When facing an unfair employment action as a federal employee, it’s normal to feel frustrated and confused. You may have spent years building your career, only to have it jeopardized by a wrongful suspension, demotion, or termination. Many government workers in this situation want to appeal their agency’s action to the Merit Systems Protection Board (MSPB). However, challenging a federal agency can be intimidating, especially when facing a complex and highly technical appeals process.
This blog post will break down what federal employees in New York should know about the MSPB appeals process. We’ll explain who is eligible to challenge employment actions, what the process requires, and how to win an MSPB appeal with the support of a qualified legal professional. Whether you’re ready to file an appeal or considering your options, this guide will help you make informed decisions that could protect your federal career.
What Is an MSPB Appeal?
The Merit Systems Protection Board (MSPB) is a federal agency that oversees certain employment disputes between federal employees and their agencies. It aims to protect employees from unfair personnel actions and ensure that agencies follow the federal merit system principles.
The MSPB hears cases involving specific types of adverse actions against federal employees. These include:
- Suspensions of more than 14 days,
- Reductions in rank or pay,
- Terminations,
- Furloughs of 30 days or less,
- Performance-based actions,
- Suitability actions,
- Reductions in force (RIF), and
- Denials of restoration or reemployment.
If you believe that you faced an adverse action for unfair or non-job-related reasons—such as whistleblower retaliation, favoritism, or political beliefs—the MSPB provides a legal avenue for challenging it.
Importantly, the MSPB does not typically handle discrimination claims unless they are tied to one of the above adverse actions. Federal employees who face discrimination based on race, gender, religion, or other protected categories should file a complaint with the Equal Employment Opportunity Commission (EEOC), not the MSPB.
Who Has MSPB Appeal Rights?
Not all federal employees have the right to file an MSPB appeal. Appeal rights depend on the type of appointment you hold and how you’re classified within the federal system. Generally, the following categories of federal employees have MSPB appeal rights:
- Competitive service employees—permanent employees in the competitive service who have completed their one-year probationary period;
- Excepted service employees—after completing two years of continuous service in the same or a similar position; and
- Preference-eligible employees—provided they have at least one year of continuous employment in the same or similar position.
Certain career senior executive service (SES) members can also appeal to the MSPB under specific circumstances.
However, political appointees, probationary employees, and temporary hires generally don’t have the right to file an MSPB appeal.
If you’re unsure of your employment status, consult an MSPB attorney who can evaluate your situation and advise whether you qualify to file an appeal.
How to File an MSPB Appeal in New York
Here are three key steps required to begin an MSPB appeal.
1. Contact a Lawyer
First, it’s essential to find an attorney with experience in MSPB appeals who can serve as your legal representative. You’re not required to hire a lawyer to file an appeal, but the support of an experienced legal professional is invaluable. Their knowledge and guidance can help lessen the stress of the process and significantly increase your chances of success.
2. Fill Out the Appeal Request Form
Next, complete the appeal request form available on the MSPB’s website. It will ask you to provide the following information:
- Your name, address, and contact information;
- Your agency’s name and contact information;
- The specific action being challenged and the date you learned of it; and
- A detailed explanation of why the action was improper or unjustified.
You should also share your attorney’s contact information and indicate that they will be your representative in the appeal.
Don’t include any other documents or evidence at this point—there will be a time to submit that later.
3. Submit to the MSPB Office Before the Deadline
You can file your appeal online through the MSPB’s e-Appeal system or by mailing it to the field office that serves federal employees in the region. For government workers in New York, this is located at 26 Federal Plaza, Room 3137-A, New York, New York 10278-0022.
Whichever way you file, make sure you do so before the deadline. In most cases, this is 30 days after the effective date of your agency’s action or 30 days after learning about your agency’s decision. Missing this deadline can result in automatic dismissal of your appeal.
What Does the MSPB Appeal Timeline Look Like?
The beginning of the MSPB appeal timeline moves quickly—you have only 30 days to initiate the process after you learn about your agency’s action against you. However, after your appeal is filed, there are stages that still must happen before you can get a decision. Let’s walk through these steps and what they involve.
Acknowledgment Order
Once you file your appeal, the MSPB assigns an administrative judge (AJ) to your case. The judge will conduct an initial review to determine if the MSPB has jurisdiction over the claim and whether the appeal was filed on time. The AJ will then issue an acknowledgment order. This document confirms that your appeal has been received and sets the deadlines for the next steps in the process.
Discovery and Evidence Collection
Discovery is a legal process where the two sides in a dispute exchange evidence and information. Your attorney can request and review valuable evidence from your agency, including internal communications, policies, and personnel records. Your lawyer can also conduct depositions to identify and interview witnesses relevant to your case.
Pre-Hearing Conference
Before the hearing, the administrative judge will hold a conference with you, your agency, and your legal representatives. This meeting is used to clarify the issues under dispute, review evidence, and present proposed witnesses.
The AJ will also likely encourage you to discuss ways to resolve the issue without having a hearing, such as settlement or mediation.
Hearing
If your case does not settle, the administrative judge will schedule a formal hearing. At the hearing, you will have the opportunity to present evidence, call witnesses, and make legal arguments. Your agency will also present its case. After both sides make their case, the judge will deliberate and issue a written decision, usually within 30 to 60 days of the hearing.
Petition for Review
If you disagree with the AJ’s ruling, you can file a petition for review (PFR) with the full MSPB up to 35 days after the decision. If the outcome of your petition is still unfavorable, you have the option of appealing to the U.S. Court of Appeals for the Federal Circuit.
How to Win an MSPB Appeal: Essential Tips
Winning an MSPB appeal requires thorough preparation and a strong legal strategy. Here are some of the most important steps you can take to help improve your chances of success.
Hire a Qualified Lawyer
MSPB appeals are often highly technical and complex. An attorney without experience in federal employment law and the MSPB appeal process will lack the legal and strategic insights that can make a difference in your case. When seeking legal representation, look specifically for a federal employment attorney who has a track record of successful MSPB appeals.
Stay on Top of Deadlines
Missing a deadline—even by one day—can result in the dismissal of your case. Your attorney can help track deadlines and ensure that all filings are timely.
Double-Check All Forms
Incomplete or inaccurate forms can weaken your case. Before you submit a form, double-check every detail, including names, dates, and supporting documentation.
Understand the Case Against You
Use the discovery phase strategically to gather all information the agency plans to use against you. Understanding the agency’s position allows you to anticipate their arguments and build a stronger defense. Reviewing their evidence can also expose weaknesses in their case against you.
Build a Clear and Compelling Argument
Importantly, the agency bears the burden of proof in MSPB appeals. This means they must demonstrate that the adverse action against you was justified based on federal law and internal policies. It’s crucial to develop an argument that challenges their case. You could do this by demonstrating:
- Lack of evidence of misconduct or performance issues,
- Procedural errors in the disciplinary process,
- Retaliatory or discriminatory motives behind the agency’s action, or
- Violations of agency policies.
MSPB appeals judges hear many cases, so it’s critical to present a straightforward, compelling story that gets to the heart of why the agency’s action was unjustified.
Consider Settlement Options
Many MSPB cases are resolved through settlement. Importantly, settling your case doesn’t mean admitting fault—it can be a strategic way to avoid the stress and uncertainty of a hearing. Your attorney can work to negotiate with your agency and agree on a settlement that has favorable terms for you, such as reduced disciplinary penalties or back pay.
Three Decades of Dedicated Representation for Federal Employees
There’s no denying that making a successful MSPB appeal is not easy—but with proper preparation and skilled legal support, it is possible.
As a seasoned attorney with over 12 years of experience fighting for New York’s federal employees, Steve Newman has the insights and knowledge to make a difference in your appeal. His guidance and tireless advocacy in MSPB appeals have helped clients reinstate their employment, secure back pay, and resolve complex employment disputes.
If you’re considering an MSPB appeal, contact the Law Offices of Steve Newman for a free consultation. Steve can assess your case, explain your options, and develop a strategy to help protect your career and future.
