MSPB Law Blog

By John V. Berry, www.berrylegal.com

Before a disciplinary case moves to the Merit Systems Protection Board (MSPB) it is preceded with a final agency decision on a proposed disciplinary action. If the final disciplinary action is 15 days or more to removal, then the federal employee may appeal to the MSPB. Before making the decision to appeal, it is important to review the final agency decision and consult with an attorney.

The Final Agency Decision

A final agency decision is simply the decision made by the deciding official on a proposed disciplinary action (i.e. a proposed removal). Typically, the time period for receiving the agency’s final decision can range anywhere from 2-8 weeks from the time that an individual presents their oral and/or written response to the notice of disciplinary action. Some federal agencies are quick in issuing decisions, while others take their time in issuing a decision. During that time, the federal employee either continues to work or more often is at home in an administrative leave status. When the final agency decision is issued, there are some important considerations in reviewing the document as the federal employee considers whether to file an appeal to the MSPB.

Important Considerations

Here is a list of some considerations a federal employee should evaluate when reviewing a final agency decision on discipline before filing an appeal:

1. Check the Effective Date of the Decision: This date often differs from the date of the decision letter. The effective date usually starts the 30-day timeline for filing an MSPB appeal. This is extremely important because late appeals will not usually be considered.

2. Review which Charges were Sustained: In the final agency decision, if there is more than one charge or specification, it is possible that some or all of them have not been sustained. This can be helpful in that in may support an appeal on the basis that the penalty issued should have been mitigated.

3. Review the Language used in the Decision: Note any new information contained in the decision which was not in the proposed disciplinary action or the materials relied upon. Such information could be new and therefore potentially constitute a due process violation. It is not uncommon for final agency decisions on disciplinary actions to include information never previously disclosed in an appeal. This applies to both the deciding official’s findings of fact on the charges and his/her consideration of the Douglas (mitigation) factors.

4. Review the Appeal Rights Given: Often, depending on the federal agency involved, a number of appeals rights may be given to an employee in the final agency decision. However, it is important to have an attorney review these potential avenues in that sometimes employee relations for an agency may not have full knowledge of an employee’s eligibility for certain types of appeals, including MSPB cases. This can become a problem if an employee who could have elected one forum, elects the MSPB and later finds out that they were not eligible to file an appeal (despite the language used in the final agency decision).

In my estimation, about three quarters of final agency decisions do not include detailed factual findings by the deciding official. In about one quarter of those cases, a deciding official will provide detailed information in the decision. In representing federal employees, the general proposition is that the more information listed in the final decision the more likely it is to find potential errors in a negative decision which is then filed with the MSPB.

Conclusion

In sum, when evaluating a case for appeal to the MSPB it is important to have legal counsel review the final agency decision and evaluate an individual’s appeals options. Our law firm represents federal employees before the MSPB and can be contacted at www.berrylegal.com or by telephone at (703) 668-0070.