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How to appeal a Final Agency Decision (FAD)

After your federal agency sends you the Report of Investigation (ROI) in your federal EEO case, you have several options, including requesting a Final Agency Decision (FAD).  Here are some things to consider if you’re requesting a FAD:

What is a final agency decision (FAD)?

A FAD is the agency’s written decision on your case. It should evaluate each of your claims in detail and explain why the agency decided you were or were not discriminated against.

How do I request a final agency decision (FAD)?

You can request a FAD after you get the ROI. The agency may include a FAD request form when it sends you the ROI.  If the agency doesn’t send you a FAD request form, you can contact the agency by email, fax, or mail and ask for a FAD.  If you don’t request an EEOC hearing within 30 days of receiving the ROI, the agency will automatically issue a FAD.

What is the final agency decision timeline?

The agency should issue the FAD within 60 calendar days of the date it receives your request.  If you initially requested an EEOC hearing, and then asked for a FAD instead, the administrative judge should order the agency to issue a FAD within 60 days.  However, agencies don’t always issue the FAD on time.  If the agency fails to meet its deadline, you may ask the OFO to sanction the agency.

How do I appeal the final agency decision?

Within 30 days of receiving the FAD, you must file a Notice of Appeal with the OFO within 30 days of receiving the FAD.  You can file your Notice of Appeal through the EEOC’s Public Portal, by mail, or by fax.  Also, send a copy of your Notice of Appeal to the agency.

Within 30 days of the date you filed your Notice of Appeal, you may file a Brief in Support of your Appeal.  The brief is a comprehensive, detailed written explanation of why the FAD is wrong.  It should  include a statement of facts, a legal argument, and a conclusion:

What to include in the statement of facts

List all important facts in your case, such as:

  • The protected class that is the basis of your complaint (your age, disability, national origin, race, religion, sex, )
  • Who discriminated against you
  • When the discrimination occurred
  • How the agency discriminated against you (what the person said or did, how you responded, where this happened, whether there were any witnesses, )
  • Why you believe the discrimination was based on your protected class

You should cite pages in the ROI to support each fact.

What to include in the legal argument

Explain why the agency’s decision was wrong.  It’s helpful to cite to other EEOC cases where the EEOC concluded that an agency discriminated against an employee in similar circumstances.

What to include in the conclusion

Explain what you want the OFO to do.  For example, say the FAD said the agency didn’t discriminate against you by not giving you a promotion.  In your conclusion, you can ask the OFO to reverse the FAD, find that the agency discriminated against you, and award you a retroactive promotion, lost pay and benefits, compensatory damages, interest, attorney’s fees, and costs.

How can an attorney help me appeal a final agency decision?

Hiring an attorney for your EEOC hearing may greatly increase your chance of success.  Your lawyer will file your notice of appeal, draft a supporting brief, and file a reply, if necessary.  An attorney can file a motion to sanction the agency for failing to meet deadlines or follow other rules.

If you need experienced legal representation for a federal EEO case, Alan Lescht and Associates, P.C., can help.  Our attorneys will explain your rights and will file a strong appeal on your behalf.  We represent federal employees throughout the EEO process, at hearings before EEOC administrative judges, in FAD appeals before the Office of Federal Operations, and in federal litigation of discrimination and retaliation cases.

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