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August 2019

Discovery for Federal Employees at the Merit Systems Protection Board

By John V. Berry, Esq.,

The most important consideration for an appellant/federal employee, during the course of an appeal to the Merit Systems Protection Board (MSPB), is how to best use discovery procedures to assist them in proving their appeal. There is no other tool available to an appellant that is quite as important as fully utilizing the available discovery procedures in the context of an appeal to the MSPB. Discovery, to be effective, requires the assistance and advice of an attorney familiar with MSPB discovery procedures. 

Engaging in Discovery with a Federal Agency

Following the filing of an MSPB appeal, a federal employee/appellant will usually receive what is known as an “acknowledgement order” from the administrative judge assigned to the case which will set the typical deadlines for the different stages of an appellant’s appeal. 

Usually, the time to initiate (begin) formal discovery is no later than 30 days from the date of the acknowledgement order.  An appellant, however, should never wait this long to begin the discovery process.  If an appellant has not sent out the discovery requests to the agency attorney assigned to their case within the required 30-day time period, their right to discovery could be lost. 

What Can a Federal Employee/Appellant Obtain in Discovery

An appellant can obtain critical information for their MSPB appeal through the discovery process. The discovery process can include:

(1)  The taking of depositions of important witnesses;

Example 1: questioning key witnesses (supervisors, co-workers) employed by the agency in question, under oath to obtain facts helpful to an employee’s appeal.

Example 2: questioning the deciding or proposing official, under oath, to determine why they sustained or proposed a disciplinary action against the appellant/federal employee.

(2)  Sending requests to the agency to produce documents in their possession relevant to a federal employee’s defense;

Example 1: requesting copies of all emails between co-workers or supervisors to rebut allegations made against an employee which formed the basis for the agency’s suspension, removal, etc.

example 2: requesting copies of all similar disciplinary cases which resulted in lower penalties.

example 3: requesting copies of all policies (or certain policies) which the agency relied or did not rely upon in making the decision to suspend or remove an individual from employment.

(3)  Sending requests for interrogatories (the submission of written questions to a federal agency seeking answers in writing about issues in the case); and

Example 1: sending the agency a series of written questions asking them to specify why they removed or suspended an employee and requiring a written verified response.

Example 2: sending the agency a request asking them why they did not mitigate the penalty issued in the case before them to something other than removal.

(4)  Requests for admission (asking that the agency either agree or disagree with specific statements of fact related to an employee’s appeal).

Example 1: asking the agency to agree or disagree with the fact that an employee had 20 years of outstanding or successful performance ratings prior to the suspension or removal.

Example 2: asking the agency to agree or disagree wiht the fact that other employees within the agency have engaged in the same type of alleged misconduct and not been penalized the same as the appellant.  

In our federal employment practice at Berry & Berry, PLLC, we find that the taking of depositions tends to be the most important part of the discovery process at the MSPB and the one type of discovery which is most likely to result in uncovering previously unknown but important information.  When an individual witness is placed under oath, and asked questions about the factual circumstances in a case by the appellant’s attorney, the real story behind a suspension or removal (or other type of appeal at the MSPB) can often be uncovered and can be helpful in defending the employee.

When the Agency Will Not Respond to Discovery Requests

It is often the case that appellants, especially if they are not represented by counsel, can have a difficult time not only in drafting the necessary discovery requests in their case, but also may have real difficulties in obtaining a meaningful response from the agency’s attorney.  Keep in mind that the agency attorney has no interest in providing information to federal employees, or in being helpful to the employee in the process and often times will not respond at all.

The rules generally require that an agency respond to an employee's discovery request within 20 days from service of the requests on the agency attorney.  However, problems often develop when an agency attorney refuses to provide the materials requested or objects to specific portions of what one has requested.  It is critical, when this occurs, that an appellant have counsel who can immediately communicate with opposing counsel to resolve these discovery problems (this usually must be completed within 10 days) or who can file what is known as a “Motion to Compel” with the MSPB to ensure that the information needed from the agency is provided if no resolution to the dispute can be found.

Helpfulness of Having Counsel for Appellant When the Agency Takes Discovery

One other major consideration in the discovery process at the MSPB involves the issue of how to deal with discovery from the agency attorney.  It is important to retain counsel when facing discovery requests from a federal agency, because they have the ability to also utilize the discovery process (and usually do). 

It is often the case that an agency attorney will want to take the employee's deposition or serve them with their own written discovery requests.   It is extremely important that an appellant have counsel present to defend them at any deposition taken by the agency attorney. 

In addition, if an appellant does not respond to an agency’s written requests within the meaning of the MSPB rules, the employee's appeal before the MPSB can be jeopardized.  Agency counsel tactics can include sending unrepresented employees lengthy or burdensome discovery requests designed so that an appellant does not respond or responds partially. When this happens, the agency will usually take the issue to the administrative judge and argue that the appellant has not complied with MSPB rules, leading to a potential negative impact on the employee's ability to continue the appeal. 

Contact Us

It is very important that a federal employee/appellant engaged in the MSPB appeals process seek legal advice and representation from an attorney experienced in MSPB matters as soon as possible in order to properly engage in the discovery process. Doing so can be very helpful to establish an employee's version of facts in an MSPB appeal and also likely provides a gateway to improved settlement negotiations later with a federal agency in the appeal. This law firm represents federal employees in these types of MSPB cases and can be contacted at (703) 668-0070 or to arrange for an individual consultation regarding your MSPB case.