New MSPB Cases

The MSPB Appeals Process for Federal Employees

By John V. Berry, Esq.,

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.

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MSPB Lawyers for MSPB Appeals

By John V. Berry, Esq.,

When federal employees are removed, demoted, severely suspended, have Whistleblower issues, OPM retirement problems, face USERRA (military) discrimination, or have other civil service issues may have the ability to file an appeal with the Merit Systems Protection Board (MSPB). Essentially, the MSPB is an administrative court that functions much like a civil court for federal employee claims. When facing an appeal before the MSPB, current and former federal employees need attorneys experienced in MSPB appeals to represent them in these types of cases given that the process functions much like civil litigation in court.  

MSPB Attorneys Should Have Experience at the MSPB

It is important for federal employees to interview and hire experienced attorneys that have previously practiced before the MSPB. Many general services lawyers will attempt to handle a federal employee's MSPB appeal but often find it difficult given that it is a very specialized area of law. Our law firm represents federal employees nationwide in MSPB appeals regardless of which MSPB office where the appeal is filed.  There are a number of steps in a traditional MSPB appeal, and below is a summary of the general progression of an MSPB appeal. Keep in mind that each MSPB appeal is different and may have different deadlines, rules, or timing so it is important to speak with an experienced MSPB attorney through the appeals process.

A. Step 1 - The Filing of an MSPB Appeal

The first step in the MSPB appeals process is for a federal employee to file an MSPB appeal. For most types of cases that the MSPB hears (e.g., those involving removals or severe suspensions for federal employees), the deadline to file an appeal is typically 30 days from the effective date of the decision. It is critical to timely file an MSPB appeal or it will most likely be dismissed. Appeals are mostly filed electronically today through the MSPB e-Appeals website.  Different deadlines may apply for some whistleblower, USERRA (military) discrimination, and other types of federal employee cases so having an attorney is very important to navigate an MSPB case.  

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Reviewing a Final Agency Disciplinary Decision Before Appealing to the MSPB

By John V. Berry,

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.


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 or by telephone at (703) 668-0070.

MSPB: The Pre-Hearing Conference

By John V. Berry, Esq.,

Our law firm represents and advises federal employees in their Merit System Protection Board (MSPB) appeals.  MSPB appeals traditionally involve disciplinary actions (suspensions, removals, demotions), retirement appeals, whistleblower appeals, USERRA cases and other types of federal employee matters.  During the litigation of MSPB appeals, the pre-hearing conference is often one of the most critical points in the litigation process.   

The Pre-Hearing Conference 

The MSPB pre-hearing conference is the meeting that takes place just prior to the hearing itself.  The pre-hearing conference is usually conducted by telephone between the administrative judge, the federal agency attorney, and the federal employee’s attorney (and possibly the federal employee) to discuss issues and procedures for the upcoming hearing. Typically, the parties will have previously submitted a pre-hearing written submission prior to the pre-hearing conference, specifying each parties’ view of the issues in the case, the proposed exhibits, material facts not in dispute and the proposed witnesses for the hearing.  The administrative judge may also further discuss possible settlement and stipulations between the parties. In our experience, the pre-hearing conference generally lasts between 30 to 90 minutes.  

The administrative judge may ask the parties for legal arguments about admitting potential exhibits, but typically is focused primarily on who will testify and how many witnesses will be present.  The administrative judge does this to ensure that only relevant testimony is heard and to budget the number of days needed for the hearing itself.  The attorney for the federal agency may attempt to limit the witnesses that will testify and the federal employee must be able to argue the relevance of each witness.  The parties may also object to potential exhibits offered by each party.  

The Hearing Order

After the pre-hearing conference, the administrative judge will typically issue a hearing order and summary of the pre-hearing conference, specifying the hearing date(s), the hearing location, the issues to be heard at the hearing, the witnesses which have been approved to testify, rulings made on exhibits and any other important information needed to process the MSPB appeal.  

It is important that a federal employee have legal representation during the MSPB pre-hearing process to maximize their ability to ensure that key witnesses are present at the hearing, that important legal theories become part of the issues acknowledged for the hearing and to ensure that key exhibits are included (and that questionable exhibits from the federal agency’s counsel receive an objection)

Contact Us

When a federal employee is litigating an MSPB appeal it is important for them to obtain legal representation, especially prior to the MSPB pre-hearing conference.  Our law firm represents federal employees in their MSPB appeals. We can be contacted at or by telephone at (703) 668-0070 for additional information.


WPEA is Held to Be Retroactive by MSPB

By John V. Berry, Esq.,

In a major decision that many federal employees have been waiting on, the Merit Systems Protection Board (MSPB) has held that the Whistleblower Protection Enhancement Act (WPEA), signed into law in November of 2012 is retroactive in Day v. DHS, 2013 MSPB 49 (June 26, 2013).  The case is located here Day v. DHS ruling.

The Day case has caused a number of delays in processing of MSPB appeals and will finally allow these whistleblower cases to now move forward. Many MSPB cases have been dismissed pending the outcome of this decision and should now likely be returned to the active case list in their respective MSPB offices. 


When facing whistleblower issues it is important to obtain the advice of counsel where potential issues or retaliation might arise. Our law firm stands ready to advise individuals on the issues involving protected whistleblower activities and their rights. We can be contacted at or by telephone at (703) 668-0070.

MSPB Reduces Overpayment Schedule for FERS Annuitant

By John V. Berry, Esq.,

The MSPB, in an interesting decision, reduced the repayment obligations of a FERS annuitant.  The case, Boone v. OPM, 2012 MSPB 132 (2012), involved a petition for review of an initial decision which had affirmed OPM’s decision that a FERS annuitant had been overpaid in annuity benefits.  The appellant in Boone had sought a waiver of the overpayment of the retirement benefits through OPM and the MSPB.

While the MSPB in Boone ultimately decided not grant the waiver to the appellant on the basis of the facts in the case, it did however order that overpayment benefits be repaid at a much reduced rate.  The MSPB found that because the appellant’s monthly expenses exceeded her monthly income that it must reduce the monthly repayment amount to OPM.  In this case, the repayment obligations, through the appeal, were reduced from $98 a month to $5 a month, a significant reduction.  I have attached a link to this MSPB case. Boone v. OPM

When OPM orders repayment regarding retirement benefits that have been paid it is important to obtain advice from counsel to determine whether or not a waiver is possible, and if not whether or not one qualifies for a reduction in the repayment schedule to OPM. Our law firm handles these types of federal retirement matters and can be contacted at either  or by telephone at (703) 668-0070.  

MSPB Reverses Removal Where Federal Employee Was Not Provided Due Process

By John V. Berry, Esq.,

In an interesting case, the MSPB has reversed the removal of a federal employee that was not provided due process in responding to a proposed removal action.  The case before the Board was Alford v. DOD, 2012 MSPB 110 (Sept. 28, 2012). The case appeared to present many issues, but the key issue for purposes of due process involved the failure of the Agency to provide the federal employee the opportunity to provide an oral response prior to his removal. 

In particular, the Board found that the federal employee had submitted a request for an oral reply, but that the Agency had issued their decision removing the employee without providing the oral reply.  Federal agencies must be careful in removing employees without providing them their full due process rights.  The MSPB has been vigiliant, as of late, in ensuring that federal employees are provided with their full due process rights in these types of matters.

A copy of the decision is attached here. Download Alford Due Process  Please keep in mind if a federal employee is facing this type of action that they should consult with an attorney familiar with these issues.  Our firm can be contacted at should a federal employee wish to consult over these types of issues. 

MSPB Reverses Removal Based on Due Process Argument

By John V. Berry,

In an interesting new case, Jenkins, v. EPA, 2012 MSPB 70 (May 4, 2012), the
Merit Systems Protection Board (MSPB) reversed a removal decision by a federal agency because it had not provided due process to the federal employee involved. 

Background of Jenkins Due Process Case

In this case, the federal employee had been proposed for removal from her position with the EPA.  The Agency then removed the employee, allegedly relating to threats made and abusive language in the workplace.  The employee appealed to the MSPB, but an administrative judge had dismissed her claims, upholding the removal.  The employee then filed for review of the decision by the Board of the MSPB. 

The MSPB reviewed and reversed the administrative judge because the federal agency had denied the federal employee minimum due process of law.  In particular, the MSPB had found that the Agency had failed to give the employee with notice of an aggravating penalty factor used as a basis for discipline in her case, ruling that: “when an agency intends to rely on an aggravating factor as the basis for the imposition of a penalty, such factors should be included in the advance notice of [the] adverse action so that the employee will have a fair opportunity to respond to those factors before the deciding official.”  Jenkins, at 4.

What the Jenkins Decision Means for Federal Employees at the MSPB

One of the most important issues that will might result here is that administrative judges at the MSPB might now take more care in cases involving information used by an Agency in a disciplinary action which has not been provided to a federal employee prior to a decision being made on discipline. The Jenkins decision makes it clear that the Board believes that federal agencies, prior to making adverse action decisions, must first provide federal employees advance notice of significant information relating to proposed adverse actions.  This law firm represents federal employees in these types of federal employment matters and can be contacted at (703) 668-0070 or to arrange for an individual consultation regarding these types of matters. 

MSPB Grants More Procedural Rights to Federal Employees in Security Clearance Cases

By John V. Berry,

In McGriff v. Navy, 2012 MSPB 62 (Apr. 26 2012), the Merit Systems Protection Board (MSPB) seemed to take more interest in considering the rights of federal employees suffering from an adverse personnel action when it involves a security clearance issue.  The Board in McGriff reversed the administrative judge’s dismissal of the federal employee's appeal on the basis that there were potential procedural due process and harmful error grounds that had to be addressed by the administrative judge in the context of the suspension on security clearance grounds.

Background of McGriff MSPB Appeal

As background, McGriff was part of a full review by the MSPB of 3 other similar security clearance cases that had been grouped together as part of the review.

At issue in McGriff was the action of the federal agency (the Department of the Navy) in indefinitely suspending the federal employee involved on the basis that his access to classified information had been suspended pending final adjudication by the agency. At the time that the Navy had proposed the federal employee's indefinite suspension, solely based on a loss of access to classified information, the Navy's internal oversight agency for security clearances, DONCAF, had not yet issued a letter of intent to revoke his security clearance.

The Navy sustained the indefinite suspension in this case based on an agency policy stating that "once a command has suspended an individual's access to classified information . . . the command cannot reinstated access until DONCAF adjudicates the issues." McGriff, at 3. Apparently, there were other important issues involved, including the issue of whether the deciding official had the authority to reassign an employee rather than just place him or her on administrative leave. The deciding official in McGriff sustained the suspension. 

However, before DONCAF had issued it's decision on the federal employee's security clearance adjudication, he filed an MSPB appeal. The federal employee contended that "the agency failed to provide him with sufficient notice of the allegations against him to enable him to present a meaningful response and that the action was unwarranted."  McGriff, at 4. Based on prior precedent, the appeal was dismissed by an MSPB administrative judge that found that the federal employee had been given a reasonable opportunity to respond to the proposed suspension based on the information that had been given by the Agency. The federal employee then appealed the decision to the full Board of the MSPB, again alleging that the Navy had not provided full due process to him and a meaningful ability to respond to the allegations resulting in his suspension of access to classified information.

The Board Reviews and Reverses the McGriff Decision

The Board, in a very interesting decision, reversed the administrative judge based principally on an interpretation of the 1997 Supreme Court case of Gilbert v. Honar, 520 U.S. 924 (1997), holding:

"Pursuant to Loudermill, Stephen, Kriner and Homar, we find that the appellant was entitled to constitutional due process, i.e., notice and a meaningful opportunity to respond, upon being indefinitely suspended based on the agency’s security clearance decision. We therefore consider the Homar factors in order to determine whether the timing, place and circumstance of the procedures used in this case afforded the appellant his right to due process."

McGriff, at 14 (emphasis added).

The Board then applied the 3 factors from Homar in evaluating the McGriff case, which are: (1) The private interest affected by the official action; (2) The risk of erroneous deprivation of the interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and (3) The government’s interest. Id. The Board, in evaluating the McGriff case under Homar found that the timing and the circumstances of the due process procedures at issue were not sufficient to warrant reversal, but found that the second factor, involving the risk of erroneous deprivation to warrant reversal to be cause for serious concern. In particular, the Board focused on the second Homar factor, i.e. the risk of erroneous deprivation of the property interest involved. The Board evaluated the case as follows:

“Here, based on the totality of the evidence, we find that the agency did have reasonable grounds to support the suspension. Specifically, on March 5, 2009, it received an IG hotline complaint that the appellant was involved in a private business owned by his spouse, NetAnalysis Consulting LLC, and had attempted to secure government contracts for the business using his government e-mail account and official time. The subsequent Report of Investigation concerning that IG complaint indicated that the investigation substantiated allegations of conflict of interest, misuse of government equipment, conflicting outside employment and activities, misuse of official time, and misuse of subordinate’s time. In a June 3, 2009 memorandum, Capt. Purnell of the agency’s Judge Advocate concluded that the IG’s investigation and report were legally sufficient and substantiated the appellant’s violation of 16 various laws and regulations.

Conversely, DONCAF had neither fully investigated, nor finally decided, whether it would permanently revoke the appellant’s security clearance when the agency indefinitely suspended him. . . . [O]verall, we conclude that the agency did have reasonable grounds to support the appellant’s suspension. Moreover, we reject the appellant’s assertion that the agency failed to provide him with the specific reasons for the action before he responded to the proposal notice, thereby denying him a meaningful opportunity to respond. To the contrary, we find that the notice of proposed indefinite suspension, coupled with the notice of temporary suspension of the appellant’s security clearance, gave the appellant sufficient information to enable him to respond to the agency’s proposed indefinite suspension."

McGriff, at 15-17 (emphasis added) (internal citations omitted).

The Basis for Reversal in McGriff

After dismissing the initial parts of the federal employee’s arguments on appeal, the Board then reversed the administrative judge’s dismissal based on the potential that procedural due process concerns still existed, holding that: “Nonetheless, a significant question exists as to whether the appellant had a meaningful opportunity to respond to the proposed indefinite suspension such that the procedures that were used posed a risk of erroneous deprivation of the appellant’s property interest. Providing an appellant with a reasonable opportunity to reply that satisfies constitutional due process requires more than mere notice; the reply opportunity may not be an empty formality, and the reply or deciding official should have authority to take or recommend agency action based upon the reply.“

McGriff, at 17.

Applying these principles to McGriff, the Board found that there were real questions about whether the deciding official had lacked the authority to change the initial decision to suspend the federal employee involved or whether the deciding official was in fact barred from permitting reassignment while a security clearance matter was pending. The record had appeared to demonstrate that the deciding official on the suspension had lacked authority to take any action other than to affirm the proposed suspension prior to DONCAF’s clearance adjudication. The Board then reversed the administrative judge’s dismissal, finding the following: “If the deciding official lacked the authority to do anything but affirm the indefinite suspension, the procedures used in effecting the appellant’s indefinite suspension sufficiently ran the risk of an erroneous deprivation of his property interest in employment such as to find that the agency violated his right to constitutional due process.” McGriff, at 19-20. The Board further found that, on remand, that the federal employee could attempt to also prove that the Navy had not followed their own internal regulations in regards to the processing of the federal employee’s security clearance. 

The Board found that if this was demonstrated, the federal employee could potentially show that harmful error had occurred. Specifically, the Board held that: “Under 5 U.S.C. § 7511(c)(2)(A), the Board will not sustain an adverse action if the appellant shows harmful error in the application of the agency’s procedures in arriving at the decision under appeal. Therefore, even when an appellant fails to establish a violation of constitutional due process, he may still show that the agency committed harmful error in failing to follow the required statutory procedures or the agency’s own regulations.” McGriff, at 20.

What the McGriff Case Means for Security Clearance Matters

The McGriff case is important because it leaves an opening to meaningfully challenge the security clearance procedures used by federal agencies (and the failure to follow them) in suspending a federal employee on the basis of his security clearance at the MSPB. The issue here is likely not settled here as the matter has to go back to the administrative judge, and from there likely back to the Board (and perhaps to the Federal Circuit), but it provides a new legal argument for future appeals where a federal agency does not provide due process in matters related to security clearance appeals and/or does not follow their own internal procedures for processing these types of cases.

Each MSPB appeal is unique and it is recommended that federal employees obtain legal counsel to evaluate the full impact of their individual cases. Should you need legal assistance in an MSPB or security clearance matter, you can contact our Firm at to go over your individual appeal.

MSPB Finds Settlement Agreement Ambiguous and Reverses Dismissal

By John V. Berry, Esq.,

In Mital v. Dep’t of Agriculture, 2011 MSPB 73 (Aug 4, 2011), the Merit Systems Protection Board (MSPB) reversed the decision of the Administrative Judge who had refused to enforce a settlement agreement that had been previously worked out between the Appellant and the Department of Agriculture in an earlier case.   The MSPB reversed the Administrative Judge's decision because the settlement agreement at issue had been ambiguous and required additional fact finding to determine if it applied to Appellant's case


The settlement agreement at issue had involved an earlier disciplinary case where the Appellant and the Department of Agriculture had resolved a 30-day “conduct unbecoming” suspension through a settlement agreement where the Agency agreed to reduce the suspension to 14 days.  In exchange for the Agency's reduction in penalty, the Appellant stipulated in the settlement agreement that he would “limit personal business at work to established breaks, unless granted written permission otherwise from his supervisor.”  The Appellant also agreed to resign and waive any further appeal rights should he engage in personal business at work without permission.

The Agency later alleged, a number of months after the settlement agreement had been executed, that the Appellant had been engaging in personal business at work, by contacting a friend while at work by telephone.  The Department of Agriculture then informed the Appellant that they were going to process his resignation as a result of his actions.  Appellant contested this and the Agency processed the Appellant's resignation anyway.  The Appellant then brought a petition to enforce his settlement agreement to the MSPB, claiming that the agreement required the parties to meet and attempt to resolve any non-compliance issues in “good faith” prior to taking any formal actions against him.

The Administrative Judge dismissed Appellant’s petition to enforce the settlement agreement as to his argument that the Agency had to first attempt to resolve any non-compliance on Appellant’s part prior to moving forward with Appellant’s resignation.  The specific contractual language at issue was the following settlement clause, located at Section 3(3) of the settlement agreement:

If a party believes the other has not fully complied with one or more terms of this Agreement, that party or his/her representative shall make a good faith effort to contact the other party to discuss and seek correction of any compliance or implementation issues before taking any formal non-compliance actions.”

The Appellant appealed the dismissal of his case by the Administrative Judge to the full Board of the MSPB.  On appeal, the Board reversed the finding of the Administrative Judge, holding that:

“[T]he appellant and the agency have construed the meaning of Section 3(3) differently. The appellant construed the terms “non-compliance action” to include the agency’s actions to effect his resignation, thus obligating the agency to “seek correction” prior to effecting his resignation. The agency interpreted the terms “non-compliance action” to specifically mean a petition for enforcement with the Board, thus obligating the appellant to “seek correction” prior to filing a formal petition for enforcement but not requiring the agency to “seek correction” of the appellant’s behavior prior to effecting his resignation. The settlement agreement is susceptible to two differing, reasonable interpretations, and there is no evidence in the record regarding the parties’ intent at the time they entered into the settlement agreement. See Sweet, 89 M.S.P.R. 28, ¶¶ 13, 15. For these reason, we find that the terms of the settlement agreement are ambiguous and remand this case . . . .”

The end result in Mital was that the case was sent back to the Administrative Judge to re-open the case and to determine what the language in Section 3(3) of the settlement agreement had been intended to mean.

Legal Principles Involved in Board Review of Settlement Agreement in Mital

Some important principles in the Mital Case apply to any MSPB matters involving the enforcement of settlement agreements, and include the following important considerations:

1.  A settlement agreement is a written contract and the interpretation of such terms will be a question of law.  In construing the meaning of a written contract, the MSPB first looks to the terms of the settlement agreement to determine the parties’ intent.  Outside (Extrinsic) evidence, i.e., testimony of parties and writings, other than from the contract itself, should only be considered by the MSPB if the terms of the agreement are ambiguous (i.e. when the contract is susceptible to differing reasonable interpretations).

2.  When a settlement agreement before the MSPB is reasonably susceptible to different interpretations, and there is no evidence in the record regarding the parties' intent at the time they entered the agreement, the MSPB will find that the terms at issue are ambiguous and fact finding on the intent of the provision should be undertaken by the administrative judge.

Conclusions Regarding the Mital Case

In the Mital case, the Board of the MSPB reversed the Administrative Judge’s refusal to evaluate the Appellant’s arguments about whether the Agency had lived up to it’s obligations under the earlier settlement agreement.  This is a good case for those appellants seeking to enforce terms within a settlement agreement.  Often times, Appellants can have difficult times in pursuing enforcement of a settlement agreement before an administrative judge.  In this case, however, the Appellant decided to appeal the enforcement decision to the Board which required that the Administrative Judge evaluate the provision on remand.

After reviewing the opinion, it appears that the Board took a very fair minded view of the settlement agreement and believed that the argument put forth by the Appellant could apply as he had argued and required the Administrative Judge to specifically evaluate the issue of how the “good faith” clause was supposed to function.   This could very well require the Agency to reinstate the Appellant to his former position, along with backpay and lost benefits, depending on the evaluation of the compliance terms in this case.  

Contact Us

This law firm represents federal employees in these types of MSPB cases and can be contacted at (703) 668-0070 or to arrange for an individual consultation regarding MSPB cases.