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How to lose an MSPB Appeal: Don't File your appeal on time.

How to lose an MSPB Appeal: Don't File your appeal on time.

Today’s post, the next in the series “10 Ways to Lose an MSPB Appeal” discusses the easiest problem to avoid, but the one problem that occurs most commonly: Don’t file your Appeal on time.

The Merit Systems Protection Board is strict about their filing timeline. With thousands of appeals filed each year, and with the short time that an MSPB Judge has to hear a case an issue a decision, the strictness of the timeliness requirements greatly enhances judicial efficiency.

For most Chapter 43 (Performance) and Chapter 75 (Disciplinary) appeals, you must file within 30 days of the effective date of the action – don’t miss the deadline. The MSPB even has an E-appeal system, where you or your attorney can file your appeal online (Click here to access the Board’s E-Appeal site).

The MSPB can excuse late filing for “good cause”, but it rarely does. The burden is a tough burden to meet, and most appellants who file untimely fail to show good cause. In our recent E-Newsletter, we told the story of LaDonna Schuringa, a Grade 5 employee with the I.R.S. She received a suspension of 15 days for, among other things, alleged falsification of time records. ( Click here to read the MSPB’s decision in Ms. Schuringa’s case).

Ms. Schuringa filed her appeal 4 days late, and the case was dismissed. Her case involved a question of whether her medical issue could justify her late filing. Because she didn’t comply with the “Lacy” factors, her medical condition did not justify her late filing. (Click here to learn more about the “Lacy Factors”).

One thing that causes employees to file untimely is a fear that they have to tell the whole story in the appeal form. Not true – you only need to plead the basic facts and legal issues in your initial appeal form. In fact, it is often better if you just “hit the high notes” in your initial appeal. If the Judge needs more for the case to continue, rest assured they will ask for it. By way of example, the following paragraph is enough to get an MSPB Removal appeal started:

“My removal was proposed on January 1, 2007. My removal was effective on February 15, 2007. I did not commit the misconduct with which I am charged. The Agency’s penalty is not within the tolerable bounds of reasonableness. My disability (major depressive disorder) and race (African-American) motivated the Agency to remove me, not my alleged misconduct.”

In some scenarios, when the Agency fails to inform you of an appeal right (this happens most frequently in smaller Agencies, and in certain types of reinstatement rights cases), the timeline will be tolled. But as soon as you think you have an appeal right, file. If you don’t, or if you choose later not to pursue your appeal, you can always withdraw.

Don’t miss the MSPB’s deadline to file. It’s that simple.