MSPB Appeal After Criminal Charge Lawyer

When a federal agency removes, suspends, or otherwise acts against an employee because of a criminal charge, the employee’s remedy is usually an appeal to the Merit Systems Protection Board. The appeal is not a retrial of the criminal case and it is not an appeal of the clearance decision. It is an administrative proceeding in which an administrative judge takes evidence and decides whether the agency proved its charges, whether the action promotes the efficiency of the service, whether the required procedures were followed, and whether the penalty imposed was reasonable.

Those four questions are narrower than most appellants expect and are winnable on grounds that have nothing to do with whether the underlying conduct occurred. Agencies lose these cases on proof of the charge as drafted, on procedural error, and on penalty far more often than on the facts. The filing period is short and is stated in the agency’s decision notice. Law Offices Of SRIS, P.C. represents federal employees in these appeals. Call (888) 437-7747 to discuss a decision notice.

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What the Board Actually Reviews

The agency carries the burden. It must prove the charge it drafted, not a different charge the evidence might have supported, and charges are read strictly. An agency that pleads a specific offense and proves only that something happened frequently fails on its own language. The agency must also establish a connection between the conduct and the efficiency of the service, which is a genuine issue for off-duty conduct with no relationship to the position.

Beyond the charge, the Board examines whether the employee received the procedural protections the process requires, including adequate notice of the reasons, a meaningful opportunity to reply, and a decision by an official who actually considered that reply. It then examines the penalty. Even where the charge is sustained, the action can be mitigated if the penalty exceeds what a reasonable agency would impose on the record before it.

Suitability Actions Under 5 C.F.R. Part 731

Not every action against a federal employee is disciplinary. Where the government acts on character and conduct grounds bearing on fitness for the position, it may proceed under 5 C.F.R. Part 731 instead. That regulation lists the factors that may be considered, including criminal or dishonest conduct and material intentional false statements in examination or appointment, together with contextual considerations such as the nature and seriousness of the conduct, how recently it occurred, the circumstances surrounding it, the nature of the position, and evidence of rehabilitation.

Part 731 provides its own notice and reply rights and its own route of appeal to the Board for certain actions. Identifying which authority the agency used is the first step in any appeal, because the elements the agency must prove and the arguments available differ substantially between the two paths.

The Penalty Question

Where the charge is sustained, the case usually turns on penalty. The Board reviews whether the deciding official responsibly weighed the relevant considerations: the seriousness of the offense and its relation to the duties held, the employee’s job level and supervisory responsibility, past disciplinary and performance record, length of service, the effect of the offense on the ability to perform, consistency with penalties imposed on other employees for similar conduct, consistency with the agency’s table of penalties, the notoriety of the offense, the clarity of the notice given, the potential for rehabilitation, any mitigating circumstances surrounding the conduct, and the adequacy of alternative sanctions.

A deciding official who never addressed these considerations, or who addressed them mechanically while ignoring a long unblemished record, has given the appellant a real argument. Evidence of how the agency treated comparable conduct by other employees is often the most effective single item in a penalty case.

Filing, Timing, and the Record

The period for filing runs from the effective date of the action or from receipt of the decision notice, and the notice states it. It is applied strictly, and a late appeal is dismissed unless good cause for the delay is shown. The notice should be read for that date the day it is received rather than after the criminal case develops.

Once filed, the case moves quickly into discovery and then to a hearing before an administrative judge, where witnesses testify and exhibits are received. The judge issues an initial decision, which may be reviewed by the Board and, in most cases, by a federal appellate court afterward. As with any record-based proceeding, evidence not offered before the record closes is generally unavailable later.

When a Criminal Charge Is Still Open

An appeal filed while a prosecution is pending creates a direct conflict. Testimony and written submissions in the appeal are statements to the government and are available in the criminal case, and an appellant who testifies fully about charged conduct may create a problem no administrative outcome offsets. Declining to testify, on the other hand, leaves the agency’s account unanswered in a forum where the appellant’s explanation often matters.

The usual resolution is sequencing. A request to hold the appeal in abeyance until the criminal matter resolves is frequently available and is often granted, and it preserves both the appeal rights and the criminal defense. The filing itself, however, cannot wait, because the deadline runs regardless of what the criminal case is doing.

Frequently Asked Questions

Is an MSPB appeal a retrial of my criminal case?

No. The Board does not decide guilt. It decides whether the agency proved the charge it drafted, whether the action promotes the efficiency of the service, whether the required procedures were followed, and whether the penalty was reasonable. The standard of proof is lower than in a criminal court, and the Board may consider evidence a court never evaluated.

How long do I have to file?

The period is stated in the agency’s decision notice and runs from the effective date of the action or from receipt of the notice. It is short and is enforced strictly, with a late filing dismissed absent a showing of good cause. Because the deadline runs independently of any criminal proceeding, the notice should be reviewed for the filing date immediately on receipt.

Can I win even if I did what the agency says?

Often, yes. Agencies lose appeals on proof of the charge as drafted, on failure to establish a connection between off-duty conduct and the efficiency of the service, on procedural error in the notice or the reply process, and on penalty. Mitigation of the penalty is a genuine remedy and does not require disproving the conduct.

What if my clearance was revoked?

Where the action is based on loss of eligibility for access, review is generally limited to whether the agency followed the required procedures rather than whether the security determination was correct. The underlying eligibility decision is contested in the security process, through a written response and, where available, a hearing before an administrative judge and an appeal on the record.

Should I testify while my criminal case is pending?

That has to be decided case by case, because testimony in the appeal is a statement to the government and is available in the criminal matter. Where both are open, requesting that the appeal be held in abeyance until the criminal case resolves is often the sounder course. The appeal still has to be filed on time, because the deadline does not pause for the prosecution.

What evidence matters most?

Performance appraisals, awards, and length of service records; statements from supervisors about observed work; documentation of any program completed or corrective step taken; and comparator evidence showing how the agency handled similar conduct by other employees. That last category speaks directly to whether the penalty is consistent and is frequently the strongest material available.

Can I be represented?

Yes. An appellant may be represented at every stage, including discovery, the hearing before the administrative judge, and any petition for review. Representation is the appellant’s own arrangement rather than something provided by the government. Where a criminal charge is open, coordinating the appeal with the defense of that charge is a substantial part of the work.

Working With Law Offices Of SRIS, P.C.

An appeal after a criminal charge is won on the charge as drafted, on the procedure the agency followed, and on the penalty, and it is filed against a deadline that does not wait for the prosecution. The firm handles the appeal and the criminal defense as one problem.

Mr. Sris, Owner and Founder of Law Offices Of SRIS, P.C., is a former prosecutor and is admitted in Virginia, Maryland, the District of Columbia, New Jersey, and New York. The firm has been practicing since 1997. Mr. Sris and the firm’s Of Counsel attorneys handle criminal defense matters across those jurisdictions, which matters in federal practice because a single investigation frequently reaches conduct, witnesses, and records in more than one state. Mr. Sris brings a background in accounting and information systems from George Mason University, applied to complex financial and technology-related cases.

The firm serves Northern Virginia from 1655 Fort Myer Dr, Suite 700, Room 719, Arlington, VA 22209 and central Virginia from 7400 Beaufont Springs Drive, Suite 300, Room 395, Richmond, VA 23225. By appointment. Call (888) 437-7747 to schedule. Request a consultation. Reach our location at (888) 437-7747.

This page provides general information about federal employee appeals after a criminal charge and does not create an attorney-client relationship. Case results depend on a variety of factors unique to each case. Results may vary.

Attorney advertising. Prior results do not guarantee a similar outcome.

Attorney responsible for this advertising: Mr. Sris.

A mspb appeal after criminal charge case is one part of sentencing, appeals & post-conviction work, and our page on compassionate release 3582 defence covers the wider process.