Are you a federal employee dealing with an adverse employment issue? If so, the Merit Systems Protection Board (MSPB, or Board) may be able to help provide relief. But to successfully win an appeal with the MSPB requires an understanding of how the Board operates and what is required of you throughout the appeal process.

 What is the MSPB?

The MSPB is an independent federal agency that protects federal employees from unfair personnel actions and ensures merit procedures are followed. The MSPB’s primary responsibility under statutory law is protecting federal merit systems against partisan political and prohibited personnel practices by adjudicating employee appeals over which the MSPB has jurisdiction.

What Employment Matters Does the MSPB Have Jurisdiction Over?

The employment matters the MSPB generally has jurisdiction over are contained in section 1201.3 of Part 1201 of Title 5 of the U.S. Code of Federal Regulations. Employment matters include a range of employment actions, such as:

• adverse actions;
• retirement appeals;
• termination of probationary employment;
• restoration to employment following recovery from a work-related injury;
• performance-based actions under Chapter 43 (reduction in grade);
• reduction in force;
• employment practices appeal;
• denial of within-grade pay increase;
• suitability actions;
• actions involving the Senior Executive Service;
• Restoration and reemployment matters;
• appeals under the Uniformed Services Employment and Reemployment Rights Act and the Veterans Employment Opportunities Act;
• appeals involving an allegation that the action was based on appellant’s whistleblowing or other protected activity;
• stay proceedings; and
• ancillary proceedings

Employee Right to Due Process and a Fair Hearing

Every federal employee has the right to due process and a fair hearing, including proper application of the Douglas Factors, the mitigating circumstances developed by the MSPB in Douglas v. Veterans Administration.

What are Douglas Factors, and How Can They Impact My Appeal?

A federal agency’s decision to take disciplinary or adverse action against a federal employee based on misconduct 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 12 Douglas Factors, although generally, not all 12 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 Douglas 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 its 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; and
• adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.

Representation

Federal employees can have an attorney represent them at the MSPB, but may choose any person who is willing and available to serve, as his or her representative before the Board, or may choose to represent him or herself. Care should be taken when choosing a lawyer or representative to represent you as federal employment law is complicated and often unforgiving with quick deadlines. A designation of representative must be in writing and signed by the appellant.

Process for Filing an MSPB Appeal

To prepare and file an appeal, individuals can visit the MSPB’s e-Appeal Online website (https://e-appeal.mspb.gov), an online application that guides appellants through the process of providing the MSPB with the information required to file an appeal. The MSPB does not accept new appeals via email; e-Appeal Online is the only method allowed for electronic filing.

For those who do not want to file their appeal online, the Board’s appeal form can be downloaded and filed via postal mail, fax, or personal or commercial delivery.

To file a written appeal with the MSPB, and to be timely, which is key, you must file most appeals by the 30th calendar day after the effective date of the action if any, or within 30 calendar days after the date of receipt of the agency’s decision, whichever is later.

Appeals of removal, demotion, or suspension for more than 14 days based on performance or misconduct in the Department of Veterans Affairs. Pursuant to 38 U.S.C. § 714(c)(4)(B), an appeal of one of these actions “may only be made if such appeal is made not later than ten (10) business days after the date of such removal, demotion, or suspension.”

Proving the “effective date” of a disciplinary action can very often be the difference between the MSPB hearing your case and dismissing your case. It is imperative that individuals preserve any records they have to prove receipt of the disciplinary action to avoid unnecessary motion practice with the MSPB.

Further, individuals must file an appeal with the MSPB’s regional or field office in the area where their duty station was located when the action was taken, or, if the appeal relates to a final decision of Office of Personnel Management regarding retirement benefits, or an adverse suitability determination, with the regional or field office that has jurisdiction over your area.

What to Do After Filing an MSPB Appeal

As the proceeding moves on, the Administrative Judge will issue notices and orders to both parties regarding pleadings that are due to be filed. These pleadings may be filed online at the MSPB’s e-Appeal website, or by mail, fax, or commercial or personal delivery. Generally, the AJ conducts one or more initial status or prehearing conferences to narrow and clarify the issues included in the appeal. The AJ will normally discuss the possibility of settlement and encourage the parties to discuss settlement.  The Board has its own Mediation Appeals Program (MAP) wherein non-interested Administrative Judges may serve as mediators to help resolve the parties action. Generally, the Board will suspend case proceedings while the parties send a case to the MAP program, allowing both parties the time they need to settle the case.

Case Processing

The Board’s goal is to process all appeals within 120 days of receipt by the regional office. While that rarely happens, some AJs may encourage the parties to dismiss the case without prejudice to refile (DWOP) at a later date if it appears there may be a protracted delay or settlement may occur. This allows the 120-day clock to restart once the case is refiled. Many AJs are very cognizant of the 120-day standards and goals.

An acknowledgement order must be issued to the parties within three working days of receipt of the appeal. The appellant must request a hearing within 10 calendar days from the date of the acknowledgement order, if the appellant has not already requested a hearing in the filing of their Initial Appeal. If you do not request a hearing within 10 calendar days, the hearing may be waived, and the case will be decided on written submissions alone.

If you have questions about your rights as a federal employee, Tully Rinckey’s team of dedicated federal employment attorneys is available to assist. Please call 8885294543 to schedule a consultation, or schedule a consultation online.

 Greg T. Rinckey is one of Tully Rinckey PLLC’s two founding partners. He worked with Founding Partner and fellow Hofstra University alum Mathew B. Tully in 2004 to build the firm from the ground up into the coast-to-coast, full-service powerhouse that it is today. As Founding Partner, Greg collaborates with Mat in all areas of strategic planning and law practice management to develop and deploy innovative business solutions that continue to grow the firm.