Federal workers who can no longer perform their job duties may be eligible for Federal Disability Retirement. If you apply and are denied twice through the OPM, you can appeal that decision. This time, your case is reviewed by the MSPB. This is a much more formal process than dealing with the Office of Personnel Management.
What is the Merit Systems Protection Board (MSPB)?
The MSPB is an “independent, quasi-judicial agency” within the executive branch of government. Its main purpose is to protect the civil service merit selection system. It also maintains diversity and effectiveness in the federal workforce.
The MSPB hears appeals from employees and reviews the actions of the Office of Personnel Management (OPM). It also upholds the merit principles established in the Civil Service Reform Act of 1978.
The nine merit principles range from seeking to recruit qualified workers to protecting equal pay for equal work. The MSPB seeks to protect federal employees from reprisals by their agencies for whistleblowing on issues of fraud, waste and abuse and it protects employees from agency favoritism, or arbitrary or coercive action.
As a quasi-judicial body, it’s a tribunal board of a public administrative agency and has powers and procedures resembling those of a court of law or a judge. They are obligated to objectively determine facts and draw conclusions from them so they can provide a basis for an official action. Those actions are able to remedy a situation or impose legal penalties and may affect the legal rights, duties, and privileges of specific parties. Their organizational values are Excellence, Fairness, Timeliness, and Transparency.
Appeals
If you are a civil servant and lose your job, generally you can appeal to the MSPB. They also handle suspensions lasting more than 14 days, pay/grade reductions, and furloughs lasting less than 30 days. Further, they handle a lot of retirement matters, especially if a federal disability retirement case has been denied twice.
Under the Whistleblower Protection Act of 1989, a federal employee who alleges a personnel action was taken (or threatened) due to whistleblowing may seek corrective actions from the Board directly. They also deal with cases that have a discrimination aspect to them.
If an employee is not satisfied with the Board’s final decision, they can request that the Equal Employment Opportunity Commission review the Board’s decision. Then, if the EEOC and Board can’t come to an agreement, the case is then referred to the Special Panel for final resolution. The Special Panel consists of a chairman who is appointed by the President, one member of the Board appointed by the MSPB Chairman, and finally one EEOC Commissioner appointed by the EEOC Chairman.
Merit Systems Studies
The Board also conducts merit systems studies. The MSPB reported on its study of effective hiring practices in the federal government. They analyzed data and examined all areas of the hiring process, including internal processes, advertising online, and candidate assessments.
How Does the MSPB Play into my Federal Employee Disability Claim?
When you file for Federal Disability Retirement, the OPM will review your case and determine whether you meet the eligibility requirements. The OPM must follow the law and federal rules regarding your eligibility and qualifications for disability retirement benefits.
If what the agency or official does is prohibited by law, then you may have a right to appeal. Naturally, the decision to appeal a denial of a retirement claim arises when you, or your representative, after reviewing the denial fairly believe that the denial was not proper and based on a factor that is illegal or is a prohibited personnel practice.
Appealing Your Denial of Federal Disability Retirement
Receiving an adverse determination by the OPM regarding your Disability Retirement eligibility can be frustrating. You may feel anger or resentment. However, the MSPB was set up to help streamline these appeals rather than bog down the court systems. That does not mean that the Merit System Protection Board will take your side. However, you will get your appeal heard.
According to the MSPB’s website, the second highest number of appeals it receives is from retirement decisions made by the Office of Personnel Management.
If your case is denied at the Reconsideration level, you can appeal that decision. Most appeals must be filed within 30 days of the initial agency action, or within 30 days of receiving the agency’s decision, whichever is last. If the parties agree to attempt a mediation, that creates an extension. As a result, the amount of time to file is extended by 30 days. This brings the total time frame to 60 days. There is an e-file system in place that makes it easier to appeal within the allotted time. In your denial packet, you will be provided with the address of the MSPB. Make sure to verify this address! You want to ensure your appeal is sent to the correct office. At this point in the process, the OPM has no control over your case. That falls to the Administrative Judge (AJ).
How to File Your Appeal
The MSPB has a separate website devoted to filing appeals through the Internet. It’s called e-Appeal Online. You can fill out the proper forms and submit them online. You can also make changes to your appeal, add addendums, and review filed forms.
The Administrative Judge assigned to the case will issue an Acknowledgement Order. This sends a copy of the appeal to the agency and it directs the agency to submit a statement to its reason for taking the action/decision being challenged. The Acknowledgement Order will also order the appellant to submit evidence and make arguments.
The Administrative Judge will issue notices and orders and generally hold one or more pre-hearing conferences. The purpose of these is to clarify and narrow down the issues being appealed. After the hearing, the Administrative Judge issues an initial decision. The decision is required to identify all material issues of fact and law, summarize evidence, resolve any creditability issues, and include the Administrative Judge’s conclusions of law and legal reasoning.
Either party is then allowed to petition the decision to the Clerk of the Board. This is a three-member panel who will hear the case and issue a final decision. The losing party of the decision by the AJ can elect to forgo the petition for review by the Clerk of the Board. In this case, that party would petition the US Court of Appeals for the Federal Circuit.
More information on the appeal process can be found on the MSPB’s webpage.
Getting Legal Help to Maximize Your Chances of Approval
Given the number of appeals and the difficulty and confusion surrounding the rules, a qualified representative like those at Harris Federal Law Firm may be an option to consider to ensure you receive federal disability benefits.
The appeal process is complicated. It is extremely difficult to navigate this on your own especially at the MSPB stage. Hiring an attorney from the beginning gives you the best chance for an approval. However, getting a denial in a previous stage does not mean you can’t get an approval at this stage. Harris Federal Law Firm has been helping federal workers for over a decade. If you are applying for Federal Retirement Disability, or have had your case denied, please don’t hesitate to call us! There are very strict deadlines to meet and we want to help you as best we can. Call us at 859-226-2723 or set up a free consultation today.
