MSPB Law Blog

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. Many hearings are moving towards video and away from in-person hearings.

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.