What Appeals Can You Make to the Merit Systems Protection Board (MSPB)?
Federal employees have important rights when faced with adverse actions at work. If you’re a federal employee facing removal, suspension, or other disciplinary measures, knowing your rights and legal options is critical.
My staff at Jeff Schrameck at Schrameck Law, P.L.L.C. provides legal services focused on federal employment law, helping employees assert their rights before the Merit Systems Protection Board (MSPB). Whether you're facing an unjust firing or retaliation after whistleblowing, the MSPB offers an avenue for legal recourse.
Overview of the Merit Systems Protection Board
The MSPB is an independent agency established to protect federal employees from unjustified personnel actions. It adjudicates appeals by employees covered under federal employment law. The Board was created to enforce the merit system principles and safeguard employees from prohibited personnel practices.
The MSPB hears appeals on a range of federal employment law issues, including removals, suspensions, demotions, and whistleblower retaliation. Employees must meet specific eligibility requirements to bring a case before the Board.
Types of Appeals You Can File With the MSPB
Federal employees may appeal several types of adverse actions to the MSPB. Each type of appeal has specific requirements and deadlines.
Adverse Actions Under 5 U.S.C. Chapter 75
These are among the most common appeals. Covered employees can challenge actions such as:
Removals from federal service: Termination due to alleged misconduct or poor performance.
Suspensions of more than 14 days: Disciplinary suspensions that exceed two weeks.
Demotions: Involuntary grade or pay reductions.
Furloughs of 30 days or less: Short-term unpaid leaves due to budgetary constraints.
To appeal, the employee must be in the competitive service or a preference-eligible in the excepted service with at least one year of continuous service.
Performance-Based Actions Under Chapter 43
Employees removed or demoted based on performance deficiencies may appeal these actions if they believe:
The performance standards were unreasonable or not communicated.
They weren’t given an adequate opportunity to improve.
The action was motivated by retaliation or discrimination.
Federal employment law protects employees from arbitrary performance evaluations used to justify removal.
Reduction in Force (RIF) Appeals
Employees affected by a RIF may appeal if they believe the agency didn’t follow proper procedures. Grounds for appeal include:
Improper application of retention standing.
Violation of veterans’ preference rights.
Use of RIF procedures to disguise a disciplinary action.
These appeals can be particularly sensitive due to the broad discretion agencies have in restructuring.
Whistleblower Retaliation
Employees who disclose wrongdoing and suffer retaliation can bring a whistleblower appeal under the Whistleblower Protection Act (WPA). These appeals are based on:
Reprisal for reporting waste, fraud, or abuse.
Retaliation for participating in an investigation or refusing to follow unlawful orders.
Hostile work environment caused by whistleblowing.
To succeed, the employee must show that the protected disclosure was a contributing factor in the adverse action.
Individual Right of Action (IRA) Appeals
IRA appeals cover prohibited personnel practices outside of standard adverse actions. You may file an IRA if:
You suffer retaliation for whistleblowing, even if not formally disciplined.
You experience discrimination based on marital status, political affiliation, or conduct not affecting job performance.
Before filing with the MSPB, you must first seek relief from the Office of Special Counsel (OSC) and receive a notice of right to file an IRA.
Denial of Within-Grade Increases
Federal employees denied a periodic increase in pay may appeal if the denial was based on:
Incorrect assessment of performance.
Discriminatory or retaliatory motives.
Failure to follow agency procedures.
While often overlooked, pay-related actions can be important for long-term financial stability.
Suitability Determinations
When federal job applicants are deemed unsuitable for federal employment, they may appeal to the MSPB. Common issues include:
Misinterpretation of criminal history or prior misconduct.
Violation of due process rights in the suitability determination.
Improper consideration of protected information.
The Board reviews whether the agency's decision followed proper procedures and balanced risk appropriately.
OPM Retirement and Benefits Appeals
The MSPB also hears appeals involving retirement and benefits decisions by the Office of Personnel Management (OPM). These may involve:
Disputes over disability retirement eligibility.
Erroneous calculation of retirement annuities.
Denials of health insurance continuation under FEHB.
Federal employment law mandates procedural protections and the accurate application of benefit regulations.
Requirements for Filing an MSPB Appeal
Before filing with the MSPB, an employee must assess eligibility. Key requirements include:
Covered employee status: Most appeals are limited to competitive service employees with at least one year of service.
Timely filing: The typical deadline is 30 calendar days from the effective date of the adverse action.
Jurisdiction confirmation: Not all federal employment law disputes fall within MSPB authority.
Missing deadlines or filing improperly can result in dismissal of your appeal.
What the MSPB Considers in Its Review
The MSPB evaluates several factors when reviewing an appeal. These include:
Legal compliance: Did the agency follow required procedures and apply proper standards?
Substantial evidence: Was there factual support for the action taken?
Due process: Was the employee given notice and a chance to respond?
Prohibited practices: Did the action involve retaliation, discrimination, or other prohibited behavior?
Each of these factors plays a critical role in how your case is reviewed under federal employment law.
Remedies Available Through the MSPB
If the MSPB rules in favor of the employee, it can order corrective actions such as:
Reinstatement to the previous position.
Back pay for lost wages.
Correction of personnel records.
Payment of attorney fees and costs.
In whistleblower and IRA cases, the Board may also order compensatory damages when appropriate.
The Appeals Process Step-by-Step
Engaging with the MSPB process involves several stages. Understanding these helps employees prepare effectively.
Filing the initial appeal: Submit your appeal online through the MSPB e-Appeal system within the deadline.
Status conference: The judge sets a schedule and clarifies issues to be addressed.
Discovery: Both sides exchange information and documents relevant to the case.
Hearing: A judge hears witness testimony and examines evidence.
Initial decision: The judge issues a decision, which can be further appealed to the full Board.
Petition for review: Parties may request Board review if new evidence arises or legal errors are present.
Judicial review: If still dissatisfied, parties may seek review by the U.S. Court of Appeals for the Federal Circuit.
Working with a lawyer skilled in federal employment law can help protect your rights at every stage.
Common Mistakes Employees Make When Appealing to the MSPB
Federal employees sometimes weaken their appeals by making avoidable mistakes. Common missteps include:
Missing filing deadlines: These are strictly enforced and can result in dismissal.
Filing appeals without jurisdiction: Not all personnel actions qualify for MSPB review.
Failing to respond to agency motions: Silence can be interpreted as acceptance.
Neglecting to present evidence: Documentation and witness testimony are vital.
Going unrepresented: Legal representation can provide significant strategic advantages.
Being mindful of these mistakes can improve your chance of a favorable outcome under federal employment law.
Additional Appeals Outside MSPB Jurisdiction
Some employment issues may require other legal routes. These include:
Equal Employment Opportunity (EEO) complaints: For cases involving race, sex, religion, disability, or age discrimination.
Grievance procedures under collective bargaining agreements: Available to unionized employees.
OSC complaints: For whistleblower reprisal and other prohibited practices.
Office of Federal Operations appeals: For EEO decisions from the Equal Employment Opportunity Commission.
It’s important to understand which venue is appropriate for your type of federal employment law issue.
Reach Out to a Lawyer
If you're facing disciplinary action, removal, or retaliation in your federal job, contact my firm, Schrameck Law, P.L.L.C., to discuss your MSPB appeal options. I represent federal employees all throughout the United States. Call me today to get started.