By John V. Berry, Esq., www.berrylegal.com
Federal employees that have filed appeals with the Merit Systems Protection Board (MSPB) are sometimes faced with an adverse Initial Decision from an MSPB administrative judge who has heard their appeal. In such instances, they are entitled to appeal the adverse decision to the full board of the MSPB (a 3 member review board) by filing a Petition for Review, also known as a PFR.
THE ADVERSE MSPB INITIAL DECISION
When a final decision is issued by an MSPB administrative judge, it is referred to as the Initial Decision. The Initial Decision can be appealed by either the federal employee or the federal agency involved in the appeal, and possibly both sides could have cross-appeals as to different parts of the Initial Decision.
CONTENTS AND TIMING OF THE PETITION FOR REVIEW
The Petition for Review or PFR as it is sometimes known is an appeal of the Initial Decision. It must be filed by a party within a very short time period, typically 35 days after the Initial Decision is issued by the administrative judge. A Petition for Review must outline the legal reasons as to why the result should be overturned or modified by the board of the MSPB. For this reason, it is very important to seek counsel familiar with the MSPB, as soon as possible, to assist a federal employee when considering filing a Petition for Review.
Some of the most common grounds for an appeal include:
(1) that the Initial Decision contained erroneous findings of fact (e.g. that the Initial Decision made findings of fact that were not in line with the testimony and evidence presented during the hearing);
(2) that the Initial Decision was based on an erroneous interpretation of a law or regulation (e.g. that the Initial Decision incorrectly applied or construed a statute, regulation or existing caselaw);
(3) that the administrative judge’s rulings were not consistent with required procedures, which affected the outcome of the appeal; and
(4) that new and material evidence or legal argument, that was not available earlier, is available now but was not when the record closed.
The MSPB also reserves the general authority to rule on issues that is finds important in appeals before them.
When a Petition for Review is filed by a federal employee, the federal agency will generally have 25 days from the date of the service of the Petition for Review to respond to the arguments in the appeal. Once the agency files their response (most likely an opposition to the federal employee’s Petition for Review), then the federal employee will have 10 days from the date of the service of the agency’s response to reply to the issues raised by the agency.
A Petition for Review should be drafted by an attorney familiar with practice before the MSPB. Typically, these petitions should include a description of the background of the facts and procedure which led to the Petition for Review and also clear legal arguments which outline the issues for ruling by the Board. The rules on the content of Petitions for Review changed in October of 2012 and the MSPB added some changes to the procedures for filing this type of appeal. A Petition for Review or an agency’s reply to a Petition for Review is limited to 30 pages (or 7500 words, whichever is less) and the federal employee’s reply to an agency response is limited to 15 pages (or 3750 words, whichever is less). Even with these page limitations, the general goal for a good Petition for Review should be to attempt to prepare the appeal in the most concise (and to the point) manner as possible.
RULINGS BY THE BOARD
It is hard to estimate the amount of time that it takes for the Board to issue a ruling on Petitions for Review because the time tends to vary from case to case. From our experience, it has taken about 5-6 months from the filing of a Petition for Review until we receive a ruling on an appeal filed with the Board. Should the ruling on the Petition of Review go against a federal employee, there remains an additional opportunity to file an appeal with the U.S. Court of Appeals for the Federal Circuit.
When filing a Petition for Review before the MSPB it is important to understand the proper grounds for filing an appeal and to seek legal advice from counsel with experience before the MSPB before filing. This law firm represents federal employees in matters before the MSPB and can be contacted at (703) 668-0070 or www.berrylegal.com to arrange for an individual consultation to evaluate individual MSPB appeals or Petitions for Review.