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MSPB Appeals

The Law Firm of Matthew D. Estes regularly represents federal employees in appeals to the U.S. Merit Systems Protection Board (MSPB).  The MSPB is a government agency authorized to adjudicate appeals for most, but not all, federal employees. The MSPB has jurisdiction to hear appeals of the following:

  • Adverse personnel actions (e.g. termination, demotion, suspensions greater than 14 days).
  • Whistleblower reprisal complaints after the Office of Special Counsel's investigation.
  • Complaints by veterans under both the Uniformed Services Employment & Reemployment Rights Act (USERRA) and the Veterans Employment Opportunity Act (VEOA).
  • OPM retirement decisions (including disability retirement).

Federal employees with appeal rights to the MSPB must file appeals within 30 days of notice of a decision on an adverse action. If you are filing an MSPB appeal, you should do so through the MSPB's online e-appeal system. In your appeal, you should include all the requested information about yourself, your agency, and the action you are appealing, and outline briefly why you believe the agency's action was wrong. For appeals of adverse actions, you should also include any affirmative defenses, such as discrimination.

After filing an appeal, the MSPB will assign an Administrative Judge to handle the appeal. The appeals process moves quickly, and deadlines are strictly enforced. The Agency will be required to file what is called the Agency File or Agency Response, which will respond to the claims in your appeal and include the Agency's defenses and all materials the Agency relied upon to support its decision and action against you.  Next, both sides will be given the opportunity to conduct discovery prior to the hearing to obtain evidence and witness testimony to help prove their respective cases. Discovery responses are due within 20 calendar days, so time is of the essence. Unlike the EEOC, the MSPB does not permit dispositive motions to get cases dismissed before a hearing, so after discovery the case will be scheduled for a hearing, either in person or by videoconference.

During the hearing, both sides will present witness testimony under oath and documentary evidence to prove their claims. Following a hearing, the MSPB Judge will issue an Initial Decision in the case. This can be appealed to the three-member Board of the MSPB. The Board's decision on appeal can be appealed to the United States Court of Appeals for the Federal Circuit.

The MSPB appeal process can be complex and confusing for employees and it is important to have an experienced representative who understands the law and how to win your case.

The Law Firm of Matthew D. Estes has extensive experience successfully representing federal employees at the MSPB. Contact us today to discuss your case and see how we can help.