The MSPB has original jurisdiction over certain disciplinary actions brought by the Special Counsel, especially for whistleblower violations. But the bulk of its work is processing appeals from approximately three million federal employees who have the right of appeal to the Board.

Most federal employees are under the discipline system of chapter 5 U.S.C. section 752 which outlines and affords due process rights to federal employees prior to discipline being imposed.

5 U.S.C. section 752 actions

The discipline process for section 752 employees is a two-step process. First, the agency proposes discipline in the form of a proposed discipline memorandum. The employee has the right in most instances to prepare a written response and conduct an oral reply. Once the agency issues a final decision, depending on the decision, the matter may be appealed to the MSPB if it is an adverse action (a 15-day suspension or greater, including removal, demotion, and other significant discipline)The proposal stage is the administrative process. I will prepare a detailed written response addressing the factual assertions and legal argument to the deciding official with input from the client. We will then attend the oral reply with the deciding official. With a proposed adverse action this is almost always in person with the deciding official. This is important for many reasons including showing the agency the seriousness of defending against the action.

Once a decision has been reached by the agency through the deciding official, there are generally two routes an employee can take depending on the discipline. If the discipline is 14 days suspension or under, the employee will generally have rights to file a grievance in house with the agency along with other administrative options depending on the agency.

If the discipline is a 15-day suspension or greater up to removal, the employee as the right to file an appeal with the MSPB or choose another form such as EEOC if the facts indicate the discipline was discriminatory or pursue an action with the office of special Counsel. Some agencies have other redress that includes the right to arbitration. The preferred forum would be the MSPB. If there are discriminatory matters in the discipline, they can be raised as a mixed case to the MSPB as an affirmative defense.

Generally, the Appeal to the MSPB needs to be filed no later than 30 days from the date of the decision letter and effective date.

Filing an appeal with the MSPB is essentially like filing a lawsuit with the court. We are challenging the agency decision regarding the sustained discipline action and sustained discipline.

The process begins with filing an appeal with the Court online. The court will issue a document called the acknowledgment order. The acknowledgment order sets forth the appeal procedures including discovery that includes written discovery and depositions. The discovery process is the foundation for defending the agency action.The agency will typically have 20 days from the date of the acknowledgment order to file with the court what’s known as the agency administrative file, which must include the agency evidence documents and file including other administrative requirements.

Within 30 days from the date of the acknowledgment order, the parties must initiate discovery if they wish to pursue discovery. This includes requests for documents to be produced, interrogatories that must be answered under oath, and requests for admissions regarding factual matters. Once that procedure is completed, the parties will then conduct discoveries of necessary witnesses and individuals concerning the agency action. The agency will most likely depose the employee. The deciding official will need to be deposed along with other fact witnesses that will be necessary to build a defense to the agency decision.

Other necessary motion practice will occur during this time period.

Once that period is concluded, the parties will be required to prepare and submit detailed prehearing submissions regarding the case, defenses, position of the parties, documents and witnesses that will be necessary for hearing, and other related information.

The court will then hold a trial hearing, either live at the MSPB office or via videoconferencing at the location of the employee. Hearings can last anywhere from one to three days depending on the complexity of the case and number of witnesses.

38 U.S.C. 714 actions – Dep’t of Veterans Affairs

In 2017, Congress passed a law specific to the VA that streamlined the discipline process for VA employees that is known as a 714 action.

Since the enactment of the Department of Veterans Affairs Accountability and Whistleblower Protection Act of 2017 (the Act), 38 USC § 714, questions have remained about its application. The enactment of this statute essentially made it much easier for the Department of Veterans Affairs to remove employees for alleged misconduct without following long-standing Supreme Court precedent of Douglas v. Veterans Affairs, 5 M.S.P.R. 280, 305-306 (1981).

Federal employees were entitled to a much stricter due process entitlement regarding their rights during an agency disciplinary proceeding against them. The long-standing precedent of Douglas enumerated the 12 Douglas factors that agencies are bound by to consider during a disciplinary proceeding.

The 2017 714 statute stripped away many of an employee’s due process rights and granted the agency an easier path to remove an employee without the checks and balances federal employees enjoyed when defending a discipline and penalty action.

Since inception of the 714 statute the agency had maintained a position that the Douglas factors no longer applied during the discipline and penalty stage when it removed an employee.

Mr. Kirkpatrick as represented many VA employees since the enaction of 714 and has continued to “chip” away at the abuse of the VA employees rights to procedural due process and an impartial review of the agency discipline. Due to our representation of a VA employee, the Federal Circuit Ct. issued a major decision that returned much of what the chapter 5 section 752 rights recognized by the “Douglas” factors to be considered. This was a major below to the agency who routinely claimed that Douglas did not apply to a 714 action.

The Conner case was appealed to the Federal Circuit Court who affirmed that the Douglas factors do apply to the VA during the discipline process. This is the first time the court had corrected the agency’s erroneous belief that the Douglas factors did not apply. This will significantly change the agency discipline process moving forward.

We’ve assisted many clients who’ve appealed agency adverse
actions before the MSPB. These include:

  • Removal
  • Suspension of more than 14 days
  • Reduction in grade or pay
  • Furlough of 30 days or less
  • (OPM) retirement determinations
  • Denials of within-grade salary increase
  • Reduction-in-force action
  • Whistleblower claims OPM suitability determination
  • OPM employment practices
  • Development and use of examinations
  • Qualification standards, tests and other measurement instruments
  • Denial of restoration of reemployment rights
  • Termination of probationary employee

If you have a hearing or appeal scheduled with the MSPB, you have a great deal riding on the outcome. You need an attorney who is intimately familiar with the Board, its procedures and its criteria for decisions. At Joel J. Kirkpatrick, P.C. we work diligently to make your best case and obtain your best possible result.


To schedule an appointment with Joel J. Kirkpatrick, P.C., call us at 734.404-5710 or CONTACT OUR OFFICE ONLINE. Though we are admitted to practice in Ohio and Michigan, we protect federal employees anywhere in the country.


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