Definition of MSPB (Merit Systems Protection Board)
The Merit Systems Protection Board (MSPB or Board) is a quasi-judicial federal agency. It is responsible for handling appeals of adverse employment decisions that have been made against federal employees.
What is the Merit Systems Protection Board?
The MSPB hears cases of current or former federal workers who have been demoted, suspended, or let go from federal civil service. They can ask the MSPB to review those decisions.
The MSPB does not handle:
- Discrimination complaints. The Equal Employment Opportunity Commission handles allegations of bias.
- Unfair labor practices complaints. The Federal Labor Relations Authority handles those claims.
- Civil service exams, staffing, retirement, and benefits. The Office of Personnel Management handles those matters.
- Non-federal appeals from private-sector or local, city, county, or state employees.
Why is the MSPB important to HR professionals?
The MSPB acts as a civil court for claims by federal employees. It provides a forum for reviewing, affirming, and overturning decisions made by federal HR professionals and managers.
MSPB organization
The agency’s headquarters is in Washington, D.C. It has regional and field offices throughout the country.
Final written decisions by the Board require a quorum of at least two board members.
The Board usually consists of three board members. The president nominates each board member, and the U.S. Senate confirms them. Board members serve a 7-year term. All three MSPB seats were vacant from 2017 until March 2022.
Final written decisions by the Board require a quorum of at least two board members.
What is the history of the MSPB?
The enactment of the Civil Service Reform Act of 1978 (CSRA) established the Board in 1979. The CSRA repealed the Civil Service Commission and created three new agencies:
- Office of Personnel Management — manages the federal workforce
- Federal Labor Relations Authority — oversees federal labor-management relations
- Merit Systems Protection Board — reviews federal employee appeals. The Civil Service Commission was formerly responsible for this function.
In a nutshell, how does the MSPB appeals process work?
- Federal employees can start the appeal process by filing claims through the MSPB’s website. Claimants can file their claims by mail, fax, a delivery service, or hand delivery.
- The Administrative Law Judge (ALJ) assigned to the case issues an acknowledgment to the worker and the agency. The judge then asks for supporting information and responses from the worker and the agency.
- The ALJ holds a hearing. Hearings are often conducted to clarify the written information provided and to hear testimony from those involved in the claim, such as the worker, agency representatives, witnesses, and other individuals.
- The ALJ issues a decision. The judge either upholds the agency’s decision or reverses the action.
- If either party is not satisfied with the ALJ’s decision, they have two avenues for review of the decision. A petition for review can be filed with (1) the MSPB’s 3-member board panel in Washington, D.C., or (2) a federal appeals court.
Past Board decisions
The decisions the MSPB makes are available on the Board’s website.
A recent decision issued by the MSPB’s 3-member board involved an agency asking the MSPB to review its decision to remove a supervisory federal HR professional from his job. The ALJ had mitigated the removal to a 14-day suspension and demotion to a nonsupervisory position.
Example of an HR case
The federal agency removed the GS-9 Supervisory Human Resources Specialist from his job in 2015 based on a charge of conduct unbecoming a supervisor. The man’s supervisor said he had spoken to the worker “numerous times” about his behavior toward female subordinate employees. The HR Specialist allegedly called female workers “sexy” or “beautiful,” which made them uncomfortable. In addition, the HR specialist allegedly spent a lot of time in his office, with the door closed, with a subordinate employee, reportedly engaging in personal conversations with her.
The HR Specialist filed an appeal of his removal from the agency with the Board. The ALJ sustained the charge but dramatically reduced the penalty. The judge found that the man’s actions were disruptive. The judge also found that the agency established a nexus between the appellant’s misconduct and workplace efficiency.
She noted that the agency was entitled to hold the HR Specialist, a supervisor, to a higher standard of conduct. However, the judge also found there were several mitigating factors weighing in favor of the HR Specialist, including his 20 years with the agency and “good performance.”
The ALJ also credited the worker’s claims that he was suffering from stress and tension in the workplace because of his relationship with his supervisor and that he was suffering from depression.
She concluded that removal was unreasonable. She ruled that the maximum reasonable penalty was a 14-day suspension and a demotion to a nonsupervisory position.
An agency’s petition for review
The agency filed a petition for review, arguing, among other things, that the administrative judge trivialized the seriousness of the worker’s misconduct. The agency also argued that the judge improperly substituted her own judgment for that of the deciding official in determining the reasonableness of the penalty. The worker also filed an opposition to the agency’s petition for review.
The MSPB’s 3-member board panel handled the appeal. The Board panel reinstated the agency’s decision to remove the man from federal service. The panel said, “the administrative judge failed to recognize the seriousness of the appellant’s misconduct.”
They noted that the employee had received notice that his actions constituted misconduct. The panel said the employee’s behavior:
- “Was inappropriate and divisive
- Made his subordinates uncomfortable
- Poisoned the working environment.”
The panel also said that the worker’s misconduct is “contrary to the entire purpose of the department he was hired to serve” and “amplified by his role as a supervisor.”
“It is well settled that because supervisors occupy positions of trust and responsibility within an agency, the agency has a right to expect a higher standard of conduct from them,” the panel said.
“While the appellant’s misconduct would be serious in any context, when considered in the context of the appellant’s position as a Supervisory Human Resources Specialist, we find his misconduct to be exceptionally serious. The importance of a healthy and effective human resources department for an agency cannot be overstated,” the panel continued.
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Summary of the definition of MSPB
The MSPB protects federal workers from prohibited personnel practices in the areas over which it has jurisdiction. Filing an appeal with the MSPB is less expensive than going through the federal court system. However, the agency is currently working through a backlog caused by several years of vacancies at the top level.
The MSPB is a vital agency for federal HR professionals through its oversight of agency appeals.
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