By John V. Berry, Esq., www.berrylegal.com
One of the most important rights that a federal employee has in the appeals process at the Merit Systems Protection Board (MSPB) is through the discovery procedures outlined in 5 C.F.R. § 1202.72. The discovery process allows a federal employee to ask their federal agency for information that is relevant and important to use in their defense during their appeal.
Discovery can come in a number of forms at the MSPB: (1) the taking of depositions (taking of sworn statements from witnesses); (2) requesting documents, data or video relevant to an appeal (production requests); (3) obtaining written responses from a federal agency to specific questions in a case (interrogatories); and (4) requesting that a federal agency admit certain facts as true for purposes of a federal employee’s MSPB appeal (requests for admission).
This article focuses on what we believe to be the most important form of discovery for federal employees in most MSPB appeals, the use of the deposition.
What is a Deposition?
A deposition is a legal proceeding where a person is questioned, under oath, in response to questions posed by an attorney. Depositions are used at the MSPB by federal employees and federal agencies to obtain information related to a federal employee’s MSPB appeal.
For example, if a federal employee is removed for alleged misconduct, the employee’s attorney will want to depose the individuals that allegedly discovered the misconduct, the individuals that investigated the misconduct allegations and the individuals that decided to take action against the federal employee for the allegation.
Take the following hypothetical in which a federal employee is removed from their position as a result of a conduct unbecoming charge:
Hypothetical Charge: John Smith is removed for conduct unbecoming a federal employee because, on May 12, 2012, he left work early without his supervisor’s permission or knowledge. Before leaving, he informed co-workers Sue Jones and Jim Hanover that he was leaving early to go fishing for the day and then left without approval.
In this type of misconduct case, the federal employee’s attorney would first want to take the depositions of the two co-workers, Sue and Jim, to determine what their recollection of the events in the case were. Often times an individual’s recollection of events may be far different than what the agency has alleged in the removal. An employee may also want to depose John’s supervisor if there is an issue where John is contending that the supervisor did in fact give him permission to leave early.
How Are Depositions Conducted in MSPB Proceedings?
During the MSPB process, a deposition notice is usually first sent out to the federal agency attorney assigned to an MSPB appeal, setting a proposed time and date for depositions of relevant federal agency employees. You can also take the deposition of non-federal agency employee witnesses, but a slightly different process is used for this whereby the attorney will first seek a subpoena from a MSPB judge prior to taking the deposition.
Typically, the attorneys for both sides then discuss a mutually acceptable time and date for the depositions to take place and the federal agency then produces these witnesses for depositions. The witness will be relevant to the issues in a federal employee’s MSPB appeal and will be asked questions about his or her knowledge of the issues. Often times, the federal employee filing the appeal at the MSPB can also be deposed by the federal agency’s attorney. In such cases, we represent the employee when they are questioned by the agency.
Depositions that we take on behalf of the federal employees that we represent are usually taken in our office unless they are out of state. The witness will be sworn in, under oath, by a court reporter. The court reporter will take down both the questions asked and the all witness testimony. The length of a deposition in an MSPB case can take anywhere from 45 minutes to several hours, depending on the importance of the witness and the information that is needed.
Once all of the questioning of a witness is completed by the federal employee’s attorney, sometimes the attorney for the federal agency may ask additional questions of the witness (although this tends not to be the case). When the questioning is complete, the witness will either review their deposition later for accuracy or sign it or decide to waive further review.
Subsequently, a written transcript of the deposition will be produced by the court reporter which can be used in the MSPB appeal.
How is a Deposition Helpful in the MSPB Process?
We have found that the taking of depositions in the MSPB process is very helpful and one of the most important tools available for establishing key facts in defending federal employees in their appeals. It is also helpful for purposes of resolving cases early where you are able to disprove the allegations that were made against federal employees through the deposition process. For instance, in the earlier example, suppose taking the deposition of John’s co-workers provided information that one of them was the acting supervisor on the day in question and had actually given John the okay to leave early. In such cases, appeals can be resolved favorably for an employee.
Often times, if you take depositions from agency witnesses that end up supporting the federal employee’s version of events in an MSPB appeal, it is also far easier to settle the case. Finally, even if you are unable to resolve an MSPB case prior to the hearing stage, the depositions that you take can be used to establish the federal employee’s defenses at the hearing. Because each MSPB appeal is different with respect to the use of depositions and discovery it is important to consult with an attorney familiar in practicing before the MSPB.