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Merit Systems Protection Board

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Solomon Law Firm, PLLC handles cases before the Merit Systems Protection Board (MSPB) nationally, and represents clients all over the world, including Germany, Italy, the Middle East, Japan, and South Korea. If you need legal representation as a federal employee in any MSPB case, one of our Washington DC federal employment lawyers is available for immediate consultation. Our attorneys have appeared before every MSPB Judge in the country. During the initial consultation, an attorney with experience litigating before the MSPB will review and evaluate your case, in order to advise you on how best to proceed to achieve your objectives. The firm has significant experience asserting the rights of federal employees in a full range of matters that are heard by the MSPB.

How do I file an MSPB appeal?

Generally, an MSPB attorney will file MSPB appeals on the e-appeal portal. The link to the MSPB portal can be accessed here.

Becoming an E-Filer provides you with the ability to electronically submit any or all of your legal documents to the MSPB. By registering, you also indicate your agreement to receive electronically-served documents, including submissions from other registered E-Filers and official communications from the Board. If you opt for electronic service, you will receive email notifications from MSPB informing you when new documents are available in the digital repository.

As an E-Filer, you have the option to file your pleadings or segments of them using non-electronic methods. Should you choose to discontinue your E-Filer status, you can do so whenever you wish.

The term "pleading" encompasses a wide range of written materials that a party or their representative might submit in relation to a specific Board proceeding. This includes items such as claims, allegations, arguments, evidence, motions, legal briefs, petitions, responses, and attached documents.

How do I win an MSPB appeal?

Frequently emphasized is the notion that knowledge equates to power. This principle remains true even in legal proceedings. When navigating the Merit Systems Protection Board (MSPB) for litigation, a pivotal factor is capitalizing on the rules governing the process of discovery. This endeavor aims to secure access to information and records pivotal in defending against adverse actions and substantiating affirmative defenses. The information gleaned serves a dual purpose: safeguarding against adverse actions like removal and substantiating claims initiated by a federal employee against a Federal Agency. In essence, the practice of discovery becomes both a defensive tactic and an offensive strategy.

To effectively execute discovery, the guidance and counsel of an attorney well-versed in MSPB discovery protocols are essential. Litigating against the Federal Government is a unique challenge, as federal employees essentially contest the actions of one of the largest and most resource-rich employers. It is advisable for every federal employee to consider consulting a federal employment attorney with expertise in MSPB litigation before proceeding. Doing so ensures that you avail yourself of every potential avenue to bolster your case against your employing Federal Agency.

Engaging in the Discovery Process with a Federal Agency

Subsequent to the initiation of an MSPB appeal, a federal employee/appellant will typically receive an "Acknowledgement Order" from the assigned Administrative Judge. This order outlines the deadlines applicable at each phase of the litigation.

Although the formal commencement of discovery is often set for 25 days from the date of the acknowledgement order, it is prudent for an appellant to initiate the discovery process well before this point. This entails serving Interrogatories (inquisitive questions), Requests for Production of Documents, Requests for Admissions, and issuing Deposition Notices (requests to interview an Agency Employee under oath).

Failing to initiate Discovery within the stipulated timeframe risks forfeiting the opportunity to harness the advantages of the Discovery Process. There are many disputes that arise during MSPB litigation, including an Agency's failure to respond to your discovery demands. The best practices for handling a discovery dispute often require an attorney to file a motion to compel on the MSPB appeals portal.

What employment decisions can be appealed to MSPB?

Adverse personnel actions can take many forms, those federal employment decisions that can be appealed to the MSPB include:

  • Suspension – An employee may be suspended from duty without pay for a period of time (in excess of 14-days)
  • Demotion – An employee may be demoted to a lower grade or position with a decrease in pay
  • Removal – An employee may be removed from their job or position
  • Reduction in pay – An employee's pay may be reduced as a disciplinary action
  • Reassignment - An employee may be reassigned to a different position or location

Federal employees have a constitutionally protected property interest in their positions. Therefore, prior to effectuating any of the above personnel actions, most federal employees must be given advanced written notice and opportunity to respond. There are some exceptions for probationary employees. Additionally, members of the Intelligence Committee do not usually enjoy the same due process rights afforded to Title V employees. This is also true for Title 38 employees, like doctors and nurses, your rights to appeal to the MSPB are limited.

There are several categories of misconduct that may give rise to an adverse personnel action that can be appealed to the MSPB. Misconduct charges fall into several broad categories and are supported by detailed specifications:

  • Absence Without Leave – This refers to an employee's absence from work without the proper authorization or justifiable reason, often disrupting the workflow and imposing undue burden on their colleagues.
  • Conduct Unbecoming – This charge usually involves actions or behavior that tarnish the image of the organization or department, and is often added as an additional allegation to other substantive misconduct charges.
  • Failure to Follow Instructions – This misconduct charge involves an employee's refusal or failure to comply with valid instructions, directions, or approved governmental policies, hindering the overall operational efficiency.
  • Failure to Maintain a Condition of Employment –This charge refers to the failure of an employee to maintain certain prerequisites for their job, like professional licenses or security clearances, thereby potentially jeopardizing their employment status.
  • Falsification and Misrepresentation – This misconduct charge involves the intentional distortion or misrepresentation of information, altering official records or documents, or falsifying timecards, all of which can undermine the integrity of the organization.
  • Insubordination – This charge is levied when an employee deliberately disobeys or disregards the directives of a superior or supervisor, thereby undermining authority and disrupting workplace order.
  • Improper Use of Government Credit Card – This charge involves unauthorized or personal use of a government-issued credit card, an act that can result in financial loss to the government and breach of trust.
  • Lack of Candor – This misconduct charge is levied when an employee fails to fully disclose pertinent information during an official investigation, thereby hampering the truth-finding process.
  • Negligence – This misconduct charge is often brought against medical providers or government investigators who fail to perform their duties to the generally accepted standard of care, causing potential harm or loss.
  • Off-Duty Misconduct – This charge involves misconduct committed outside of work hours, such as DUIs, restraining orders, or improper use of government credentials, which can negatively affect the organization's image.
  • Security Violations – This misconduct charge involves instances where sensitive data, like PII or HIPAA information, is inadvertently disclosed, or a government laptop containing such data is stolen.
  • Theft of Government Property– This misconduct charge can range from making false timecard entries to steal unearned salary or overtime, to the physical theft of government equipment or unauthorized personal charges on a government credit card.
  • Unauthorized Use of Government Computers or Internet – This charge refers to the misuse of government resources, such as accessing inappropriate or explicit material on a government computer, which breaches the code of professional conduct and trust.

Did you get a proposal letter?

Federal employee attorneys often recommend that the best approach to a written proposal for disciplinary action is to act swiftly, and comprehensively. The necessary components of any response to consider when responding to a proposed adverse action is consultation with an expert, refuting the factual allegations, avoiding unnecessary admissions, and evaluating the value of making any concessions.

Responding to a Written Proposal Letter

Effectively responding to a written proposal for adverse action (suspension, reduction in grade, termination) is essential to mitigating and, sometimes, eliminating risk to your career. A comprehensive response to the allegations, together with supporting documentation, affirmative defenses, and a comprehensive analysis of the mitigating Douglas factors are necessary components of every written response to a proposal for adverse action issued by a federal agency. Whether to also prepare an Oral Reply is often a fact specific question that should be discussed at length with your federal employment attorney prior to making any verbal statements or admissions in response to proposed action against you.

When You Need Experienced Counsel With Unyielding Work Ethic: Solomon Law Firm, PLLC

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What is the Purpose of the Merit System Protection Board?

The Merit Systems Protection Board is an ad hoc quasi-judicial entity responsible for safeguarding the Merit System Principles which, in broad brush stroke terms, are the standards which govern the civil service federal workforce. These principles, which are part of the Civil Service Reform Act of 1978, are reviewed and enforced by the MSPB. The Board has the power to hear and make decisions impacting federal employees who submit appeals challenging the disciplinary actions taken by federal executive agencies, or other employment law matters.

When should I go to the MSPB?

  • Cases concerning federal employee demotions, suspensions, furloughs, and removals
  • Cases concerning an individual's rights or benefits under the CSRS or FERS
  • Cases concerning complaints under the Whistleblower Protection Act
  • Cases involving complaints under the USERRA
  • Cases involving complaints under the and the Veteran's Employment Opportunities Act
  • Cases based on complaints of Prohibited Personnel Practices

You can appeal to the MSPB if you are a competitive service employee who has completed your 1-year probationary period, or if you have completed 2 years of continuous service in the same or a similar position in the federal government, if you are a veteran's preference eligible employee, or an employee alleging a violation under USERRA.

Appeals before the Board are won and lost during discovery, and an attorney with experience representing federal employees can help develop an aggressive litigation strategy, to achieve cost-effective results and the best legal approach to winning your case.

Because of the complex, time sensitive nature of litigation before the MSPB, it is often best to get an experienced DC federal employment lawyer in your corner as early as possible, to avail yourself of every litigation tool available and to maximize the possibility of winning your case or obtaining a favorable settlement.

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Contact a DC Federal Employment Law Attorney at the firm at (866) 833-3529 today if you need legal assistance with a MSPB case.


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