Most federal employees who are being suspended (for 15 days or more), demoted, or fired, may have appeal rights to the Merit Systems Protection Board (MSPB). For attorneys and pro-se appellants, understanding the MSPB Appeal Process can be a bit daunting. Here’s the various stages of an MSPB appeal, beginning with the Adverse Action Proposal Letter and continuing through an Appeal to the Full Board.
Proposal Letter: This is the most crucial document in the entire process – it proposes the action that the Agency wants to take. The letter should indicate that the employee may issue an oral/written reply, that the employee has a right to representation, and that the employee has a right to request the “material relied upon”.
Oral/Written Reply: This is the employee’s chance to show the Agency why they should not take the proposed action.
The employee does not have to admit any misconduct or prove his or her innocence. Typically, unless there is clear and convincing exonerating evidence, it is often best to simply deny the misconduct, and discuss the Douglas Factors completely. Be sure to consult an attorney – how the employee approaches an oral or written reply can later affect an attorney’s strategy before the MSPB.
Decision Letter: After the proposal letter and any oral/written reply, the Agency will issue its decision letter. Most decision letters cannot be issued within 30 days of the proposal letter (there are, of course, exceptions to this general rule). The decision letter must contain certain enumerated rights, including an MSPB appeal right.
Penalty: Usually, the decision letter will state when the suspension or removal will occur. In rare instances, Agencies will “abate” the suspension or removal pending the outcome of any appeals. They might do this on longer suspensions and questionable removals where they could be liable for interest under the BackPay Act if the Agency cannot prevail at the MSPB.
MSPB Appeal: By visiting the Board’s website, a Federal Employee can download Form 185, which is used to file an appeal. The Administrative Judge will send the employee (now the Appellant) and the Agency (now the Respondent) an “Acknowledgment Order” requiring the Agency to designate a representative and provide the Agency’s Evidentiary File within a certain number of days. Read all orders from the Administrative Judge very carefully, and be sure to scrupulously adhere to all timelines.
Agency File: This is the Agency’s chance to “pad the record”. Typically, an Agency File should contain all the evidence on which the Agency intends to rely to prove its case. Oftentimes, Agency attorneys will pad the record with information meant to embarrass or later impeach a witness or the Appellant. Anything in the Agency File is guaranteed to be in the record – the Agency is unlikely to put information in the record that is harmful to their case, unless specifically required by the Judge.
Hearing Stage: After the Agency File is submitted, the Administrative Judge will set the timeline for the hearing through the use of a Scheduling Order. The Scheduling Order (sometimes included in or with the Acknowledgment Order) tells the Appellants the key dates for his or her appeal: when to initiate discovery, when to present Pre-Hearing Submissions, when to participate in the Pre-Hearing Conference and when/where the hearing will be held. There is so much information in the Scheduling Order – be sure to read it closely – more than once! The hearing itself is an administrative hearing, somewhat more structured than an EEOC hearing, but nowhere near as structured as a state or Federal Court trial. The MSPB records the testimony – if the employee later wants a copy, the employee will have to pay for a transcript or a copy of the tapes.
Initial Decision:After the hearing (usually 30 – 90 days later) the Administrative Judge will issue his or her Initial Decision. This decision will contain the employee’s appeal rights – which can be complicated. The claims and defenses that were alleged will determine the appeal rights – the Appellant may have a right to file in Federal District Court, in the Federal Circuit Court, the EEOC, or file a Petition for Review with the Full Board.
Petition for Review: If the Appellant challenge the Administrative Judge’s decision, the employee may file a Petition for Review, also known as a “PFR”. The standard for prevailing on a PFR is very high for appellants – the record below has to be properly preserved, and there has to be a showing that but for an error at the hearing or in the Judge’s decision, the outcome would have been different for the Appellant. Usually, Agency’s do not appeal – there are limited scenarios where an Agency may file a PFR of its own. On even fewer occasions, OPM may intervene and appeal on behalf of the Agency (this is usually only when OPM feels that the decision of the Board will have a detrimental effect on a large number of federal employees).
Other Appeal Rights: In some situations, the employee may be able to file suit in a United States District Court, the Federal Circuit Court of Appeals, or the EEOC. These situations are too complex to discuss here.
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