By John V. Berry, Esq., www.berrylegal.com
Acknowledgment orders are very important in cases that are filed with the Merit Systems Protection Board (MSPB). These orders set the tone and deadlines for a federal employee’s appeal before the MSPB. Following the filing of a federal employee’s MSPB appeal, the first document that will be received is usually the Acknowledgment Order which will be issued by the MSPB Regional Office for that appeal. The Acknowledgment Order that the federal employee (referred to as the Appellant in MSPB cases) receives will be signed by the administrative judge that has been assigned to hear the appeal.
The Acknowledgment Order is important to thoroughly review as soon as it is received because it contains many deadlines which are timed from the date that the order is issued, not necessarily received. The Acknowledgment Order will instruct a federal employee appealing a decision (i.e. removal, demotion, performance, whistleblower or userra cases, etc.) in several areas which are critical to their appeals before the MSPB. A typical Acknowledgment Order will inform an Appellant about the following issues:
Designation of Representative – A federal employee will be instructed as to how to name their representative in the MSPB case, if that task has not already been completed by their attorney of record. Typically, when our Firm is retained to represent a federal employee, we complete this form for our clients.
Discovery Deadlines – This is perhaps the most important portion of the Acknowledgment Order and often times one of the least well understood by appellants. It is critical that a federal employee prepares a list of all of the discovery deadlines related to the Acknowledgment Order, basing them on the date that the Acknowledgment Order is served (the date in the upper right hand corner of the first page of the Order). Typically, an appellant has 25 days from the date of the Acknowledgment Order (the date in the upper right hand corner of the first page of the Acknowledgment Order) to initiate or begin the discovery process.
This is often overlooked when appellants represent themselves, but it is critical that an appellant engage in discovery efforts if there is to be significant hope of settlement in a case. This means that an appellant should have their requests for documents, interrogatories, requests for admission and/or depositions ready to be submitted in advance of the 25 day deadline. Sometimes, an appellant can also initiate some of their requests prior to the deadline, and then follow up with additional discovery. However, in order to determine the appropriate strategy here, it is recommended that an appellant be represented by counsel as to the correct legal strategy for such issues.
The Acknowledgment Order also provides that the agency or the appellant has 20 days to respond to a discovery request. An appellant must always keep this in mind, because if an agency does not respond to discovery (in full or in part), and the appellant has waited for more than 10 days following the non-response to take action, discovery can be deemed to be waived.
Initial Disclosures – The Acknowledgment Order also will usually provide notice that initial disclosures should be served by the agency and the appellant, on each other, within 10 days of the date that the order was issued. These disclosures provide basic information to both sides about the potential witnesses and documents that are involved in the appeal.
Settlement Forums – The Acknowledgment Order also provides information regarding a number of potential options for appellants in resolving their matters, such as the Case Suspension process, Alternative Dispute Resolution, the Mediation Appeals Program, the Settlement Judge Program and the MSPB Settlement Program. The goal of all of these programs and the procedures for seeking help from them are discussed in the Acknowledgment Order and should be evaluated by an appellant when these orders are issued.
Some Key Deadlines for an Appellant in the typical Acknowledgment Order –
a. Designate your representative (10 days after the Acknowledgement Order is issued);
b. Prepare and Send Initial Disclosures (10 days after the Acknowledgement Order is issued);
c. Serve Discovery Requests on the (25 days after the Acknowledgement Agency Order is issued);
d. Receive Discovery Requests from (Due 20 days after they are the Agency served on the Agency);
e. File a Motion to Compel if Agency (Due no later than 10 days after Does not Respond to Discovery in Response was Due) Part or in Full;
f. Request a Case Suspension for (Due within 45 days after the Purposes of Settlement Acknowledgment Order is issued);
The above are just a few of the deadlines from the typical Acknowledgment Order, not all of them. When facing an MSPB appeal, it is very important to have legal representation from the start of the process because many of the deadlines discussed above vary from case to case. Each case is different and requires the review of an attorney that is knowledgeable about MSPB appeals.