MSPB Law Blog

The Importance of Acknowledgment Orders in Merit Systems Protection Board Cases

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.

REPRESENTING FEDERAL EMPLOYEES IN PERFORMANCE IMPROVEMENT PLANS AT THE MSPB AND BEFORE FEDERAL AGENCIES

By John V. Berry, Esq., www.berrylegal.com

It is critically important that Federal employees faced with performance issues in the Federal workplace consult an attorney as soon as possible. The longer that a Federal employee goes forward in the performance evaluation process at work, without legal representation, the more difficult it will be for an attorney to assist that individual later in the process.

The Performance Improvement Plan (PIP) usually begins following a poor performance rating. Some time may elapse, prior to a performance result and an eventual placement on a PIP, but if a Federal employee’s rating is not good, and there have been discussions or rumors about the initiation of a PIP, then the Federal employee should be prepared.

The Performance Improvement Plan or PIP

In our Firm's experience the use of a Performance Improvement Plan (PIP) is almost always the beginning of the removal or demotion process for those working at Federal agencies. It is common practice for Federal employees to be initially told that their PIP is designed as a positive benefit to them and necessary to make them better performers. Managers sometimes even promise employees that they will be given special assistance to ensure that they are successful during their PIP periods, only to later find themselves facing a potential demotion or removal some months later after having not received any sort of the promised assistance during the process.

Federal Employees Should Take a PIP Seriously as Soon as it is Issued

It is important for Federal employees to take the PIP very seriously. Federal employees should realize that there is an extremely high removal and demotion rate when a PIP is initiated. Federal employees often do not realize the serious nature of the PIP process until it is too late to effectively pass the PIP. This is why it is crucial that Federal employees on PIPs, or those that have just received a poor performance evaluation, consult with an attorney familiar in these areas as soon as possible.

A PIP is governed by Chapter 43 of the U.S. Code which requires Federal agencies to follow certain procedures in initiating performance-based actions. See 5 U.S.C. § 4302; 5 C.F.R. § 432.104. Before initiating an action for unacceptable performance under 5 U.S.C. § 4303, “a Federal agency must give the employee a reasonable opportunity to demonstrate acceptable performance and must show by substantial evidence that: its action was taken under a performance appraisal system approved by OPM; the appellant's performance standards are valid; and the appellant's performance was unacceptable in at least one of his critical elements.” Henderson v. NASA, 2011 M.S.P.B. 12, P8 (2011).

Federal statutes, regulations, and case law dealing with the PIP process emphasizes the importance of providing an employee with a meaningful opportunity to improve, as a PIP is meant to assist employees in meeting their performance goals. As 5 C.F.R. § 432.104 states, an “agency shall afford the employee a reasonable opportunity to demonstrate acceptable performance . . . As part of the employee’s opportunity . . . the agency shall offer assistance to the employee in improving unacceptable performance.”

In processing a PIP, a Federal agency typically begins by placing that employee on a Performance Appraisal Period (PAP). The Performance Appraisal Period must allow the employee a true opportunity to show his or her capabilities in the position. “An employee’s rights to a meaningful opportunity to improve . . . is one of the most important substantive rights in the entire Chapter 43 performance appraisal framework.” Zang v. DIS., 26 M.S.P.R. 155, 157 (1985). Indeed, “[t]he legislative history of the Civil Service Reform Act . . . specifically notes the opportunity to improve performance as an important aspect of a valid performance appraisal system.” Sandland v. GSA, 23 M.S.P.R. 583, 587 (1984).

As part and parcel of this meaningful opportunity to improve, generally an employee must receive the assistance promised by the Federal agency at the onset of the PIP period. Adorador v. Dep’t of the Air Force, 38 M.S.P.R. 461 (1988) (employee prevailing in Merit Systems Protection Board appeal where the agency failed to prove that it provided the assistance promised in the Notice of Unacceptable Performance). In addition, the Federal agency must also provide an appropriate level of assistance to the employee during their PIP period. Thompson v. FCA, 51 M.S.P.R. 569, 579 (1991) (MSPB holding that Federal employee did not receive promised supervisory assistance and that supervisors had predetermined the employee’s failure in PIP employee gave the Board reason to reverse the agency’s decision to remove the employee).

In Zang, the Merit Systems Protection Board found that the agency had violated the employee’s Chapter 43 rights and that the employee was denied a “fair and meaningful” opportunity to improve her performance where the employee’s supervisor did not provide guidance on how to improve, and “the counseling session given the appellant by her supervisor were often disparaging in nature.” 26 M.S.P.R. at 157. See also Beasley v. Dep’t of the Air Force, 25 M.S.P.R. 213, 215 (1984) (“Although the agency claimed that it ‘counseled’ the appellant, this counseling only consisted of the Agency merely reviewing her work product and indicating her errors”).

The Federal Employee Must Be Given a Reasonable Opportunity to Succeed

A PIP is meant to assist employees in achieving performance goals. “The agency shall afford the employee a reasonable opportunity to demonstrate acceptable performance . . . As part of the employee’s opportunity to demonstrate acceptable performance, the agency shall offer assistance to the employee in improving unacceptable performance.” 5 C.F.R. § 432.104.

The performance action should allow the employee a true opportunity to show his or her capabilities in the position. “An employee’s rights to a meaningful opportunity to improve . . . is one of the most important substantive rights in the entire Chapter 43 performance appraisal framework” (emphasis added). Zang, 26 M.S.P.R. 155 (1985). "The legislative history of the Civil Service Reform Act . . . specifically notes the opportunity to improve performance as an important aspect of a valid performance appraisal system.” Sandland, 23 M.S.P.R at 587.

Potential PIP Process Outcomes

As discussed earlier, a PIP is usually a step towards a Federal agency’s efforts in attempting to remove an employee from his or her position. A failed PIP can result in removal, demotion, or reassignment. In our experience, the result of the PIP is usually predetermined by the agency and the proposed outcome by the Agency is usually removal. PIPs tend to be 90 days in duration and the elements and the PIP itself can be complex and lengthy. Depending on the author, a PIP, without assistance, can be sometimes be designed to be very difficult to pass.

At the conclusion of the PIP process, the ultimate result will depend on the employee's performance during the PIP period. If the employee has been deemed to have an acceptable level of performance, there is no need for the Federal agency to take any action except to keep providing feedback and encouragement to the employee. If the employee is still performing unacceptably, however, the next step is for the proposing official or supervisor in charge of the PIP to determine the best solution.

The potential options following a PIP that was not completed successfully can include reassignment, demotion, or removal. If deemed unacceptable performance (which most times it is), the employee is most often proposed for removal and can be removed in a very short period of time after the decision on the PIP. Keep in mind that both at the Agency and MSPB levels there are no requirements to issue or consider the Douglas or mitigating factors. Douglas v. VA, 5 M.S.P.R 208 (1981).

Potential Defenses at the MSPB or Before Federal Agencies to PIPs

When facing a negative decision on a PIP there are some potential defenses to consider in filing an appeal at the MSPB:

1. Whether the Agency provided meaningful assistance to the Federal employee during the PIP period?

2. Whether the Agency said the employee did not perform well as to some of the portions of the PIP even though the alleged issues were not listed within the PIP?

3. Whether the Agency designed a PIP that was impossible for any employee to pass?

4. Whether or not the Agency pre-determined the outcome of the PIP for the Federal employee involved?

5. Whether the Agency provided a reasonable opportunity for the Federal Employee to improve? See Deskins v. Dep’t of the Navy, 29 MSPR 276 (1985) (employee was subjected to verbal abuse, insults, and harassment that interfered with his ability to perform on the PIP and was therefore denied reasonable opportunity to demonstrate improved performance).

Closing Thoughts on the PIP Process for Federal Employees

The most important aspect of Federal employee performance actions, before they are taken to the MSPB, is for the individual to realize the serious nature of the PIP process and obtain counsel immediately. This article is intended for only general information. Federal employee performance issues are extremely individual in nature and vary in each case. You should consult an attorney for specific legal advice. Our law firm can be reached at www.berrylegal.com for further inquiry or in providing assistance to Federal employees.