MSPB appellate procedures

Federal employees who make use of the Merit Systems Protection Board (MSPB) should understand the MSPB appeals process so that they can be sure that all of the appropriate steps have been taken, and that all of their rights have been honored.

Assignment of an Administrative Law Judge and the Acknowledgement Order

If the MSPB has accepted a case for appeal, then it will appoint an administrative law judge to the case. The MSPB informs an appellant and the defending agency that it has agreed to hear an appeal and that it has assigned an administrative law judge to the matter by having the administrative law judge send an Acknowledgement Order to the appellant, the appellant’s attorney and the defending agency. The agency will receive the Acknowledgement Order with a copy of the appeal filed by the appellant.

The Acknowledgement Order will direct the agency to respond to the appeal by explaining its reason for taking the personnel action at issue and providing any supporting documentation. If there are any questions about whether the appellant filed the appeal within the legal time constraints or whether the issue is within the MSPB’s appellate jurisdiction, then the Acknowledgement Order will also request a statement and documentation from the appellant on these issues.

After the administrative law judge has reviewed the parties’ responses to the Acknowledgement Order, the judge will inform the parties of other notices and pleadings that must be filed. The parties have the option to file their pleadings via an online e-Appeal system or via regular mail, fax or hand delivery.

Status Hearings, Hearings and Written Records

In addition to the pleadings, most administrative law judges will have one or more status hearings, also known as prehearing conferences, to help the parties narrow down the issues that need to be decided by the MSPB and encourage the parties to settle their dispute, if possible.

If the dispute is not settled, then the administrative law judge will proceed in one of two ways. The administrative law judge may either have a formal hearing and issue a decision after considering the evidence presented at the hearing, or the judge can close the record and make a decision based on the information contained in the written record.

The Initial Decision

The administrative law judge’s decision is known as the initial decision. The initial decision must identify all issues of fact and law, summarize the evidence presented by both parties, and explain the administrative law judge’s conclusions with a description of the legal authorities that the administrative law judge used to make the decision.

Petition for Review and Appeal

After the administrative law judge’s initial decision has been shared with the appellant and the agency, either party may file a petition for review of the decision with the Clerk of the Board. Three board members will hear the case and issue a final decision. An appellant also has the option of forgoing the petition for review, and filing an appeal of the administrative law judge’s decision with the United States Court of Appeals for the Federal Circuit.

These procedures should be followed in every case. They are designed to give MSPB appellants the opportunity to fairly resolve their personnel issues with federal agencies. An attorney with MSPB experience can help you understand these procedures in greater detail and ensure that all of your rights are protected.