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.
There are a number of reasons why a federal employee should hire an MSPB attorney for their MSPB appeal. The reasons why this is so important are described below.
The MSPB is an Administrative Court
The MSPB functions as administrative court. It is very important for a federal employee to understand this prior to filing an appeal with the MSPB and while going through the process. The filing of an appeal, especially by using the online form submission process can be relatively straightforward. However, the response that occurs as a result of filing of an MSPB appeal can often be complex and involve numerous legal issues and deadlines. These issues and the problems that are inherent in a federal employee representing themselves soon become evident when they are about 30 days into the case. It is usually at that point that deadlines in a case and other obligations start to come into play. It is often the case that a federal employee may feel overwhelmed with Agency attorneys pressuring them for submissions and/or other documents.
In many cases, a federal employee comes to us, after the appeal has started, because they are having a difficult time responding to what can sometimes be aggressive federal agency attorneys. While the MSPB is an administrative court, we find it to be essentially the same as regular civil litigation in court. The MSPB has short deadlines, discovery requests, motions, depositions and the hearing, which is much like a bench trial. In short, the MSPB is equivalent to a regular court, but with the timelines and deadlines consolidated to make the process much quicker.
The Agency will be Represented by an Attorney
In about 19 out of 20 MSPB cases (some federal agencies have used non-attorney consultants before), the federal agency will be represented by an in-house agency attorney. When this occurs, not having counsel to represent the federal employee can be a real problem. Agency counsel will attempt to run the appeal to their favor and dictate how the case proceeds with the federal employee. When a deadline is missed, they may call a federal employee and demand documents or that they sit for a deposition immediately. They will also often file motions when a federal employee is unaware of rules and/or orders in such appeals in an attempt to defeat an employee’s appeal. The process can be intimidating so it is usually very important for an individual federal employee or former federal employee to be represented by a MSPB attorney.
Discovery Procedures
One of the biggest challenges that pro se (self-represented) federal employees face is in discovery, both in responding to an Agency attorney's requests and in also requesting their own documents and taking depositions of other individuals in a case. Typically, most federal employees will not be aware of the significant benefits of engaging in discovery with a federal agency. Furthermore, a federal employee can find themselves in a confusing situation when they are told that they have to sit for a deposition or respond to written discovery and don't know the proper procedures for doing so. Discovery is one of the best methods available to attempt to obtain facts in a federal employee's favor which could lead to prevailing in the case or, in the alternative, putting one in a good position to settle on good terms in the case. This is perhaps one of the most important reasons to retain an MSPB attorney in a federal employee's case.
The MSPB Pre-Hearing Process
The pre-hearing process for an MSPB appeal is often like pre-trial in court. The MSPB appellant must prepare a summary of the arguments to be heard during the hearing, along with the exhibits that will be introduced and a listing of which witnesses will be called and an explanation of their relevance to the case. Arguments over subpoenas may be made. The Agency counsel and federal employee's counsel or federal employee will often object or debate the relevance of witnesses, legal arguments and exhibits. For these reasons, it is very important for the federal employee to have legal representation. The administrative judge will make rulings based on the presentations at the pre-hearing conference.
The MSPB Hearing
If the MSPB appeal moves to the hearing process, having an MSPB lawyer is critical for a federal employee. The MSPB hearing process functions much like a civil court proceeding. An MSPB case typically begins with opening statements by both parties. Following opening arguments, in a disciplinary case, the next step is for the Agency to present its witnesses and exhibits given that they have the burden of proof. Following each witness examination, the federal employee or their attorney will have the opportunity to cross-examine each witness. Following the Agency's case, the federal employee and their attorney will have the chance to present their own witnesses and exhibits. During both the Agency and federal employee's case, they will have the opportunity to object to evidence and witness testimony. Follow such objections, the administrative judge will rule on any outstanding issues. Following the presentation of exhibits and witnesses, the parties will either have the opportunity to provide an oral closing argument, or in some cases a written closing submission. Following the hearing, a decision will be issued and a federal employee, win or lose, will need legal advice on filing an appeal or defending against an appeal to the MSPB Board.
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.