What is the Merit Systems Protection Board (MSPB)?

US CapitolThe Merit Systems Protection Board (MSPB) is an entity that protects your rights if you are a federal civil service employee. The purpose of the board is to provide federal employees with the chance to appeal personnel decisions that are not in their favor or that are unfair. It is separate from partisan politics and is supposed to be an independent system. The President appoints the board members of this entity.

The MSPB is organized with multiple regional offices, although board members serve at its headquarters in Washington, D.C. Often, appeals happen in D.C., since that is where many federal workers do their jobs. Among the regional or field offices is one in Dallas.

At these offices, administrative law judges hear cases related to federal workers and agencies. The board members are supposed to protect the federal merit system, working together with the administrative law judges, attorneys, and staff at the MSPB to successfully implement the mission of the entity.

Appeals are in writing and have to contain specific information described in the regulations promulgated by the Board. In addition to individual right of action claims based on retaliation for whistleblowing, the entity also hears USERRA claims, VEOA claims, and requests for regulation review. The appeal is supposed to be filed within 30 days of the effective action date, or within 30 days of receiving the agency’s decision. The appeal is supposed to be filed with the regional or field office that serves the place where an employee’s duty station was located at the time of the adverse action, in most cases.

Once an appeal is filed, an administrative judge assigned to the appeal issues an acknowledgement order. It directs the federal agency at issue to submit a statement about why it took the action it took that is being challenged. The administrative judge provides notices and orders as the proceeding continues. The issues are narrowed and clarified until the administrative judge reaches a conclusion. If either the federal agency or the employee is dissatisfied with the initial decision, it can file a petition for review or, alternatively, petition the United States Court of Appeals for the Federal Circuit. The Board is not supposed to sustain an agency’s decision if an employee can show one of the following:  (1) there was a harmful error in how the agency’s procedures were applied to get to the decision, (2) the decision was based on a prohibited personnel practice under 5 U.S.C. section 2302(b), or (3) the decision didn’t align with the law.

The MSPB not only adjudicates matters but also conducts studies of the civil service according to a research agenda it crafts. For example, the MSPB was asked by multiple speakers to issue an explanation of how the adverse action process worked. They included this project in their agenda, among other research projects.

Although the MSPB had three board members, two have left, and since January 2017, there’s just one board member. The agency was not able to decide appeals of decisions from its hearing officers in federal employees’ challenges to disciplinary actions as well as other personnel matters. As of December 2017, it was believed that the chances of the vacancies being filled were slim. The agency warned multiple times about a backlog of cases. There aren’t any nominees for the two open seats. In the past, when two or more board members disagreed, the administrative law judge’s judgment was sustained.

It can be important to obtain representation from an experienced employment lawyer when you have a dispute with your employer regarding discrimination or other matters concerning workers’ rights. Contact us at (214) 528-6500 or via our online intake form.

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