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How to appeal an MSPB decision

If you have completed the initial appeal process and the Administrative Judge issued an unfavorable ruling, you may appeal that decision through two different avenues.  The first method to appeal the decision is through a petition for review.  The second method would be to file an appeal the U.S. Court of Appeals for the Federal Circuit.

What is an MSPB initial decision?

An initial decision is the ruling issued by an administrative judge after a hearing or briefing on your adverse action appeal.  Once you file an appeal over an adverse action and the MSPB finds that it has jurisdiction, you will conduct discovery to obtain additional information to support your appeal.  After discovery closes you may elect to have a hearing before the Administrative Judge or to submit a brief to the Administrative Judge outlining the facts and evidence supporting your arguments on appeal.  After the hearing or briefs are submitted, the Administrative Judge will issue an initial decision either upholding or reversing the action on appeal.

What are my options for appealing an MSPB decision?

If the administrative judge issues an unfavorable ruling, you may appeal that decision to the MSPB’s board through a Petition for Review or  you may file an appeal with the U.S. Court of Appeals for the Federal Circuit.

Petition for Review

A petition for review is filed with the MSPB’s three-member board panel.  The decision will be reviewed by the board and then an appellate decision will be issued either upholding or reversing the initial decision.

Federal Circuit Appeal

The U.S. Court of Appeals for the Federal Circuit is an appellate court that hears appeals from final orders issued by the MSPB.  The Federal Circuit will review the decision as well as any additional arguments and issue a decision upholding or reversing the MSPB final order.

When do I have to file my appeal?

You must file a petition for review within 35 days after the initial decision was issued.  A federal circuit: appeal must be filed within 60 days after the MSPB issues its final order on your appeal.

What information should I include in my petition/appeal?

For a petition for review, you should include evidence and arguments showing that:

  • The initial decision contains erroneous findings of fact;
  • The initial decision is based on an erroneous interpretation of law; and/or
  • The ruling is inconsistent with the MSPB’s rules and procedures and involved an abuse of discretion.

For a federal circuit appeal, you should include and evidence and arguments showing that the MSPB’s final order is flawed because it did not correctly analyze the facts in your case and/or failed to properly apply the legal standard to the facts in your case.

Do I need an attorney to appeal an MSPB decision?

While you are not required to have an attorney in order to file an appeal, it is strongly encouraged to have an experienced attorney assist you with your appeal.   The processes and procedures governing petitions for review and federal circuit appeals are complex.  An experienced attorney can help you craft winning arguments for your appeal and also ensure that all necessary procedures are followed throughout the process.

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