Merit System Protection Board (MSPB) Appeals

Have you experienced a suspension of more than fourteen days, or a removal? Were you subjected to retaliation because you blew the whistle on a prohibited personnel practice?

At Snider & Associates, we will help you file an appeal with the MSPB.

What Is The MSPB?

The U.S. Merit Systems Protection Board, or MSPB, is a federal agency dedicated to hearing and deciding employment-related appeals for people who work for the federal government. Its stated mission is to “protect the Merit System Principles and promote an effective Federal workforce free of Prohibited Personnel Practices.”

Service in the Federal Government is supposed to be based completely on merit. The Civil Service Reform Act very clearly defines the principles that govern the merit system in Federal service, and what personnel practices are prohibited. The Merit Service Protection Board oversees this system. Generally, when a federal employee is faced with an adverse employment action, he or she may be able to appeal it to the MSPB.

The MSPB only hears cases for major adverse actions, meaning removals, suspensions for more than 14 days, a reduction in grade, a reduction in pay, and a furlough of 30 days or less.

An employee does not need to show any kind of discrimination, just that the Agency didn’t follow the rules. The Agency must show that the adverse action is for such cause that will “promote the efficiency of service.”

The MSPB generally does not hear cases for probationary employees.

In the MSPB, Agency has burden to prove their action by a preponderance of the evidence (51%). If the Agency is unable to do this, the Board can overturn the adverse action.

Employees may raise affirmative defenses like harmful procedural error or prohibited personnel practice. If the employee tries to prove his or her case, it also needs a preponderance of the evidence.

What Are the Merit System Principles?

Under 5 U.S.C § 2301, the Merit System Principles are designed to protect federal employees from discriminatory or otherwise unlawful behavior in the workplace.

The principles espouse (in part):

  • Fair and equitable treatment;
  • Equal pay;
  • Protection against politically motivated coercion;
  • Protection against reprisal for whistle blowing;

These Principles are meant to address and prevent “prohibited personnel practices.”

What Are the Prohibited Personnel Practices?

To commit a Prohibited Personnel Practice is a violation of the Merit System Principles. According to the Office of Special Counsel, Prohibited Personnel Practices include:

  1. Discrimination based on race, color, religion, sex, national origin, age, disability, marital status, or political affiliation
  2. Recommending (or not) an employee/applicant based on political motivations
  3. Coercing an employee (or retaliating against the employee) in regard to politics
  4. Obstructing competition, i.e. giving an employee a negative and unjustified performance rating to prevent that employee’s promotion
  5. Influencing withdrawal from competition, i.e. persuading an employee to withdraw his or her application for a vacant job position
  6. Giving an applicant an unfair advantage in order to award the applicant the role

Other Prohibited Personnel Practices include nepotism and retaliation against whistleblowers.

How Do You File an Appeal?

In general, appeals to the MSPB must be filed within 30 days of the date of the adverse action taken against you. Failure to meet this time requirement could result in the MSPB’s rejection of your claim, though in some circumstances, the deadline can be extended to 60 days. Still other types of appeals/claims have different time requirements, depending on the circumstances.

Other considerations:

  • Your initial filing must follow the MSPB’s rules and regulations, such as an adequate description of the agency’s adverse action against you and the effective date of that adverse action
  • Follow the assigned Administrative Law Judge’s orders as to pleadings and other paperwork and ultimately hold a hearing with the Judge, who will issue an initial decision
  • File a Petition for Review, if necessary, to appeal the Judge’s adverse decision (either with the MSPB review board or with the federal court)

If an employee files an appeal with the MSPB, first an Administrative Judge is assigned. The judge sets the schedule. The parties are entitled to discovery, where they can request documents and other evidence from the other side. Finally, there is a hearing when each side calls witnesses and presents evidence.
There is no Summary judgment at the MSPB. This means that the Agency cannot ask the Judge to dismiss the case without a hearing once it has been accepted.

At Snider & Associates, we can help you file an appeal with the MSPB and guide you throughout each step of the process, from filing the appeal up to additional litigation in federal court.

To speak with us about your case call or email today.

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