What Can I Expect to Happen when I File an MSPB Appeal?
To file an MSPB appeal, we recommend that you use the MSPB’s e-appeal system, which can be accessed through the MSPB’s website at https://e-appeal.mspb.gov/, and which will guide you through the questions you need to answer to file a proper appeal.
- File Appeal/Establish Jurisdiction
Once the appeal is filed, the MSPB will assign an Administrative Judge within a matter of days, and you will receive a document entitled “Acknowledgment & Order,” which will contain information about the appeal process as well as deadlines for both parties. Some of these deadlines come very quickly, so be sure to pay close attention to every page. In some cases, the Administrative Judge will also issue what is called an Order to Show Cause, which is issued when the Administrative Judge has a question concerning whether the MSPB has jurisdiction over the appeal. It is very important that you respond to any Order to Show Cause, and you are typically allowed only 10 days to file a response. An Order to Show Cause is always issued in IRA appeals (for whistleblower retaliation), as well as appeals under USERRA and/or VEOA.
In all cases, the agency is ordered to file what is referred to as the Agency File, which should contain the basic documents relevant to the appeal, and also a narrative response to the appeal from the agency. Following this, the parties engage in discovery, where, typically, each party send the other requests including interrogatory, requests for documents, requests for admissions, and in some cases, notices of deposition. If your agency intends to depose you, The Federal Practice Group can provide you with representation to defend yourself at the deposition.
The parties usually have only 20 days to respond to each other’s requests, although it is not uncommon that the parties must work out disputes over what information each has to produce to the other party.
Often very shortly after discovery begins, the Administrative Judge issues a Hearing Order setting for deadlines for important procedures up to and including the hearing. The Administrative Judge will require the parties to file Pre-hearing Statements identifying the issues present in the appeal, the witnesses each party intends to call, and any exhibits a party wants introduced into the record.
The Administrative Judge will then hold a Pre-hearing conference during which he or she will identify which witnesses are approved to testify at the hearing and clear up any disputes over what issues must be resolved at the hearing.
Finally, the appeal will proceed to a hearing, which often takes place at the MSPB’s offices, although it may take place at an agency facility. The hearing will look at feel very much like a trial, and it is open to the public. However, no witnesses are permitted to be present when other witnesses are testifying. Each witness will be asked to take an oath, and a court reporter will transcribe the testimony.
Following the hearing, the Administrative Judge will issue what is called an Initial Decision, which will then become the final Decision unless one of the parties files an appeal by the deadline. The Merit Systems Protection Board, or MSPB, prides itself on its efficient appeal processing, and under its rules, the Administrative Judges are supposed to issue decisions within 120 days of the filing of the appeal, which typically occurs although not always.
If either party is dissatisfied with the Initial Decision, it can file a Petition for Review with the Board itself, which will review the decision for factual or legal errors. Following that, there can be an appeal to the U.S. Court of Appeals for the federal circuit, although you may have different rights depending on whether your appeal involved any affirmative defenses of discrimination.
Contact a federal employment law lawyer from the firm as soon as possible to professionally represent you at any MSPB proceeding.