You Won at the MSPB but the Agency Appealed: Why You Should Still Be Paid While You Wait

MSPB interim relief is the rule that answers a painful scenario. You won your Merit Systems Protection Board case in March. The Administrative Judge ordered you back to work. The agency filed a petition for review. It is now September, and you are still at home and still unpaid. Legal or illegal?

Why the Wait Is So Long

The Board's own data, posted September 1, show 789 petitions for review pending at headquarters. Of those, 249 sit in a category the Board labels "awaiting Board action." The Board currently has two members and one vacant seat. With those numbers, the wait for a decision on any single petition can stretch for many months.

The Verdict: Illegal, With One Caveat

Under 5 U.S.C. § 7701(b)(2), if you are the prevailing party before the Administrative Judge, the relief ordered in the initial decision takes effect "effective upon the making of the decision" and stays in effect "pending the outcome of any petition for review." This is called interim relief. The agency does not get to wait out the Board's backlog at your expense.

What If the Agency Says Your Return Would Be "Unduly Disruptive"?

Change one fact. The agency determines that returning you to the workplace would be "unduly disruptive to the work environment." Is that legal? Yes. The statute allows the agency to make that determination. But the very next provision of § 7701(b)(2) says you "shall receive pay, compensation, and all other benefits" while the petition is pending.

The short version: home, maybe. Unpaid, never.

The Caveat: Check the Last Pages of Your Decision

Interim relief has to be ordered in the Administrative Judge's initial decision. Read the final pages of your decision carefully. If interim relief is there and you are not being paid, the agency's own petition for review is supposed to address its compliance and certify it. See 5 C.F.R. §§ 1201.114(b) and 1201.116(a).

If the agency's petition is silent on compliance, or you are simply not receiving what the decision ordered, that is not a footnote. That is the basis for a motion.

Practical Takeaway

If you prevailed before an MSPB Administrative Judge and the agency petitioned for review, pull out your initial decision today and confirm whether interim relief was ordered. If it was, you should either be back at work or receiving pay and benefits while the petition is pending. If neither is happening, act promptly rather than waiting for the Board to reach your file. Several short deadlines surround a pending petition, and enforcement of interim relief is time-sensitive.

Questions about whether your agency is complying with an interim relief order are exactly the kind of issue federal employee lawyers at Southworth PC handle. If your scenario looks like this one, do not wait for the backlog to clear.

Legal Disclaimer: This content is for general informational purposes only and does not constitute legal advice. Federal employment situations are fact-specific and time-sensitive. Please consult a qualified federal employment attorney about your specific situation.