPB Appeals
The MSPB generally handles the following types of federal employee appeals:
1. Appeals of removals (terminations) or demotions (discipline or for performance);
2. Appeals of disciplinary suspensions of more than 14 days;
3. Federal retirement-related appeals related to OPM actions;
4. Whistleblower appeals;
5. Denials of within-grade salary increases;
6. Reduction-in-Force (RIF) appeals; and
7. Appeals involving discrimination based on military service (USERRA cases).
The MSPB also has jurisdiction over other types of federal employee appeals, but the ones listed above tend to be the most frequent. Among the 7 types listed above, the most common type of appeal, in our experience, are removal appeals where a federal employee is attempting to contest his or her termination from federal employment.
A Brief Description of the MSPB Appeals Process
An MSPB appeal is a quasi-civil action, with an administrative judge assigned to hear the federal employee’s case. For a federal employee it is much like being a party in a regular civil case. Once an appeal is filed by a federal employee the federal agency will almost always be represented by their own attorneys and it is important for the employee to be represented by an attorney as well. Once a federal employee files his or her appeal (by themselves or through counsel), an administrative judge is assigned and the case begins when the judge issues an Acknowledgment Order. An MSPB appeal provides a federal employee with the ability to seek discovery of facts and documents related to their appeal. This includes the ability of a federal employee to question their supervisors or other agency officials, under oath (taking of depositions), to gather facts in preparation for the upcoming hearing. Through discovery, a federal employee can also seek documentation from the federal agency involved (and possibly others), such as emails, correspondence, video and other materials that are relevant to their legal defense.
An MSPB appeal also permits (and encourages) the parties, where it is possible, to attempt to settle an appeal prior to the hearing stage. A settlement is a compromise between the federal employee and federal agency regarding the disposition of the appeal. In most cases, once the discovery process is complete, the case moves to the pre-hearing stage, a hearing date is assigned and ultimately a hearing is held by a MSPB judge. The entire process of litigating an MSPB appeal, in our experience, usually takes between 120 and 180 days. An MSPB hearing functions much like a traditional court case. (1) there are opening and closing statements, (2) the calling and cross-examination of witnesses, and (3) the introduction of evidence in support of a case.After the hearing is complete, unless the parties brief legal issues following the hearing, the administrative judge will then issue her or her decision. After the close of the hearing or any final briefs are submitted, a decision will then be issued. We have seen administrative judges make decisions from a few days after the close of the record to a few months after. The process can vary. The Administrative Judge's decision can then be appealed by either side to the full MSPB Board (a 3 person appeals board appointed by the President) and then to the U.S. Court of Appeals.
If you need assistance with an MSPB appeal, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation. Please also visit and like us on Facebook at www.facebook.com/BerryBerryPllc.