WHAT TYPES OF ACTIONS CAN BE BROUGHT TO THE MSPB?

The MSPB, or Merit Systems Protection Board, is a quasi-judicial agency that makes up part of the Executive Branch of the Federal Government. The MSPB oversees Federal merit systems. It is authorized by the Civil Service Reform Act (CRSA) of 1978 to hear appeals of some, but not all, agency actions. Let’s take a look at some of the agency actions that may be brought to the MSPB and what you might expect from the MSPB appeals process.

Adverse Agency Actions

The majority of the actions brought before the MSPB are adverse agency actions. These include:

• Reductions in pay or grade, also known as demotions
• Furloughs of 30 days or less
• Removals, or termination of employment
• Suspensions of more than 14 days

Removals, demotions, and suspensions are provided for under Chapter 75 of Title 5 of the U.S. Code, while reductions in grade and removals can also be performed under Chapter 43. Suspensions can be fewer than 14 days, more than 14 days, or indefinite, although indefinite suspensions may be used only in specific circumstances, such as when the agency has reasonable cause the belief an employee has committed a crime, the employee may present a medical risk to others in the workplace, or the employee’s access to classified information has been suspended and he or she is unable to do his or her job as a result.

Your rights as an employee will depend on the type of adverse action to which you are subject. For example, employees who are subject to a suspension of less than 14 days have the following rights:

• The right to “advance written notice stating the specific reasons for the proposed action.”
• The right to be told that you have the right to see the material the agency is using to justify your suspension.
• The right to “a reasonable time to answer orally and in writing and to furnish affidavits and other documentary evidence in support of the answer.” This period must be at least 24 hours.
• The right to “be represented by an attorney or other representative.”
• The right to “a written decision and the specific reasons therefor at the earliest practicable date.”
• By contrast, if your agency seeks a suspension of more than 14 days, you have the following rights:
• The right to “30 days’ advance written notice,” unless the agency has reason to believe you have committed a crime that carries a sentence of imprisonment.
• The right to at least seven days to answer in writing and orally, and to furnish evidence to support your answer, including affidavits and other documents. If you are still working, your agency must give you time on the job to prepare your response.
• The right to be represented by an attorney “or other representative.”

Other Actions that Can Be Brought to the MSPB

Performance-based adverse actions may also be appealed to the MSPB. These include:

• Performance-based reductions in grade or removals
• Denials of within-grade salary increases
• Reduction-in-force actions
• OPM determinations in retirement matters
• OPM suitability determinations
• Terminations of probationary employees
• Denials of restoration or reemployment rights
• OPM employment practices

Some personnel actions that are not appealable to the MSPB may be appealable to the OPM, or may be covered under your agency’s grievance procedures. If you are or are about to be the subject of a personnel action that has been taken or is about to be taken as a result of prohibited personnel practices (PPP), you can appeal to the Office of Special Counsel to ask the Special Counsel to appeal to the MSPB for corrective action on your behalf.

Discrimination Complaints

While most discrimination complaints should be brought to the EEO, the MSPB will hear discrimination complaints that are connected the personnel actions being appealed. If you allege discrimination in connection with a personnel action that can otherwise be brought to the MSPB, then the MSPB has jurisdiction over the discrimination complaint.

Who May File Appeals with the MSPB?

Not all Federal employees may file appeals with the MSPB. Who may file appeals depends on the laws and regulations that govern specific personnel actions. Entire classes of employees may be excluded from appealing certain personnel actions to the MSPB. Employees who work for specific agencies may also be excluded from filing appeals to the MSPB based on certain personnel actions.

You may appeal adverse actions to the MSPB if:

• You are a federal employee who has completed a 1-year probationary period or have completed one year of current, continuous service other than under a temporary appointment of one year or less.
• You are a veterans-preference-eligible employee with at least one year of continuous employment in the same or similar positions outside the competitive service;
• You are a Postal Service supervisor or manager, or a Postal Service employee engaged in doing personnel work other than non-confidential clerical work, and have completed at least one year of current continuous service in the same or similar positions.
• You are an excepted service employee, not a veterans-preference-eligible employee, and are not service a probationary period under a first appointment pending conversion to competitive service.
• You have completed two years of current continuous service in the same or similar positions in an Executive agency under an appointment other than a temporary appointment limited to no more than two years.

Leitner Varughese Warywoda Law: Experienced MSPB Appeals Process Attorneys

If you have been or are about to be the subject of adverse personnel action in the federal workplace, you have the right to be represented by an attorney who understands federal employment law. The personnel action appeal process can be complex and draining, especially when you’re already stressed out by problems in the workplace. You need a federal employment attorney on your side.

At LVW Law, our attorneys have successfully litigated a wide variety of federal cases across the nation — with a special focus on issues involving federal employee EEO claims at the Equal Employment Opportunity Commission and the Merit Systems Protection Board.

Call to speak with an attorney today to learn more about your rights as a federal employee and what you can do successfully appeal your personnel action to the MSPB. Contact us at 888.594.0424 or complete our online contact form to get started.