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What happens when you appeal a disciplinary action?

On Behalf of | Feb 13, 2020 | Employee Disputes

As a federal employee, you have the right to challenge unfair disciplinary actions. This is important because agencies don’t always follow the law. They may sometimes act in ways that are arbitrary, biased or politically motivated. But challenging these bad decisions is rarely easy.

In fact, recent trends have shown that fewer employees are winning their challenges. At the same time, Government Executive has reported a significant decrease in settlements. These are discouraging trends, but they shouldn’t prompt you to give up. Instead, they should remind you how important it is for you to take the process seriously.

A step-by-step guide to the appeals process

On its surface, the Merit Systems Protection Board (MSPB) appeals process doesn’t appear too difficult. There’s an online form you can fill out, and the steps appear manageable. According to the MSPB, they are:

  • You file your appeal through the e-Appeal Online site or submit a paper version by traditional means
  • The Administrative Judge (AJ) sends a formal acknowledgement of your appeal to you and your agency
  • Your agency needs to provide a statement and documents that support its actions
  • The AJ may request additional documents or hold pre-hearing conferences
  • You and your agency present your arguments to the AJ during a hearing
  • The AJ offers a decision on your appeal

The problem is that there’s a lot at play beneath the surface of this process. Small mistakes can cost you big in the long run.

Behind the numbers

MSPB officials claimed the low employee win rate wasn’t a concern. They said it didn’t tell the full story. The win rate wasn’t low because of bias, but because:

  • Too many employees made procedural errors in their appeals
  • The judgments were fair—as shown by the fact the MSPB decisions held up in appeals more than 92% of the time
  • More than one-fifth of the disputes filed with the MSPB were settled before they were heard

Such settlements often allowed employees to resign, rather than be fired. In return, the employees could walk away without disciplinary actions on their records. These settlements may not have been perfect, but even these small concessions have dwindled of late. And employees need, more than ever, to file their appeals correctly.

Dont expect to fix your mistakes down the road

It’s true that if the MSPB denies your initial appeal, you still have two remaining options. You can appeal to the Board or to a U.S. District Court. But the Board is backlogged, and the District Court won’t re-examine the material facts, only the legal arguments.

This means if you want to win, you want your case water-tight from the very start.


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