Merit Systems Protection Board (MSPB)


Merit Systems Protection Board (MSPB) Attorneys

At Tully Rinckey PPLC, it is our belief that every federal employee has the right to due process and a fair hearing, including proper application of the Douglas Factors. Any disciplinary action can lead to greater problems in the future and, in extreme cases, can result in the end of an employee’s career in federal service.

The attorneys at Tully Rinckey PLLC have litigated hundreds of cases at the agency level, before MSPB administrative judges, as well as before the full three-member MSPB panel. If necessary, our attorneys are also experienced and have been successful in arguing appeals of MSPB decisions before the U.S. Court of Appeals for the Federal Circuit.

Contact Tully Rinckey PLLC to see how we may assist with your case. We can be reached 24 hours a day, 7 days a week, at 2027871900 or by e-mail at


About the Merit Systems Protection Board

The U.S. Merit Systems Protection Board is an independent, quasi-judicial agency in the Executive Branch that serves as the guardian of federal merit system principles.

The Board, which is made up of three members appointed by the president and confirmed by the Senate, is responsible for:

  • Adverse actions over which the Board has jurisdiction, such as removals, suspensions of 15 days or more, furloughs of 30 days or less, demotions, and certain reductions in pay.
  • Administrative decisions affecting an individual’s rights or benefits under the Civil Service Retirement System or the Federal Employees’ Retirement System.
  • Appeals filed under the Whistleblower Protection Act, the Uniformed Services Employment and Reemployment Rights Act (USERRA), and the Veterans’ Employment Opportunities Act (VEOA).
  • Cases brought by the Office of Special Counsel (OSC), including complaints of prohibited personnel practices (PPP), corrective actions, and Hatch Act violations.
  • 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.
  • Ordering compliance with final MSPB orders and settlement agreements where appropriate.

The MSPB typically does not handle discrimination cases. This responsibility primarily belongs to the U.S. Equal Employment Opportunities Commission (EEOC). 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 provide full relief in that affirmation defense claim, including the award of compensatory damages. This is referred to as a mixed case appeal.

The MSPB will not provide advice or guidance on employment, examinations or benefits. This responsibility belongs to the Office of Personnel Management (OPM).

Additionally, the MSPB will not investigate prohibited personnel practices (PPP). This is the responsibility of the Office of Special Counsel (OSC). Tully Rinckey PLLC is available to represent you and to prosecute your PPP complaint before the OSC.

To learn more about the MSPB appeals process when facing discipline in the federal workplace, download Tully Rinckey PLLC’s free MSPB Guidebook. To schedule a consultation with a Tully Rinckey PLLC attorney, call us at 2027871900 or by e-mail at

The Douglas Factors

An agency’s decision to take disciplinary or adverse action against a federal 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 severity of 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, if so, the level of that discipline. The full list of factors is as follows:

  • Nature and seriousness of the offense
  • Employee’s job level and type of employment
  • Employee’s past disciplinary record
  • Employee’s past work record
  • 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
  • Consistency of the penalty with those imposed upon other employees for the same or similar offenses
  • Consistency of the penalty with the agency’s a table of offenses
  • Notoriety of the offense or its impact upon the reputation of the agency
  • Clarity of the offense, that is whether the employee was on notice of the rule(s) allegedly violated
  • Potential for rehabilitation
  • Mitigating circumstances
  • 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 due process and a fair hearing, including proper application of the Douglas Factors. Any disciplinary action can lead to greater problems in the future and in extreme cases, can result in the end of an employee’s career in federal service.

Our team of attorneys has a combined over 200 years of experience in Federal Employment Law, and our targeted, aggressive legal approach has secured positive results for clients in virtually every aspect of federal employment and labor law.

Contact Us

During your initial consultation, an experienced lawyer from Tully Rinckey will review with you the critical facts and applicable law in your case. The attorney will help you identify and carry out a litigation plan.

Contact a Tully Rinckey attorney to see how we may assist with your case.  We can be reached 24 hours a day, 7 days a week at 2027871900 or via email at


Who can appeal to the Merit Systems Protection Board (MSPB)?

The following Federal Employees may appeal to the MSPB:

• Competitive service employees who have completed their 1-year probationary period.
• Excepted service employees, not serving a probationary period or those who have completed 2 years of current continuous service in the same or similar position in a Federal Executive agency.
• Veteran’s preference eligible employees. There are special rules and time limits to file under VEO, thus you should consult an attorney early in the process.

What types of actions can be brought before the MSPB?

• Suspensions over 14 days
USERRA claims, even if you are in probationary status
• VEO claims, if you previously filed with the Department of Labor first
• Removals from federal service
• Unfavorable suitability determinations
• OPM denials of disability retirement actions
• Individual Rights of Appeals in Whistleblower Retaliation Cases
• Involuntary Retirements
• Involuntary Removals
• Demotions
• Reductions in pay

How can I obtain evidence relative to my case that the agency has in its possession?

• Though the discovery process you can obtain relevant evidence that the agency has in its possession.
• Filing discovery requests may be critical to your case to obtain the evidence necessary to prove your case.
• Strict time frames apply to serving and answering requests and if you fail to comply you may be sanctioned or lose your right obtain evidence critical to your case.

What if the agency refuses to turn over evidence?

• You may file a motion to compel and a judge can order the agency to comply or the facts may be deemed to be proven.

What happens after I file my appeal with the MSPB?

• You will receive an acknowledgement order, which you must carefully read as it may order you establish certain facts i.e., jurisdiction before the MSPB, or that you were honorably discharged from the military if you are filing a USERRA or VEOA claim.
• The acknowledgement order will also set various deadlines for discovery, motions, settlement discussions, and initial disclosures. It is critical that you comply with these deadlines or your claim may be dismissed.

Are status conferences and hearings conducted in person?

• Status and prehearing conferences are usually not most can be done over the telephone. However, hearings are usually conducted in person. However, it is up to the Judge to determine whether a hearing will be in person or by video teleconference.

When must you file?

  • Most appeals to the MSPB must be filed within 30 days of the effective date of the appealed action. VA employees must file within 10 days of the effective date of the appealed action.
  • In USERRA appeals, there is no time limit to file (See S CFR 1208.12)
  • Whistleblower – You must file within 65 days of the date that the Office of Special Counsel (OSC) notifies you that it will not seek corrective action (See S CFR 1204.5)
  • VEOA – You must file with the Department of Labor (DOL) and you must give DOL at least 60 days to resolve before you can file a VEOA case with the MSPB.

Where do I file my MSPB claim?

• You must file in the regional office where your duty location is located (See Appendix II of part 1201 of the MSPB regulations)

What must I file?

• The only documents usually required to be filed at the time of the initial appeal filing is the notice of decision to the take action being appealed. Appeal forms are available on the website and you can elect to file your MSPB appeal electronically.

Should I file my evidence at the time of initial filing with the MSPB?

• No, there may be certain tactical advantages to not filing your evidence at this time and instead waiting until discovery is complete or until the judge orders you to file additional evidence such as in an “order to show cause.”

Designating a representative

• You may be represented by an attorney to file and prosecute your MSPB appeal. Deciding whether to hire an attorney is an important decision because your livelihood is at stake. If you decide to be represented by an attorney, you should consider hiring competent, experienced legal counsel who is familiar with MSPB practice and procedure.

Why should I hire an attorney?

• Because you’re federal government career may be at stake and because an MSPB appeal is a complicated legal process.
• Furthermore, many times agencies do not take “Pro Se” or unrepresented appeals very seriously because unrepresented appellants often do not understand the legal process.
• Agencies may be more willing to mediate or settle a case if you have competent, experienced counsel who’s working aggressively on your case.

How much does Tully Rinckey PLLC charge for MSPB representation?

• The process starts with a consultation. Our consults last up to one hour in length and we will evaluate your case to help determine the merits of your claim. We do charge a reduced hourly rate for the consult.
• If you decide to retain Tully Rinckey PLLC, we will draft a retainer agreement, which will lay out how the firm will bill your case and the amount of the initial fee advance that is required. In order for us to begin work on your case we must receive the signed retainer back and payment of the initial fee advance.
• Tully Rinckey PLLC accepts personal checks and all major credit cards. You also have the ability to pay online.

Will I be able to recover my attorney fees?

• If you successfully settle or prevail in your MSPB appeal, you may receive an award of reasonable attorney fees. It depends on the situation and type of case. You should discuss this with the attorney during the initial consultation. At Tully Rinckey PLLC we always seek to recover attorney fees on behalf of our clients.

What if I lose at the MSPB?

• If the judge rules against you in the Board’s initial decision, you may file a petition for review to the full Board within 30 days. You also have the right to file a petition to the United States Court of Appeals for the Federal Circuit to review a final decision of the MSPB.
• The law provides that a decision can be reversed on appeal if the appellant shows harmful error, that the appealed decision was based on a prohibited personnel action or the decision was not within accordance with the law.

What will happen if I win my case?

• The agency will have 30 days to appeal the decision. If the agency does not appeal, the Judge will direct the agency to reverse or mitigate the adverse action and restore you to the “status quo ante” on the position you were in before the adverse action.
• The judge can also order interim relief.
• The judge may also award back pay with interest, benefits, lost leave days, job restoration, and redaction of derogatory information from your file.
• In Whistleblower reprisal, USERRA or EEO discrimination appeals, the MSPB can also award monetary damages.
• Your attorney can also file a fee petition to request attorney fees and expenses incurred on your behalf.

Where does the initial consultation occur?

• The attorneys at Tully Rinckey can consult with you in person at our Washington DC office or we can do the consult via phone. Don’t put your federal career in jeopardy, contact us today at 2027871900 to set up a consultation.

Contact us today to schedule your consultation.

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