The Merit Systems Protections Board, or MSPB, was created to insulate the federal merit system from partisan politics and to protect the federal workforce from unfair personnel decisions and prohibited practices.
Although the MSPB does provide a forum for federal employees to appeal adverse employment actions, the system is decidedly not friendly to those employees. The process is complex and intimidating, and the vast majority of appeals are thwarted. If you work for federal agency and face suspension or termination, you want a lawyer who is intimately familiar with federal employment law and the workings of the MSPB.
What matters are brought before the MSPB?
The Merit System Protections Board mainly handles appeals relating to adverse employment actions:
- Separation (termination)
- Suspensions of 14 or more days
- Reductions in pay and/or grade
- Furloughs of 30 days or less
- Whistleblower retaliation
- Unfavorable retirement determinations
The Board hears arguments from the employee and the agency and determines whether the action should be upheld, reversed or further adjudicated. The MSPB does not hear employment discrimination claims, except where discrimination was a prime factor in the adverse action.
What are the chances of a successful MSPB appeal?
In 2014, nearly 16,000 appeals were filed with the MSPB in 2014. About 5,300 (one-third) of those appeals were dismissed, allowing the adverse action to stand. Another 1,100 appeals were settled without a hearing. The remaining 9,500 cases resulted in initial decisions by MSPB administrative judges. In those decisions, the MSPB sided with the agency in the vast majority of cases.
The best opportunity to avoid an adverse action is when it is first proposed. There is a formal process – and a short window – to challenge the proposed action. Prompt legal counsel is critical. There are also opportunities for a negotiated solution after the fact, and there may be viable grounds to appeal. With your security clearance, your pension or your federal career on the line, you need to pursue every legal avenue.
To paraphrase the old saying, you lose 100 percent of the appeals you never file. While the overall odds may look bleak, every case is unique and a good attorney can greatly improve your chances.
At Passman & Kaplan, P.C., we literally wrote the book on federal employment law: The Federal Employees Legal Survival Guide. Our lawyers practice almost exclusively in this arena, representing federal employees throughout the United States and employees of the U.S. government stationed in other countries. We have won important victories before the MSPB.