For attorneys and pro-se appellants, understanding the MSPB Appeal Process can be a bit daunting. Here’s the various stages of your appeal, beginning with the Adverse Action Proposal Letter and continuing through an Appeal to the Full Board.
Proposal Letter: This is the most crucial document in the entire process – it proposes the action that the Agency wants to take. The letter should indicate that you may issue an oral/written reply, that you have a right to representation, and that you have a right to request the “material relied upon”.
Oral/Written Reply: This is your chance to show the Agency why they should not take the proposed action. Be careful at this stage – you don’t have to admit any misconduct or prove your innocence. Typically, unless there is clear and convincing exonerating evidence, it is often best to simply deny the misconduct, and discuss the Douglas Factors completely. Be sure to consult an attorney – how you approach an oral or written reply can later affect your strategy before the MSPB.
Decision Letter: After the proposal letter and any oral/written reply, the Agency will issue its decision letter. Most decision letters cannot be issued within 30 days of the proposal letter (there are, of course, exceptions to this general rule). The decision letter must contain certain enumerated rights, including an MSPB appeal right.
Penalty: Usually, the decision letter will state when the suspension or removal will occur. In rare instances, Agencies will “abate” the suspension or removal pending the outcome of any appeals. They might do this on longer suspensions and questionable removals where they could be liable for interest under the BackPay Act if the Agency cannot prevail at the MSPB.
MSPB Appeal: By visiting the Board’s website, you can download the forms to file an appeal. The Administrative Judge will send you and the Agency an “Acknowledgment Order” requiring the Agency to designate a representative and provide the Agency’s Evidentiary File within a certain number of days. Read all orders from the Administrative Judge very carefully, and be sure to scrupulously adhere to all timelines.
Agency File: This is the Agency’s chance to “pad the record”. Typically, an Agency File should contain all the evidence on which the Agency intends to rely to prove its case. Oftentimes, Agency attorneys will pad the record with information meant to embarass or later impeach a witness or the Appellant. Anything in the Agency File is guaranteed to be in the record – the Agency is unlikely to put information in the record that is harmful to their case, unless specifically required by the Judge.
Hearing Stage: After the Agency File is submitted, the Administrative Judge will set the timeline for the hearing through the use of a Scheduling Order. The Scheduling Order (sometimes included in or with the Acknowledgment Order) tells you key dates for your appeal: when to initiate discovery, when to present your Pre-Hearing Submissions, when to participate in the Pre-Hearing Conference and when/where the hearing will be held. There is so much information in the Scheduling Order – be sure to read it closely – more than once! The hearing itself is an administrative hearing, somewhat more structured than an EEOC hearing, but nowhere near as structured as a state or Federal Court trial. The MSPB records the testimony – if you later want a copy, you will have to pay for a transcript or a copy of the tapes.
Initial Decision:After the hearing (usually 30 – 90 days later) the Administrative Judge will issue its Initial Decision. This decision will contain your appeal rights – which can be complicated. The claims and defenses that were alleged will determine the appeal rights – you may have a right to file in Federal District Court, in the Federal Circuit Court, the EEOC, or file a Petition for Review with the Full Board.
Petition for Review: If you challenge the Administrative Judge’s decision, you may file a Petition for Review. The standard for prevailing on a PFR is very high for appellants – the record below has to be properly preserved, and there has to be a showing that but for an error at the hearing or in the Judge’s decision, the outcome would have been different for the Appellant. Usually, Agency’s do not appeal – there are limited scenarios where an Agency may file a PFR of its own. On even fewer occasions, OPM may intervene and appeal on behalf of the Agency (this is usually only when OPM feels that the decision of the Board will have a detrimental effect on a large number of federal employees).
Other Appeal Rights: In some situations, you may be able to file suit in a United States District Court, the Federal Circuit Court of Appeals, or the EEOC. These situations are too broad to discuss here.
Hopefully, this helped you get some idea of the life of an MSPB Appeal. If you would like to consult with an MSPB Attorney, please contact the Law Offices of Eric L. Pines, PLLC today.