Frequently Asked Questions About MSPB Appeals

Most Federal employees have only a general understanding regarding their rights following an adverse employment action. To provide some basic information about the MSPB appeals process and how federal employees should respond, The Devadoss Law Firm, P.L.L.C., provides answers to many of the questions that we regularly receive:

What is the Merit Systems Protection Board?

The Merit Systems Protection Board (MSPB) is an independent, quasi-judicial agency that provides a means for federal employees to appeal adverse employment actions, such as demotion, suspension or discharge. Its overarching mission is to protect the Federal merit system, and it does so by adjudicating individual employee appeals and conducting studies of merit system practices.

What kinds of adverse employment actions can be appealed?

Federal employees who have been subject to these types of employment actions can make an appeal to the Board:

  • Performance-based actions
  • Misconduct actions
  • Retaliatory discipline actions
  • Discriminatory actions
  • Denials of within-grade salary increases
  • Suspensions of more than 14 days
  • Reductions in grade or pay
  • Furloughs of 30 days or less
  • Reduction-in-force actions
  • Denials of restoration or reemployment rights

There are many more. In a free consultation, a lawyer at our firm can review your situation and provide guidance regarding your rights and legal options.

What kinds of issues cannot be appealed to the Board?

The Board does not hear claims involving discrimination complaints, except when allegations of discrimination are raised in appeals from agency personnel actions brought before Board. Also, it does not hear certain types of whistleblowing reprisal claims. However, Federal employees who have suffered those types of adverse employment actions may have other avenues for the redress of grievances.

In a nutshell, how does the MSPB appeals process work?

In most cases, you must file an appeal within 30 calendar days of the employment action, or 30 calendar days of receipt of the agency's decision, whichever is later. Certain types of appeals may have different due dates. To protect your rights and ability to file an appeal, seek the advice of an experienced attorney.

  1. Federal employees can start the appeal process by filing information via MSPB's e-Appeal Online application. Alternatively, an employee can download an Appeal form, complete it and deliver it by mail, fax, commercial delivery service or personal delivery.
  2. The Administrative Law Judge assigned to the case will issue an acknowledgement order to the appellant and the agency. The Judge will then ask for supporting information and responses from the appellant and agency. As the process moves forward, the Judge will issue various notices and orders regarding pleadings.
  3. The Judge may conduct one or more hearings to clarify the written information that has been provided and to hear testimony by the appellant, agency personnel or other parties.
  4. The Judge will issue an initial decision that must address all material issues of fact and law.
  5. The appellant or agency can file a petition for review of the initial decision with the Clerk of the Board in Washington, D.C. Alternatively an appellant who is dissatisfied with an initial decision can file a petition with the United States Court of Appeals for the Federal Circuit.

Who must bear the burden of proof in an MSPB appeal?

The agency bears the burden of proof for an adverse employment action and must provide justification that satisfies the Judge. Appellants must prove that the MSPB has jurisdiction and that the appeal was filed in a timely manner. If the appeal alleges discrimination or retaliation for whistleblowing, the appellant must provide proof of these violations.

If the initial decision is in favor of the appellant, how long does the appellant have to wait for relief?

The Judge can order interim relief for the appellant. This could include reinstatement, but not necessarily the payment of back pay and attorney fees.

Free Consultation – Contact Our Firm

The Devadoss Law Firm, P.L.L.C., represents federal government employees throughout the United States from offices in Dallas. If you have already been demoted, discharged or suspended, we can represent you. For a free consultation with attorney Bobby Devadoss, please contact our firm today.