By John V. Berry, Esq., www.berrylegal.com
When federal employees are removed, demoted, severely suspended, have Whistleblower issues, OPM retirement problems, face USERRA (military) discrimination, or have other civil service issues may have the ability to file an appeal with the Merit Systems Protection Board (MSPB). Essentially, the MSPB is an administrative court that functions much like a civil court for federal employee claims. When facing an appeal before the MSPB, current and former federal employees need attorneys experienced in MSPB appeals to represent them in these types of cases given that the process functions much like civil litigation in court.
MSPB Attorneys Should Have Experience at the MSPB
It is important for federal employees to interview and hire experienced attorneys that have previously practiced before the MSPB. Many general services lawyers will attempt to handle a federal employee's MSPB appeal but often find it difficult given that it is a very specialized area of law. Our law firm represents federal employees nationwide in MSPB appeals regardless of which MSPB office where the appeal is filed. There are a number of steps in a traditional MSPB appeal, and below is a summary of the general progression of an MSPB appeal. Keep in mind that each MSPB appeal is different and may have different deadlines, rules, or timing so it is important to speak with an experienced MSPB attorney through the appeals process.
A. Step 1 - The Filing of an MSPB Appeal
The first step in the MSPB appeals process is for a federal employee to file an MSPB appeal. For most types of cases that the MSPB hears (e.g., those involving removals or severe suspensions for federal employees), the deadline to file an appeal is typically 30 days from the effective date of the decision. It is critical to timely file an MSPB appeal or it will most likely be dismissed. Appeals are mostly filed electronically today through the MSPB e-Appeals website. Different deadlines may apply for some whistleblower, USERRA (military) discrimination, and other types of federal employee cases so having an attorney is very important to navigate an MSPB case.
B. Step 2 - Receiving the Judge's Acknowledgment Order
Usually, within 5-7 days of filing an MSPB Appeal, an administrative judge is assigned and issues an Acknowledgment Order setting the initial ground rules and timelines for all appeals cases. In some cases, the order may require a federal employee to prove that the MSPB has jurisdiction over their case or to require a federal employee to respond to other issues in the appeal. Of key importance are deadlines to conduct depositions and/or seek documents related to the case from a federal agency. Administrative judges also often order status conferences at the start of a case to see if there are major issues that need to be resolved early or if they are attempting to see if the parties are interested in settlement talks.
C. Step 3 - Settlement Discussions
It is also important for federal employees to consider settlement in MSPB cases. Federal agencies may wish to avoid litigation in an MSPB appeal and are often open to resolving a case. The attempt to settle an MSPB appeal can happen at any point in the MSPB appeals process. The settlement process at the MSPB can take many forms: (1) informal settlement discussions between the parties; (2) MSPB settlement judge involvement; or (3) the Mediation Appeals Program at the MSPB. It is very important to focus on settlement early in the process, if possible. Settlement discussions should be considered at all stages of the MSPB process.
D. Step 4 - The Agency Files a Response to the Appeal
Usually, 20 days after the issuance of the Acknowledgment Order, the federal agency involved in the MSPB appeal is required to provide its case file to the MSPB administrative judge and the federal employee. This file will include the documents related to the federal agency’s case and also their initial response to the Appellant’s appeal. The file is often helpful for use in the case. While many of the documents in the file will be known to a federal employee, we have often found additional documents or information that is helpful for use in a federal employee's MSPB appeal when this submission is filed.
E. Step 5 - Discovery (Seeking Documents and Taking Depositions of Key Witnesses)
Usually, 30 days after the Acknowledgment Order date is issued, the parties are required to submit initial discovery requests to each other if they choose to engage in discovery. The discovery stage is extremely important as it is the federal employee’s main opportunity to obtain documents, letters, emails, video, data or audio in the agency’s possession which can be used to help the federal employee during the hearing. We often seek supervisory emails related to a case or other relevant documentation that the federal employee would not have yet seen in the earlier stages of the case. One of the most important aspects of discovery is the ability to question federal supervisors or others, under oath, in depositions. Depositions by a federal employee’s attorney can lead to very important information which can be used in a federal employee’s appeal. For example, while federal supervisors may be okay signing an adverse statement during a general investigation, they may provide a slightly different story or additional information when placed under oath by an attorney.
F. Step 6 - Pre-Hearing Submissions
Prior to the MSPB hearing, the administrative judge will require that pre-hearing submissions be filed by both the federal employee and federal agency involved in the appeal. These generally include the parties' versions of the issues to be heard, any agreed-to stipulations, the documents sought to be used as exhibits in the case and potential witnesses requested for the case. These are fairly detailed submissions and are similar to pre-trial submissions in civil litigation.
G. Step 7 - MSPB Pre-Hearing Conference
Before the MSPB hearing, the administrative judge will review both parties' pre-hearing submissions, meet with counsel for both sides (usually by telephone) and rule on which witnesses to permit, which exhibits to allow and the issues to be presented at the hearing. A federal employee needs to be prepared to argue for the admission of their exhibits, witnesses, and for the issues that will be heard at the MSPB hearing. The judge will most likely rule on witnesses during the conference but may defer decisions on exhibits to the hearing, depending on the judge's personal style.
H. Step 8 - The MSPB Hearing
The MSPB appeal hearing typically takes about 1-2 days depending on the number of witnesses involved and the complexity of the issues. The hearing can be held in person or conducted by video conference. In some cases, the parties agree to written submissions instead of a hearing, but this is not recommended. During the hearing process, there will usually be opening statements by both sides. Opening statements will be followed by the examination and cross-examination of witnesses for both the federal employee and that agency. The order of presentation depends on the type of case involved. In disciplinary cases, the agency will go first as they have the burden of proof. In cases alleging USERRA (military discrimination) the federal employee's case proceeds first. During the hearing, a court reporter will also 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 will then be issued by the administrative judge.
I. Step 9 - Appeals from Adverse MSPB Decisions
If the MSPB administrative judge issues an adverse decision, either the federal employee or federal agency can file an appeal known as a Petition for Review (PFR) usually within 35 days after a decision is issued and will be reviewed by the MSPB’s Board on appeal. Other options for appeal with the U.S. Court of Appeals for the Federal Circuit are also available.
Conclusion
Keep in mind that each MSPB is different and there may be other steps in the process depending on the type of case involved. If a federal employee needs assistance with an MSPB appeal, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation. We represent federal employees nationwide in MSPB appeals. Please also visit and like us on Facebook.