Legal Insider: MSPB Appeals for Federal Employees

This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Plaza America that specializes in federal employee, security clearance, retirement, and private sector employee matters.

Many federal employees have a limited understanding of the purpose of the Merit Systems Protection Board (MSPB). The MSPB is an independent federal agency that functions as a quasi-judicial court system protecting certain rights of federal employees. This article provides a brief overview of the MSPB process.

Types of MSPB Cases

The MSPB is tasked, in large part, with the following types of federal employee appeals:

1. Removals (terminations) or demotions (discipline or for performance)
2. Disciplinary suspensions of more than 14 days
3. Federal retirement related to OPM actions
4. Whistleblower
5. Denials of within-grade salary increases
6. Reduction-in-Force (RIF)
7. Discrimination based on military service (USERRA)

The MSPB also has jurisdiction over other types of federal employee appeals, but the ones listed above are the most common.

What Happens During an MSPB Appeal?

Once a federal employee files an initial MSPB appeal, an administrative judge is assigned to hear the case, which is similar to a regular civil

action, and the federal agency will be represented by its own attorneys.

An appeal provides a federal employee with the ability to seek discovery of facts and documents related to his/her appeal. This includes the ability of a federal employee to question his/her supervisors or other agency officials, under oath, to gather facts in preparation for the upcoming hearing. Through discovery, a federal employee can also seek documentation from the federal agency, such as e-mails, correspondence, video, and other materials that can help in presenting an appeal.

An MSPB appeal also permits the parties, where it is possible, to settle an appeal prior to the hearing stage. Often, a settlement is a compromise between the federal employee and federal agency regarding the disposition of the appeal. In most cases, once discovery is complete, the case moves to the pre-hearing stage, a hearing date is assigned, and ultimately a hearing is held by an MSPB judge. Much like a traditional court case, the MSPB hearing will have opening and closing statements, the calling and cross-examination of witnesses, and the introduction of evidence in support of a case.

After the hearing is complete, usually within 120-180 days after a federal employee has filed his/her MSPB appeal, the administrative judge will issue an initial decision, which can be appealed by either side to the a three-person Board of the MSPB and subsequently to the U.S. Court of Appeals.

If you need assistance with an MSPB appeal, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation. Please also visit and like us on Facebook at www.facebook.com/BerryBerryPllc.