About the Merit Systems Protection Board
The U.S. Merit Systems Protection Board (MSPB) is an independent, quasi-judicial agency in the executive branch that serves as the guardian of federal merit systems.
The Board is responsible for adjudicating employee appeals of:
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Adverse actions over which the Board has jurisdiction, such as removals, suspensions of 15 days or more, furloughs of 30 days or less, and demotions and reductions in grade;
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Administrative decisions affecting an individual’s rights or benefits under the Civil Service Retirement System or the Federal Employees’ Retirement System
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Complaints filed under the Whistleblower Protection Act, the Uniformed Services Employment and Reemployment Rights Act, and the Veterans’ Employment Opportunities Act
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Cases brought by the Office of Special Counsel, including complaints of prohibited personnel practices and Hatch Act violations
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Requests to review regulations of the Office of Personnel Management that are alleged to require or result in the commission of a prohibited personnel practice
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Ordering compliance with final MSPB orders where appropriate
The MSPB typically does not handle discrimination cases. This responsibility primarily belongs to the Equal Employment Opportunities Commission. However, where an adverse employment action otherwise within the jurisdiction of the MSPB, for example a removal, is alleged to have been based on prohibited discrimination, the MSPB can hear the entire claim. This is referred to as a mixed case.
The MSPB will not provide advice or guidance on employment, examinations or benefits. This responsibility belongs to the Office or Personnel Management (OPM).
Additionally, the MSPB will not investigate prohibited personnel practices. This is the responsibility of the Office of Special Counsel (OSC).
The Douglas Factors
An agency’s decision to take disciplinary or adverse action against an employee must consider a set of standards referred to as the Douglas Factors. On appeal, the MSPB will review those factors to determine if the Agency gave them appropriate consideration in determining the discipline imposed.
There are twelve Douglas Factors. Generally, not all twelve are relevant to any given case, but those that are relevant must be considered in determining whether to impose discipline against a Federal employee and, is so, the level of that discipline. The full list of factors is as follows:
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Nature and seriousness of the offense
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Employee's job level and type of employment
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Employee’s past disciplinary record
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Employee’s past work record
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Effect of the offense upon the employee's ability to perform at a satisfactory level and it's effect upon a supervisor's confidence in the employee's ability to perform assigned duties
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Consistency of the penalty with those imposed upon other employees for the same or similar offenses
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Consistency of the penalty with a table of offenses
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Notoriety of the offense or its impact upon the reputation of the agency
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Clarity of the offense, that is whether the employee was on notice of the rule(s) allegedly violated
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Potential for rehabilitation
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Mitigating circumstances
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Adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others
Tough Aggressive Representation
At Tully Rinckey, it is our belief that every federal employee has the right to a fair hearing, including proper application of the Douglas factors. Any disciplinary action can lead to greater problems in the future and in extreme case can result in the end of an employee’s career in Federal service.
The attorneys at Tully Rinckey PLLC have litigated hundreds of cases before agencies level, MSPB Administrative Judges, the full three-judge MSPB panel.
and the United States Court of Appeals for the Federal Circuit, which hears appeals from final MSPB decisions.
Contact Us
During your initial consultation, an experienced attorney from our firm will review with you the critical facts in your case. The attorney will help you identify and carry out a litigation plan.
Contact us to see how we may assist with your case. We can be reached 24 hours a day, 7 days a week at 202-787-1900 or via email at info@fedattorney.com.
