MSPB Appeals Process: Our Attorneys Fight for Civil Servants

Fighting for your job is a scary situation for anyone. For federal employees undergoing the U.S. Merit Systems Protection Board appeals process, it can feel a bit like a David vs. Goliath situation. However, that doesn’t need to be the case. Having a dogged, competent federal employment attorney on your side can level the playing field during an MSPB appeals process.

In this article, you will learn what to expect during the Merit Systems Protection Board appeals process, what factors the MSPB considers when deciding your case, and how a federal employment attorney can assist you every step of the way.

Hire an Experienced Federal Employment Attorney for Your MSPB Case

In an MSPB appeals case, you are fighting against both the federal government and the clock. Don’t wait — call a federal employment attorney at Robinson & Henry today. We understand the stakes are high in an MSPB appeal, and we will advocate tirelessly for your best possible outcome. Call 303-688-0944 to begin your free case assessment.

If you are a federal employee who is facing suspension, demotion, or even termination, you have the right to appeal your employer’s decision. However, it is important that you ask for an MSPB hearing when you file your appeal. If you don’t ask for a hearing initially, you give up the right to one.

Let’s take a look at how the Merit Systems Protection Board functions.

What is the MSPB?

The U.S. Merit Systems Protection Board is an administrative agency that has jurisdiction over certain adverse actions affecting federal civil servants’ employment. The MSPB can terminate, demote, and suspend federal civilian employees. 5 U.S. Code § 7512

Under the Civil Service Reform Act, the MSPB enables federal workers to challenge certain decisions made by the federal agencies that employ them. The board exists to prevent federal agencies from taking arbitrary, abusive, or politically motivated actions against their employees.

The Adverse Actions Process

The MSPB most commonly hears cases involving:

• suspension of 15 days or longer
• removal
• demotion

These are known as adverse actions. A removal action terminates your employment. A demotion is also known as a reduction in your grade or pay. A suspension means being temporarily relieved of duties and pay, for disciplinary reasons.

Federal Employers Must Follow Strict Processes to Take Adverse Actions

Before your employer issues an adverse action against you, an agency official will collect evidence, such as witness statements, e-mails, copies of customers’ complaints, or data reports.

If the agency feels it appropriate, an official will ask you for your side of the story before proceeding.

Proposing Official

A proposing official will consider the evidence and use it to decide if an adverse action is warranted. If the proposing official believes it is, he or she will sign a written notice of proposed action that includes:

• notice of the law or regulation under which the action is being taken
• clear charges and specifications
• who the deciding official will be and how to contact him or her
• the deadlines to submit a written reply and request for an oral reply
• notice that you can choose to have a representative, such as a private attorney
• information on how you can access the evidence
• notice of the proposed penalty
• the factors that the deciding official will consider when determining the appropriate penalty

Deciding Official

Next, a deciding official will consider any reply from you. If the deciding official obtains new information, he or she must inform you of the new information being considered and provide an opportunity for you to respond.

The agency can rescind the original proposal and issue a new one if that is appropriate. For example, the deciding official may determine that there are errors in the proposed action or that action is warranted on a different basis.

Notice of Decision

Finally, the deciding official will issue a written notice of decision. If the official decides to impose a penalty with appeal or grievance rights, the notice will inform you of those rights.

MSPB Appeals Process

You Must File an Appeal

From a procedural standpoint, the MSPB appeals process is much like a traditional civil lawsuit. Instead of a trial, however, you will present your case during a hearing before an administrative judge.

Once your employer has issued an adverse action against you, you have 30 calendar days to submit an appeal requesting an MSPB hearing.

Once you have filed your appeal, an MSPB administrative judge will be assigned to hear your case. An acknowledgment order also will be issued. This order outlines the general ground rules for the MSPB appeals process in your case.

You Can Opt to Negotiate a Settlement or Proceed with a Hearing

You may prefer to negotiate a settlement with your federal employer instead of proceeding to a full hearing. Our federal employment attorneys can help you evaluate the potential for a settlement in your case. Our attorneys will also seek settlement offers on your behalf.

If you decide that a settlement is not your best option, the next stage of the MSPB appeals process is the hearing.

The Discovery Phase

The discovery phase takes place immediately after you file your case with the MSPB. The process generally must be initiated within 30 days after the administrative judge issues the acknowledgment order. This is the time for your MSPB appeals attorney to gather critical evidence to support your appeal, such as relevant documents from your chain of command.

The Deposition Process

The deposition process is a crucial part of the discovery phase. Both you and your employer can call witnesses to support your claims.

The MSPB Pre-Hearing

At this stage, you and the opposing party – your employer – will first submit your pre-hearing conference submissions. Your attorney will also submit all the evidence supporting your appeal.

The administrative judge will review the pre-hearing submissions and decide which witnesses and evidence will be heard at the hearing. By this time, the judge will have also set the hearing date.

What to Expect at Your MSPB Appeals Hearing

The hearing is your time to show the administrative judge that you are still capable of excelling in your position and that the offense in question is not part of a larger pattern. During the MSPB appeals hearing, the agency for which you work must prove that their actions against you were warranted. Conversely, you may submit evidence to demonstrate that the actions were not warranted.

Hearings usually take place at the appropriate MSPB regional or field office. However, hearings can also occur in other places, such as at the agency’s location or by video conference.

As with traditional civil litigation, both parties will typically begin with opening statements. Then, each party will present their case through witnesses and exhibits.

Your attorney’s primary objective is to argue that your employer has not met their burden of proof and that the penalty is unreasonable under the Douglas Factors (read more on this below). The parties will generally then offer a closing argument.

When a Ruling is Issued

Following the hearing, the administrative judge will issue a ruling, called an initial decision. The initial decision usually comes about one to three months after the hearing date.

What is the Burden of Proof?

The burden of proof is the level of evidence required for a federal agency to succeed in an appeal against an employee.

The burden of proof a federal agency needs to prove its case depends on the type of appeal.

There are two main types of federal employee appeals:

• adverse actions (misconduct-based discipline) 5 U.S.C. 75
• performance actions (performance-based discipline) 5 U.S.C. 43

Each appeal has a separate burden of proof.

Misconduct 

If you have been removed from your federal position based on misconduct, your employer must prove the allegations made against you by a 51 percent preponderance of the evidence presented. A party meets its burden of proof under the preponderance standard when it convinces the fact finder that there is more than a 50 percent chance that the claim is true.

Performance 

In cases involving performance actions, your employer is only required to present substantial evidence. This is significantly lower than the 51 percent preponderance standard.

Below, we’ll take a look at some examples.

Adverse Action (Misconduct) Burden of Proof

Let’s say you have been charged with insubordination for allegedly misusing your government credit card. Your supervisor issues a 30-day proposed suspension. A deciding official now hears your case.

Ultimately, the deciding official decides to uphold the proposed suspension and upholds the 30-day penalty. You decide to appeal your suspension to the MSPB.

During the MSPB appeal, your employer must prove that it is more likely than not that you misused your government credit card. Your employer will likely present evidence like witness testimony and other relevant exhibits, such as emails and other correspondence.

Performance Action Burden of Proof

Performance actions are different from disciplinary actions. Performance actions generally require a lower burden of proof under Chapter 43 of the U.S. Code.

Here’s an example:

Let’s presume that you receive a negative performance review or evaluation. Your employer then places you on a 90-day performance improvement plan (PIP). You are assigned certain goals that you must reach within that time frame.

Unfortunately, you are ultimately unsuccessful under the PIP. Consequently, the federal agency employing you proposes your removal. The deciding official removes you. You then appeal the decision to the MSPB.

Substantial Evidence

During the MSPB appeal, your employer will have to show substantial evidence to support its action. Substantial evidence refers to evidence that a reasonable person could accept as sufficient to support a conclusion.

For a performance case, your employer must generally prove that it:

• set up a performance appraisal system approved by the U.S. Office of Personnel Management
• communicated objective and reasonable written performance standards prior to implementing the PIP
• warned you of your inadequacies during the PIP
• counseled you and offered you a meaningful opportunity for improvement.

MSPB Criteria

The MSPB uses criteria known as the Douglas Factors, or mitigating factors, in appeal cases. These factors are used to argue that disciplinary charges for federal employees — even if true — should still result in a lower penalty than the one proposed.

The Douglas Factors originate from the 1981 case Douglas v. VA. In that case, the MSPB set forth 12 factors that should be considered when evaluating the reasonableness of a disciplinary penalty for a federal employee:

“Selection of an appropriate penalty must thus involve a responsible balancing of the relevant factors in the individual case. The Board’s role in this process is not to insist that the balance be struck precisely where the Board would choose to strike it if the Board were in the agency’s shoes in the first instance… Rather, the Board’s review of an agency-imposed penalty is essentially to assure that the agency did conscientiously consider the relevant factors and did strike a responsible balance within tolerable limits of reasonableness.” 5 M.S.P.R. 280

Douglas Factors

The MSPB considers the following 12 factors:

1. The nature and seriousness of the offense.
2. The employee’s job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position.
3. The employee’s past disciplinary record, if any.
4. The employee’s past work record, including length of service, job performance, ability to work well with others, and dependability.
5. The offense’s effect on the employee’s ability to perform at a satisfactory level and its effect on the supervisor’s confidence in the employee.
6. Whether the penalty is consistent with those imposed for the same or similar offenses.
7. If the penalty is consistent with the agency’s policies, often called the table of penalties.
8. The notoriety of the offense or its impact upon the agency’s reputation.
9. The clarity with which the employee was on notice for any rules violations or had been warned about the questionable conduct.
10. The potential for the employee’s rehabilitation.
11. Unusual job tensions, personality problems, mental impairment, harassment, bad faith, malice, or provocation on the part of others involved in the matter.
12. The adequacy and effectiveness of alternative sanctions to deter such conduct in the future.

Nature and Seriousness

The first Douglas Factor examines how the level of misconduct relates to an employee’s particular duties. This means that when evaluating the seriousness of an offense, a deciding official must consider whether your alleged misconduct was intentional, inadvertent or the result of negligence.

Deciding officials must also consider the scope of the misconduct in the context of an employee’s position and job duties. If the offense is related to duties that are essential to your position, the penalties may be more severe.

Employee’s Job or Type of Employment

Those in positions of higher levels of trust and authority — such as supervisors — are held to a greater degree of accountability than federal employees in non-supervisory positions. When an employee with a high level of trust and authority violates regulations, he or she generally will face harsher penalties.

Past Disciplinary Record

Generally, this commonly cited factor is used as the basis for arguing a less severe penalty. Maybe you have worked for your employer for 30 years and have never received prior discipline. Your attorney may use this factor to convince the administrative judge to reduce the proposed discipline.

However, once you have a disciplinary record, it becomes harder to defend against new charges of misconduct or argue for a less harsh penalty.

Past Work Record

The fourth Douglas Factor requires a deciding official to take your past performance into account. Have you been on the job for a long time? Do you have a positive track record?

It is important to support this Douglas factor with significant documentation. For example, your attorney may present:

• copies of performance records
• letters of commendation
• positive letters about your performance from supervisors or members of the public

Effect on Your Work Performance

The fifth factor relates to your ability to do your job relative to the specific offense committed. This factor can be extremely helpful if you continue to work in your normal position while an investigation is ongoing. In this case, you could argue that your employer has not truly lost confidence in your ability to perform your duties.

Consistency with Similar Cases

Deciding officials must apply penalties that are comparable to the ones imposed in similar cases. Your attorney can argue that a prior federal employee received a lower disciplinary penalty in a similar case.

Table of Penalties

Many federal agencies maintain tables of penalties that detail discipline options for common offenses. As an employee, you should have access to these tables. Deciding officials should use these parameters as a guide when imposing discipline.

Notoriety

This factor involves the public’s awareness of a federal employee’s alleged misconduct. Generally, this factor comes into play when the alleged misconduct has been reported by the media.

If your alleged offense generates publicity and negative attention for your employer, you can expect a more severe penalty.

Clarity, or Lack Thereof

This factor asks whether you knew — or should have known — about the potential implications of your actions. For instance, did you have access to the table of penalties? Did management send out a memo clarifying the rules? Did you have access to a handbook that detailed proper procedure and policy?

If you had access to regulations surrounding your alleged offense, your employer could have a stronger case for imposing discipline if you break those rules.

Potential for Rehabilitation

Are you willing to admit responsibility, correct your behavior, and come back to work? This could mean the difference between losing your job and merely receiving a 30-day suspension.

Other Mitigating Factors

This factor takes mitigating circumstances into account. Maybe you were experiencing a stressful situation, such as a mental health issue, a divorce, or a death in the family. If you can explain how these situations contributed to the alleged misconduct, the MSPB may show you leniency.

Alternative Penalties

The final Douglas Factor asks both you and the deciding official to consider alternative penalties. For instance, perhaps your problems on the job are due to addiction or a mental health issue. Maybe you have since sought out effective treatment that may be an acceptable alternative to the proposed penalty.

The MSPB Petition for Review

If your MSPB hearing does not result in a favorable initial decision, you can appeal that decision by filing a Petition for Review (PFR). This is your chance to articulate any errors made in the administrative judge’s decision.

A Petition for Review generally must be filed within 35 days after the administrative judge issues the initial decision.

Federal Employment Attorneys for MSPB Appeals

The MSPB appeals process is nuanced and highly time-sensitive. Don’t gamble with your livelihood by navigating that process alone. The federal employment attorneys at Robinson & Henry can advise you as you consider filing an appeal with the MSPB. We will also represent you as you undergo the MSPB appeals process or negotiate a favorable settlement on your behalf. Call 303-699-0944 today to begin your free case assessment.