MSPB Law Blog

By John V. Berry, Esq., www.berrylegal.com

When filing an action with the Merit Systems Protection Board (MSPB), a federal employee has a number of steps to complete in order to properly submit their MSPB appeal.  If these steps are not completed, an appeal (or important portions of the appeal) may not be accepted or considered by the MSPB for review.

Filing Timelines

The most important aspect to filing an MSPB appeal is to do so in a timely fashion.  The filing of an MSPB appeal begins with the MSPB Form 185 (last updated on May 13, 2013).  Generally, the form (and appeal) must be filed within 30 calendar days of the effective date of the action.  For example, if an employee receives a final action effective (e.g. final decision upholding a proposed removal or suspension) on July 31, 2013, their filing due date for an appeal would be August 30, 2013.  If the date that the
appeal is due falls on a weekend or holiday, that could provide an extension to file the appeal.  The key for a federa; employee seeking to appeal is to not delay and file the appeal close to the deadline. If an appeal is found to be untimely, then it will be dismissed and no further action will be taken.  It is far better to file one’s appeal as far away from the deadline as possible to avoid these issues. 

Filing with the Correct Office of the MSPB

It is also important, when filing, to file your appeal with the correct MSPB office. Currently, there are 8 regional or field offices of the MSPB.  It is important to determine which office one’s appeal must be filed with prior to filing your appeal.  The office for filing is determined by a federal employee’s duty station.   For instance, if one is employed by a Virginia office of a federal agency, then the proper office to file one’s appeal with would be the Washington Regional Office of the MSPB. 

Electronic Filing of the MSPB Appeal

Electronic filing of initial MSPB appeal forms is slowly, but surely, becoming universal.  Our law firm uses electronic filing from the filing of the appeal to the end of the process.  It is helpful and easier than that the previous mailing system.  The key to preparing the electronic filing of the MSPB appeal is to have all relevant information related to the appeal available when completing the online forms.  Once the online forms have been prepared, and all attachments submitted (i.e. the proposed action and final agency decision), then the appeal can be electronically submitted to the MSPB.  Once the appeal is electronically submitted, the e-filer will receive confirmation of the filing from the MSPB.  Following the proper submission of the appeal, the federal employee and the federal agency involved will receive an Acknowledgment Order which sets forth the procedures and initial deadlines for processing an MSPB appeal. 

Proper Completion of the MSPB Appeal Forms

Properly completing the MSPB initial appeal is very important.  We strongly advise
clients to have an attorney review and prepare the initial appellate filing.  It is important to present a well prepared appeal at the beginning of the process.  Doing so provides a federal employee with the best chance of litigating or settling their appeal.  A well prepared filing enables an Administrative Judge the ability to analyze an appeal and advise the parties on settlement early in the process.  A thoroughly prepared appeal also puts the federal employee in the best position to litigate his or her case to a hearing if the Administrative Judge understands a federal employee’s legal arguments at the start of the case.  If the Administrative Judge does not understand the appeal filed from the federal employee's initial filing, he or she is less likely to focus in on all of the potentially key legal arguments and important issues that could be raised in the case by the Appellant. 

Conclusion

When filing an MSPB appeal it is important to obtain the advice of counsel before filing the initial appeal. Our law firm stands ready to represent and advise federal employees on issues and appeals before the MSPB.  We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070.