What Are My Rights as a Federal Employee?
Under federal law, federal agencies can take two kinds of action against their employees for poor performance or misconduct. The first kind is called disciplinary action. Disciplinary actions include less serious punishments. Examples include oral or written counseling, letters of warning, letters of reprimand, and short suspensions (14 days or fewer). The second kind is referred to as an adverse action.
Adverse actions include suspensions that last for longer than 15 days, demotions, and removals. Depending on which of these two types of actions you are facing, you will receive different levels of due process rights.
If you are facing a disciplinary action, the law guarantees you the following rights:
- The right to know why the agency is taking action against you. The agency needs to tell you what you allegedly did wrong and provide a brief description of the circumstances of your misconduct.
- The right to review the evidence supporting the agency’s action. The federal employer must provide you with a copy of all evidence supporting the allegations against you.
- The right to respond. Once the agency has issued you the notice of disciplinary action, they must give you sufficient time to respond and present your side of the story.
- The right to have legal counsel represent you. Anyone can serve as your representative, including your friend, family member, and a licensed MSPB attorney.
If you are facing an adverse action, you also receive all of the above rights. In addition, your agency must also provide you with advance notice of the adverse action. This means they give you a proposal letter notifying you of the upcoming adverse action at least 30 days before they actually impose the discipline.
Finally, federal employees facing adverse actions have appeal rights to the MSPB. In other words, even if the agency implements the adverse action, you can still have it overturned by appealing to the MSPB. In any case, you should immediately contact an MSPB lawyer to represent you after you receive a proposal letter.
What Is the MSPB?
The MSPB is an independent entity of the executive branch of the federal government with quasi-judicial powers to hear complaints or appeals from federal workers about certain personnel actions taken against them.
The MSPB hears a variety of appeals from adverse employer actions, including:
- Terminations/Removal Actions,
- Demotions,
- Suspensions of more than 14 days,
- Grade or pay reductions,
- Denials of within-grade salary increases,
- Performance-based reductions in grade or pay,
- OPM suitability determinations,
- OPM employment practices,
- USERRA, and
- Whistleblower reprisal/retaliation.
Should your appeal be one that is not heard by the board, it may be considered instead before the Office of Personnel Management (OPM) or by the Office of Special Counsel in matters where a personnel action may have been taken or is about to be taken. Contact one of our federal employee attorneys at Pines Federal if you have filed or are considering an appeal regarding any of these issues.
Who Can File an MSPB Appeal?
The MSPB has jurisdiction over most employees in the competitive service and the excepted service. However, employees who have not finished their probationary period in the competitive service generally do not have MSPB appeal rights. Similarly, excepted service employees do not receive MSPB appeal rights until they have at least two years of continuous service.
That said, probationary employees can still file an MSPB appeal under special circumstances. If you want to learn more about whether you have MSPB appeal rights, contact one of our qualified MSPB attorneys right away.
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Whistleblower Reprisal Complaints
It is the federal government’s policy to encourage employees to notify federal representatives or certain designated persons regarding unlawful conduct or practices by the employer.
If an agency takes certain employment actions against you for making such a complaint, you may be entitled to relief. You are protected if disclosures are made to the Office of Special Counsel, the agency’s Inspector General or a designated person, or if such disclosures are not prohibited by law.
Examples of typical whistleblower disclosures include:
- Rules or regulations violations,
- Gross mismanagement,
- Abuse of authority,
- Substantial and specific danger to the public health or safety, and
- Fraud, waste, abuse, or mismanagement.
Please note that these cases can go to the MSPB if the OSC does not find a violation. In this case, the matter would be called an Individual Right of Action (IRA).
Whistleblower Appeals
There are two types of whistleblower appeal cases. In the first type, the appellant is subjected to a personnel action, such as a removal, that is directly appealable to the Merit Systems Protection Board.
The appellant can claim the removal was in retaliation for whistleblowing and, therefore, serves as an affirmative defense against the removal. Both the appealable personnel action (the removal) and the whistleblower reprisal claim are reviewed by the MSPB.
The other type of appeal is the “individual right of action” (IRA), which was created by the Whistleblower Protection Act.
In an IRA appeal, the appellant is subjected to a personnel action that is not directly appealable to the MSPB (for example, a poor performance evaluation). The appellant claims that the poor evaluation was issued because of his whistleblowing. The appellant must first file a complaint with the Office of Special Counsel. If the OSC does not seek corrective action on his or her behalf, they can file an IRA appeal with the MSPB.
If in his or her IRA appeal, the appellant alleges they were subject to a personnel action that is directly appealable to the MSPB, the case still will be adjudicated as an IRA appeal. This means that the MSPB will not review the merits of the action. The board will resolve only the whistleblower reprisal claim.
If certain personnel actions were taken against the whistleblower, a complaint is filed with the Office of Special Counsel, which can thereafter be appealed to the MSPB. If it does not, then you may file the appeal with the MSPB.
Our legal team has significant experience with whistleblower reprisal complaints and can advise you on how to proceed in such matters.
MSPB Appeal Process
You must first file a written appeal to challenge an adverse action through the MSPB. You can do this by mail or online through the MSPB’s e-appeal process.
Take note: there is a deadline for filing an MSPB appeal. Generally, federal employees must submit their appeal request within 30 calendar days of the agency’s adverse action or decision notification. However, there may be some exceptions to this rule. For example, Veteran’s Affairs employees who want to challenge a removal, demotion, or suspension only have 10 days to file an appeal under federal law.
In your written appeal, you should explain why you’re contesting your agency’s disciplinary action or decision. You can also name a representative, such as an MSPB lawyer, to support you. However, you typically don’t yet need to provide evidence for your claim.
Once the appeal is submitted, the MSPB will assign your case to an Administrative Judge (AJ). The AJ will send an Acknowledgement Order to you, your chosen representative, and your agency. Typically, you now have the opportunity to engage in discovery.
During discovery, you can request documents and information about your case from your federal agency. Your MSPB attorney can also conduct depositions or interviews with witnesses or other relevant parties on the issue. This phase is critical for collecting information and potentially valuable evidence to support your appeal.
From this point, the AJ will prepare to arrange a hearing between the two sides. There may be some preliminary conferences before the hearing and opportunities to resolve the dispute through mediation. In the hearing with the AJ, each side will present evidence, witnesses, and arguments for their case. You may be asked to testify.
After the AJ has heard all the evidence, they will release a written decision that affirms or corrects your agency’s adverse action.
Potential Remedies in an MSPB Appeal
There are numerous potential outcomes for a successful MSPB appeal.
Some possible remedies federal employees may receive include:
- Job reinstatement. In cases involving termination, an employee may be returned to their previous or comparable position.
- Reversal of suspension or demotion. Employees put on unwanted leave or downgraded can be returned to their prior roles. They may also receive back pay for any income lost during the time of the adverse action.
- Corrected personnel records. Employees challenging unwarranted or unjust discipline can have adverse actions or performance evaluations removed from their records.
- Back or front pay. Compensation may be available for income and benefits lost due to unjust adverse action. Front pay can also be available when job reinstatement isn’t possible.
- Attorney fees. Employees with successful appeals could be reimbursed for the cost of hiring legal representation.
- Whistleblower protections. Employees who faced backlash for calling out illegal activities at work can receive legal protections from further retaliation.
In some cases, employees may also be able to recover compensation for any financial losses they suffered as a result of an agency’s action.
How Our MSPB Lawyers Can Help
An MSPB appeal is a complex, highly technical procedure. Most federal employees are not prepared to navigate the numerous overlapping federal laws and regulations required to carry out an appeal successfully. That’s why the support of a skilled legal professional is vital for improving your chances of a positive outcome.
At Pines Federal, our MSPB lawyers for federal employees can help strengthen your appeal by:
- Evaluating your case and developing a legal strategy to combat the action against you;
- Gathering valuable evidence through discovery and independent investigations;
- Conducting interviews and depositions with agency officials and other witnesses;
- Preparing you for hearing questions and potential cross-examination;
- Negotiating for your interests in a potential settlement; and
- Representing you in all meetings, conferences, and hearings.
Ultimately, the seasoned MSPB attorneys at Pines Federal can help protect your rights at each stage in the appeal process.
FAQs About MSPB Appeals
Understanding the MSPB appeal process and your rights can be intimidating and overwhelming for federal employees. If you have specific questions about your case, it is always best to contact a Merit Systems Protection Board attorney.
Where Do I File My Appeal?
You can file your appeal online or send it by mail to the regional MSPB headquarters closest to you.
What Evidence Can Strengthen My Appeal?
The type of evidence you need depends on the facts of your case and the type of adverse action you face.
Potentially valuable evidence can include:
- Positive performance evaluations,
- Records of disciplinary actions,
- Relevant photos and videos,
- Email with agency leaders,
- Documented whistleblower reports,
- Copies of agency handbooks,
- Employment contracts, and
- Witness statements.
Your attorney can help you understand the relevant evidence most valuable for your case.
How Long Does the MSPB Appeal Process Take?
The length of the appeal process varies depending on your case’s circumstances and your assigned AJ’s availability. Initial decisions can arrive within a few months. However, more complicated cases can take longer.
What Happens If I Lose My Appeal?
If your initial appeal is unsuccessful, your attorney can help you file a petition to have the decision reviewed. You may also appeal the decision to the U.S. Court of Appeals for the Federal Circuit.
Do I Need to Hire a Lawyer for an MSPB Appeal?
You’re not required to have an attorney for your MSPB appeal. However, the support of a legal professional can significantly boost your chances of success.
At Pines Federal, our MSPB lawyers have decades of combined experience serving federal employees nationwide. Reach out to us today if you feel an employment decision levied against you was unfair, discriminatory, or arbitrarily rendered.
Contact Pines Federal online or call (832) 462-7655 today to request a consultation.
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