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Federal Employees and the Merit Systems Protection Board

Are you a federal employee? Have you received an adverse action from your agency? You may have the right to appeal and fight against adverse employment actions that impact your federal employment through the Merit Systems Protection Board (MSPB). If you have been removed, suspended for more than 14 days, reduced in grade or pay, or furloughed for 30 days or less for cause, then you likely can appeal these types of personnel actions to the MSPB.

What does the MSPB cover?

The MSPB is an independent quasi-judicial agency established to protect federal employees from agency management abuse. In addition to removals, suspensions, reductions in pay, demotions, and furloughs, the MSPB also handles appeals regarding retirement matters. The MSPB weighs in on decisions affecting benefits under the Civil Service Retirement System (CSRS), Federal Employee’s Retirement System (FERS), complaints filed under the Whistleblower Protection Act, and with the Department of Labor on Uniformed Services Employment and Reemployment Rights Act (USERRA). In addition, the MSPB also covers the following agency personnel actions or decisions:

• VA SES Removal from civil service
• Removal
• Termination during probationary or initial service period
• Reduction in grade, pay, or band
• Suspension for more than 14 days
• Failure to restore, reemploy, reinstate or improper restoration, improper reemployment, improper reinstatement
• Negative suitability determination
• VA SES Transfer to general schedule
• Involuntary resignation
• Involuntary retirement
• Denial of within-grade increase
• Furlough of 30 days or less for cause
• Separation, demotion or furlough for more than 30 days by reduction in force (RIF)

Typically, the MSPB does not hear and decide discrimination complaints, those responsibilities belong to the Equal Employment Opportunity Commission (EEOC), which you can read more about in Employment Discrimination by Private Employers. If the employee however, alleges discrimination related to the adverse action they are appealing to the MSPB then this is known as a “mixed case,” and the employee may ask the EEOC to review the MSPB decision if they are unhappy with it.

The MSPB does not have authority over personnel actions involving State or local governments or private industry employers, and only hears and decides appeals filed against federal agencies.

Are all federal employees covered by the MSPB?

Approximately two million federal employees have appeal rights to the MSPB, which does not cover all federal employees. The MSPB can only hear appeals from non-probationary federal employees who are competitive service employees or who have a veteran’s preference. Federal employees that are considered “excepted service,” which includes most employees working for the FBI and intelligence agencies, are not permitted to appeal to the MSPB unless they have a veteran’s preference.

Also, if you are a federal employee in a bargaining unit, you should first find out if your bargaining unit has a negotiated grievance procedure. If so, then you would need to pursue a grievance through your bargaining unit’s process. However, there are exceptions to this depending on the type of action, whether there is prohibited discrimination connected to the adverse action, and whether there is an allegation of a prohibited personnel practice.

What happens after you receive an adverse action from a federal agency?

If the adverse action made against you falls under the MSPB you only have 30 days to appeal. While it is not necessary to retain an attorney to appeal an agency action, having an experienced employment attorney who understands federal employment actions can make a difference when you want to fight against an agency action. You want to ensure that you have all the evidence required under the law to effectively appeal. Your case might overlap with the MSPB and the EEOC. You might have more claims than you think. Scheduling a consultation to speak with an experienced employment law attorney can be a great first step when you receive an adverse personnel action.