MSPB Appeals Attorneys

As a federal employee you have numerous rights under the Civil Service Reform Act of 1978, including the right to appeal a variety of adverse personnel actions. Actions subject to MSPB appeal include Disciplinary Actions including Terminations, Removals and Suspensions, Reductions In Force (RIFs), Wrongful Denial of FERS Disability Retirement Benefits, Whistleblower Retaliation, as well as a host of other actions that separate a federal employee from their former job or impact entitlements. In order to assert your interests, current or former federal employees make an appeal to the Merit Systems Protection Board, and the MSPB will issue a ruling either affirming the action being appealed or determining that the federal agency was in the wrong.

While an MSPB appeal provides an opportunity for federal employees to have grievances rectified, the actual appeals process requires special attention to detail and can vary drastically from proceedings in state or federal courts. Because of this, it’s crucial to seek counsel from lawyers who are experienced with and focused on MSPB law.

Filing a Merit System Protection Board Appeal

The first step towards filing an MSPB appeal can be found at the e-Appeal portal, an interactive form which details necessary information to provide. The appeal form form may not be emailed, but can be sent in via postal mail, fax, or commercial or personal delivery. Appeals must be in writing.

5 C.F.R. §§ 1201.24 states rules and procedures for MSPB appeals. For instance in the case of the electronic filing of documents, many documents and pleadings can be filed electronically while specific others cannot, and anyone making an appeal, or their attorney, must have first registered with the MSPB as an e-filer before filing electronically.

Agency Requirements

When a federal agency issues a decision which can be appealed to the MSPB, the agency must provide:

• Information about time limits for filing an appeal, plus the applicable address;
• A copy of the MSPB’s regulations;
• A copy or access to a copy of the appeal form;
• Notice of an employee’s rights to file a grievance;
• Notice of any rights to complain to the EEOC;
• Name and contact information of the agency official who should get a copy of the appeal; plus
• Details specifically listed in 5 C.F.R. §§ 1201.24

There are specific differences for Individual Right of Action (IRA) Appeals involving Whistleblowing Claims (covered under §1209.6); USERRA (Uniformed Services Employment and Reemployment Rights Act) issues (covered under §1208.13); Veterans Employment Opportunities Act (VEOA) issues (covered under §1208.23); and requests for Regulation Review (covered under §1203.11).

Time to File

For most appeals to the MSPB, you must file within 30 days of the effective date of the action (if any) or within 30 calendar days after the date of receiving the agency’s decision, whichever comes later.

Appellants must file whistleblower appeals within 65 days of the date of the OSC notice which advised you that the Special Counsel would not seek corrective action, or within 60 days after you received the OSC notice, whichever happens later.

There are no time limits on filing USERRA appeals.

VEOA appeals require that you first file a complaint with the Secretary of Labor and give the Secretary at least 60 days to try resolving the matter. On the 61st day, you can appeal to the MSPB, or if you receive notice that the Secretary cannot resolve the matter you have 15 days to file your appeal with the MSPB.

What to File

Appellants must follow all applicable regulations (noted above), and generally should also provide the notice of proposed action, the agency decision to take the action under appeal, and if available the SF-50 or similar notice of personnel action.

For whistleblower appeals, appellants must provide evidence that the administrative process was thoroughly exhausted. That is, you have to demonstrate that you made an attempt to resolve the matters before appeal, you did not succeed, and thus you are exercising your right to an appeal.

Where to File

You generally must file your appeal with the MSPB regional or field office serving the area where your duty station was when the action was taken. However, if your appeal relates to a final decision of the Office of Personnel Management on Retirement Benefits or a determination of adverse suitability, you must file your appeal with the regional or field office that has jurisdiction over the area where you live.

MSPB Appeal Remedies

If your appeal to the Merit Systems Protection Board is successful, a judge can award a full range of remedies to make you whole. Potential remedies include, but are not necessarily limited to, reinstating your employment, promotion, back pay, reimbursement of lost benefits, damages for emotional distress, compensation for costs, and more.

In general, appeals of an MSPB decision go to the US Court of Appeals for the Federal Circuit. Furthermore, the Director of OPM can file an appeal, as can Special Counsel.