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CRIMINAL DEFENSE • DISCIPLINARY INVESTIGATIONS & HEARINGS

Federal Employee Representation Before the Merit Systems Protection Board

The Merit System Protection Board protects federal employees against unlawful personnel actions by their agency employers. Created by the Civil Service Reform Act of 1978, the MSPB ensures that federal hiring, firing and compensation decisions are free from political influence and that federal employees have a fair opportunity to challenge adverse workplace decisions that may be taken against them.

Cases frequently decided by the MSBP arise from the following circumstances:

  • Adverse actions by a federal agency such as termination, demotion or suspension lasting more than 14 days;
  • Termination of an employee on probation;
  • Reductions in force;
  • Denials of a within-grade pay increase based on claim that employee failed to demonstrate an acceptable level of competence;
  • Claims that an employee lacks suitability for federal employment;
  • Agency determinations of rights and benefits under the Civil Service Retirement System (pre-1987 hires);
  • Agency determinations of rights and benefits under the Federal Employees Retirement System (post-1987 hires);
  • Claims arising under the Federal Erroneous Retirement Coverage Corrections Act;
  • Claims arising under the Uniformed Services Employment and Reemployment Rights Act;
  • Claims arising under the Veterans’ Employment Opportunities Act

The MSBP Appeal Process

Federal employees who have been adversely affected by an agency decision described above should strongly consider protecting their rights by filing an appeal with the MSPB. Most MSPB appeals must be filed within 30 days of the challenged personnel action, although in some cases — for example, whistleblower cases — filing deadlines can be longer.

MSPB appeal hearings, conducted by administrative judges and held in regional field offices across the country, put the burden on the agency to prove that the challenged workplace action is consistent with federal law. MSPB hearings give federal employees the opportunity to present evidence in their favor, and to hear and review evidence supporting the agency’s action. MSPB decisions are binding on federal agencies unless the government can convince a federal court to overturn them.

Cases involving claims of unlawful discrimination are most often heard by the Equal Employment Opportunity Commission (EEOC). However, under certain circumstances, the MSBP can decide a “mixed case” challenging unlawful discrimination that resulted in an adverse personnel action against a federal employee.

Federal employees face an uphill struggle when challenging adverse workplace actions against them. According to the most recent government statistics (Fiscal Year 2017), federal agencies prevail in the vast majority of MSPB appeals filed against them. Setting aside appeals that were dismissed or settled, agency action against a federal employee was upheld in 84 percent of the cases adjudicated in MSPB field offices.

Experienced federal employee rights attorneys can turn these numbers in the employee’s favor. Attorneys working on behalf of the employee will thoroughly investigate the circumstances surrounding the adverse personnel action and put the employee’s best case forward, whether in settlement negotiations with the agency or at a hearing before the MSPB.

How the MSPB Decides Prohibited Personnel Practice Claims

There are several types of personnel actions that can be reviewed by the MSPB. These include appointments, promotions, disciplinary actions, transfers, reassignments, reinstatements, reemployments or even performance evaluations.

In order to invoke the protections of the Civil Service Reform Act, a federal employee must demonstrate that the challenged personnel action was prohibited by federal law. A prohibited personnel practice is one that is made by a federal agency for a prohibited purpose.

When deciding a whether a personnel action is prohibited, the MSPB looks to two principal sources of guidance: the Merit System Principles, codified at 5 U.S. Code Section 2301, which ensures fairness in the federal workplace; and the “Douglas Factors,” which provide that workplace discipline must be fair and equitable under the particular circumstances of each case.

Employee Rights Under the Merit System Principles

The federal government’s Merit System Principles ensure that the federal workforce is treated fairly, not subjected to personal favoritism or partisan political influence, or punished for lawful whistleblowing activity.

The Merit System Principles direct agencies to select and promote employees “solely on the basis of relative ability, knowledge and skills, after fair and open competition which assures that all receive equal opportunity.”

The Principles provide all federal employees the right to fair and equitable treatment, free from discrimination due to political affiliation, race, color, religion, national origin, sex, marital status, age or disability.

Federal employees have a right to equal pay for work of equal value. Pay rates should be set with consideration for national and local rates paid by private sector employers.

The Principles recognize that, in some cases, federal employees should be provided education and training to improve individual performance.

Douglas Factors

Whenever an adverse action is taken against a federal employee, the agency must first consider a set of criteria known as the “Douglas Factors.” The Douglas factors were created by the MSBP in the 1981 case of Douglas v. Veterans Administration, 5 M.S.P.R. 280. After Douglas, the following 12 factors, if relevant to the employee’s circumstances, must be considered by the agency when it decides the severity of discipline to be imposed against a federal employee:

  1. The nature and seriousness of the offense and its relation to the employee’s duties, position and responsibilities, including whether the offense was intentional or technical or inadvertent, or was committed maliciously or for gain, or was frequently repeated.
  2. The employee’s job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position.
  3. The employee’s past disciplinary record.
  4. The employee’s past work record, including length of service, performance on the job, ability to get along with fellow workers and dependability.
  5. The effect of the offense upon the employee’s ability to perform at a satisfactory level and its effect upon supervisors’ confidence in the employee’s work ability to perform assigned duties.
  6. Consistency of the penalty with those imposed upon other employees for the same or similar offenses.
  7. Consistency of the penalty with any applicable agency table of penalties.
  8. The notoriety of the offense or its impact upon the reputation of the agency.
  9. The clarity with which the employee was on notice of any rules that were violated in committing the offense, or had been warned about the conduct in question.
  10. The potential for the employee’s rehabilitation.
  11. Mitigating circumstances surrounding the offense such as unusual job tensions, personality problems, mental impairment, harassment, or bad faith, malice or provocation on the part of others involved in the matter.
  12. The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.

We Advocate for Federal Employee Rights

The fallout from disciplinary actions can be severe. In addition to loss or diminution of pay, adverse personnel actions can permanently depress a federal employee’s career trajectory and, in a worst case scenario, can result in termination from federal service and diminished employment opportunities outside the federal government.

Experienced federal employment attorneys can protect your rights by building a strong case on your behalf. We have reached many favorable settlements with the government in employment matters. Should the matter require a full hearing, we can employ outside investigators to uncover information favorable to your defense, raise evidence and arguments to challenge the government’s view of the facts and aggressively confront the government’s witnesses at the hearing.

New York Regional MSPB Offices

Appeals to the Merit Systems Protection Board can be filed online or with any of New York’s regional field offices. Hearings are held at these MSPB regional offices:

Newark, New Jersey

Albany, New York

Buffalo, New York

New York, New York

Syracuse, New York

A MSPB Glossary:

Administrative law judge: Administrative law judges decide cases brought before the MSPB. Technically executive branch employees, they have specialized knowledge of federal workplace laws and function much like a traditional judge.

Douglas Factors: Criteria that must be taken into account whenever a federal agency imposes discipline against a federal employee.

Merit Systems Principles. Congress’ declaration that all federal employees must be treated fairly, on the basis of ability and skill, free from personal or political influence.

Merit Systems Protection Board. A federal, quasi-judicial agency that administers federal merit-based employee management statutes and regulations.

“Mixed case”: A federal workplace complaint involving unlawful discrimination that could be decided either by the MSPB or the EEOC.

Prohibited personnel practice: A significant personnel action taken for a purposed prohibited by federal law.

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