How to Win an MSPB Appeal: Step-by-Step

Attorney Justin Schnitzer

Written by: Attorney Justin Schnitzer

The last thing you wish as a federal employee is to face an unfair employment action. But things happen even to the best of employees, spiraling them into disputes with the best of employers. 

Filing an MSPB (Merit Systems Protection Board) appeal is a great legal route if you cannot resolve the issue through an alternative dispute resolution. But a minor mistake, inadequate evidence, or overlooking steps in the timeline can easily lead to your case being denied or dismissed

In fact, only 3% of MSPB appellate cases won relief between 2016 and 2019. So, how can you boost your chances of succeeding? Let’s dive deeper to discover how to win an MSPB appeal. 

How to Win Your MSPB Appeal?

While there is never a guarantee for a specific outcome, you can improve your chances of obtaining a favorable outcome by saving evidence, filing your appeal as soon as possible, and contacting a MSPB attorney.


Experts In This Article

How to Improve Your Odds of a Favorable Outcome

An MSPB (Merit Systems Protection Board) appeal is a legal process that federal employees may employ to challenge adverse employment actions, such as demotions, removals, and suspensions. Employees seeking to contest these actions may allege violations of agency regulations, federal laws, or constitutional rights.

To boost your chances of winning an MSPB appeal consider the following: 

  • Understand laws against discrimination.
  • Ensure you’ve approached the right MSPB office
  • Request the information that the agency relied on to make decision
  • File the appeal on time
  • Use the right format
  • Tell a good story
  • Make discovery request
  • Submit all pieces of evidence and information

Working with a reliable lawyer is another crucial tactic. They’ll hold your hand throughout the process and ensure you haven’t missed any step, boosting your chances of winning the case. 

how to win an mspb appeal
Working with a reliable lawyer is another crucial tactic.

Understand the Laws Protecting Federal Employees against Discrimination

The Equal Employment Opportunity Commission (EEOC) stipulates and enforces laws that protect you against discrimination from your federal employer. One of them is Title VII of the Civil Rights Act of 1964, which ensure your employer doesn’t harass you based on sex, nationality, color, race, or religion.

Others include:

  • Age Discrimination in Employment Act
  • Equal Pay Act

Did your federal employer bring an illegal or unfair employment action against you? You’ll go through a complaint process for federal employees. 

The first step is to speak to the EEOC office at your workstation. This office often takes various names in various agencies- for example, the Department of Veterans Affairs has an Office of Resolution Management (ORM). 

You’ll go through counseling or alternative dispute resolution (ADR) process under the office’s guidance. If the mediation fails to resolve the matter, you can file a formal MSPB appeal.

The MSPB Appeal Timeline

Your agency has just notified you of an advanced employment action. You think it isn’t fair, but your written or verbal response has hit a hard wall.

In this case, an MSPB appeal can come to your rescue. Here is the step by step MSPB appeal timelines to navigate this process effectively:

1. Determine the MSPB’s jurisdiction

The MSPB must have jurisdiction over you and the action in question. Actions that fall within MSPB jurisdiction include:

  • Reduction in pay of the grade
  • Misconduct actions
  • Suspensions for more than 14 days
  • Denial of reemployment
  • Performance-based actions
  • Denials of pay rise within grade
  • Furloughs for 30 days or less
  • Retaliation action against whistleblower
  • Removals

You may have to exhaust another governing agency’s processes before requesting a hearing from MSPB. They include whistleblower retaliation claims and veteran employment.

So, who can file an MSPB appeal? 

  • Competitive service employees
  • Excepted service employees with appeal rights, such as Schedule A appointees with disabilities
  • Preference-eligible veterans
  • Postal service employees
  • Senior executive service members

2. File Your Appeal Promptly

  • Timing is key: Typically, you should file an appeal within 30 days after receiving an adverse employment action. But what if, before this time elapses, you agree with the agency to use another dispute resolution route? In this case, you’ll have up to 60 days to file the appeal. 
  • Use Correct Format: Ensure your appeal’s format adheres to MSPB’s requirements. You can get the agency’s approved form or use their e-Appeal Online. 

3. The Hearing

  • An MSPB-assigned administrative judge (AJ) will request more details and responses from both sides. This judge may then address the settlement. If the case can’t be settled, it will go through an MSPB hearing. 
  • The AJ will decide on it based on presented information and testimonies. This initial decision becomes final after 35 days unless you or the agency petitions for review to the “Board.”

4. Pursuing Further appeal

If the case’s outcome doesn’t satisfy your expectations, you can file a further appeal to MSPB’s appellate division (Board). Were you unsatisfied with the board’s decision? You can file for a further appeal with the US Court of Appeals for the Federal Circuit within 60 days of the board’s decision.

The above summary of the MSPB appeal timeline highlights critical steps and deadlines. Any missteps here could negatively impact your rights.

What are the Sure Steps to Winning an MSPB Appeal?

Misinterpretation of the law and insufficient evidence are the most notorious reasons behind failed appeals. But the following tricks can boost your odds of winning the case:

1. Review the material the agency used

Knowing the information used against you will help you craft a water-tight appeal. Therefore, thoroughly review the material that influenced the employer’s decisions. And in case you were wondering, the law permits you to obtain such material. 

2. File as early as possible

Timing is crucial. Remember to file within 30 days from when you received the employment action. The board rarely excuses late filing.

The appeal form only requires basic information that you can collect quickly, such as your case’s legal issues and facts. Additional information will only be needed after filing the appeal. 

3. File with the right office

File the MSPB appeal with the office that oversees your duty station’s location. The offices’ jurisdiction changes frequently, so ensure you visit the agency’s website to confirm the correct one for your case.

4. Pay close attention to the form

Even a minor mistake is enough to cause delay or rejection. So ensure you’ve completed the form with the correct details, including addresses, signatures, and the action’s date. 

Due to the subsequent emotional rollercoaster and the taxing process, some mistakes can easily creep in when filing an appeal. Why not work with a reputable attorney to ensure nothing catches you unaware?

5. Give an outstanding narrative

MSPB deals with thousands of cases every year. So, inject a captivating story into your appeal to bring out a clear picture of your allegations and facts. 

If you aren’t a storyteller or don’t have time to compile one, this tip is easier said than done. But, an experienced federal employment lawyer will help you weave one. 

6. Discovery request

Request the federal agency to provide you with documents and recordings pertinent to their decision. While the employer isn’t compelled to produce more than what informed their proposed action, don’t assume that you now have everything you need. 

Your best bet is to file a production request for every crucial piece that will help complete the jigsaw puzzle. On the other hand, skipping the discovery request step may harm your chances of securing your win. Furthermore, you cannot later claim that your case flopped due to the agency’s failure to give you details. 

7. Submit documents and proofs of evidence

Relevant documentation can solidify your claim, boosting your chances of scooping a win. Even if the relevant material doesn’t look significant, it may turn out to be all you need to succeed. So, provide the judge with all relevant material before the hearing.

8. Consider settling the case

An employment action is often stressful, especially if it gets you off-guard. The extra stress from a complex litigation process can easily weigh you down.

So it’s recommendable to consider a settlement offer, only opting for litigation when necessary. While most people view a settlement offer as an acceptance of defeat, it can actually help you get guaranteed relief and the shortest path to normalcy.

9. Consult an MSPB lawyer

Going against the federal agency behemoth is an uphill task. The slippery MSPB appeal process and mountains of cases in front of the board are other things that can easily squash your case.

But with the help of an experienced MSPB lawyer, you can rest assured your case will have a chance at success. They understand the ins and outs of the entire process and key timelines to vigorously fight on your behalf. 

We Serve Federal Employees Nationwide

If you are a federal employee and your rights are being violated, we want to help you.

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Attorney Justin Schnitzer

The Law Office of Justin Schnitzer, Your Reliable MSPB Appeals Legal Partner

An MSPB appeal can help you get relief from an unfair federal employment action. However, a myriad of issues can haunt the already complex process, potentially minimizing your success rate. Such challenges include untimely filing, incorrect MSPB’s jurisdiction, misinterpretation of the law, and inadequate evidence. And fighting against a behemoth is another stressful reality. 

That’s why you need a top-notch federal employment lawyer. 

Are you or your friend contending with a federal employment action and need relief? Justin Schnitzer has been helping people in Maryland and the entire US boost their chances of winning the MSPB case. 

The federal employment lawyers at The Law Office of Justin Schnitzer are dedicated to providing personalized, high-quality legal representation to federal employees nationwide. Contact us today or call 202-964-4878 to schedule your free consultation and learn more about how we can help you achieve your legal goals.

Attorney Justin Schnitzer

Meet the Author:
Attorney Justin Schnitzer

Justin Schnitzer is the managing partner of The Law Office of Justin Schnitzer, and represents individual federal employees and unions in various aspects of federal employment law. His practice is primarily dedicated to federal EEOC and MSPB matters, responses to proposed disciplinary actions and investigations into potential misconduct.