1.) Who can appeal to the Merit Systems Protection Board (MSPB)?

The following Federal Employees may appeal to the MSPB:

• Competitive service employees who have completed their 1-year probationary period.
• Excepted service employees, not serving a probationary period and those who have completed 2 years of current continuous service in the same or similar position in a Federal Executive agency.

• Veteran’s preference eligible employees. There are special rules and time limits to file under VEO, thus you should consult an attorney early in the process.

2.) What types of actions can be brought before the MSPB?

• Suspensions over 14 days
• USERRA claims, even if you are in probationary status
• VEO claims, if you previously filed with the Department of Labor first
• Removals from federal service
• Unfavorable suitability determinations
• OPM denials of disability retirement actions
• Individual Rights of Appeal such as Whistleblower Retaliation
• Involuntary Retirements
• Involuntary Removals

3.) How can I obtain evidence relative to my case, that the agency has in its possession?

• Though the discovery process you can obtain relevant evidence that the agency has in its possession.
• Filing discovery demands may be critical to your case in obtaining “smoking gun” evidence.
• Strict time frames apply to serving and answering discovery and if you fail to comply you may lose your right obtain evidence critical to your case.

4.) What if the agency refuses to turn over evidence?

• You may file a motion to compel and a judge can order the agency to comply or the facts may be deemed to be admitted.

5.) What happens after I file my complaint with the MSPB?

• You will receive an acknowledgement order, which you must carefully read as it may order you establish certain facts ie: jurisdiction before the MSPB, or that you were honorably discharged from the military if you are filing a USERRA or VEOA claim. 
• The acknowledgement order will also set various deadlines for discovery and settlement discussions and initial status conferences. It is critical that you comply with these deadlines or your claim may be dismissed.

6.) Are status conferences and hearings conducted in person?

• Usually not, most can be done over the telephone or by video teleconference. Even hearings can be conducted by phone or video teleconference. However, it is up to the Judge to determine whether a hearing will be in person or by video teleconference.

7.) When must you file?

• Most appeals to the MSPB must be filed within 30 days of the effective date of the action.
• USERRA appeals – There is no time limit to file (See S CFR 1208.12)
• Whistleblower – You must file within 65 days of the date tat the Office of Special Counsel (OSC) notifies you that it will not seek corrective action (See S CFR 1204.5)
• VEOA – You must file with the Department of Labor (DOL) and you must give DOL at least 60 days to resolve before you can file a VEOA case with the MSBP.

8.) Where do I file my MSPB claim?

• You must file in the Regional office where you duty location is located (See Appendix II of part 1201 of the MSPB regulations)

9.) What must I file?

• The only document required to be files at the time of initial filing is the notice of decision to take action being appealed. Applications are available on the MSPB.gov website and you can elect to file electronically.

10.) Should I file my evidence at the time of initial filing with the MSPB?

• No, there exists certain tactical advantages to not filing your evidence at this time until discovery is complete or until the judge orders you to file additional evidence usually by the “order to show cause.”

11.) Designating a representative:

• You can represent yourself at the MSPB
• You designate any person to represent you at the board and they do not need to be an attorney. This is an important decision because your livelihood is at stake and you should consider hiring competent, experienced legal counsel.

12.) Why should I hire an attorney?

• Because you’re federal position may be at stake, you should at least consult with an attorney so you know what your options may be.
• Many times agencies do not take “Pro Se” or unrepresented claims very seriously because unrepresented claims do not understand the legal process.
• Agencies may be more willing to mediate or settle a case if you have competent, experienced counsel that is working aggressively on your case,

13.) How much does Tully Rinckey PLLC charge for MSPB representation?

• The process starts with a consultation. Our consults last one hour in length and we will evaluate your case and determine the merits of your claim.  We do charge a reduced hourly rate for the consult.
• If you decide to retain Tully Rinckey PLLC, we will draft a retainer agreement, which will lay out how the firm will bill your case and the amount of initial retainer money needed. In order for us to begin work on your case we must receive the signed retainer back and payment of the initial retainer.
• Tully Rinckey PLLC accepts personal checks and all major credit cards.  You also have the ability to pay online.

14.) Will I be able to recover my attorney fees?

• It depends on the situation and type of case and you should discuss this with the attorney during the initial consultation.  At Tully Rinckey PLLC we always try to recover attorney fees during any settlement or mediation if you prevail.

15.) What if I lose at the MSPB?

• If the initial decision rules against you, you may file a petition for review to the full board within 30 days after receipt of the petition.  You also have the right to file a petition to the United States Court of Appeals for the Federal Circuit within 90 days of the decision.
• The law provides that a decision can be reversed on appeal if the appellant shows harmful error or the decision was based on a prohibited personnel action or the decision was not within accordance with the law.

16.) What will happen if I win my case?

• The agency will have 30 days to appeal the decision.  If the agency does not appeal the Judge will direct the agency to reverse the adverse action and restore you to the “status quo ante“ on the position you were in before the adverse action.
• The Judge can also order interim relief which must be complied with immediately upon the decision.
• The Judge may also award you damages, such as monetary compensation for back pay with interest, lost leave days, job restoration, or redaction of derogatory information from your file.
• Your attorney can also file a fee petition to request attorney fees and expenses incurred on your behalf.

17.) Does Tully Rinckey take MSPB cases on a contingency basis?

• In some circumstances we may decide to take your case on a contingency fee. The decision will only be made after your paid consult is conducted. 

Our attorneys can consult with you in person at our K Street office in Washington DC or we can do the consult via phone. Don't put your federal career in jeopardy, contact us today at (202) 787-1900 to set up a consultation.