By John V. Berry, Esq., www.berrylegal.com
Our law firm represents and advises federal employees in their Merit System Protection Board (MSPB) appeals. MSPB appeals traditionally involve disciplinary actions (suspensions, removals, demotions), retirement appeals, whistleblower appeals, USERRA cases and other types of federal employee matters. During the litigation of MSPB appeals, the pre-hearing conference is often one of the most critical points in the litigation process.
The Pre-Hearing Conference
The MSPB pre-hearing conference is the meeting that takes place just prior to the hearing itself. The pre-hearing conference is usually conducted by telephone between the administrative judge, the federal agency attorney, and the federal employee’s attorney (and possibly the federal employee) to discuss issues and procedures for the upcoming hearing. Typically, the parties will have previously submitted a pre-hearing written submission prior to the pre-hearing conference, specifying each parties’ view of the issues in the case, the proposed exhibits, material facts not in dispute and the proposed witnesses for the hearing. The administrative judge may also further discuss possible settlement and stipulations between the parties. In our experience, the pre-hearing conference generally lasts between 30 to 90 minutes.
The administrative judge may ask the parties for legal arguments about admitting potential exhibits, but typically is focused primarily on who will testify and how many witnesses will be present. The administrative judge does this to ensure that only relevant testimony is heard and to budget the number of days needed for the hearing itself. The attorney for the federal agency may attempt to limit the witnesses that will testify and the federal employee must be able to argue the relevance of each witness. The parties may also object to potential exhibits offered by each party.
The Hearing Order
After the pre-hearing conference, the administrative judge will typically issue a hearing order and summary of the pre-hearing conference, specifying the hearing date(s), the hearing location, the issues to be heard at the hearing, the witnesses which have been approved to testify, rulings made on exhibits and any other important information needed to process the MSPB appeal.
It is important that a federal employee have legal representation during the MSPB pre-hearing process to maximize their ability to ensure that key witnesses are present at the hearing, that important legal theories become part of the issues acknowledged for the hearing and to ensure that key exhibits are included (and that questionable exhibits from the federal agency’s counsel receive an objection)
When a federal employee is litigating an MSPB appeal it is important for them to obtain legal representation, especially prior to the MSPB pre-hearing conference. Our law firm represents federal employees in their MSPB appeals. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070 for additional information.