The Merit Systems Protection Board (MSPB)

This agency is part of the executive branch and serves to protect and adjudicate issues regarding federal merit systems and employee appeals of:

• Employee removals, suspensions (of 15 days or more), demotions, reductions in grade and furloughs of 30 days or less
• Complaints filed under the Veterans' Employment Opportunities Act, the Uniformed Services Employment and Reemployment Rights Act and the Whistleblower Protection Act
• Administrative decisions that affect your rights or benefits under the Civil Service Retirement System or the Federal Employees' Retirement System
• Hatch Act violations and complaints of prohibited personnel practices
• Respond to requests to review regulations of the Office of Personnel Management that may result in prohibited personnel practices

What the MSPB does not handle:

• Most (but not all) discrimination cases are referred from the MSPB to the Equal Employment Opportunities Commission.
• Advice on employment, examinations or benefits are referred to the Office of Personnel Management (OPM).
• Investigations involving prohibited personnel practices are referred to the Office of Special Counsel (OSC).

The Merit System Protection Board and the Douglas Factors

There are twelve standards, known as Douglas Factors, that must be taken into consideration when conducting disciplinary or adverse action against an employee.

As a part of your appeal, I will help explore if the actions taken against you gave appropriate consideration to these sets of standards, listed below in their entirety:

1. What was the actual nature and seriousness of the offense?
2. What was the employee's job level and type of employment?
3. What was the employee's past disciplinary record?
4. What is the employee's past work record?
5. What was the effect of the offense on employee's ability to perform at a satisfactory level and its effect on the supervisor's confidence in the employee's ability?
6. Was the penalty consistent with a table of offenses?
7. Was it consistent with penalties imposed other employees for the same type of offense?
8. What was the degree of notoriety of the offense and its impact on the reputation of the agency?
9. Was there proper clarification about the existence of such a rule violation prior to the offense?
10. What is the potential for rehabilitation of the employee?
11. Are there any mitigating circumstances?
12. What is the adequacy and effectiveness of alternative sanctions to deter such conduct in the future, by this employee or others?

Types of Actions that Can be Brought before the MSPB

• Involuntary Retirements and Removals
• Whistleblower Retaliation
• Suspensions over 14 days
• USERRA (regardless of probationary status)
• VEO claims (requires prior filing with the Dept. of Labor)
• OPM denials of disability
• Suitability determinations that are unfavorable

Who Qualifies to Appeal to the MSPB

• Competitive service employees (upon completion of 1-year probation)
• Excepted service employees (not serving a probationary period) who have completed two years of continuous service, either in the same or similar position, with a Federal Executive agency

Important Time Considerations

Through a legal process known as discovery, you can obtain important evidence that an agency might have in its possession. Since these discovery requests can be essential to proving your case, it is important to understand that there are strict time frames that apply to this process - both in serving and answering discovery demands. These are usually spelled out in an acknowledgement order, which is received after you file with the MSPB and also clarifies other issues such as their jurisdiction, initial status conferences, etc.

Give me a call if you have any questions concerning deadlines that might relate to a pending case. Note that most appeals to the MSPB must be filed within 30 days of the effective date of the action in question. For whistleblower actions, you must file within 65 days from notification by the Office of Special Counsel (OSC) that they will not seek corrective action. For USWRRA appeals, there is no time limit to file.

For VEOA, you must first file with the Department of Labor and provide them at least 60 days to respond to your filing before you can file a VEOA case with the MSBP.

Also, know that it is not essential to file your evidence at the time of filing with the MSPB.

If you are unsuccessful in your initial efforts, you have 30 days to file a petition to the full board or 90 days to file at the U.S. Court of Appeals for the Federal Circuit.

If you are successful, the agency will still have 30 days to appeal the decision.