By John V. Berry, Esq., www.berrylegal.com
Our law firm represents federal employees at the Merit Systems Protection Board (MPSB). Through our MSPB law practice over the past 20 years, we have found that federal employees don't always have a clear understanding of the Merit Systems Protection Board (MSPB) process and procedures. The MSPB process only typically becomes an issue when a federal employee finds themselves in need of appealing an action. The MSPB is an independent federal agency which functions as an administrative court system for federal employees which reviews federal employment and retirement actions. This article discusses a brief overview of the MSPB appeals process for federal employees.
Common MSPB Appeals for Federal Employees
The Merit Systems Protection Board usually reviews the following types of federal employee cases:
1. Federal employee removal (adverse action) cases;
2. Federal employee demotion cases;
3. Federal employee appeals of disciplinary suspensions of more than 14 days;
4. Federal employee whistleblower appeals;
5. Federal employee military discrimination (USERRA) cases;
6. Federal retirement cases related to OPM decisions;
7. Denial of Within-Grade salary increases (WIGI);
8. Federal employee Reduction-In-Force (RIF) appeals;
9. Corrective Action cases brought against federal employees by the Office of Special Counsel;
10. Suitability decisions involving federal employees;
11. Probationary federal employee terminations based on partisan political reasons, marital status or on conditions arising before appointment; and
12. Hearings in cases involving proposed performance-based removals from the Senior Executive Service (SES).
The MSPB also has additional jurisdiction over certain other types of federal employee appeals, but the ones listed above are the most frequent. The most common type of federal employee appeal at the MSPB is a removal appeal from an adverse action taken by their federal agency.
MSPB Appeals Process - A Short Description
An MSPB appeal is a federal administrative court action, with an administrative judge assigned to hear the federal employee’s appeal. To a federal employee, an MSPB appeal will feel much like being a party in a regular civil lawsuit. Once an appeal is filed by a federal employee (usually with a strict 30-day deadline), the federal agency will almost always be represented by their own lawyers. As a result, it is very important for the federal employee to be represented by an attorney as well. Once a federal employee files his / her appeal (by themselves or through their lawyers), an Acknowledgment Order is issued and an administrative judge is assigned. The Acknowledgment Order, in addition to other initial orders issued by the judge will start the deadlines in the appeal. 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 depose their supervisors or other agency officials, under oath, to gather facts in preparation for an upcoming hearing. Through the discovery process, a federal employee can also seek documentation from the federal agency involved (and other third parties), such as emails, computer data, correspondence between officials, recordings, video and other materials that are relevant to their legal defense.
During an MSPB appeal, the administrative judge also permits (and usually encourages) the federal agency and employee, to attempt to settle an appeal prior to holding a hearing. 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 administrative judge. The entire process of litigating an MSPB appeal, in our experience, usually takes between 120 and 180 days, but this can vary.
The MSPB Hearing
If the case does not settle, an MSPB hearing, in most cases, is then heard. An MSPB hearing runs very similar to a traditional trial. (1) there are opening and closing statements, (2) the calling and cross-examination of witnesses for both sides, and (3) the introduction of evidence in support of a case. After the hearing is complete, unless the parties are asked to 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 hearing to a few months later. The process can vary significantly. 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 of the United States) and then through the court system for further appeals.
Conclusion
If a federal employees is in need of legal representation during an MSPB appeal, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation. Please also visit and lke us on Facebook or follow us on Twitter.