In fiscal year 2025, the Merit Systems Protection Board received 20,335 initial appeals, roughly four times its normal annual volume. I want to walk through what that number means in practice for federal employees who have a case on the docket or are deciding whether to file one.
The spike was driven by two categories: probationary terminations and reduction-in-force actions. Both moved through federal agencies in large numbers, and many of those employees ended up on the Board’s appeal docket. What I see in my practice is a system under measurable strain, with real consequences for every federal employee who files and for every federal employee weighing whether to file. The figures referenced throughout this article are drawn from the MSPB’s FY 2025 Annual Performance Report, published April 3, 2026.
What follows assumes some familiarity with how the MSPB appeal process works at a structural level. The full framework, including Stage 1 reply, Stage 2 formal appeal, the Douglas factors, and the settlement trade-off, is covered in The Law Office of Justin Schnitzer’s guide to winning an MSPB appeal. This article focuses on what the FY 2025 caseload changes about how that framework should be used.
Here is what the data means in practice.
The Timeline Problem
Of the 9,050 cases that MSPB regional and field offices processed in FY 2025, only 55.8 percent were resolved within 120 days. Nearly half of federal employees who filed appeals waited more than four months for an initial decision at the regional level. That is before any petition for review to the full Board.
As of September 30, 2025, roughly 1,037 cases were pending before the full Board at MSPB headquarters awaiting petition-for-review decisions, following a period when the Board lacked a quorum to issue decisions. Backlogs of that size do not clear quickly. When a client comes to me assuming that filing an appeal sets a near-term resolution in motion, I correct the assumption. The data does not support it.
The practical consequence is one I have been telling clients for years: the reply stage before the agency’s final decision is the highest-leverage moment in the entire process, not the formal appeal. When the appeal queue is this backed up, front-loading the case at Stage 1 is not a preference. It is a strategic necessity.
What Stage 1 Is, and Why Most Employees Skip It
The proposed adverse action letter an employee receives (the notice of proposed removal, proposed suspension, or proposed demotion) triggers a statutory right that most federal employees do not fully appreciate. FedSmith readers familiar with the framework can find a useful overview in this earlier article on the adverse action process and the proposal. Under 5 U.S.C. § 7513(b), an employee facing an adverse action has three rights before the agency can take the final action:
- At least 30 days advance written notice of the proposed action, with the reasons specified.
- A reasonable time to answer orally and in writing, with the chance to furnish affidavits and documentary evidence.
- The right to representation by an attorney or other person of the employee’s choice.
The reply goes to the deciding official, the person with actual authority to impose the proposed action, reduce it, or reject it. That is the moment where outcomes change.
This is not a formality. It is the employee’s first real opportunity to change the outcome before the formal appeal window opens, before the case joins the docket of 20,000-plus.
In my practice, I see most employees skip it or file something minimal for two reasons. First, they do not understand that the deciding official can reverse or reduce the proposed action based on the reply. They assume the decision is already made. Second, they are under time pressure and have not engaged counsel. They file something generic and wait for the final decision, at which point the formal 30-day appeal window begins running.
What those employees are leaving on the table is significant. A reply that demonstrates accountability, presents context the proposing official did not consider, and makes a clear Douglas factors argument can move a proposed removal to a long suspension or a long suspension to a short one. In some cases, it can result in a full withdrawal of the proposed action entirely. When that happens, the case resolves before it ever reaches the Board’s overwhelmed docket.
The Two Paths Federal Employees Actually Have
Whether the case is resolved at the reply stage or proceeds to formal appeal, the legal structure for winning is the same. The distinction between misconduct cases and performance cases, covered in detail in this prior FedSmith piece on removals for misconduct or performance, also shapes which evidentiary standard applies. Either way, there are two paths I argue, and I argue them simultaneously:
1. Disprove the Conduct
The agency bears the burden of proving the charged conduct by a preponderance of the evidence for adverse actions under Chapter 75 and by substantial evidence for performance-based actions under Chapter 43. If the evidentiary case does not hold (witness credibility problems, documentary gaps, contradictions in the investigative record), the charge fails and the action falls with it.
2. Challenge the Penalty
Even when the facts are uncomfortable, the penalty itself can be disproportionate. MSPB administrative judges evaluate proportionality under the twelve Douglas factors, drawn from Douglas v. Veterans Administration, 5 MSPR 280 (1981). A judge who finds the penalty disproportionate can affirm, reverse, or mitigate. Mitigation is common: a removal becomes a suspension, a long suspension becomes a short one, a demotion is overturned. Mitigation is a win.
The two paths are not mutually exclusive. The agency hasn’t proven the conduct happened. But even if it did, the penalty is not proportionate for these reasons. That is how I structure the argument, both at the reply stage and at the formal hearing. For practitioners who want the framework directly, OPM publishes the full Douglas factors reference.
What 91 Percent Means
One statistic from the FY 2025 performance report deserves particular attention for any federal employee weighing options. The U.S. Court of Appeals for the Federal Circuit affirmed 91 percent of MSPB decisions reviewed on the merits in FY 2025.
That number reflects the Federal Circuit’s narrow standard of review: MSPB decisions are upheld unless they are arbitrary, capricious, obtained without required procedures, or unsupported by substantial evidence. What it means in practice is that errors made at the agency level or at the MSPB level are very difficult to repair on appeal. I tell clients the argument has to be built correctly from the beginning, in the reply, in the initial appeal filing, and through the hearing, not assembled after the fact.
VA Employees Face Additional Compression
Some federal employees at the Department of Veterans Affairs face a separate consideration. Adverse actions under 38 U.S.C. § 714 (the VA Accountability and Whistleblower Protection Act) apply to a subset of VA personnel, not the full workforce, and they work under significantly compressed timeframes for both reply and appeal. If the proposing official’s letter cites § 714, the standard Title 5 timelines do not apply. When a VA employee calls me with a § 714 letter in hand, I tell them the same thing every time: counsel should be engaged the day the notice arrives, not within the week.
What the Data Asks of Federal Employees Right Now
A record caseload does not change the statutory rights federal employees hold. The 30-day reply window, the right to representation, the two-path argument structure, and the Douglas factors review all exist regardless of how many cases are on the docket.
What the data does change is the cost of delay. When fewer than half of cases are resolved within 120 days at the regional level and more than 1,000 are waiting at the Board level for petition review, the employee whose Stage 1 reply is well-prepared is in a substantially better position than the one who waited for the final decision to engage counsel. That has always been true. It is more true now.
Justin Schnitzer is a federal employment attorney and founder of The Law Office of Justin Schnitzer, a Washington, D.C. firm dedicated to MSPB appeals, federal EEOC matters, and adverse action defense. His commentary on federal workforce issues has appeared in Forbes, FEDweek, the ABA Journal, NBC News, and US News & World Report.
