This page provides answers to the following questions:
Yes. When a non-probationary federal employee is subject to a suspension of over 14 days or a removal, the employee usually has appeal rights to the Merit Systems Protection Board (MSPB). If you believe that you have been subjected to retaliation for whistleblowing, you also have appeal rights to the MSPB.
After you receive a final decision suspending or removing you from your federal employment, you have 30 days to file an appeal with the MSPB. You can submit an appeal online at https://e-appeal.mspb.gov/. The MSPB is very strict about the 30-day time deadline.
You, called the Appellant in the process, should complete all responses to the questions on the appeal form, explaining what actions you are appealing and any affirmative defenses, such as Prohibited Personnel Practices, discrimination, or retaliation. It is very important that you raise any affirmative defenses such as discrimination or retaliation in your MSPB appeal. You should also include a copy of the proposed action, your detailed response to the proposed action (which should have been submitted to the Agency before the final decision), and the final decision. You must request a hearing on the appeal form to receive a hearing before an MSPB Administrative Judge (AJ).
After filing the appeal, an MSPB AJ will either issue an Order to Show Cause or an Acknowledgment Order. An Order to Show Cause requires you as the Appellant to submit information regarding why the MSPB has jurisdiction (legal authority) over the claim and/or why the claim is timely. If you receive this order, you should submit documentation of jurisdiction and timeliness, through sworn testimony and documents, including copies of postmarked envelopes, an affidavit (a sworn statement in writing) that you received the decision, and other information relevant to your case.
The Acknowledgment Order contains very important deadlines which must be met. One of these deadlines is likely the submission of an Agency file by the Agency representative. The Agency file will contain its explanation of why the Agency believes your case lacks merit and will also contain documents and statements from management. The Agency file, along with your Appellant’s appeal, are likely the only documents the AJ will have regarding the case, until hearing. Thus, it is important that your appeal is clear and concise, and anticipates the Agency’s response.
Yes. In the Acknowledgment Order, the AJ will give the parties the opportunity to conduct discovery, in order for each side to obtain relevant information from the other to aid the preparation of each party’s case. The discovery process includes asking the opposing party for additional information through written questions, written requests for production of documents, written requests for admissions, and depositions.
Depositions usually take place at counsel’s office in the presence of a court reporter. Depositions consist of the lawyer asking the witness questions about the case. Transcripts from depositions can be used at a hearing to show a witness’s inconsistent testimony or, in certain situations, in lieu of in-person testimony by that witness. It is very important that you prepare for your deposition adequately, by reviewing the record and making sure all your answers are consistent.
In general, discovery is a very important process because it allows the parties to gain more information to assess their case and to hopefully support their arguments. Based on discovery, the parties can often better assess whether their case meets the legal burdens it will need to meet to be successful at hearing.
After the discovery period ends, the parties prepare for the hearing, a session with the administrative judge where both sides present evidence. The parties may also make additional attempts at resolving the case, based on what was uncovered in discovery and their resulting assessment of the case. The AJ may pressure the parties to resolve the case and discuss the merits of settlement with one party or both. The pre-hearing period may consist of motions to decide the case without a hearing (usually brought by the Agency), pre-hearing submissions (listing witnesses, expected testimony, issues to be tried, and exhibits), a pre-hearing conference with the opposing party and the judge, and perhaps a settlement conference or ADR session.
In an MSPB hearing, both parties are given the opportunity to do short opening statements (often 5 to 10 minutes). In an MSPB hearing regarding an adverse action, the Agency presents its case first. Hearsay is allowed in administrative proceedings, at the judge’s discretion. The Agency will likely put forth the testimony of the Proposing Official, the Deciding Official, and perhaps an Employee Relations advisor. You will have the opportunity to cross-examine the Agency’s witnesses, as the Agency will likely do with you and your witnesses.
After all the Agency witnesses testify, you may present your witnesses. Your witnesses should probably include:
you, as the Appellant,
co-workers supporting your version of facts regarding the incidents at issue in the disciplinary decision, and
doctors and/or family members.
If you allege discrimination as an affirmative defense (the reason why the Agency disciplined or removed you), you need to address this in your testimony and present witnesses who support your contention that the Agency discriminated or retaliated against you. (For more information, please see the next question.)
After both sides have been given an opportunity to present testimony, the Agency may receive an opportunity to rebut the testimony of you and your witnesses. Both parties may use physical documents or things at the hearing, as long as the parties comply with the AJ’s rules in notifying the AJ of the evidence and getting the AJ’s approval. Each party is given a short time period for oral closing arguments. Instead of closing arguments, the AJ can allow the parties to submit written briefs.
When you allege an affirmative defense of discrimination or retaliation as the reason why the Agency took adverse action (such as discipline or removal) against you, the MSPB processes this case as a “mixed case.”
For example, sometimes an employee has an EEO complaint pending when an adverse action occurs. In that situation, you have one of two options:
You can either amend your EEO complaint to include the adverse action by seeking EEO counseling on the adverse action, or
You can file an appeal with the MSPB and allege discrimination or retaliation as an affirmative defense, including the applicable EEO allegations in the MSPB hearing.
Even if you do not have an EEO complaint pending when the adverse action is taken, you can still go to EEO to initiate EEO counseling regarding the discriminatory or retaliatory adverse action. The normal EEO process will follow until the Report of Investigation (ROI) is completed. After the ROI is completed, instead of being offered an EEO hearing, the Agency should forward the case to the MSPB because the MSPB is the only entity which has jurisdiction over adverse actions. The MSPB will hear both the adverse action claim and the discrimination and/or retaliation claim.
The employee’s other option, upon receiving an adverse action, is to proceed directly to the MSPB, as discussed above, and allege discrimination or retaliation as an affirmative defense, if applicable. After a mixed case is before an AJ, the AJ processes the mixed case just like a regular non-mixed case. However, the AJ should apply both the laws regarding discrimination and retaliation and adverse action law in coming to his or her decision.
In either a mixed case or a non-mixed case, after hearing, the AJ will issue an Initial Decision, which will become final within 35 days of its issuance unless either party appeals it before the expiration of the 35-day time period, as specified in the decision. To appeal a mixed case, you petition the EEOC to consider the Board’s decision as to the discrimination or retaliation and submit a statement of reasons with the Petition For Review (PFR). To appeal a non-mixed case, either party may file a PFR with the Board. The Office of Personnel Management (OPM) and the Office of Special Counsel (OSC) can also file a PFR with the Board.
If an MSPB “mixed case” contains allegations of employment discrimination based on race, color, national origin, gender, age, disability, or EEO retaliation, you may file a lawsuit in federal district court for the discrimination case. This lawsuit will be “de novo.” “De novo” means that the discrimination claim starts anew and although the evidence developed in the agency EEO investigation or at the MSPB can be used, any decision by the agency or the MSPB is not binding on the federal district court. In addition, the employee may engage in full discovery in federal court no matter how much discovery was done before filing the lawsuit. The employee has the right to a jury trial.
In general, for MSPB appeals not based on discrimination, the employee may file an appeal or request review in the federal Court of Appeals. The appellate courts have jurisdiction over specific types of federal cases, including a review of final MSPB decisions. The federal appellate courts do not review the agency adverse action against the employee to determine whether the adverse action was legitimate or not. The circuit court reviews the MSPB’s final decision to determine whether it conforms to applicable law and MSPB precedent. There is no jury trial in the federal Court of Appeals.
Please note that for employees of the Department of Homeland Security, new and different rules (since 2005) for MSPB appeals and requests for review from the circuit courts will affect your rights in the MSPB appeal process.
Yes. The MSPB process is very technical and the MSPB administrative law judges follow strict rules that are not the same as state or federal courts or the EEOC. Experienced attorneys have reviewed and represented federal employees in hundreds of cases. Hopefully, you are going through the MSPB process only once in your life. Representing yourself or evaluating your case without an experienced attorney almost guarantees that mistakes will be made and the experienced agency representatives will take advantage of your inexperience in the MSPB process. You should have an experienced attorney review the facts of your case and give you an opinion of the merits of your appeal or EEO claims, so that you can make an informed decision on whether to pursue and MSPB appeal, court trial, or federal appellate court review.
Most lawyers specializing in federal employee cases charge an hourly fee. However, if the evidence in the opinion of the lawyer shows that your case is clearly a winner in the MSPB appeal, that lawyer may consider a contingent fee arrangement under which you will not pay attorney’s fees unless you prevail or settle the matter. Attorney’s fees and costs are usually awarded to a prevailing employee in the MSPB appeal process. Thus, if you prevail in your MSPB appeal, you will receive a reimbursement of some or all of the fees and costs you paid to pursue your MSPB appeal.
If you prevail in an MSPB appeal, the MSPB administrative law judge may award a full range of remedies to make you “whole” so that you are at least in the same situation as before the adverse action was taken. Remedies may include reinstatement, promotion, change in grade or pay, back pay and front pay, reimbursement of lost benefits, elimination of adverse actions and purging of adverse records, compensatory damages for emotional distress, attorney’s fees and costs, and appropriate administrative actions. Punitive damages are not permitted against the federal government. MSPB remedies do not include adverse or disciplinary actions against managers who made the decisions found to be unlawful by the MSPB. For more information about the various types of damages available, see our site’s damages page.
Getting legal advice as early as possible when you believe you have been discriminated against or retaliated against is highly recommended. A legal consultation with an attorney experienced in federal employee claims will evaluate your facts under current laws and court decisions and give you the pros and cons of your case. There are many factors that go into a case evaluation. You may be going through this EEO process once or twice in your career, whereas the agency personnel and EEO representatives do this every day. If you are not informed about how the process works and what evidence is needed, the agency and management may create a record to defend against your case and you may not understand how to find and present evidence in your favor.
Getting a consultation does not mean that the attorney must represent you throughout the process or in federal court. Knowing the strengths and weaknesses of your case as early as possible can save you money and effort. It can assist you in documenting and finding the evidence you need to win your EEO case or help you decide to withdraw your EEO case. Finally, if you win your case before the EEOC, Administrative Judge, or in federal court, your attorney’s fees will be paid by the agency. In most settlements, your fees are also paid by the agency. Many attorneys will represent federal employees on a contingent fee basis if there are sufficient facts to support your EEO claims.
Want to learn more about your rights as a federal employee? Order the Federal Employees Legal Survival Guide, published by Passman and Kaplan and Workplace Fairness.