How do I File a MSPB Appeal?

L. Burgoon

The U.S. Merit Systems Protection Board (MSPB) helps safeguard federal civil service employee rights. Federal employees may file an MSPB appeal to protest allegedly unfair personnel decisions, such as a firing. Appellants must file an MSPB appeal within 30 days of the action, or within 60 days if the employee and the federal agency that took the action first attempt dispute resolution. If the board does not rule in the appellant’s favor, a further MSPB appeal may be filed with the U.S. Court of Appeals to seek judicial review of the case.

Woman posing
Woman posing

An MSPB appeal begins when a federal civil service employee files the official request in writing. The appeal request must include basic information such as the name, address and telephone number of the complainant; name and address of the federal agency; and contact information for the appellant’s attorney, if any. Additional required information includes a description of the agency’s actions, an explanation about why the actions were wrong, and any supporting materials. This information can be sent by mail, faxed, or hand delivered. Appellants also may use MSPB’s e-Appeal online form.

MSPB appeals must be filed in the local office where the objectionable action occurred. Federal employees generally must file an MSPB appeal within 30 days after the objectionable action’s date of effect. For instance, if a federal employee is notified on October 1 that he or she will be demoted on November 1, the appeal must be filed by November 30. MSPB rules also state that the appeal cannot be filed until the action goes into effect; in this example, the appeal cannot be filed until November 1.

The MSPB appoints administrative law judges to hear these kinds of cases. The judge will first request that the federal agency involved respond to the appeal and support its personnel decision with documentation. The judge also may opt to hold a status hearing, also called a prehearing conference, before officially considering the case. These allow the parties to narrowly define the issues under contention and provide additional opportunities to come to an agreement. If no progress is made, the judge will either hold a formal hearing or render a decision based on the written case materials.

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Both the employee and the agency may further appeal the judge’s decision. To do so, a petition for review must be filed with MSPB within 35 days. Three MSPB board members review the case and make a final decision. The appellant also may skip the MSPB review and file an appeal with the U.S. Court of Appeals for the Federal Circuit within 60 days. Given the intricacies involved, it is generally recommended that appellants use an attorney to file U.S. Court of Appeals paperwork.

Those who want to use the MSPB appeal process must ensure they are eligible to do so. Only federal employees may participate in the process. Additionally, the MSPB generally does not consider complaints involving whistleblowing, discrimination, unfair labor practices, or violations of civil service law. These sort of complaints must be filed with other federal agencies. Contact the MSPB to determine what employees are eligible to use the system.

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