MSPB Law Blog

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

During the course of a Merit Systems Protection Board (MSPB) appeal it is very important for federal employees to request documents, recordings, video and/or electronic data from their federal gency as part of their discovery efforts. Discovery is the legal process in which a federal employee can legally require a federal agency to turn over information which could be helpful to the federal employee in pursuing a successful MSPB appeal. The federal agency involved also has the opportunity to seek discovery from a federal employee for information relevant to such appeals.    

Types of Documents an Appellant can Seek

There are a number of type of items which can be sought from a federal agency in the course of an MSPB appeal through discovery.  These are generally referred to as “Production of Documents and Things” requests (Production Requests) under 5 C.F.R. § 1201.72 (c).  Production Requests can include requests for copies of relevant electronic mail messages, policies, memorandums, correspondence, audio or video recordings, and copies of investigative reports, when they are relevant to a federal employee’s MSPB appeal.  For instance, in disciplinary actions for federal employees we often request copies of email messages between supervisors or investigators connected with a disciplinary investigation.  Sometimes it may be possible to uncover bias which was the root cause of a disciplinary action (and not the misconduct alleged) or other issues which can be instrumental in defending a federal employee in the MSPB appeals process.

A Few Examples of Production Requests

The following are a few examples of how Production Requests can be used at the MSPB: 

Example 1: Federal employee is removed from federal employment for allegedly assaulting another federal employee in the agency lobby.  

Production Request: A Production Request could include a request for a copy of all videotape footage of the federal agency’s lobby area during the date of the incident, a copy of all statements taken of witnesses to the event (not just those provided at proposed removal stage) and any investigation summary or report prepared.   

Example 2: Federal employee is removed from federal employment based on alleged dishonesty during an investigative interview.   

Production Request: A Production Request could include a request for a copy of any video or audio recordings of the interview, any transcripts made, a copy of all of the questions asked by the investigators, and any summary, notes, emails or documents prepared by the investigator which references the interview.   

Example 3: Federal employee is removed from federal employment for alleged sexual harassment at work.  

Production Request: A Production Request could include a request for a copy of all witness statements taken by investigators as to the alleged sexual harassment, a copy of all recordings made of these interviews, and a copy of all emails generated or received by the complainant which reference the alleged sexual harassment.  

General Thoughts

In general, it is important for a federal employee before the MSPB to take advantage of the discovery process by utilizing  Production Requests.  The amount of information that one can uncover through this process can make all the difference in pursuing a successful appeal.  A federal employee should not be under the impression that they have received all of the information available just because their federal agency had previously provided them wiht documents at the proposal stage (e.g. during a proposed removal).  

A federal agency is only required, during the proposed action stage (prior to a final decision by the agency) to provide an employee with the materials they have relied upon in proposing the action.  This is not the same as providing a federal employee with all important information relevant to the case.  For instance, an agency might provide a federal employee with all of the witness statements that demonstrate misconduct in a proposed removal case, but not other witness statements that are helpful to the employee and disprove the conduct. This is one of the most important reasons that a federal employee should seek information through the discovery process at the MSPB.  

Conclusion

When facing the MSPB discovery process, it is important for a federal employee to have legal advice and representation during the process.  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 Facebook Page.