Federal employee’s guide to discipline cases and the MSPB by an experienced MSPB attorney

This is a free legal guide to discipline cases for federal employees. It has been prepared by an attorney with extensive experience practicing before the MSPB; both as an agency attorney working to sustain the discipline, and as the representative of the employee working to get the discipline overturned or lowered.

Feel free to read the guide in full, or use the table of contents below to jump quickly to a section of interest.

 

Free MSPB discipline guide by ivanceilaw.com

Who is this Merit Systems Protection Board MSPB guide for?

This guide is designed for any federal employee who is facing discipline and wants to better understand the disciplinary process from start to finish.

This guide will go through the disciplinary process most federal agencies follow. Included in that, are suggestions for handling the proposal and oral reply stages of the disciplinary process. The guide also reviews the appeal rights an employee has after receiving a final decision on their discipline.

The method of appeal depends on the severity of the discipline. Suspensions in excess of 14 days–referred to as adverse actions–can be brought before the Merit Systems Protection Board. Suspensions of 14 days or less typically are limited to arbitration. The guide will explain the basics of arbitration along with the and Merit Systems Protection Board’s processes.

Legal guide to federal discipline cases including the Merit Systems Protection Board MSPB

Discipline, the basics

In federal employment law generally there are two distinct categories of discipline:

  • Adverse Actions – Which are suspension in excess of 14 days, demotions (including grade decrease), or removal from the federal service.
  • Standard Discipline – Suspensions of 14 days and below, letters of reprimand.

The 14 day and greater distinction is important for the appeal rights an employee will posses later. An employee can only take their discipline case to the Merit Systems Protection Board if they were suspended for 14 days or more. If you were suspended for 14 days or less, you are likely limited to arbitration. Accordingly, you should reference those respective sections of this guide, arbitration actions or MSPB actions, according to the specifics of your case.

The discipline process, a typical case timeline

Generally, both types of cases follow the same path until a final decision is issued by the agency. Those steps are:

  1. Misconduct occurs
  2. Investigation (sometimes lengthy, >6 months)
  3. Results of investigation are presented to management
  4. A management official issues a proposal letter to the employee outlining the proposed discipline
  5. Employee has the option to attend an oral reply (or a written reply) which a deciding official presides over
  6. Deciding official issues the agency decision on the proposed discipline
  7. Employee is served decision along with notification of their appeal rights at the MSPB, EEOC, etc.

Misconduct

This goes without explanation, but typically management’s attention needs to be drawn to some conduct that is against policy, procedure, or rule. The employee typically needs to have prior notice that engaging in this type of misconduct could result in discipline. Obviously, many violations do not require prior notice, or they are simply self apparent, e.g., you cannot steal from work. Some, more technical violations may require notice. Such an example would be rules and limitations related to the use of special information systems.

Investigation

Once management becomes aware of misconduct they typically will initiate an investigation. Who investigates the case is dependent on the severity of the alleged misconduct and can vary greatly. For issues that appear trivial from the onset, management will initiate an inquiry with management approved fact-finders. These are employees who have other duties but investigate cases for management as well.

More severe cases will draw the attention of Internal Affairs (IA) or Inspector General’s (IG) offices. Additionally, in very serious cases law enforcement agencies such as the FBI may be involved in investigating the case for a potential criminal prosecution. Such investigations by outside law enforcement can run parallel to any management-lead investigations. In instances where the employee may fear criminal prosecution and agency investigators want to interview the employee, those investigators can issue a special warning called a “Kalkines Warning.” A Kalkines Warning assures the employee that the information they provide will not be used against them in any criminal prosecution. It is important to note, however, that failure to provide a statement after being given a Kalkines Warning can result in additional misconduct charges such as failure to cooperate, because employees are required participate in agency-conducted investigations.

Proposal

Some time, typically within 6-12 months of employee misconduct, management will serve the employee with a notice of the discipline the agency plans to impose on them. This is typically called a “Proposal Letter.” This letter will lay out all the charges of misconduct against the employee and typically include very detailed specifications that explain the underlying facts that support each charges.  The proposal letter will also include the penalty the agency is proposing, and the employee’s right to attend an oral reply where they can present their side of the case to the deciding official.

Practice Pointer:

Some MSPB cases suggest that a significant gap between when the misconduct occurred and when the agency issued its proposal could result in harmful error. Make sure to preserve an argument that the agency waited too long to issue a proposal if they took a long time to do so in your case. Delay alone does not result in the charges being dropped. The employees must also be able to demonstrate that the delay was prejudicial (harmful to their case). Examples of prejudice include: loss of evidence, or inability to interview employees who have since retired or transferred.

Oral Reply

The oral reply, while early in the discipline process, is the point at which the employee’s own efforts can have the largest affect on the outcome of their case. The oral reply isn’t an adverse proceeding like a court hearing. There is no yelling, finger-pointing, or “Perry Mason moments.” The discipline is discussed, and the employee has their chance to present their side of the case.  Specifically, the employee will want to address the relevant Douglas Factors for their case.

Douglas Factors

The Douglas Factors are 12 points of analysis that a manager must consider when they issue a decision in an employee discipline case. For more information about the Douglas Factors and how to apply them, review our comprehensive guide to the Douglas Factors here. Proper use of the Douglas Factors at your oral reply could greatly reduce the amount of discipline you face. 

When you are discussing your case with the deciding official at the oral reply it is essential that you present evidence in support of your position. The oral reply is really the only part of the disciplinary process where the employee can have a substantial affect on the outcome of their case.

So how do you advocate for yourself? Start by highlighting any mitigating factors and focusing on the Douglas Factors that support your position. Read our guide to the Douglas Factors, and determine which factors are in your favor, or mitigating, and which are not in your favor and are aggravating. In your oral reply, highlight the mitigating facts and provide additional evidence on those facts if possible. Regarding aggravating facts, admit them if they are true, but do not spend more time than necessary dwelling on those aggravating factors.

Demeanor at Oral Reply

The manager who will oversee your oral reply will have reviewed your case file and likely had discussions with a labor relations specialist regarding your case. They will know what happened, they may even have questions for you. It is also likely that they have presided over many other oral replies previously. My point? They have seen it all. They have had employees come in and cry, come in and yell, and come in and deny everything. Ultimately, it is critical that you conduct yourself properly at the oral reply.

This means you shouldn’t come in and deny responsibility for your actions if you engaged in the misconduct. Being candid, contrite, and professional will work in your favor. Certainly, if you didn’t engage in the misconduct the agency is accusing you of, present evidence to support your position. But do not go into the oral reply, in the face of a mountain of evidence to the contrary, and try and deny doing something that you clearly did. It will frustrate the manager, call into question your character, and simply make you look bad. Most managers do not want to fire employees if they do not have to. Your job, or your attorney’s job is to show that you are a good employee who can be rehabilitated and that you take responsibility for your actions and want to move on.

To be honest, I wish more of my clients consulted me at the oral reply phase of the discipline process. Presenting a strong case at this early juncture can avoid the expensive and lengthy process of fighting the discipline later. If you are issued a proposal letter with serious charges you should contact an attorney immediately. You should also request an extension of time to conduct your oral reply so that you can hire a representative and give them time to prepare your reply.

Issuance of decision letter

After the oral reply, typically within 30 days, the agency will serve a final decision letter on the employee. The decision letter will  outline the final discipline imposed by the agency (e.g., 14 day suspension). Additionally, the decision letter should include analysis by the deciding official related to each charge, and whether they found sufficient evidence to sustain the charges against the employee.  Finally, the letter will outline all appeal rights the employee has, and associated deadlines. We have created a video guide explained how to file a MSPB appeal form.

Post decision letter – challenging the agency’s discipline

Adverse actions, because they are more serious, generally have more appeal options, such as bringing your case before the MSPB or EEOC. Discipline less than 14 days does not have the same appeal rights because it is not as severe.

Suspensions of 14 days or less

So, what recourse do you have if your agency has issued a decision letter to you that contemplates a suspensions of 14 days or less or a letter of reprimand?  Typically, in this instance, if you are a bargaining unit employee (union) your collective bargaining agreement will provide methods of challenging the disciplinary action.  You also typically have the right to retain counsel of your choosing and can challenge the discipline through arbitration.

Adverse Actions, suspensions of 14 days or more, removals, reduction in grade, pay, or band

If the agency has imposed a 14 day suspension up to removal you will have more appeal rights. You will have 30 days after receiving the decision letter to file an initial appeal with the MSPB. Generally, your decision letter will include all the information you need, including the required forms, to file your appeal with the MSPB. But, you can find the appeal form here if you would like to review a copy. Procedures for filing to the EEOC are different. Additionally, you can bring discrimination charges before the MSPB in what is known as a “mixed case.”

Discipline of supervisory employees – limited appeal rights

If you are a supervisor or non-bargaining unit employee you may have different rights that affect your ability to challenge your discipline. Review your agency’s policy and speak to management, or your labor relations specialist if you are a supervisor facing discipline. Also, review all notices, such as the proposal, that you are served with. These documents should explain the extent of your appeal rights. Nonetheless, for adverse actions (14 day suspensions or greater) even high-level officials still have MSPB appeal rights.

Arbitration Basics

This section will explain arbitration.  Generally, an employee will have the option of arbitration where they are facing discipline of 14 days or less.

What is arbitration?

Arbitration is a binding semi-formal hearing process where a neutral party presides over a case and issues a decision at the conclusion of the proceedings like a judge. It is less formal than a court case but there are still some formalities. There is often a court reporter that will create a transcript of all the testimony that is provided at the hearing. Additionally, the rules of evidence may be applied, to varying extent, by the arbitrator. So things such as hearsay (testimony about what someone else said) may not be allowed.

How is the arbitrator selected?

Typically, there is a list of arbitrators that the agency and the union have pre-selected which are selected sequentially with each new case.

When will the arbitrator hear my case?

The arbitration will be scheduled subject to any existing bargaining contract and based on the parties’ schedules. Typically, you can expect your arbitration to be scheduled within a year but it may occur earlier or later depending on the circumstances.

How do I prepare for the arbitration?

You should meet with your representative and come up with a strategy for your case. Additionally, you should create a list of witnesses you want to call. Indeed, you will likely have to provide a list of witnesses to the agency prior to the arbitration anyway. You also need to gather any documents or evidence you want to present at the hearing. Having multiple copies ready is recommended.

You should also go over your testimony. Have your representative prepare you for the questions agency counsel is likely to ask you, as well as the questions your representative will ask you.

The keys to testifying are: 1) answer only the question asked of you; 2) be honest. Following those two simple rules will keep you out of trouble. You can read about preparing for depositions and testimony here.

How long does an arbitration last?

Depending on the complexity of your case, it is likely the arbitration will only last one or two days. In complicated cases, or when there are scheduling complexities a hearing may drag out over a week or two, but that is more an exception that the rule.

How long until I get the decision in my case?

Arbitrators can either issue a verbal decision immediately after hearing, or issue a written decision after reviewing all the evidence. A written decision is the more common method. You can expect an arbitrators decision within 6 to 12 months of the actual arbitration hearing. However, a decision (sometimes called an ‘award’) is issued is at the liberty of the arbitrator’s schedule, so be ready to wait if they are very busy.

Can I appeal the arbitrators decision?

An appeal to an arbitrator decision (award) is called an exception. Generally, you are stuck with the arbitrators decision and it can be difficult to get a decision overturned. However, if the arbitrator made a significant error you can file an exception with the Federal Labor Relations Authority FLRA. The FLRA’s checklist for an exception requires:

  • Statement of the grounds (listed in 5 C.F.R. § 2425.6) on which review is requested
  • Evidence or rulings bearing on the issues before the Authority
  • Arguments in support of the stated grounds
  • Specific reference to the record and citations of authorities in support of those arguments
  • Legible copies of any documents referenced in the arguments, with the exception of documents that are readily accessible to the Authority (such as Authority decisions, decisions of Federal courts, and current provisions of the United States Code and the Code of Federal Regulations)
  • Legible copies of the arbitrator’s award
  • A statement regarding whether requesting an expedited, abbreviated decision under 5 C.F.R. § 2425.7, and, if so, arguments in support of such request
  • Arbitrator’s name, mailing address, and, if available and authorized for use by the arbitrator, the arbitrator’s e-mail address or facsimile number
  • A table of contents if the document exceeds 10 double-spaced pages in length (unless filed electronically through the FLRA’s eFiling System)

You can find out more about FLRA exceptions here.

Merit Systems Protection Board MSPB Basics

If you were subject to an adverse action you have the right to appeal your case to the Merit Systems Protection Board.

The Merit Systems Protection Board (MSPB) was created in 1979 in an attempt to standardize discipline and personnel actions across the federal government. The goal was to prevent disparate results in federal employment cases across various agencies and to avoid abuse of the disciplinary process by management.  The personnel actions typically handled by the MSPB include removals, suspensions, furloughs, and demotions.

MSPB Jurisdiction

Generally, the MSPB has jurisdiction to hear any case where a federal employee is suspended for 14 days or more, including removals from service. The MSPB is an administrative body and an Administrative Judge (AJ) presides over a hearing where the government-employer must show the action was warranted and “promotes the efficiency of the service.” The employee presents evidence to the contrary, or advances arguments that their due process rights were violated by the agency in issuing the discipline.

The bulk of the MSPB’s cases relate to disciplinary matters but it also has jurisdiction over other federal-specific matters. Those include complaints filed under the Whistleblower Protection Act (WPA), the Uniformed Services Employment and Reemployment Rights Act (USERRA), and the Veterans Employment Opportunities Act (VEOA). Additionally the MSPB reviews alleged violations of the Hatch Act. The Hatch Act relates to partisan political activity in the federal workplace and mandates the very severe penalty of removal for a first time offense.

For purposes of this guide we will focus on the MSPB’s jurisdiction related to reviewing the outcome in discipline cases.

Initial Challenge

After receiving the agency’s decision letter outlining the discipline they are imposing you generally have 30 days to file an appeal with the MSPB. You can even file online at the MSPB’s e-Appeal Online website. You can also file the MSPB’s appeal form via fax or mail as well. The most important thing is to make sure that you file your appeal prior to the 30 day deadline, the MSPB is not forgiving when it comes to delinquent filings and you could be stuck with the discipline imposed by the agency if you miss your filing date. Again, we have created an explanatory video on how to file an appeal.

After filing your appeal

After you submit your appeal the case will be assigned to an Administrative Judge (AJ) in a MSPB regional office near you. The MSPB is broken into various regional offices. To see what region you are in view this link.

Acknowledgement Order

After the AJ is assigned the case they will send you and the agency an acknowledgement order. This very important document lays out the obligations of the agency and the employee and provides notice of initial deadlines. It will also explain the discovery process the parties are obligated to comply with.

Make certain that you review this document carefully. It is best to get a pen or highlighter and note key deadlines, or obligations that you must fulfill.

Fast moving Cases – 120 Day Rule

MSPB cases move quickly. AJs are supposed to adjudicate all appeals within 120 days of receipt. So they will be motivated to either get the parties to settle, withdraw the case, or quickly schedule and proceed with the hearing. Know that once you file with the MSPB your case will move rapidly.

Representation

At the MSPB you can represent yourself or hire a representative of your choosing. The agency will most likely be represented by an attorney who has extensive experience with the MSPB and employment cases. They will be familiar with the process, deadlines, and procedural rules. Generally, it is to your advantage to hire an attorney because they will have a familiarity with the process and will know what to ask for in discovery. Additionally, many employees find the process complicated and daunting, especially in light of the emotional tole going through the discipline or removal process can have.

The hearing

At the hearing, much like arbitration discussed above, witnesses will be called and the AJ will take in the evidence of the case creating a complete record. After hearing all the evidence the hearing will adjourn and the AJ will issue a decision shortly thereafter.

Appeal to Full Board

If a party is unhappy with the AJ’s initial decision they can petition for a review of the decision by the Full Board of the MSPB in Washington D.C. A party must challenge the AJ’s initial decision and request review by the full board within 35 days otherwise the decision becomes final. If a party does request review, the full board will the review the case and issue a decision.

Further Appeals

If you further wish to appeal your case you have two avenues of appeal depending on the subject matter of your case.

Federal Circuit Court of Appeals

An employee can appeal the full board’s decision to the Federal Circuit Court of Appeals. Any petition for review must be filed within 60 days of the board issuing its final decision:

In any case filed in the United States Court of Appeals for the Federal Circuit, the court shall review the record and hold unlawful and set aside any agency action, findings, or conclusions found to be—
(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
(2) obtained without procedures required by law, rule, or regulation having been followed; or
(3) unsupported by substantial evidence;

See 5 U.S. Code § 7703(c)

District Court

If the case involves allegations of discrimination local U.S. District Courts will entertain appeals from a final board decision:

The appropriate United States district court is authorized to conduct all judicial review of cases decided under 5 U.S.C. 7702. Those cases include appeals from actions taken under the following provisions: Section 717(c) of the Civil Rights Act of 1964, as amended (42 U.S.C. 2000e-16(c)); section 15(c) of the Age Discrimination in Employment Act of 1967, as amended (29 U.S.C. 633a(c)); and section 15(b) of the Fair Labor Standards Act of 1938, as amended (29 U.S.C. 216(b)).

See 5 C.F.R. § 1201.175

Notes on further appeals – representation

The Federal Circuit and District court are much more formal than the MSPB and it is recommended that you hire an attorney to represent you before these courts.

Additional Resources

The MSPB’s Judges Handbook is a helpful resource for individuals who have a case before the MSPB. You can review and download the handbook here.

Indexed and searchable MSPB regulations can be found here.

You may also find our legal guide on discrimination cases helpful.

We have also compiled a list of helpful MSPB resources.

Conclusion

Finally, if you have additional questions about the process or are considering hiring an attorney do not hesitate to contact usWe have extensive federal employment law experience and will fight to get you the best result possible. Our consultations are always free.