One of the hottest topics surrounding the Merit System Protection Board (MSPB) right now is the general timeframe for appealing an MSPB decision. While those familiar with the MSPB are well aware that the single most important aspect of filing an MSPB appeal is to do so in a timely manner, many federal employees with cases stuck in the unprecedented case backlog are beginning to learn the hard way that not being aware of these timelines and responding in a timely manner is a quick way to get their appeal dismissed.
While this is not necessarily something new to the MSPB appeals landscape, since the Board restored quorum and is beginning to clear through these cases and issue decisions on three-, four-, or five-year-old cases through email, many are learning of these decisions two, six, nine, or up to a year later when they call the MSPB to ask for a status update. Since these cases sat for so long, the odds aren’t negligible that individuals filed using outdated emails and contact information and are missing out on these decisions until they eventually get around to clearing out an old inbox and are left with an unfavorable decision they have no chance of getting appealed.
This is especially dangerous for pro se individuals—people who choose to represent themselves—as they may not have known they needed to or how to update their email or mailing address with the MSPB so that they could receive updates to their cases.
Currently, this issue is making its way to the Supreme Court of the United States (SCOTUS), and our firm is writing a pro bono amicus curiae brief on this matter. While the SCOTUS case may help federal employees who were left suffering from an unfavorable decision without the option to appeal, the best piece of advice for anyone with a case stuck in the backlog is to ensure that the email address on file with the MSPB is correct and that they check that account regularly for any new updates.
Those looking to challenge an MSPB decision should consider the prior advice and following information to ensure that they give themselves the best chance to battle against adverse agency action and attain some sort of relief.
What is an MSPB Initial Decision?
An initial decision refers to the ruling issued by an administrative judge (AJ) after a hearing on your adverse action appeal. An initial decision is a decision delivered by an AJ following a hearing or briefing on your adverse action appeal. When you submit an appeal over an adverse action and the MSPB determines that it has jurisdiction, you will conduct discovery to gather additional facts to support your appeal. After discovery is completed, you may request a hearing before the AJ or submit a brief to the AJ explaining the facts and evidence that support your appeal claims. The AJ will render an initial decision following the hearing or submission of the papers, either affirming or reversing the action on appeal.
What Are Your Options for Appealing an MSPB Decision?
If you have completed the initial appeal process and the AJ has made an unfavorable decision, you have two options for appealing. The first way to challenge the decision is to file a petition for review. The second option would be to file an appeal with the US Court of Appeals for the Federal Circuit.
Petition for Review
Either party—you or your agency—that disagrees with the initial decision can file a petition for review with the MSPB’s three-member Board panel. Regardless of who files the petition for review first, the second party will be given the opportunity to respond.
The Board has the authority to re-weigh evidence and reach a different conclusion than what was decided in the initial decision in nearly every aspect of the case, including jurisdiction, charges, and penalties. On the petition for review, the Board will look at issues raised by the parties, but can also address other issues that the initial decision identified on its own.
If the parties do not file a petition for review, the initial decision becomes final on the date set forth within it. At that time, the Board has the option to reopen the appeal on its own and re-examine any issues in the case; however, the Board typically opts not to exercise this power outside of the most extraordinary circumstances.
Federal Circuit Appeal
If your agency does not submit a petition for review, you have the option to file an appeal directly with the Federal Circuit once the initial decision becomes final, bypassing the petition for review process. However, it is important to note that you may use the petition for review process first, and if you are still dissatisfied with the result, then proceed to seek a judicial review from the Federal Circuit.
Agencies cannot appeal directly to the Federal Circuit at any stage, leaving the only opportunity for review available for them in the petition for review to the Board.
When Do You Have to File Your Appeal?
You must file a petition for review within 35 days after the initial decision was issued. A federal circuit appeal must be filed within 60 days after the MSPB issues its final order on your appeal.
What Information Should You Include in Your Petition/Appeal?
For a petition for review, you should include arguments and evidence showing that the initial decision contained erroneous findings of facts, was based on erroneous interpretations of law, and/or is inconsistent with the MSPB’s rules involving abuses of discretion.
When filing a federal circuit appeal, you should provide proof and evidence that the MSPB’s final ruling was incorrect because it either misapplied the legal standard to the facts of your case or failed to accurately evaluate the facts of your case.
What Happens While Pending Resolution?
If the initial decision upholds the agency’s action, then the action will remain in effect (i.e., a removed employee will remain removed). However, if the initial decision is in the employee’s favor, then relief should be granted immediately in most cases (i.e., a removed employee will be returned to work). The AJ ultimately has the discretion to determine when immediate relief is appropriate or not, but the default is that relief will be granted when the initial decision takes effect.
This does not imply that an agency must assign the employee to a work unit if they believe that the employee will cause excessive disruptions while requesting a petition for review from the Board. This power is unreviewable. However, the agency is still required by law to provide the employee with all wages, benefits, and other terms and circumstances of employment that they would have gotten had they worked.
Do You Need an Attorney to Appeal an MSPB Decision?
Although you may represent yourself during an appeal, it is not recommended. While the process may seem simple from the outline above, these cases can become overwhelmingly complex quickly. And with the success of your case depending on your ability to manage tight deadlines and make and respond to complex legal arguments, tackling things alone doesn’t bode well for your chances of obtaining relief.
Additionally, any federal agency responding will be represented by an attorney even if you are not, and they will not go easy on you should you choose to represent yourself since their obligation is to represent the agency.
No employee should be forced to suffer the consequences of an unjust adverse action. Hiring an attorney from the start can give you the best chance of approval, but having legal representation at the appeal and MSPB levels is even more critical. Without the necessary experience, you risk being denied or forced to wait in the massive case backlog for review.
If you have additional questions about how the MSPB appeal process works, our team of attorneys is available to assist you today.