The Agency's Burden of Proof at the MSPB
08/14/2017
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.
Contact Us
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.