The Merit Systems Protection Board processes thousands of federal employees’ appeals yearly. However, only a small number of those employees successfully win their appeal. The agency has driven the employee appeal win rate to 3% because more than 1 in 5 MSPB appeals cases are settled even before going to the administrative judge.
If you remove the appeal cases that are settled before going in front of the administrative judge, the success rate goes up to 18%, which is better; however, it is still a minimal amount of employees who are winning their MSPB appeal.
Before you file, you need to understand how the appeal process works and what you can do to increase your chances of winning your appeal. Below we will explain the process and give you some tips on how to win an MSPB appeal.
What is a Merit System Protection Board (MSPB) Appeal?
The MSPB is a quasi-judicial federal agency responsible for resolving specific employment-related disputes between the employee and the federal agency through an appeals process with an administrative judge.
The MSPB Appeal Process
Only after the federal agency takes action against a federal employee may the employee file an MSPB appeal. However, before filing an MSPB appeal, you must understand and consider the following factors.
Jurisdiction
The MSPB will have jurisdiction to hear the appeal if your employer’s action against you includes the following:
- Reductions in pay or refusal of within-grade pay increase
- Demotions
- Performance-based actions
- If you are suspended for more than 14 days or furloughed for 30 days or less
- Denial of reemployment or restoration
- Suitability actions
- Reducing Workforce
- Actions regarding misconduct
There may also be other reasons; however, the only discrimination cases the MSPB will only hear are if the action is in conjunction with an action within the MSPB’s jurisdiction. And if your claim involves whistleblower retaliation or veteran employment, they will only hear your appeal after all other alternative procedures have been exhausted.
For federal employees to be eligible to file an MSPB appeal, they must be one of the following:
- An employee within the excepted service who has a minimum of two years of continuous service in the same or similar position
- A competitive service employee who is beyond the 12-month probationary period
- A preference-eligible employee who has one year of continual employment in the same or similar position
- A postal service employee, manager, or supervisor who is in personnel work and has one year of continual service in the same or similar position
Filing an MSPB Appeal
Usually, you must file an MSPB appeal within 30 days from the action date or within 30 days of receiving notice of the agency’s decision, whichever is later. Exceptions to this include an action taken by the VA under 38 USC §714, with a deadline of 10 business days to file an appeal.
MSPB Appeal Format
Ensure that your appeal meets the MSPB requirements for content and format by using the form they provide in writing or online.
MSPB Appeal Hearing
An administrative law judge will be assigned to your case by the MSPB and will likely request more information from you and the Federal agency. If your claim does not settle, the next step is an MSPB hearing which will likely require both parties to testify and call witnesses.
Once the administrative judge decides the outcome, it will become finalized after 35 days unless one of the parties petitions for review through the appellate division of the MSBP. If you disagree with the administrative judge’s decision, you can file a petition for review within 60 days of the board’s decision.
Contact Us for a Free Consultation
"*" indicates required fields
Winning an MSPB Appeal
One of the most common ways a federal employee loses their appeal case is by failing to prepare a proper appeal, misinterpreting the law, and not providing essential evidence. Below are some dos and don’ts to help improve your chances of winning an MPSB appeal. Your probability of winning will significantly improve by hiring an attorney with experience navigating the MSPB appeals process.
#1. File the Appeal on Time
Initially, your MSPB appeal only needs basic information, facts, and legal components of your case. Hiring an attorney can help ensure that you meet the timeline requirements.
- You mustn’t miss the deadline, usually 30 days from when your employer took action against you. It’s rare for the MSPB to excuse late filing, and they are very strict about deadlines.
- Refrain from filing your appeal too early, as you can only file after the date the action goes into effect against you or after the federal agency issues its final decision about your conduct or performance.
#2. File the Proper Forms Correctly
Ensure that your appeal is filed with the MSPB’s regional or field office where your employment station was when the action occurred. Check the MSPB website for current information about the jurisdiction of any office changes. Every detail on your appeal form must be accurate, including your address and signature, and provide the precise action date to avoid delaying or denying your MSPB appeal.
#3. Make Your Appeal Story Compelling
The MSPB hears many cases, so it is vital to give a clear and compelling story, including specific details or even a theme in your appeal. Hiring a skilled attorney is very beneficial because they can help you with the wording and essential information when writing or sharing your story.
#4. Utilize the Discovery Process
The federal agency will only supply a minimal amount of information that was used when deciding the action to take against you. During the discovery phase, you can file a production request for recordings, documents, electronic data, and any other pertinent information to help you gather what you need for a successful appeal.
#5. Submit All Supportive Documents
Consult with your attorney regarding the documents you want to submit ahead of time to ensure that you are submitting all and only supportive documents for your claim to improve your chances of winning your MSPB appeal.
#6. Consider Settling
Sometimes, settling your claim is the best option and can help you get on with your life and reduce stress, and it is not the same as accepting defeat. Litigation is draining, complex, and lengthy but sometimes necessary. Consulting with an attorney experienced in the MSPB appeal process can help you decide what is best for your claim.
Hire The Law Offices of Steve Newman To Help You With Your MSPB Appeal
The Law Offices of Steve Newman offer experience and professional expertise in legal representation in all 50 states before the MSPB. Attorney Steve Newman can help you with Personal Injury, Wage Hour claims, MSPB Appeals, Birth Injuries, Medical Malpractice, Construction Litigation, and more.
Licensed to practice law in the state and federal courts in New Jersey and New York, Attorney Steve Newman is dedicated to helping you and protecting your rights. Contact us today for a consultation!