Defending Your Federal Career: Don't Go It Alone

By on September 21, 2015 in Current Events with 37 Comments

When your federal career is threatened, it is important to know how you can safeguard your livelihood. For anyone facing adverse actions by a manager, the first question to ask is, “What am I appealing?’’

The answer usually determines whether or not you can take your civil service appeal to the Merit Systems Protection Board. This is the federal equivalent of the Pennsylvania State Civil Service Commission.

Another option is to pursue a grievance through your union, if you are a member.

As an employment law attorney for over 30 years, I always recommend pursuing a civil service appeal, which puts all of the litigation tools at one’s disposal, including the discovery process and a right to a hearing.

It’s important to know how the process works. One of the roadblocks I’ve encountered frequently is the requirement that a suspension exceed 14 days before it can be appealed to the MSPB. It pays to know when the MSPB has jurisdiction in federal civil service appeals.

The following is a look at the MSPB process.

Limits on Federal Civil Service Appeals

The MSPB’s appellate jurisdiction is limited, and the rules can get very complicated very quickly.

For example, the board’s jurisdiction does not depend solely on the nature of the action taken against the employee. Instead, jurisdiction might also depend on the type of federal appointment the person has. Is it a competitive appointment or an excepted service? Is the person preference-eligible?

These and other conditions of federal employment can affect the appeal process.

However, there are certain actions taken against federal employees that can trigger MSPB appeal rights. They include:

  • Adverse actions: These are removals – everything from terminations of employment after completion of probationary or other initial service periods to an involuntary resignations or retirements; reductions in grade or pay, suspension for more than 14 days; and furloughs for 30 days or less for cause to promote the efficiency of service.
  • Retirement appeals: Any determination affecting the rights or interests of an individual under federal retirement laws.
  • Termination of probationary employment: Appealable issues are limited, including determination that the termination was motivated by partisan political reasons or marital status. Also appealable are terminations based on a pre-appointment reason in which the agency failed to use required procedures. However, these appeals are not generally available to employees in excepted service.
  • Restoration of employment after recovery from a work-related injury: Appealable issues include failure to restore employment; improper restoration of employment; or failure to allow return following a leave of absence after an employee’s recovery from a compensable injury.
  • Performance-based actions under Chapter 43: These include reduction in grade or removal for unacceptable performance.
  • Reduction in force: This includes any separation, demotion or furlough for more than 30 days when the action was prompted by a staff reduction. Also included are reduction-in-force actions affecting a career or a career-candidate appointee in foreign service.
  • Employment practices appeals: This covers employment practices administered by the Office of Personnel Management, which examines and evaluates the qualifications of applicants for appointment in competitive service.
  • Denial of within-grade pay increases: Reconsideration decisions that sustain a “negative determination of competence” for any general schedule employee due a pay raise may be appealed.
  • Suitability actions: Actions based on suitability determinations, which go to an individual’s character or conduct and may impact the integrity or efficiency of the service, may be appealed. This includes the cancellation of employee eligibility; employee removal; cancellation of reinstatement eligibility; and debarment. Also covered are nonselections or cancellations of employee eligibility for a specific position, either by an eligibility objection or by the pass-over of a preference-eligible employee.
  • Various actions involving the Senior Executive Service: These include a removal or suspension for more than 14 days; a reduction-in-force action affecting a career appointee; furlough of a career appointee; and removal or transfer of a senior executive service employee of the Department of Veterans Affairs.
  • Miscellaneous restoration and re-employment matters: This covers failure to afford re-employment priority rights pursuant to a Re-employment Priority List after separation by reduction in force; full recovery from a compensable injury after more than a year due to the employment of another person; failure to reinstate a former employee after service under the Foreign Assistance Act; failure to re-employ a former employee after an emergency movement between executive agencies; failure to re-employ a former employee after detail or transfer to an international organization; and failure to re-employ a former employee after service under the Indian or Taiwan Self-Determination Act.

Assisting federal employees with civil service appeals

Each of the MSPB appeal qualifiers listed above is often based on its own set of legal rules contained in another federal law or regulation. Simply put, there can be regulation upon regulation when it comes to determining whether the MSPB has jurisdiction over your civil service appeal. That’s why you need an experienced employment attorney who can decipher these complexities and place your appeal on the best track toward success.

Once you are the subject of a personnel action issued by management in your federal workplace, the notification you receive is a warning that your career is at risk. The cases I see most often are adverse actions against federal employees. Here, the process begins with a proposal to take the action. You will be given an opportunity to respond. Ultimately, a final decision dismissing, modifying or upholding the proposed action against you will be issued. But this ruling isn’t final. The final decision may be appealed to the MSPB.

You must file the appeal on the MSPB website, www.mspb.gov. To do so, you must register on the site as an e-filer. From a brief period of discovery to the hearing there are procedures that must be followed at every step to build an effective case.

Though you can try to do all this on your own, I recommend having an experienced employment law attorney by your side who knows the steps to follow and who can engage the federal government’s attorney.

This is your career we’re talking about – don’t make the mistake of trying to navigate the system without an attorney who knows the ropes.

© 2016 Keith E. Kendall, Esq.. All rights reserved. This article may not be reproduced without express written consent from Keith E. Kendall, Esq..

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About the Author

Keith E. Kendall, Esquire is an attorney with Scaringi & Scaringi, P.C. and focuses his practice in the areas of Employment Law, Criminal Law, Family Law (Divorce, Support, Custody, Relocation and Protection from Abuse), Disability Law, Workers’ Compensation, Administrative Law and Civil and Commercial Litigation. To learn more about how he can help you, call him toll-free at 877-LAW-2555 or email him.

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