FAQS ABOUT THE MERIT SYSTEM PROTECTION BOARD:
Click on the questions below, or scroll down.

What employees have MSPB Appeal rights?

What actions can I challenge before the MSPB?

Who can represent me?

How much does it cost to have an attorney represent me?

Will Tully Rinckey represent employees in disciplinary actions that are not appealable to the MSPB?

Can I recover my attorney fees if I win?

Who decides the cases?

Are the hearings fair?

Is mediation available?

What happens if I lose at my hearing?

What happens if I win at my hearing?

Can I allege discrimination?

OPM denied my disability retirement. Can I appeal to the MSPB?

OWCP has denied my claim. Can I appeal to the MSPB?

My Agency just had a RIF (Reduction-in-Force). Can I appeal to the MSPB?

Can I challenge a position classification at the MSPB?

What employees have MSPB Appeal rights?

Employees who may appeal adverse actions are:

· Employees in the competitive service who have completed a 1-year probationary or trial period;

· Veterans preference-eligible employees with at least one year of continuous employment in the same or similar positions outside the competitive service;

· Postal Service supervisors and managers, and Postal Service employees engaged in personnel work (other than those in nonconfidential clerical positions), who have completed one year of current continuous service in the same or similar positions; and,

· Excepted service employees, other than preference-eligibles, who are not serving a probationary or trial period and who have completed two years of current continuous service in the same or similar positions in an Executive agency.

Assuming you have an appeal right, you can challenge any adverse action from a 15-day suspension to a removal . The MSPB can hear claims of Whistleblower Reprisal, Constructive Suspensions, Construction Removals, and Involuntary Retirements or Resignations if you can first establish that the MSPB has jurisdiction over your claim. If your Agency improperly charged you leave for military duty, you can bring your USERRA claim before the MSPB . You can also challenge a disability retirement decision after OPM’s has considered your request for reconsideration. Generally speaking, you have only 30 days to appeal an adverse action (suspension of 15 days or more) or a performance-action. Some statutes have different filing deadlines, so be sure to consult the statute or an attorney familiar with MSPB procedures.

The MSPB is particular about its deadlines; while the Board may allow an extension of the time to file an appeal for “good cause shown”, these circumstances are few and far between. Additionally, if you and your Agency are interested in conducting a mediation prior to filing, the MSPB may consider extending your deadline to file if you have an agreement to mediate in writing from the Agency. After you file, you will receive one of two orders from the Administrative Judge. The first order, if your claim is the type that does not require proof of jurisdiction, will be an “Acknowledgment Order”. This document is crucial to your case. Read it carefully, and calendar all the timelines in this document. Timelines for discovery, settlement, and other key events are included in this Order. Often, Acknowledgment Orders are accompanied by a “Scheduling Order”, which will have the time, date and location of your Pre-Hearing conference and Hearing.

Who can represent me?

You may select any representative to represent you. This includes attorneys, union stewards, co-workers, friends, etc. Keep in mind, however, that you often get what you pay for. Moreover, you cannot recover the costs for your defense if you hire someone other than an attorney.

How much does it cost to have an attorney represent me?

First, we charge a small consultation fee to evaluate your case and determine if you and the Firm have a mutual interest in an attorney-client relationship.

If you decide to retain Tully Rinckey, the Firm will draft a “retainer” – that will lay out how the Firm will bill your case. In some cases, we may be able to recover its actual fees and costs from your Agency. The Firm strives to be consistent and affordable in its pricing. The Firm must receive payment on the date we sign an attorney-client agreement. For your convenience, Tully Rinckey accepts checks, money orders, cashier checks, and all major credit cards (MasterCard, Visa, Discover).

Will Tully Rinckey represent employees in disciplinary actions that are not appealable to the MSPB?

Yes. We do assist Federal Employees in their oral replies and appeals through an Agency Grievance Procedure, if applicable, on suspensions less than 14 days and written reprimands . You will not be able to recover your attorney fees, however, since the Agency's decision is not appealable to the MSPB. Employees who retain counsel for this type of matter typically are most concerned with keeping their record clean.

Can I recover my attorney fees if I win?

It will depend on your case. In some situations, you may be able to recover your attorney fees. 

Who decides the cases?

Administrative Judges, who compete for positions and are selected just like other Federal employees. If the decision of an Administrative Judge is appealed, than the Petition for Review is reviewed by the “Full Board”, The Full Board is supposed to be bipartisan, and consists of a Chairman, a Vice Chairman and a Member, with no more than two of its three members from the same political party. Board members are appointed by the President, confirmed by the Senate, and serve overlapping, non-renewable 7-year terms.

Are the hearings fair?

Another way this question is asked is whether the MSPB favors employees or Agencies.

Our experience has been that the proceedings at the MSPB are more fair and consistent than any other administrative forum.  Although Administrative Judges can - and do - make mistakes. The system is designed to be an uphill battle for the Federal employee, and the record of some Judges seems to suggest that there are a handful that could be characterized as pro-Agency or pro-employee. These Judges are the exception and not the rule. Many Federal employees have told me about bad experiences before the MSPB, and the one common denominator is that they filed “pro-se”, and are often taken advantage of or exploited by more-knowledgeable and deeper-pocketed Agency Counsel.

Is mediation available?

The MSPB has a mediation process called the Mediation Assistance Program (MAP). Our Firm has had very positive experiences with the MAP program, and encourages its clients to participate in the mediation process.

The best time to mediate is after some discovery has occurred – the facts are nearly developed and documented, and both parties can knowledgeably discuss the case, the litigation and creative solutions.

What happens if I lose at my hearing?

If you do not prevail at the hearing, you may have several options. These options vary greatly depending on the type of case you had and the issues you raised. Appeal options might include the filing of a Petition for Review to the full Board, filing suit in a Federal District Court, filing suit in the Federal Circuit Court of Appeals, appealing the decision to the EEOC, etc. If you are interested in appealing an adverse decision of the MSPB, it is best to consult with an attorney familiar with the MSPB before proceeding.

What happens if I win at my hearing?

If you prevail on an adverse action appeal (suspensions greater than 14 days, removals and demotions), the Agency will have thirty (30) days to challenge the decision. During this time, the decision is not considered Final.  In the decision, the Administrative Judge will set a date on which the decision will become final.

Depending on your particular case, the Administrative Judge may direct the Agency to cancel the adverse action in its entirety and restore you to the "status quo ante" or, in some cases, may direct the Agency to mitigate the adverse action to one that is within the tolerable bounds of reasonableness.

Status quo ante generally refers to the situation immediately before the Agency took the action against you. The Agency generally has 20 days after the decision becomes final to comply with the Judge's order.

Generally, you will recover any monetary damages to which you are entitled. These damages can include back-pay with interest, cleaning of disciplinary record, compensatory damages (EEO claims only), job restoration and more. The damages you may recover vary greatly on the type of case you have - Whistleblower cases have different damage authorities than Chapter 75 or Chapter 43 actions. Title VII affirmative defenses have an altogether different damages model.  Generally speaking though, the authority of the MSPB to award damages is quite narrow, and limited to specific statutes in specific cases.

Your attorney may be able to seek attorney fees, costs and expenses. In certain cases, an Agency (or OPM) may appeal a decision of the MSPB as well.

Can I allege discrimination?

If you have an action which is appealable to the MSPB, you can generally assert that the particular action was motivated by discrimination. However, cases in which discrimination and improper Agency decisions are simultaneously raised can become very complicated. If you would like to discuss the proper forum for your “mixed-case” appeal, you should contact Tully Rinckey at 202-787-1900.

OPM denied my disability retirement. Can I appeal to the MSPB?

Yes. After OPM has issued a final decision on your disability retirement application, OPM should notify you of your right to appeal the decision to the MSPB. Note, however, that it is imperative to complete the internal OPM appeal procedure before filing an appeal with the MSPB. After receiving the initial decision of OPM, request reconsideration of their decision, it is crucial that you raise all possible issues to OPM in support your application for disability retirement. If you have any questions about this process, you should contact Tully Rinckey at 202-787-1900.

OWCP has denied my claim. Can I appeal to the MSPB?

No. There is no right to appeal to the MSPB regarding your OWCP claim. However, the MSPB has limited jurisdiction in matters involving re-employment following complete or partial recovery from a compensable injury or disease.

My Agency just had a RIF (Reduction-in-Force). Can I appeal to the MSPB?

Possibly. The current trend suggests that every Executive Branch employee has an appeal right when affected by a RIF even if the employee is not a preference eligible or not in the competitive service. The regulations and appeals governing a RIF are extremely complicated.

Can I challenge a position classification at the MSPB?

No. However, you may be able to challenge your position classification before OPM.

To set up a consult with an attorney experienced in Federal employment litigation, please call us at 202-787-1900. Our Office is located at 1800 K street in Washington DC.