MSPB Law Blog

The MSPB Appeals Process for Federal Employees

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.

MSPB Lawyers for MSPB Appeals

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.  

USERRA MSPB Appeals for Federal Employees

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.  

Proposed Discipline Defense for Federal Employees

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

We defend and represent federal employees in proposed disciplinary actions. When a federal employee is facing a proposed disciplinary action before their agency it is important for them to speak with an attorney knowledgeable in federal employment law for legal advice and representation in the appeal. This summary discusses some brief thoughts for federal employees as they respond to proposed disciplinary actions.

Retaining a MSPB Lawyer for MSPB Appeals

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

We are often asked the question of whether or not it makes sense for a federal employee to hire an attorney for their Merit Systems Protection Board (MSPB) appeal. This article discusses the reasons why it is very important for federal employees to have an MPSB lawyer represent them in their MSPB appeal and to hire an attorney with experience in this area.

AWOL Charges at the MSPB

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

What is an AWOL charge?

Absence Without Leave (AWOL) cases at the Merit Systems Protection Board (MSPB) are known to involve a very specific form of misconduct. An AWOL charge essentially alleges that a federal employee was absent from work without pay and permission. The MSPB, for the most part, has found a connection or nexus between absent federal employees and a disruption of the federal workplace to justify discipline. However, at the same time, federal agencies commonly seem to make mistakes in this type of disciplinary action.  For the most part, they seem to forget the issue of potential disability or family medical matters that arise.  This type of situation is different than when a federal employee is on approved leave without pay (LWOP).  

An AWOL charge is one of the more common forms of charges for disciplinary actions for federal employees. The Office of Personnel Management (OPM) notes that it is one of the most common forms of disciplinary action in their article on the subject.   It is important to understand the nature of this type of charge when an employee is defending against this type of charge at the MSPB or during proposed discipline.  I have included some samples of AWOL charges to give a sense of how these types of charges can be presented.  

Sample AWOL Charges

The following are some examples of conduct unbecoming charges that might be lodged against a federal employee:

1. On April 4, 2018, you did not report for duty at your workstation and you provided no explanation for your absence;
2. On February 2, 2019, you reported for work, but then after reporting in, left your office and went off-site without permission;
3. On January 12-19, 2019 you were absent from work without permission and then were again absent from work on February 10-24, 2019;

Elements Needed to Prove AWOL Charge

An AWOL charge is proven by demonstrating that the employee committed the misconduct alleged. In order to prove a charge of AWOL charge at the MSPB an agency needs to be able to do so by a preponderance of the evidence or by 51% of the evidence provided. The federal agency will need to establish that the employee was absent, and that his or her absence was not authorized, or that his or her request for leave was properly denied. Wesley v. U.S. Postal Service, 94 M.S.P.R. 277 (2003).

Defenses to AWOL Charges

There are a number of different types of methods of defense for AWOL charges. Some of the more common ones include:

1. FMLA Defense: The federal agency asserting AWOL charges against a federal employee holds the burden of proving that it properly denied FMLA leave in taking an AWOL based disciplinary action against an employee who is eligible for leave under the FMLA. Ellshoff v. DOI, 76 MSPR 54 (1997);
2. Disability Discrimination: A federal employee may allege that the Agency issued an AWOL charge on the basis of disability discrimination.  If a federal employee who has been removed for AWOL charges raises an affirmative defense of disability discrimination, he or she must show that he or she is a person with a disability entitled to the protection of disability discrimination laws. Davis v. Department of Veterans Affairs, 106 MSPR 654 (2007);
3. Military Discrimination: Under military anti-discrimination laws and case law, an employee who is ordered to active military duty  should not have been charged AWOL. Jeffrey v. Department of the Navy, 25 MSPR 697 (1985).

The number of potential defenses to an AWOL charge are varied and require the assistance of a attorney knowledgeable in federal employment law to determine the best strategy. It is often the case that a federal agency tends to forget the fact that an employee or an employee's family are undergoing medical issues in issuing AWOL charges.  It is far better for the federal agency involved to work with the federal employee during this difficult period than attempting to impose an adverse action.  

Conclusion

In sum, when facing an AWOL disciplinary charge it is very important to retain legal counsel familiar with the MSPB. Our law firm represents federal employees before the MSPB and can be contacted at www.berrylegal.com or by telephone at (703) 668-0070. Our Facebook page is located here.

The Agency's Burden of Proof at the MSPB

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

We are often asked how the Merit Systems Protection Board (MSPB) evaluates MSPB appeals brought by federal employees.  This article discusses the way in which administrative judges at the MSPB review and consider charges sustained against federal employees by their agencies.

Burden of Proof at the MSPB

An appeal brought be a federal employee (e.g. an appeal of a removal action by a federal agency), will be evaluated by an administrative judge based on the evidentiary standard that is appropriate.  For cases involving misconduct charges, the standard is "preponderance of the evidence" and for performance cases, it is a lower standard, "substantial evidence." In an MSPB appeal, a federal agency, much like in a criminal case, has the burden of proof to prove the charges alleged. 5 U.S.C. § 7701(c). As a result, the federal agency must prove the charge and establish a connection, or "nexus" between the charge and the efficiency of the service.  The "efficiency of the service" is a term which simply means for the good of government operations.

The preponderance of the evidence standard has been defined as the degree of relevant evidence that a reasonable person, considering the record as a whole, would accept as sufficient to find that a contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q). In performance cases, the substantial evidence standard has been defined differently.  Substantial evidence has been defined as the degree of relevant evidence that a reasonable person, considering the record as a whole, might accept as adequate to support a conclusion, even though other reasonable persons might disagree. 5 C.F.R. § 1201.4(p). Under this standard, the agency is not required to present evidence that is more persuasive than the evidence submitted by the appellant. Shuman v. Dep't of Treas., 23 M.S.P.R. 620, 624 (1984).

Examples

Example: A federal employee is accused of conduct unbecoming because of an allegation that they engaged in a fight at work with another employee.  The employee is removed for the alleged fight at work and appeals to the MSPB.  The federal agency will have to prove, by a preponderance of the evidence (51% of the evidence at the hearing) that the employee actually engaged in a fight in the workplace.

Example 2: a federal employees is accused of poor performance and placed on a Performance Improvement Plan (PIP).  The agency then removes the federal employee for failing the PIP.  The federal employee appeals.  In this type of case, the agency must show that the evidence shows that the federal employee could be seen as having engaged in poor performance.  This standard of proof is easier for federal agencies to show.  

Conclusion

In sum, when facing an MSPB appeal to retain legal counsel familiar with the MSPB. Our law firm represents federal employees before the MSPB and can be contacted at www.berrylegal.com or by telephone at (703) 668-0070. Our Facebook page is located here.

 

Conduct Unbecoming Charges at the MSPB

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

What is a Conduct Unbecoming Charge?

Conduct Unbecoming cases at the Merit Systems Protection Board (MSPB) are known to involve the most generalized form of misconduct. In other words, the charge can cover a number of different types of offenses. It is the most common charge used when no others specifically apply.  It is important to understand the nature of this type of charge when an employee is defending against this type of charge at the MSPB or during proposed discipline.  I have included some samples of conduct unbecoming charges to give a sense of how broad these types of charges can be.  

Sample Charges of Conduct Unbecoming

The following are some examples of conduct unbecoming charges that might be lodged against a federal employee:

1. On November 14, 2017, you engaged in conduct unbecoming when you began to argue with co-workers about an assignment that was overdue. You then approached your supervisor, Jim Jones, and told him “I am done here. You can take this assignment and shove it.” Your disrespectful attitude and profanity in the workplace is unacceptable and you.

2. On July 14, 2018, you engaged in conduct unbecoming when you informed others in the office that you were the recipient of the Purple Heart award for military service, when in fact you never served in the military. Your misconduct reflected poorly on the agency.

3. On October 5, 2017 and October 8, 2017, you engaged in conduct unbecoming when you claimed that you worked your full schedule during those two days. After an investigation, it was discovered that you did not work the two days in question, had not been in the office and falsely claimed time for hours not actually worked.

4. On November 5, 2017, you engaged in conduct unbecoming when you shoplifted a television from a local electronics store. You were subsequently caught for the theft, charged and convicted of criminal theft. 

Elements Needed to Prove Conduct Unbecoming

A conduct unbecoming charge is proven by demonstrating that the employee committed the general misconduct alleged. In order to prove a charge of conduct unbecoming at the MSPB an agency needs to be able to do so by a preponderance of the evidence. The agency will need to establish that the employee (1)  committed the misconduct as alleged and (2) that the conduct was improper or that it detracted from the federal employee’s character or reputation. Crouse v. Dept’ of Treas., 75 MSPR 57 (1997).

Defenses to Conduct Unbecoming Charges

There are a number of different types of methods of defense for general conduct unbecoming charges. The first is to challenge the actual facts alleged. If the facts can be disputed, the charge itself can potentially be defeated. Another potential avenue for challenging a conduct unbecoming charge is to argue that the charge was too vague and thus did not provide a legitimate opportunity to respond. Mason v. Dep't of Navy, 70 MSPR 584 (1996). Other defenses may involve the fact that other employees have engaged in similar conduct but not been charged with discipline. Other potential arguments, including issues where the same conduct has been charged multiple times may be challenged through the merger doctrine (the concept that the same conduct cannot be charged multiple times in the same manner). The number of potential defenses to a conduct unbecoming charge are varied and require the assistance of a attorney knowledgeable in federal employment law to determine the best strategy.  

Conclusion

In sum, when facing a conduct unbecoming charge it is very important to retain legal counsel familiar with the MSPB. Our law firm represents federal employees before the MSPB and can be contacted at www.berrylegal.com or by telephone at (703) 668-0070. Our Facebook page is located here.

Summary of the MSPB Appeals Process

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

Federal employees meet with us to discuss their options for Merit Systems Protection Board (MSPB) appeals. While in other articles we go into more depth about various individual aspects of the MSPB appeals process, we thought that it would be helpful to provide a point by point synopsis of the typical MSPB appeals process in chronological order. There are sometimes some differences, but for the most part the major parts of the appeals process follow below:

1. Filing of the MSPB Appeal

The first step in the MSPB appeals process is for a federal employee to file a MSPB appeal. For most actions that the MSPB hears (those involving serious discipline for federal employees), the deadline is typically 30 days from the effective date of the adverse action to file the appeal. The MSPB appeals process is transitioning to electronic filing so it is much more efficient to file the appeal electronically. It is very important to timely file the appeal and to even file it early given that an untimely appeal will likely be dismissed.

2. Receipt of the Acknowledgment Order

Usually, within 1-2 weeks of filing the MSPB Appeal, a judge will be assigned and issue an Acknowledgment Order which basically sets the ground rules and timelines in each case. This order is about 15 pages and provides a lot of information about the processing of the individual MSPB appeal and should be reviewed carefully.

3. Filing of Agency File and Narrative Response

Typically, 20 days after the issuance of the Acknowledgment Order, the MSPB Administrative Judge will require the federal agency involved in the appeal to provide their file on the case to the MSPB and the Appellant. This file will include the documents relevant to the federal agency’s case and also their initial response to the Appellant’s appeal. It is not uncommon for a federal agency’s file to be 50 to 300 pages long, depending on the number of documents associated with the case.

4. Status Conferences

Most administrative judges will schedule a status conference following the receipt of the Agency File. The general substance of these status conferences involve an initial discussion of the issues involved in the appeal and also potential settlement negotiations. A status conference may lead to mediation or other alternative dispute resolution efforts.

5. The Filing of Discovery

Generally, 30 days after the issuance of the Acknowledgment Order, the parties are required to submit initial discovery requests if they choose to engage in discovery. The discovery stage is very important as it is the Appellant’s chance to obtain documents, correspondence, emails, video, audio which the Agency may possess and which could be used during the hearing. One of the most important parts of the discovery process includes the ability to question (under oath) relevant witnesses in an appeal through the deposition process.

6. Case Suspensions

At any point in the process, usually during discovery or when settlement talks are ongoing, a case suspension might be proposed by a party. A case suspension basically freezes the litigation before the MSPB on the case to complete certain tasks, such as complete discovery or to engage in settlement talks or mediation. A case suspension can last up to 30 days, and then, if needed, a second one case be requested. Case suspensions are at the discretion of the Administrative Judge.   

7. Pre-Hearing Submissions

Prior to the MSPB hearing, the Administrative Judge will order pre-hearing submissions from each party.  These generally include the parties' versions of the issues to be heard, the documents to be used as exhibits in the case and proposed witnesses for the case.

8. Pre-Hearing Conference

Prior to the MSPB hearing, the Administrative Judge will review both parties pre-hearing submissions and rule on witnesses, exhibits and other issues likely to come up at the hearing.  A party will want to be prepared to argue for their position during the pre-hearing conference.  Typically, the majority of the pre-hearing conference will be used to argue that certain witnesses be required to attend and to provide a basis to the judge for their relevance.  

9. The Hearing

The MSPB Hearing typically takes about 1-2 days depending on the number of witnesses involved. During the hearing process, there will usually be opening statements and the examination and cross-examination of witnesses for both sides. A court reporter will transcribe the testimony given. There may be closing arguments and/or written closing submissions prior to the issuance of the Administrative Judge’s decision in the case. The written decision is typically issued 2-6 weeks after the hearing is held.

10. The Appeal

Should the MSPB Administrative Judge issue an adverse decision, either party can file an appeal known as a Petition for Review (PFR) usually within 35 days of the date of the initial decision.

Conclusion

In sum, when litigating an MSPB appeal, it is very important to retain legal counsel familiar with the MSPB to assist you. Our law firm represents federal employees before the MSPB and can be contacted at www.berrylegal.com or by telephone at (703) 668-0070. Please visit our Facebook page.

MSPB Review of Arbitration Decisions

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

In certain circumstances, the Merit Systems Protection Board (MSPB) can hear an appellant’s (federal employee) request for a review of a labor arbitrator’s decision. Most arbitration review requests go to the Federal Labor Relations Authority (FLRA) at the request of a union. However, some grievants seek review by the MSPB. In some cases, MSPB review is possible where jurisdiction is found.

MSPB Must Have Jurisdiction for Review

In general, the MSPB has review over a grievant’s request to review a decision under 5 U.S.C. § 7121 (d) when the MSPB has jurisdiction over the “subject matter” of the grievance, the appellant has alleged a claim of discrimination under 5 U.S.C. § 2302 (b)(1), and the arbitrator has issued a final award or decision. When it chooses to review a decision, the MSPB often gives greater deference to decisions issued by arbitrators than they do to decisions issued by their own administrative judges.

In general, in order for the MSPB to have jurisdiction to review an arbitration case, the grievant must have alleged discrimination in combination with the other claims and taken the case to arbitration, where appropriate. Where a union elected not to move forward to arbitration, the MSPB found that a grievance's decision was not appealable as a final decision. Knuckles v. Dep't of the Army, 122 MSPR 519 (2015).

When will the MSPB Reverse an Arbitrator’s Decision

The MSPB will reverse or modify a labor arbitrator’s decision only where the arbitrator has made a mistake of law in interpreting civil service laws, rules or regulations. Hidalgo v. Dep’t of Justice, 93 MSPR 645 (2003). An arbitrator's findings of fact are entitled to deference unless the arbitrator erred in his legal analysis. Cambridge v. Dep’t of Justice, 111 MSPR 152 (2009), If an arbitrator has not made specific findings on a particular issue, the MSPB will not defer to the arbitrator's decision to deny an appellant's review request related to that issue. Hollingsworth v. Dep’t of Commerce, 115 MSPR 636 (2011).

A Few Examples Where Reversal Took Place

This is a sparse area of law and there have not been a significant number of cases of arbitration review.  As as result, there are not a number of cases to cite.  However, depending on the outcome of a labor arbitration and what has been alleged, it may be a potential avenue of appeal, especially where a union is not willing to take the case to the FLRA.  There are many potential examples of potential types of cases, but here are a few reversal case examples:

1. The MSPB reversed an arbitrator’s decision that an appellant was removed for cause. The MSPB determined that the arbitrator failed to address the appellant’s claim of affirmative defense that she had been subject to retaliation by the agency. Marshall v. Dep’t of Veteran’s Affairs, 111 MSPB 5 (2008).

2. The MSPB reversed a labor arbitrator’s ruling which found that an appellant's grievances were not arbitrable and could not be heard. The arbitrator found that the union failed to pursue the grievances as required by their collective bargaining agreement because it failed to timely schedule the appellant's requested oral or written presentations to management officials in support of her grievances. The MSPB determined that the arbitrator improperly construed the CBA, as the MSPB could not find language within the collective bargaining agreement requiring that the appellant make a presentation at the required step of the grievance procedure. Morales v. SSA, 107 MSPR 360 (2007).

3. The MSPB reversed a labor arbitrator's decision finding that an individual that had previously filed an EEO complaint could not appeal her removal matter through arbitration, finding that the arbitrator was wrong as a matter of law. Galloway v. SSA, 2009 MSPB 46 (2009).

4. The MSPB reversed a labor arbitrator's decision regarding a removal based on falsification, finding that the charge had not been proven and that evidence of EEO retaliation was present.  Fitzgerald v. DHS, 2008 MSPB 17 (2008).

Conclusion

In sum, when litigating an appeal of an arbitrator’s decision, it is very important to retain legal counsel familiar with the MSPB to determine the best possible 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. Our Facebook page is located at Berry & Berry PLLC Facebook Page.