MSPB Law Blog

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

In our law practice, we represent and advise federal employees in their Merit System Protection Board (MSPB) appeals.  These appeals often involve disciplinary actions (suspensions, removals, demotions), retirement matters, whistleblower appeals, USERRA cases and other types of federal employee matters.  During the litigation of these MSPB appeals, it is often very important to take the depositions of key witnesses in order to provide the best opportunity to succeed. A deposition, put simply, is a procedure where an attorney takes the statement of a witness, under oath, about the events/facts that he/she knows in relation to a case.  

Use of Depositions in MSPB Cases

The MSPB authorizes the taking of depositions of relevant witnesses in employee appeals as part of the discovery process.  The taking of depositions is often a critical step in preparing for the hearing in the employee’s appeal.  Depending on the nature of a federal employee’s appeal and other concerns, we often advise our federal employee clients to depose key witnesses in a case in order to establish a basis for their appeal before the administrative judge. 

To give one a better idea as to the usefulness of the deposition process, take the following example. Suppose that a federal employee has been wrongly accused of misconduct, such as insubordination. The specific charge in this hypothetical case involves a meeting where an employee allegedly used profanity and was unprofessional with his/her manager.  The employee is later terminated because of these allegations.  However, during the meeting in this hypothetical example two other employees were present who would be able to testify that the employee did not use profanity during the meeting. These employees were previously afraid to testify because of the manager but would do so truthfully if required to testify about these events under oath. 

In the above example, deposing both of these witnesses under oath could establish that the allegations were false, which would clearly be important to use in the appeal and could cause the agency to even reverse their earlier decision to terminate the employee.

Deposition Procedures at the MSPB

Typically, the first step in taking depositions is for an employee to file the initial MSPB appeal. Shortly after the filing of the appeal, the individual will receive a copy of an Acknowledgment Order from the assigned administrative judge which will set the rules for the processing of the MSPB appeal. For discovery purposes, a federal employee is typically allowed to take up to 10 depositions in a case.  Rarely do MSPB appeals require the taking of 10 depositions, but this can happen on occasion.  If a party needs to take more than 10 depositions, then the party can seek approval from the MSPB administrative judge to do so.  More typical of these types of appeals is for the employee to take between 4 and 6 depositions. 

For depositions of witnesses that are employed by the federal government, typically a notice of deposition is the only requirement necessary to secure the witnesses’ attendance.  In our practice, we work with the Agency’s counsel to coordinate the date and time for the witnesses deposition. If the Agency counsel is not cooperative, a motion to compel may be used to secure the witnesses’ attendance. If the witness is not employed by the federal government and not a voluntary witness, the employee may then need to secure a subpoena from the MSPB administrative judge to ensure that an outside witness attends their deposition. 

The Taking of the Deposition

A deposition can last anywhere from 30 minutes to several hours, depending on the case. Generally, the key is to be as efficient as possible in obtaining the information needed for the employee's MSPB appeal. Obviously, those witnesses with more information in a case (i.e. the complainant, the investigator or the Deciding Official) will require more time than witnesses that played minor roles in the underlying case.  Once the deposition is scheduled, it is important to make arrangements for a court reporter to record the deposition.  While depositions used to take place almost always in person, the use of Zoom or MS Teams videoconference is quickly becoming the forum for taking depositions.

When the deposition takes place, the attorney for the federal employee will usually ask background questions of the witness to start and then move into the substance of the information of critical importance to the case. The federal agency’s attorney will be present to represent employees of the agency and may object to questions asked.  With few exceptions, and despite an agency attorney's objections, witnesses will generally be required to answer important questions relevant to the appeal.  When the deposition is completed, the witness will be asked whether or not they wish to review the deposition for correctness when it is printed or to waive this requirement.

Eventually, the court reporter will then provide a copy of the printed deposition for late use in an MSPB hearing.  In our practice, depositions (in most cases) tend to be the most important form of discovery in MSPB appeals 

Conclusion

When a federal employee has filed an MSPB appeal it is important for them to obtain legal representation, especially when the taking of depositions will be needed. Our law firm stands ready to represent federal employees in MSPB appeals and discovery efforts. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070.