Merit Systems Protection Board (MSPB)

Some key features of litigating before the Merit Systems Protection Board (MSPB) are –

  • There is a right to a hearing before an Administrative Judge but it must be requested;
  • One can request a stay of the adverse personnel action prior to hearing , but it is rarely granted;
  • Discovery and pre-hearing submissions are front-loaded under tight deadlines, as Administrative Judges are graded by their ability to bring cases to hearing within 120 days of filing;
  • Post-hearing briefs optional with the judge;
  • Appeals go to the three-person presidentially-appointed MSP Board.  Appeals from Board decisions then to the Federal Circuit or Regional Circuit (per a new limited-term law) and ultimately could go to the Supreme Court.

Whistleblower claims historically have not had a high success rate at MSPB, but perseverance can pay off.  For example, following more than a seven-year legal saga, Teresa Chambers won full restoration as Chief of the U.S. Park Police.

In addition to new favorable case law, the recent enactment of the Whistleblower Protection Enhancement Act closed several egregious judicially-created loopholes. Nonetheless, MSPB litigation can be a lengthy and daunting process.