Q & A with a Merit Systems Protection Board Representative

Q & A with a MSPB Representative

Today we’re going to be doing a question and answer session with a Merit Systems Protection Board, MSPB representative. We will be speaking with attorney, Mike Ivancie, founder of the Ivancie Law Practice.

Q: So, for starters, what is the Merit Systems Protection Board or MSPB?

The Merit Systems Protection Board (wiki) is a little-known administrative judicial agency in the federal government that is responsible for primarily adjudicating the disciplinary cases of federal employees. The MSPB handles other issues as well, but the bulk of its work is related to disciplinary actions of federal employees, more commonly referred to as adverse actions. An adverse action is a reduction in payer grade, a suspension of more than 14 days, and furloughs of 30 days or less.

Q: Who can represent a federal employee at the MSPB?

Interestingly, there’s no limitation on who can represent a federal employee at the Merit Systems Protection Board. If a federal employee wanted, they could have their brother or sister, anyone, any non-attorney or attorney represent them. This doesn’t mean that an employee should necessarily have a union steward who’s not an attorney or someone not versed in MSPB and federal employment law represent them. Generally, an attorney that has experience litigating these kinds of cases is best situated to represent a federal employee before the MSPB.

Q: How do I file an MSPB appeal?

So, if you’re a federal employee and you think you want to file an MSPB appeal, it really depends on the kind of case that you have. As I mentioned earlier, typically a federal employee encounters the MSPB through challenging a disciplinary action that they’ve received on the job. Most commonly, what will happen is an employee will be served with a proposal letter notifying them of the discipline that the agency is seeking against them and the basis for that discipline. Following the proposal letter, the employee will have the opportunity to respond and give a written or oral reply to the responsible agency official, most often referred to as the deciding official, for that disciplinary action.  After submitting a reply, or not submitting a reply, typically within 30 to 60 days, the agency will then issue a final decision on the disciplinary action. Following that decision letter, it should include notification of appeal rights and typically within that, if your disciplinary action meets the level of adverse action qualification, which we talked about earlier; suspension of more than 14 days, or removal or reduction in grade or pay, then you can appeal your case to the MSPB. Generally, you only have 30 days to appeal the case to the MSPB and your appeal rights will generally be listed in that final decision letter that you receive from the agency.

You can also watch our video on completing the appeal form here:


Q: What other kind of cases are heard at the MSPB?

As mentioned earlier, disciplinary cases are the most common kind of case heard at the MSPB, but additionally, the MSPB can review Office of Personnel Management (OPM) decisions, adjudicate cases related to the re-employment rights of veterans and other employees, whistleblower appeals, and in rare or limited circumstances, adjudicate probationary terminations.

Q: Is it better for my case to go to the MSPB or the EEOC?

Well, again, unfortunately, it depends. It depends first on whether or not your case can properly be before the MSPB and the EEOC. Certainly, if you’re raising allegations of discrimination under Title VII or some other law that is in enforced by the Equal Employment Opportunity Commission, then you can take your case there, however, jurisdiction at the MSPB is very limited. You can’t bring a pure discrimination case to the MSPB, such as a hostile work environment claim. It has to have some sort of other jurisdictional hook to give the MSPB jurisdiction over your case. So, let’s say for example, you’re issued a 30 day suspension. Well, that would be properly before the MSPB. They would have jurisdiction over your case as an adverse action. Further, let’s say you believe that the 30 day suspension was a result of discrimination. Well, then you could raise that issue at the MSPB as well, but you could also raise it at the EEOC.

So, what are the advantages and disadvantages of the two venues? Well a large advantage of the MSPB is that cases are decided, generally very quickly. As discussed earlier, a case will usually be adjudicated within 120 to 220 days, whereas depending upon what region you’re in, an EEOC case can take years, multiple years, to decide. There’s not as hard or fast limitation for case processing at the EEOC, whereas the MSPB tries to honor the 120 day deadline as much as it can. The EEOC also has a much larger caseload, especially in some of the regional offices, like the Los Angeles regional office. So, if you’re seeking a quick redress, then the MSPB may be a better venue for you. However, a lot of federal employees think that the MSPB is not as favorable to them and maybe with some good reason, since the MSPB released statistics in 2014 suggesting that federal employees typically lose their cases more than 70% of the time. This may be a function of the board not being that favorable to employees or that federal employees are not hiring savvy federal employment law attorneys, or possibly fighting cases that lack merit all the way through decision. And generally, as we discussed earlier, only the most serious cases of misconduct really generally reach its way to the MSPB.

Q: How long does it take a typical MSPB case from start to finish?

Well, the MSPB has a general rule that cases should be adjudicated within 120 days of them being docketed with the local regional office. In practice, this rule is not hard and fast, so some cases go over the 120 days. Actually more often than not they do go over the 120 days. Additionally, complicated federal employment cases before the MSPB typically have an extension granted at least once or twice. A judge has the ability to grant up to two 30 day case suspensions to allow the parties more time to engage in discovery, settle the case, or just to accommodate various working schedules.

After a case is docketed with a MSPB regional office, for example, San Francisco, the case will be assigned to a administrative judge (AJ). This AJ will then  issue what is called an acknowledgment order. This order basically acknowledges the beginning of this new case and notifies the parties, the federal employee, and the federal agency of their rights and obligations going forward related to this case. An acknowledgment order is probably the most important document in an MSPB case because it lays out deadlines for discovery. The judge’s expectations for the parties going forward and it provides notice to the appellant, the federal employee that they need to declare a representative, if they’d like to have one. As discussed above, a federal employee can designate any representative they want.

Q: Can am employee change their representative after starting a case at the MSPB?

The answer to that is yes, absolutely they can. A federal employee has the absolute right to select who represents them. It’s not compulsory that they have the same representative from the start to the finish of the case. Nor do they have to choose the union to represent them. Generally, it’s advisable and it’s a good idea to stick with the same representative, but there is no requirement or rule that you’re locked in once you hire someone. Indeed, I’ve taken over for other attorneys and non-attorney’s as the representative after a case has been docketed and the acknowledgment order has been issued.

Q: What is the purpose of the acknowledgment order?

Well, I address this question briefly above, but an acknowledgment order lays out the framework of the case and the expectations of the judge. Once you have an acknowledgment order, your case has been docketed and it’s time to take it very seriously. The deadlines that a judge gives you in the acknowledgment order are ironclad and you can expect that if you miss deadlines, you will not necessarily be punished, but there will be repercussions that can affect your case dramatically. One of those big deadlines is the deadline for discovery.

Q: What is discovery?

Discovery is the opportunity for the parties involved in  litigation, for example here at the MSPB to seek out relevant evidence, such as memos, letters, emails and other evidence the opposing party already has in their possession.

Discovery is very important because generally, disciplinary actions are required to follow a certain procedure and the action must comport with the Douglas factors. Accordingly, you can use discovery to gather information to find out if the agency’s disciplinary action was consistent with these required procedures. Additionally, you can find information in discovery about comparator employees, other employees that were potentially treated better than the employee-appellant at the MSPB and you can use discovery to find information about potential bias, discrimination, and other case-specific issues.

To give an example, let’s say an employee is terminated for AWOL, and let’s say there’s a dispute as to whether or not an employee was consistently tardy. Well, discovery allows you to gather information from the agency to find out whether or not that employee really was tardy, whether the agency documented that tardiness, whether there were access logs showing when that employee logged into their computer every day or swiped through security every day. These are very relevant documents and pieces of information that would help prove or disprove a theory in the case.

That turns me to what the idea of what discovery is all about: it’s really meant to find documents that are relevant to a specific case that tend to prove or disprove a specific fact that is relevant to that case. So, as an employee that’s representing himself, they need to keep in mind that discovery is not to be abused. It needs to be used to ask for information relevant to your case. So, discovery requests like, I want the tax returns of my former supervisor for the last decade, unless that has any connection to your disciplinary case, which it’s highly unlikely that it does have any connection, that would be an inappropriate discovery request . The judge would deny it and it’d be likely that the judge would warn an unrepresented appellant not to make requests of that nature. In some instances there could be sanctions or some sort of order from the judge that would affect the appellants case going forward if they really try to abuse the discovery process.

One more thing about discovery I’d like to add is that it really is a critical part in the case of a federal employee related to disciplinary action. Generally you only have 20 to 45 days to initiate discovery (depending on the AJ) and if you fail to initiate discovery within that time line, you waive your right entirely. If you cannot conduct discovery in a case, it’s kind of like fighting a case with one arm tied behind your back. It’s greatly limiting if you cannot engage in discovery. I’ve had clients come to me before where they’re seeking representation after discovery is closed or the window to initiate it has since lapsed and I tell them ‘discovery is an extremely important phase for the case and by not taking advantage of it, you have really hurt your case.’

Discovery typically begins shortly after an acknowledgment order is issued and finishes generally within 60-90 days of the case being docketed (depending on how complex the case is). If there are discovery disputes, parties can go to a judge and request that the judge issue an order requiring the party to produce the requested documentation. This typically is referred to as a motion to compel.  Generally, appellants will not have very much discoverable information in an MSPB disciplinary case since the agency is obligated to provide all the evidence to support the disciplinary action. Although, that’s not to say that sometimes appellants are not served with discovery requests. It’s just a question of whether or not the information the agency is requested is relevant or not.

Q: Shifting gears, what are the Douglas factors?

Well, you can look on our website and we have an extensive article discussing the Douglas Factors. But, in short, the Douglas Factors are 12 different factors that a deciding official must look to when they’re determining the appropriate level of discipline for a federal employee in a disciplinary case. These factors were created in a seminal decision by the Merit Systems Protection Board, where one of the parties’ names was Douglas, hence the name Douglas Factors. These factors include your length of service with the federal government, the severity of the misconduct and things like that. So, the purpose of these factors is to encourage these deciding officials to look at a case cohesively or review the totality of the circumstances and determine whether or not the proposed discipline is reasonable or not. Now, the Douglas Factors are also extremely relevant at the MSPB, because judges will also evaluate a case independently and make sure the deciding official properly applied the Douglas Factors. If a deciding official does not properly apply the Douglas Factors, that could be grounds to mitigate or overturn the disciplinary action.

Q: Is it hard to win a case at the MSPB?

It really depends on the case that you have personally and the individual merits of your case.

One of the big questions is, have you been subject to discipline before? If you’re someone who has been subject to three or four prior disciplinary actions and then finally now you’re faced with a 30 day suspension or removal, your case is probably going to be difficult to win at the MSPB.

Now if you’re a model employee, who has worked for the government for 25 years and your agency’s trying to fire you for taking a pen home, or showing up five minutes late to work one time, that is a strong case.

Again, it really depends on the merit of your case but in all candor, MSPB cases are challenging and more often than not, appellants lose at the MSPB. Now that’s a function of multiple things. One, it’s a function of highly educated and sophisticated federal management and advisory structure. Management can consult labor and employment relation specialists, and attorneys, who know all the rules for disciplining federal employees and they make sure to follow them. This structure is in place because a common way for disciplinary actions to be overturned, is if something is procedurally unsound. Why procedure is so important, relates back to the Constitution and federal employment being a property right and the need of the government to uphold the rule of law and the Constitution. Now, because there are all these experts on the agency side, typically these procedural issues do not arise. Additionally, smaller or less serious matters are typically resolved more informally within management structures. A good manager, instead of going straight to a 15 day suspension of an employee, will counsel them and work with them informally to try and change their behavior.

So, generally the cases that actually end up making it to the MSPB are cases where the conduct is fairly serious or misconduct is really egregious; Employees assaulting other employees at work or stealing valuable property or destroying property or failing to follow orders consistently. Generally it’s a pattern of behavior over and over and over that will lead to the most trouble for federal employees and greater likelihood of a sustained removal or a long suspension at the MSPB.

Q: How long does a hearing last at the MSPB?

Speaker 1: Well, typically you can expect it to take around 120 days or more. Realistically an expectation is about a little less than a year. It really depends on your case specifically, how complicated it is, if it’s a multi-day hearing and how long it takes the judge to issue a decision in your case. MSPB has a rule, generally, that tries to get a case decided within 120 days, as we discussed earlier. That is not a hard and fast rule to the extent that if the judge takes more than 120 days, an employee automatically wins his case . It simply doesn’t work like that, but you can expect around 180 to 220 days. I’d say is a fair estimation of start to finish, given that there will likely be one or two case suspensions in your case, where the case is suspended or deadlines are continued for 30 days and just to account for the judge dealing with scheduling issues and the time to write a well thought out opinion for your case.

Q: Can I appeal if I lose my MSPB hearing?

So let’s say you go through a hearing, the judge issues a decision and he sides with the agency and sustains your discipline. What sort of redress do you have? Well, again, it depends to specifics of your case, but typically you have a right to request reconsideration by the full board. The Full Board are the three members that are appointed by the president and these three board members, will review your case and see if there is anything deficient by the judge, or make a decision about new evidence that was unavailable previously and decide whether or not you’re entitled to a new hearing or something that was so plainly wrong or a law that was clearly misapplied then they may overturn the prior decision. Also, sometimes you can take your appeal to the federal circuit, and in cases where there’s a discrimination component, commonly referred to as a EEOC or Equal Employment Opportunity Commission component, you can appeal that to federal district court.

Hopefully you found this discussion with a MSPB Representative helpful. If you have more questions, feel free to contact us if you have a pending case you need help with or would like to suggest a new question for our next Q&A session.

Thank you.