MSPB Law Blog

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

Federal employees whose cases are pending before the Merit Systems Protection Board (MSPB) have a number of options, in addition to litigating their cases to the hearing stage, in order to attempt to resolve their appeal. This article concerns the settlement process at the MSPB whereby federal employee - appellants and their federal agencies (Agencies) attempt to reach settlement prior to the MSPB hearing and decision stage.

The Settlement Process

The settlement process at the MSPB can start at any point in the life of an
individual MSPB case.  Typically, it is good practice for an appellant to approach the Agency early in an attempt to resolve a case if settlement is a goal.  Agency attorneys generally are assigned to MSPB cases about a week to 10 days after the MSPB appeal is first filed.  Once the attorney assigned to the case for the federal agency involved is known, informal settlement talks can began. 

Types of Settlement Options at the MSPB

When a federal employee’s case is filed at the MSPB, there are a number of different options to attempt settlement. The key to all of MSPB settlement programs is that both parties are in agreement to at least attempt to settle a matter. If one party is unwilling to mediate or attempt settlement in an MSPB case then these processes will not work. 

The available settlement options at the MSPB include: (1) informal mediation with Agency counsel; (2) the Mediation Appeals Program; (3) the Settlement Judge Program and (4) the MSPB Settlement Program. As you can see, the MSPB has a number of venues available to facilitate settlement. There are distinctions between each kind of settlement venue and different strengths for each type:

(1) Informal Mediation with Agency Counsel – This is an informal process, usually at the start of an MSPB case, where the two attorneys assigned to the case discuss settlement proposals and attempt to resolve the appeal. Often times this can be the quickest process for attempting to resolve a case.

(2) The Mediation Appeals Program – In this type of settlement process, a mediator from the MSPB is assigned to encourage settlement. This is a more formal setting and usually conducted in person. This process can be helpful as parties are face to face with one another, with a mediator that is assigned to meet with and attempt to facilitate settlement.

(3) The Settlement Judge Program – This settlement process involves the assignment of another administrative judge, different from the one assigned to hear the case, in an attempt to help the parties facilitate settlement. Settlement judges usually conduct settlement meetings by telephone, as opposed to face to face meetings, in an attempt to settle these cases.  These settlement judges can offer frank discusions about their thoughts on an individual case without having to later rule on the issues involved.  A settlement judge is not connected to the ongoing litigation.  We have found that the judges in this settlement process tend to be very flexible and helpful in attempting to resolve cases.

(4) The MSPB Settlement Program – In this type of settlement process, the MSPB judge assigned to hear the case at the hearing stage discusses settlement with the parties as case moves towards the hearing stage. The judge in this case is already familiar with the issues in the MSPB appeal and is well suited then to discuss the possibility of settlement in these types of cases. Typically, settlement discussions in this process occur at pre-determined times in a case (e.g. shortly after the case is assigned to the administrative judge or at the pre-hearing stage).

MSPB Approval of Settlement Agreements

Following a successful settlement agreement, the parties will submit the agreement to the administrative judge assigned to hear the case. The administrative judge will review and then (in most cases) accept the settlement agreement into the record for enforcement purposes if needed. Once accepted, the administrative judge will then dismiss the MSPB appeal as settled and the case will come to a conclusion.

Enforcement of Agreements

Although it rarely happens, following the execution of a settlement agreement, the MSPB has a mechanism to ensure that a settlement agreement that is placed in the record is adhered to. Typically, if this becomes an issue for a client, our first step is to contact Agency counsel in an attempt to quickly resolve the issue before seeking to enforce a previously agreed to settlement. Typically, this has not been an issue in cases that our firm has handled, but does provide protection for a federal employee that has decided to resolve their MSPB case through settlement.

Closing Thoughts on the Settlement Process at the MSPB

When attempting to settle a case at the MSPB it is important to have counsel representing the federal employee involved. Often times, this can make a difference in the ability to settle a case on favorable terms with the federal agency involved. This law firm represents federal employees in these types of MSPB cases and can be contacted at (703) 668-0070 or www.berrylegal.com to arrange for an individual consultation regarding MSPB cases and the settlement process.

By John V. Berry, www.berrylegal.com

Merit Systems Protection Board (MSPB) appeals, for the most part, ultimately result in settlement agreements. This means that a federal employee that has brought the MSPB appeal forward and the federal agency have come to an agreement that will resolve the appeal.  There are a number of different types of potential settlement resolutions in MSPB appeals, and these vary significantly on a case by case basis.  The types of settlements available also depend on a number of factors, such as strength of case, complexity of the appeal, and discovery efforts. 

What Types of Potential Settlement Options are Available at the MSPB

There are a number of potential settlement options available at the MSPB.  These include, but are not limited to settlements where an individual personnel action is mitigated (i.e. a termination is reduced to a suspension), where an individual’s disciplinary record may be cleared, where backpay may be agreed to or there could be an agreement for the repayment of attorney fees.  There are too many different types of settlement provisions to list for purposes of this article, but there are often many different types of potential solutions to a MSPB case through settlement. 

Some other examples of potential settlement proposals include clean paper agreements, employment references, recommendation letters, provisions relating to retirement benefits, provisions relating to unemployment compensation, confidentiality clauses, resignation agreements, reduction in disciplinary penalties agreements, reassignments, performance rating agreements, leave agreements, etc.

The general key to resolving an MSPB case through settlement is to start to attempt to negotiate as early as possible in the process with the assistance of an attorney while at the same time litigating your matter seriously before the MSPB. 

How the Settlement Agreement Process Works

Generally, settlement agreements at the MSPB are worked out between the parties following
the initial filing of the federal employee’s MSPB appeal.  Either side begins the process by proposing a settlement offer to the other side.  Eventually, when the initial terms of the settlement agreement are agreed to in principle, either the appellant’s counsel or the counsel for the federal agency involved begins the process of drafting the proposed written agreement.  At this stage, the parties will go back and forth until the final agreement is agreeable to both sides and then signed. 

The MSPB Role in the Settlement Process

Generally, when the parties conclude a signed settlement agreement, either the appellant or the agency submits the agreement to the MSPB administrative judge assigned to the case.  The administrative judge will review the agreement and determine whether it meets the MSPB standards for acceptance into the record.  Generally, these are accepted into the record quickly by the administrative judge who then dismisses the MSPB case as settled.   

Contact Us

When attempting to settle an MSPB case with a federal agency it is important to have counsel. Often times, this can make a difference in the ability to settle a case on favorable terms with the federal agency involved. This law firm represents federal employees in MSPB cases and can be contacted at (703) 668-0070 or www.berrylegal.com to arrange for an individual consultation regarding MSPB cases and the settlement process.

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

Our law firm represents federal employees at the Merit Systems Protection Board (MPSB). Through our MSPB law practice over the past 20 years, we have found that federal employees don't always have a clear understanding of the Merit Systems Protection Board (MSPB) process and procedures. The MSPB process only typically becomes an issue when a federal employee finds themselves in need of appealing an action.  The MSPB is an independent federal agency which functions as an administrative court system for federal employees which reviews federal employment and retirement actions.  This article discusses a brief overview of the MSPB appeals process for federal employees.

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

In our legal practice we defend federal employees in disciplinary and adverse actions.  From our experience in defending federal employees in disciplinary and adverse actions, one of the most critical issues involves the use of the Douglas factors in attempting to mitigate (reduce) a proposed disciplinary penalty in a case.  The Douglas factors are also referred to as mitigating factors.  They are used to argue that disciplinary charges for federal employees, even if true, should still result in a lower penalty than the one proposed. 

The Douglas factors are the result of the case of Douglas v. VA, 5 MSPR 280, 5 MSPB 313 (1981). When we approach an appeal before the Merit Systems Protection Board (MSPB) for a client or in a case before a deciding official at the proposal stage it is important to set forth any and all mitigating factors that might be applicable to a federal employee’s case. Douglas factors can also be used as aggravating factors to justify the imposition of higher penalties. Often times, these factors can be confusing, so I have explained each of the 12 factors below:

THE 12 DOUGLAS FACTORS

(1) The nature and seriousness of the offense, and its relation to the employee’s duties, position, and responsibilities, including whether the offense was intentional or technical or inadvertent, or was committed maliciously or for gain, or was frequently repeated.

Explanation:  This Douglas factor generally refers to how serious an allegation is and how it relates to a federal employee’s particular position.  For instance, an allegation of theft would be treated more seriously, under this Douglas factor, for an individual that encumbers a law enforcement position.  This factor also looks at whether an allegation is part of a pattern of similar conduct and whether or not the allegations relate to intentional actions as opposed to something that occurred as a result of a genuine mistake. Generally, this factor tends to be used more by a federal agency for
purposes of aggravating (or supporting) an enhanced disciplinary penalty. 

(2) The employee’s job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position

Explanation:  This factor is not one of the more frequently used factors. It is more often used to attempt to raise a disciplinary penalty.  For example, a federal agency may attempt to consider the particular position that one holds, i.e. high level supervisor (or type of position - law enforcement) as an aggravating factor.

(3) The employee’s past disciplinary record

Explanation:  This factor is generally used for purposes of mitigation.  Typically, this Douglas factor is argued for the purposes of lessening a penalty.  For instance, if a federal employee has worked for the federal agency involved for 20 years, and has never received prior discipline during that time this can be used to attempt to reduce the proposed discipline.

(4) The employee’s past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability

Explanation:  This factor is one of the most often used arguments in support of mitigation by a federal employee.  Typically, this factor is used by an employee to support a reduction in penalty based on their good record of service to their agency.  For example, in the disciplinary cases that we handle we might attempt to mitigate a disciplinary penalty by showing that an employee's years of service (especially if a long term employee), performance ratings, commendations / awards and letters from supervisors / co-workers support a reduction in a disciplinary penalty.

(5) The effect of the offense upon the employee’s ability to perform at a satisfactory level and its effect upon supervisors’ confidence in the employee’s work ability to perform assigned duties

Explanation:  Federal agencies in serious disciplinary / adverse actions tend to use a blanket statement in the proposal notice claiming that they have lost confidence in a particular employee, without supporting the contention, to support the aggravation of a penalty.  I find that this Douglas factor can be very helpful for purposes of mitigation where an employee has continued to work successfully in their normal position, over an extended period of time, after the underlying incident has occurred.  The argument for mitigation here is that the federal employee continued to work in a critical position while the investigation was ongoing which supports the fact that the agency has not lost confidence (or trust) in the individual. 

(6) Consistency of the penalty with those imposed upon other employees for the same or similar offenses

Explanation:  This Douglas factor tends to be argued by federal employees for mitigation and by proposing officials for aggravation of disciplinary penalties.  Often times, we find that we can point to inconsistencies in the penalties issued to other
federal employees versus a client.  For instance, in this type of situation we would argue that you cannot issue a light penalty for one person (ex. 10-day suspension) and propose removal for another based on similar allegations. 

(7) Consistency of the penalty with any applicable agency table of penalties

Explanation:  A federal agency may attempt to rate a proposed penalty at a certain level as a result of their interpretation of an agency’s table of penalties.  The table of penalties is merely a chart with lists of individual offenses and ranges of penalties for such offenses.  That said, we find that it is important to actually make sure that a proposed disciplinary action has been listed appropriately under the chart; often times they are not and lead to more significant penalties.  As a result, we often argue that a particular allegation has not been correctly identified under the agency’s table of penalties.

(8) The notoriety of the offense or its impact upon the reputation of the agency

Explanation:  This factor generally is used by a federal agency to attempt to support the aggravation of a disciplinary penalty.  Most commonly this factor comes into play
when the underlying incident is reported in the media.  Generally, an agency will attempt to aggravate a disciplinary penalty the more that an incident has been publicized in the news in a negative manner. 

(9) The clarity with which the employee was on notice of any rules that were violated in committing the offense, or had been warned about the conduct in question

Explanation:  This factor generally refers to the rules governing the underlying allegations as is used quite often in mitigation in our federal employment defense cases.  Typically, a federal employee will be proposed for disciplinary action in a case based on a violation of a particular agency rule.  Often times a federal employee that has been charged with a violation of agency rules has not been properly trained with respect to the rules or regulations that they have been charged with violating.   Therefore, in defense cases we attempt to illustrate the lack of notice as to the actual rules that have been allegedly violated by an employee, in addition to a lack of training on the issues that have been charged in a disciplinary action.  

(10) The potential for the employee’s rehabilitation

Explanation: While many federal agencies attempt to use this Douglas factor for purposes of aggravating a disciplinary penalty, we find that this factor tends to be good for purposes of mitigation.  For instance, we might use this factor to argue that a federal employee's good career record and the actions that they have taken during the investigation demonstrate that they are good candidates for rehabilitation and hence should receive a lower penalty (more common in proposed removal cases).  Often times, when a federal employee accepts responsibility for their actions in a case this can help mitigate a proposed disciplinary penalty.          

(11) Mitigating circumstances surrounding the offense such as unusual job tensions, personality problems, mental impairment, harassment, or bad faith, malice or provocation on the part of others involved in the matter

Explanation:  This factor is generally referred to as a miscellaneous mitigation factor which can include many potential considerations.  It is a very broad mitigating factor.  We often use this Douglas factor to illustrate personality conflicts in issuing proposed discipline by the proposing official or harassment by others in the workplace which led to the proposed discipline against a federal employee.  Other times, when there are medical issues related to the offense we can use this argument to attempt to mitigate the proposed penalty.

(12) The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others

Explanation:  This factor generally is used for purposes of mitigation of proposed disciplinary penalties.  We have argued, in cases for federal employees, that a different penalty (other than the one proposed) would be more appropriate and still serve the same disciplinary purpose. Sometimes, we have argued that instead of removing a federal employee that there are other effective resolutions to a disciplinary action.  For instance, where an individual has been placed in an unpaid suspension for several months while an investigation was ongoing, we would argue that any future disciplinary penalty consider the prior suspension and loss of pay suffered by the employee during the time at issue for purposes of mitigation.  Sometimes this factor can also lead to settlement negotiations over the ultimate penalty issued in a case where an employer is willing to consider alternative discipline. 

CONTACT US

When responding to a proposed disciplinary or adverse action, or an appeal to the MSPB, it is important to put forth all of the applicable Douglas factors to reduce potential disciplinary actions.  Douglas factor issues vary greatly from case to case and federal employees should retain an attorney knowledgeable about these issues prior to responding to a proposed disciplinary action or filing an appeal with the MSPB. This law firm represents federal employees in these types of federal employment matters and can be contacted at (703) 668-0070 or www.berrylegal.com to arrange for an individual consultation regarding an individual’s federal employment issues.     

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

When federal employees are removed, demoted, severely suspended, have Whistleblower issues, OPM retirement problems, face USERRA (military) discrimination, or have other civil service issues may have the ability to file an appeal with the Merit Systems Protection Board (MSPB). Essentially, the MSPB is an administrative court that functions much like a civil court for federal employee claims. When facing an appeal before the MSPB, current and former federal employees need attorneys experienced in MSPB appeals to represent them in these types of cases given that the process functions much like civil litigation in court.  

MSPB Attorneys Should Have Experience at the MSPB

It is important for federal employees to interview and hire experienced attorneys that have previously practiced before the MSPB. Many general services lawyers will attempt to handle a federal employee's MSPB appeal but often find it difficult given that it is a very specialized area of law. Our law firm represents federal employees nationwide in MSPB appeals regardless of which MSPB office where the appeal is filed.  There are a number of steps in a traditional MSPB appeal, and below is a summary of the general progression of an MSPB appeal. Keep in mind that each MSPB appeal is different and may have different deadlines, rules, or timing so it is important to speak with an experienced MSPB attorney through the appeals process.

A. Step 1 - The Filing of an MSPB Appeal

The first step in the MSPB appeals process is for a federal employee to file an MSPB appeal. For most types of cases that the MSPB hears (e.g., those involving removals or severe suspensions for federal employees), the deadline to file an appeal is typically 30 days from the effective date of the decision. It is critical to timely file an MSPB appeal or it will most likely be dismissed. Appeals are mostly filed electronically today through the MSPB e-Appeals website.  Different deadlines may apply for some whistleblower, USERRA (military) discrimination, and other types of federal employee cases so having an attorney is very important to navigate an MSPB case.  

By John V. Berry, www.berrylegal.com

Before a disciplinary case moves to the Merit Systems Protection Board (MSPB) it is preceded with a final agency decision on a proposed disciplinary action. If the final disciplinary action is 15 days or more to removal, then the federal employee may appeal to the MSPB. Before making the decision to appeal, it is important to review the final agency decision and consult with an attorney.

The Final Agency Decision

A final agency decision is simply the decision made by the deciding official on a proposed disciplinary action (i.e. a proposed removal or demotion). Typically, the time period for receiving the agency’s final decision can range anywhere from 2-8 weeks from the time that an individual presents their oral and/or written response to the notice of disciplinary action. Some federal agencies are quick in issuing decisions, while others take their time in issuing a decision. During that time, the federal employee either continues to work or more often is at home in an administrative leave status. When the final agency decision is issued, there are some important considerations in reviewing the document as the federal employee considers whether to file an appeal to the MSPB.

Important Considerations

Here is a list of some considerations a federal employee should evaluate when reviewing a final agency decision on discipline before filing an appeal:

1. Check the Effective Date of the Decision: This date often differs from the date of the decision letter. The effective date usually starts the 30-day timeline for filing an MSPB appeal. This is extremely important because late appeals will not usually be considered.

2. Review which Charges were Sustained: In the final agency decision, if there is more than one charge or specification, it is possible that some or all of them have not been sustained. This can be helpful in that in may support an appeal on the basis that the penalty issued should have been mitigated.

3. Review the Language used in the Decision: Note any new information contained in the decision which was not in the proposed disciplinary action or the materials relied upon. Such information could be new and therefore potentially constitute a due process violation. It is not uncommon for final agency decisions on disciplinary actions to include information never previously disclosed in an appeal. This applies to both the deciding official’s findings of fact on the charges and his/her consideration of the Douglas (mitigation) factors.

4. Review the Appeal Rights Given: Often, depending on the federal agency involved, a number of appeals rights may be given to an employee in the final agency decision. However, it is important to have an attorney review these potential avenues in that sometimes employee relations for an agency may not have full knowledge of an employee’s eligibility for certain types of appeals, including MSPB cases. This can become a problem if an employee who could have elected one forum, elects the MSPB and later finds out that they were not eligible to file an appeal (despite the language used in the final agency decision).

In my estimation, about three quarters of final agency decisions do not include detailed factual findings by the deciding official. In about one quarter of those cases, a deciding official will provide detailed information in the decision. In representing federal employees, the general proposition is that the more information listed in the final decision the more likely it is to find potential errors in a negative decision which is then filed with the MSPB. Keep in mind that not all federal employees have the same appeal rights. Some Veterans Affairs employees have separate appeals systems.

Conclusion

In sum, when evaluating a case for appeal to the MSPB it is important to have legal counsel review the final agency decision and evaluate an individual’s appeals options. Our law firm represents federal employees before the MSPB and can be contacted at www.berrylegal.com or by telephone at (703) 668-0070.

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

In our law practice, we represent and advise federal employees in their Merit System Protection Board (MSPB) appeals.  These appeals often involve disciplinary actions (suspensions, removals, demotions), retirement matters, whistleblower appeals, USERRA cases and other types of federal employee matters.  During the litigation of these MSPB appeals, it is often very important to take the depositions of key witnesses in order to provide the best opportunity to succeed. A deposition, put simply, is a procedure where an attorney takes the statement of a witness, under oath, about the events/facts that he/she knows in relation to a case.  

Use of Depositions in MSPB Cases

The MSPB authorizes the taking of depositions of relevant witnesses in employee appeals as part of the discovery process.  The taking of depositions is often a critical step in preparing for the hearing in the employee’s appeal.  Depending on the nature of a federal employee’s appeal and other concerns, we often advise our federal employee clients to depose key witnesses in a case in order to establish a basis for their appeal before the administrative judge. 

To give one a better idea as to the usefulness of the deposition process, take the following example. Suppose that a federal employee has been wrongly accused of misconduct, such as insubordination. The specific charge in this hypothetical case involves a meeting where an employee allegedly used profanity and was unprofessional with his/her manager.  The employee is later terminated because of these allegations.  However, during the meeting in this hypothetical example two other employees were present who would be able to testify that the employee did not use profanity during the meeting. These employees were previously afraid to testify because of the manager but would do so truthfully if required to testify about these events under oath. 

In the above example, deposing both of these witnesses under oath could establish that the allegations were false, which would clearly be important to use in the appeal and could cause the agency to even reverse their earlier decision to terminate the employee.

Deposition Procedures at the MSPB

Typically, the first step in taking depositions is for an employee to file the initial MSPB appeal. Shortly after the filing of the appeal, the individual will receive a copy of an Acknowledgment Order from the assigned administrative judge which will set the rules for the processing of the MSPB appeal. For discovery purposes, a federal employee is typically allowed to take up to 10 depositions in a case.  Rarely do MSPB appeals require the taking of 10 depositions, but this can happen on occasion.  If a party needs to take more than 10 depositions, then the party can seek approval from the MSPB administrative judge to do so.  More typical of these types of appeals is for the employee to take between 4 and 6 depositions. 

For depositions of witnesses that are employed by the federal government, typically a notice of deposition is the only requirement necessary to secure the witnesses’ attendance.  In our practice, we work with the Agency’s counsel to coordinate the date and time for the witnesses deposition. If the Agency counsel is not cooperative, a motion to compel may be used to secure the witnesses’ attendance. If the witness is not employed by the federal government and not a voluntary witness, the employee may then need to secure a subpoena from the MSPB administrative judge to ensure that an outside witness attends their deposition. 

The Taking of the Deposition

A deposition can last anywhere from 30 minutes to several hours, depending on the case. Generally, the key is to be as efficient as possible in obtaining the information needed for the employee's MSPB appeal. Obviously, those witnesses with more information in a case (i.e. the complainant, the investigator or the Deciding Official) will require more time than witnesses that played minor roles in the underlying case.  Once the deposition is scheduled, it is important to make arrangements for a court reporter to record the deposition.  While depositions used to take place almost always in person, the use of Zoom or MS Teams videoconference is quickly becoming the forum for taking depositions.

When the deposition takes place, the attorney for the federal employee will usually ask background questions of the witness to start and then move into the substance of the information of critical importance to the case. The federal agency’s attorney will be present to represent employees of the agency and may object to questions asked.  With few exceptions, and despite an agency attorney's objections, witnesses will generally be required to answer important questions relevant to the appeal.  When the deposition is completed, the witness will be asked whether or not they wish to review the deposition for correctness when it is printed or to waive this requirement.

Eventually, the court reporter will then provide a copy of the printed deposition for late use in an MSPB hearing.  In our practice, depositions (in most cases) tend to be the most important form of discovery in MSPB appeals 

Conclusion

When a federal employee has filed an MSPB appeal it is important for them to obtain legal representation, especially when the taking of depositions will be needed. Our law firm stands ready to represent federal employees in MSPB appeals and discovery efforts. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070. 

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

Our law firm represents federal employees nationwide at the Merit Systems Protection Board (MPSB) in military discrimination appeals under the Uniformed Services Employment and Reemployment Rights Act (USERRA). Federal employee cases involving USERRA violations can be brought to the MSPB for adjudication. When faced with anti-military discrimination in the federal workplace it is important that federal employees obtain legal representation.  This article provides a summary of the issues associated with federal employees in bringing USERRA cases to the MSPB.  

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

The most important consideration for an appellant/federal employee, during the course of an appeal to the Merit Systems Protection Board (MSPB), is how to best use discovery procedures to assist them in proving their appeal. There is no other tool available to an appellant that is quite as important as fully utilizing the available discovery procedures in the context of an appeal to the MSPB. Discovery, to be effective, requires the assistance and advice of an attorney familiar with MSPB discovery procedures. 

Engaging in Discovery with a Federal Agency

Following the filing of an MSPB appeal, a federal employee/appellant will usually receive what is known as an “acknowledgement order” from the administrative judge assigned to the case which will set the typical deadlines for the different stages of an appellant’s appeal. 

Usually, the time to initiate (begin) formal discovery is no later than 30 days from the date of the acknowledgement order.  An appellant, however, should never wait this long to begin the discovery process.  If an appellant has not sent out the discovery requests to the agency attorney assigned to their case within the required 30-day time period, their right to discovery could be lost. 

What Can a Federal Employee/Appellant Obtain in Discovery

An appellant can obtain critical information for their MSPB appeal through the discovery process. The discovery process can include:

(1)  The taking of depositions of important witnesses;

Example 1: questioning key witnesses (supervisors, co-workers) employed by the agency in question, under oath to obtain facts helpful to an employee’s appeal.

Example 2: questioning the deciding or proposing official, under oath, to determine why they sustained or proposed a disciplinary action against the appellant/federal employee.

(2)  Sending requests to the agency to produce documents in their possession relevant to a federal employee’s defense;

Example 1: requesting copies of all emails between co-workers or supervisors to rebut allegations made against an employee which formed the basis for the agency’s suspension, removal, etc.

example 2: requesting copies of all similar disciplinary cases which resulted in lower penalties.

example 3: requesting copies of all policies (or certain policies) which the agency relied or did not rely upon in making the decision to suspend or remove an individual from employment.

(3)  Sending requests for interrogatories (the submission of written questions to a federal agency seeking answers in writing about issues in the case); and

Example 1: sending the agency a series of written questions asking them to specify why they removed or suspended an employee and requiring a written verified response.

Example 2: sending the agency a request asking them why they did not mitigate the penalty issued in the case before them to something other than removal.

(4)  Requests for admission (asking that the agency either agree or disagree with specific statements of fact related to an employee’s appeal).

Example 1: asking the agency to agree or disagree with the fact that an employee had 20 years of outstanding or successful performance ratings prior to the suspension or removal.

Example 2: asking the agency to agree or disagree wiht the fact that other employees within the agency have engaged in the same type of alleged misconduct and not been penalized the same as the appellant.  

In our federal employment practice at Berry & Berry, PLLC, we find that the taking of depositions tends to be the most important part of the discovery process at the MSPB and the one type of discovery which is most likely to result in uncovering previously unknown but important information.  When an individual witness is placed under oath, and asked questions about the factual circumstances in a case by the appellant’s attorney, the real story behind a suspension or removal (or other type of appeal at the MSPB) can often be uncovered and can be helpful in defending the employee.

When the Agency Will Not Respond to Discovery Requests

It is often the case that appellants, especially if they are not represented by counsel, can have a difficult time not only in drafting the necessary discovery requests in their case, but also may have real difficulties in obtaining a meaningful response from the agency’s attorney.  Keep in mind that the agency attorney has no interest in providing information to federal employees, or in being helpful to the employee in the process and often times will not respond at all.

The rules generally require that an agency respond to an employee's discovery request within 20 days from service of the requests on the agency attorney.  However, problems often develop when an agency attorney refuses to provide the materials requested or objects to specific portions of what one has requested.  It is critical, when this occurs, that an appellant have counsel who can immediately communicate with opposing counsel to resolve these discovery problems (this usually must be completed within 10 days) or who can file what is known as a “Motion to Compel” with the MSPB to ensure that the information needed from the agency is provided if no resolution to the dispute can be found.

Helpfulness of Having Counsel for Appellant When the Agency Takes Discovery

One other major consideration in the discovery process at the MSPB involves the issue of how to deal with discovery from the agency attorney.  It is important to retain counsel when facing discovery requests from a federal agency, because they have the ability to also utilize the discovery process (and usually do). 

It is often the case that an agency attorney will want to take the employee's deposition or serve them with their own written discovery requests.   It is extremely important that an appellant have counsel present to defend them at any deposition taken by the agency attorney. 

In addition, if an appellant does not respond to an agency’s written requests within the meaning of the MSPB rules, the employee's appeal before the MPSB can be jeopardized.  Agency counsel tactics can include sending unrepresented employees lengthy or burdensome discovery requests designed so that an appellant does not respond or responds partially. When this happens, the agency will usually take the issue to the administrative judge and argue that the appellant has not complied with MSPB rules, leading to a potential negative impact on the employee's ability to continue the appeal. 

Contact Us

It is very important that a federal employee/appellant engaged in the MSPB appeals process seek legal advice and representation from an attorney experienced in MSPB matters as soon as possible in order to properly engage in the discovery process. Doing so can be very helpful to establish an employee's version of facts in an MSPB appeal and also likely provides a gateway to improved settlement negotiations later with a federal agency in the appeal. This law firm represents federal employees in these types of MSPB cases and can be contacted at (703) 668-0070 or www.berrylegal.com to arrange for an individual consultation regarding your MSPB case.

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

Our firm represents federal employees before the Merit Systems Protection Board (MSPB), in the appeals process. When an appeal is filed these days it is mostly done through the MSPB e-filing process.  Basically, the MSPB has moved over the last few years to an e-filing system for federal employee appeals.  Our experience in representing federal employees in e-filing issues has generally been positive. The MSPB e-filing process is explained in this section of the MSPB website.

What is E-Filing? 

E-filing at the MSPB is just another method of submitting and receiving documents in relation to a federal employee’s MSPB appeal. The types of documents that can be submitted and received through the MSPB e-filing system include initial appeals, motions, written responses to orders, briefs and petitions for review (appeals). Once a document is filed electronically it is automatically served on all other e-filers (i.e. typically the federal agency’s attorney and that judge). The e-filing process saves postage, time and typically registers as filed within the e-filing system fairly quickly. The e-filing system can also make the process less formal. One need not submit a formal pleading in certain cases and may choose instead to enter information in the electronic questionnaire. 

A Description of the E-Filing Process

Typically, the e-filing process begins with a federal employee or their attorney registering for an account with the MSPB e-filing system.  Following registration, the individual may then file their initial appeal electronically with the correct MSPB field office. Users can  save drafts of their appeal while it is a work in progress and then file it when it is completed. The administrative judge assigned to the case will then typically issue their Acknowledgment and other initial orders to the parties in the case to all e-filers with copies by mail to those not registered.  

Discovery requests and other correspondence between the parties are not typically filed in the e-filing system unless a party is having difficulty with the opposing side and must seek a motion to compel. Following a decision on a motion or on the appeal itself, the MSPB administrative judge will issue the decision which will be electronically served if the parties have elected electronic filing. It is much more efficient to receive these decisions right away rather than waiting for mail delays. Furthermore, if the decision on appeal is adverse then the parties may generally file an appeal through the e-filing process.  In general, e-filing makes the MSPB process much more user friendly in our experience.

Contact Us

In sum, registering for e-filing at the MSPB is generally recommended.  When a federal employee is involved in an MSPB appeal, it is important for them to have legal advice and/or representation. Our law firm represents federal employees before the MSPB and can be contacted at www.berrylegal.com or by telephone at (703) 668-0070.