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This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in DC, Maryland, Virginia, federal employee, security clearance, retirement and private sector employee matters.
By John V. Berry
Our federal employment lawyers represent federal employees nationwide before the Merit Systems Protection Board (MSPB). When filing an appeal with the MSPB a federal employee must carefully complete several critical steps to start the process. Failure to comply with these requirements may result in the dismissal of the appeal or the exclusion of critical components from MSPB review.
Filing Deadline for an MSPB Appeal
In general, an appeal must be filed within 30 calendar days of either the effective date of action, if any, or the date the appellant receives the agency’s decision, whichever occurs later. However, if the appellant and the agency mutually agree in writing to engage in an alternative dispute resolution process before the appeal deadline, the filing period can be extended by an additional 30 days, resulting in a total of 60 calendar days to file the appeal.
The MSPB will likely dismiss an appeal that is filed after the deadline. To avoid this outcome, it is essential to strictly adhere to all filing deadlines.
Where to File an MSPB Appeal
You must file your appeal with the MSPB regional or field office that serves the geographic area where your duty station was located at the time the action was taken. However, if the appeal involves a final decision by the Office of Personnel Management (OPM) concerning retirement benefits, or an adverse suitability determination, it should be filed with the regional or field office that has jurisdiction over your place of residence. For a complete list of MSPB regional and field office jurisdictions, refer to Appendix II of Part 1201 of the Board’s regulations. The MSPB has some helpful information listed here regarding the filing of appeals.
Electronic Filing of an MSPB Appeal
The MSPB e-Appeal system, is the most efficient and is the exclusive platform for electronic filing with the Board. If you prefer not to file your appeal electronically, you may download the MSPB Appeal Form and submit it using traditional methods, such as postal mail. While using the Appeal Form or the e-Appeal Online application helps ensure that all required information is included, use of the form is not mandatory.
At our law firm, we utilize the electronic filing system from the initial filing through the conclusion of the appeals process. Regardless of the method used, an appeal must be submitted in writing and must contain all the information required under 5 C.F.R. § 1201.24(a). Specifically, § 1201.24(a) provides that all appeals must include the following:
- The name, address, and telephone number of the appellant, and the name and address of the agency that took the action;
- A description of the action the agency took and its effective date;
- A request for hearing if the appellant wants one;
- A statement of the reasons why the appellant believes the agency action is wrong;
- A statement of the action the appellant would like the judge to order;
- The name, address, and telephone number of the appellant’s representative, if the appellant has a representative;
- Where applicable, a copy of the notice of proposed action, the agency decision being appealed and, if available, the SF-50 or similar notice of personnel action. No other attachments should be included with the appeal, as the agency will be submitting the documents required by 1201.25 of this part, and there will be several opportunities to submit evidence and argument after the appeal is filed. An appellant should not miss the deadline for filing merely because he or she does not currently have all of the documents specified in this section.
- A statement telling whether the appellant or anyone acting on his or her behalf has filed a grievance or a formal discrimination complaint with any agency regarding this matter; and
- The signature of the appellant or, if the appellant has a representative, of the representative. If the appeal is electronically filed, compliance with § 1201.14 and the directions at the Board’s e-Appeal site (https://e-appeal.mspb.gov) satisfy the signature requirement.
Procedures Following an MSPB Appeal
The Administrative Judge assigned to the case will issue an Acknowledgment Order to the appellant, their representative (if any), and the agency. This order serves to officially notify all parties of the appeal and transmits a copy of the appeal to the agency. It also directs the agency to submit a written response explaining the reasons for the personnel action being challenged, along with all documents contained in the official agency record related to the action.
As the case proceeds, the Administrative Judge will issue additional orders and notices regarding required pleadings and procedural deadlines. Pleadings may be submitted electronically via the MSPB’s e-Appeal Online system, or by regular mail, fax, or personal/commercial delivery. Following a hearing, or, if no hearing is requested, after the close of the written record, the Administrative Judge will issue an initial decision.
A well-prepared submission significantly improves a federal employee’s chances of either successfully litigating the case or reaching a favorable settlement. A clear and thorough appeal gives the Administrative Judge the context needed to assess the claims early on and ensures proper understanding of the legal arguments from the outset, which facilitates settlement discussions.
Conversely, if the appeal lacks clarity or detail, the Administrative Judge may overlook key issues, diminishing the focus on the case and weakening its presentation throughout the process. For these reasons, our firm strongly recommends that federal employees seek legal counsel to review and prepare the initial appeal to ensure it meets all procedural requirements.
Contact Us
Berry & Berry, PLLC represents current and former federal employees in employment, administrative, labor union, and security clearance matters, both nationwide and abroad. To learn more or to schedule a consultation, please visit our website at www.berrylegal.com or call us at (703) 668-0070.
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