TSA employees may select a representative to assist in preparing and presenting their appeal to the OAB. Employees must have skilled representation before the OAB because it is the ultimate and only level of appellate review available to employees who have been terminated or otherwise subjected to adverse action by TSA.

Here are some details about the appeal process:

Timelines

The appeal must be filed within 30 days of the effective date of the action or the date of receiving the agency’s decision. If the 30th day is a weekend or holiday, the deadline is extended to the next business day.

Filing methods

Appeals can be filed by mail, fax, commercial overnight delivery, personal delivery, or electronically through the Board’s e-Appeal Online system.

Burden of proof

The agency bears the burden of proof, meaning they must prove why the adverse action was taken.

MSPB appeal timeline

The MSPB appeal process usually takes five weeks to 3 months from the time of the appeal to the final decision.

Reconsideration

After the OPR issues a decision, the employee has 30 days to request reconsideration. The OPR will only reconsider if the employee misinterpreted facts or misapplied TSA policy.

If a claim is denied or unresolved within six months, the employee can file a suit in a U.S. District Court.

Experienced & Dedicated Paul N. Jones with Assisting TSA Employees
with Appealing Adverse Actions to the OAB.

What Defenses Are Available?

Being a federal employee and facing disciplinary or adverse action can be stressful and challenging. However, federal employees can utilize several defenses and strategies to protect their rights and mitigate the consequences of such actions.

Some common defenses to disciplinary or adverse actions under federal employment law include:

Lack of Just Cause: One of the primary defenses is to challenge whether there was cause for the disciplinary or adverse action. It examines whether the employee’s conduct or performance violated agency policies, regulations, or laws.

Procedural Errors: Federal agencies are required to follow specific procedures when taking disciplinary or adverse actions against employees. Procedural errors, such as failure to provide adequate notice or an opportunity to respond, can invalidate the action and provide grounds for appeal.

Mitigating Circumstances: Employees may argue that mitigating circumstances, such as personal or medical issues, influenced their conduct or performance. Demonstrating that external factors contributing to the behavior in question can sometimes lead to a more lenient outcome.

Disparate Treatment: If it can be shown that other employees who engaged in similar conduct or had similar performance issues were treated more favorably, it may be possible to argue disparate treatment and challenge the fairness of the disciplinary action.

Retaliation: Employees who believe they are being targeted for disciplinary action in retaliation for engaging in protected activities, such as whistleblowing or filing a discrimination complaint, may have grounds for a retaliation defense.

Insufficient Evidence: Employees can challenge the sufficiency of the evidence presented by the agency to support the disciplinary or adverse action. If the evidence is weak or lacks credibility, it may not be sufficient to justify the action.

Violation of Rights:

Employees may assert that their constitutional or statutory rights were violated in the disciplinary process. It could include violations of due process rights, First Amendment rights, or protections against discrimination or harassment.

Negotiation and Settlement:

In some cases, it may be possible to negotiate a settlement with the agency to resolve the disciplinary matter without proceeding to a formal appeal. This could involve agreeing to lesser sanctions or conditions in exchange for dropping the disciplinary action.

Federal employees facing disciplinary or adverse actions must seek guidance from experienced federal employment attorneys who can assess their case’s specific circumstances and advise them on the most effective defense strategies. Each case is unique, and an attorney can provide tailored advice and representation to help employees protect their rights and interests.