For federal employees, taking action against wrongful adverse employment actions often involves filing an appeal with the Merit Systems Protection Board (MSPB). The MSPB is an independent, quasi-judicial agency in the Executive branch, and it is tasked specifically with handling federal employees’ (and former federal employees’) complaints involving certain types of prohibited personnel practices and other violations of federal employees’ rights.
If you need to file an MSPB appeal, there is a lot you need to know. While the MSPB process exists to ensure that federal employees (and former federal employees) have an avenue to assert their legal rights, filing a successful MSPB appeal can prove challenging. Along with proving your substantive claim, you must meet various procedural requirements as well, and any mistakes, shortcomings, or oversights can prevent you from securing the outcome you deserve.
5 Important Facts About Filing an MSPB Appeal as a Current or Former Federal Employee
With this in mind, what do you need to know before you move forward? Here are five important facts about filing an MSPB appeal as a current or former federal employee:
1. The MSPB Handles Many (But Not All) Types of Complaints Against Federal Employers
While the MSPB handles many types of complaints against federal employers, certain types of complaints fall under the jurisdiction of the U.S. Equal Employment Opportunity Commission (EEOC), the Office of Special Counsel (OSC), and other federal entities. As a result, before you initiate an MSPB appeal, you need to make sure this is the right approach based on your specific circumstances. The types of cases the MSPB handles include:
- Adverse actions (including removals, reductions in grade or pay, suspensions of more than 14 days, and furloughs of 30 days or less for cause)
- Retirement appeals
- Termination of probationary employment
- Restoration of employment following a work-related injury
- Performance-based reductions in grade and removals for unacceptable performance
- Reductions in force
- Employment practices administered by the Office of Personnel Management (OPM)
- Denials of within-grade pay increases
- Actions based on suitability determinations
- Select other actions related to employment, termination of employment, restoration, reemployment, and placement into excepted service
If you believe that an MSPB appeal is the right venue for pursuing your federal employment claim, an experienced New York MSPB lawyer can confirm whether this is the case. If you aren’t sure where you need to file your appeal, your lawyer can help you determine what steps you need to take to assert your legal rights.
2. Most (But Not All) Federal Employees Are Eligible to File MSPB Appeals
Just as the MSPB does not accept all types of federal employment-related complaints, it does not accept complaints from all current and former federal employees. Those who are generally eligible to file an MSPB appeal include (but are not limited to) most current and former employees in the competitive service who have completed their one-year probationary period, most veterans’ preference-eligible employees with at least one year of continuous service, and certain excepted service employees who are not preference-eligible. Here, too, an experienced New York MSPB lawyer can help you determine if you are eligible to file an MSPB appeal.
3. MSPB Appeals Are Subject to Strict Deadlines
If you are eligible to file an MSPB appeal, there are strict deadlines you need to meet in order to assert your legal rights. Most importantly, once you receive the decision that you intend to appeal, you must file your appeal “within 35 days after the date the initial decision is issued or within 30 days after the date you receive the initial decision, whichever is later.”
If you miss the deadline to file your MSPB appeal, you may be able to file late. But, in order to do so, “you must show a good reason for the delay and include supporting evidence” when you file your appeal.
4. MSPB Appeals Are Subject to Strict Filing Requirements
As the MSPB explains, “[a]lthough an appeal may be in any format, it must be in writing and contain all of the information specified in the [MSPB’s] regulations.” If your MSPB appeal does not include all required information, the MSPB may have no choice but to reject it.
5. MSPB Appeals Are Subject to Various Burdens of Proof
Finally, when you file an MSPB appeal, you must be able to successfully prove various aspects of your claim in order to achieve a favorable result. For example, as the MSPB explains:
“You have the burden of proving that your appeal is within the Board’s jurisdiction and that it was timely filed. You also have the burden of proving any ‘affirmative defenses’ that you raise, for example, discrimination or reprisal for whistleblowing.”
If you meet these requirements, the burden then shifts to your agency (or former agency) to prove that no remedial action is warranted. If your agency (or former agency) meets this burden of proof, then the burden shifts back to you. As the MSPB also explains:
“The agency has the burden of proving that it was justified in taking the action. If the agency meets its burden of proof, the [MSPB] must decide in favor of the agency, unless you show that there was harmful error in the agency’s procedures, that the agency decision was based on a prohibited personnel practice, or that the decision was not in accordance with the law.”
As you can see, there are numerous complexities to filing a successful MSPB appeal. While you can try to handle your MSPB appeal on your own, you can also hire a lawyer to help you. If you are considering filing an MSPB appeal—or if you have questions about the process—we strongly encourage you to speak with a New York MSPB lawyer at Bell Law Group.
Schedule a Free and Confidential Consultation with a New York MSPB Lawyer at Bell Law Group
To speak with a New York MSPB lawyer at Bell Law Group, contact us today. Call 516-280-3008 or tell us how we can reach you online to schedule a free and confidential consultation.
