MSPB Law Blog

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

In our legal practice we defend federal employees in disciplinary and adverse actions.  From our experience in defending federal employees in disciplinary and adverse actions, one of the most critical issues involves the use of the Douglas factors in attempting to mitigate (reduce) a proposed disciplinary penalty in a case.  The Douglas factors are also referred to as mitigating factors.  They are used to argue that disciplinary charges for federal employees, even if true, should still result in a lower penalty than the one proposed. 

The Douglas factors are the result of the case of Douglas v. VA, 5 MSPR 280, 5 MSPB 313 (1981). When we approach an appeal before the Merit Systems Protection Board (MSPB) for a client or in a case before a deciding official at the proposal stage it is important to set forth any and all mitigating factors that might be applicable to a federal employee’s case. Douglas factors can also be used as aggravating factors to justify the imposition of higher penalties. Often times, these factors can be confusing, so I have explained each of the 12 factors below:

THE 12 DOUGLAS FACTORS

(1) The nature and seriousness of the offense, and its relation to the employee’s duties, position, and responsibilities, including whether the offense was intentional or technical or inadvertent, or was committed maliciously or for gain, or was frequently repeated.

Explanation:  This Douglas factor generally refers to how serious an allegation is and how it relates to a federal employee’s particular position.  For instance, an allegation of theft would be treated more seriously, under this Douglas factor, for an individual that encumbers a law enforcement position.  This factor also looks at whether an allegation is part of a pattern of similar conduct and whether or not the allegations relate to intentional actions as opposed to something that occurred as a result of a genuine mistake. Generally, this factor tends to be used more by a federal agency for
purposes of aggravating (or supporting) an enhanced disciplinary penalty. 

(2) The employee’s job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position

Explanation:  This factor is not one of the more frequently used factors. It is more often used to attempt to raise a disciplinary penalty.  For example, a federal agency may attempt to consider the particular position that one holds, i.e. high level supervisor (or type of position - law enforcement) as an aggravating factor.

(3) The employee’s past disciplinary record

Explanation:  This factor is generally used for purposes of mitigation.  Typically, this Douglas factor is argued for the purposes of lessening a penalty.  For instance, if a federal employee has worked for the federal agency involved for 20 years, and has never received prior discipline during that time this can be used to attempt to reduce the proposed discipline.

(4) The employee’s past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability

Explanation:  This factor is one of the most often used arguments in support of mitigation by a federal employee.  Typically, this factor is used by an employee to support a reduction in penalty based on their good record of service to their agency.  For example, in the disciplinary cases that we handle we might attempt to mitigate a disciplinary penalty by showing that an employee's years of service (especially if a long term employee), performance ratings, commendations / awards and letters from supervisors / co-workers support a reduction in a disciplinary penalty.

(5) The effect of the offense upon the employee’s ability to perform at a satisfactory level and its effect upon supervisors’ confidence in the employee’s work ability to perform assigned duties

Explanation:  Federal agencies in serious disciplinary / adverse actions tend to use a blanket statement in the proposal notice claiming that they have lost confidence in a particular employee, without supporting the contention, to support the aggravation of a penalty.  I find that this Douglas factor can be very helpful for purposes of mitigation where an employee has continued to work successfully in their normal position, over an extended period of time, after the underlying incident has occurred.  The argument for mitigation here is that the federal employee continued to work in a critical position while the investigation was ongoing which supports the fact that the agency has not lost confidence (or trust) in the individual. 

(6) Consistency of the penalty with those imposed upon other employees for the same or similar offenses

Explanation:  This Douglas factor tends to be argued by federal employees for mitigation and by proposing officials for aggravation of disciplinary penalties.  Often times, we find that we can point to inconsistencies in the penalties issued to other
federal employees versus a client.  For instance, in this type of situation we would argue that you cannot issue a light penalty for one person (ex. 10-day suspension) and propose removal for another based on similar allegations. 

(7) Consistency of the penalty with any applicable agency table of penalties

Explanation:  A federal agency may attempt to rate a proposed penalty at a certain level as a result of their interpretation of an agency’s table of penalties.  The table of penalties is merely a chart with lists of individual offenses and ranges of penalties for such offenses.  That said, we find that it is important to actually make sure that a proposed disciplinary action has been listed appropriately under the chart; often times they are not and lead to more significant penalties.  As a result, we often argue that a particular allegation has not been correctly identified under the agency’s table of penalties.

(8) The notoriety of the offense or its impact upon the reputation of the agency

Explanation:  This factor generally is used by a federal agency to attempt to support the aggravation of a disciplinary penalty.  Most commonly this factor comes into play
when the underlying incident is reported in the media.  Generally, an agency will attempt to aggravate a disciplinary penalty the more that an incident has been publicized in the news in a negative manner. 

(9) The clarity with which the employee was on notice of any rules that were violated in committing the offense, or had been warned about the conduct in question

Explanation:  This factor generally refers to the rules governing the underlying allegations as is used quite often in mitigation in our federal employment defense cases.  Typically, a federal employee will be proposed for disciplinary action in a case based on a violation of a particular agency rule.  Often times a federal employee that has been charged with a violation of agency rules has not been properly trained with respect to the rules or regulations that they have been charged with violating.   Therefore, in defense cases we attempt to illustrate the lack of notice as to the actual rules that have been allegedly violated by an employee, in addition to a lack of training on the issues that have been charged in a disciplinary action.  

(10) The potential for the employee’s rehabilitation

Explanation: While many federal agencies attempt to use this Douglas factor for purposes of aggravating a disciplinary penalty, we find that this factor tends to be good for purposes of mitigation.  For instance, we might use this factor to argue that a federal employee's good career record and the actions that they have taken during the investigation demonstrate that they are good candidates for rehabilitation and hence should receive a lower penalty (more common in proposed removal cases).  Often times, when a federal employee accepts responsibility for their actions in a case this can help mitigate a proposed disciplinary penalty.          

(11) Mitigating circumstances surrounding the offense such as unusual job tensions, personality problems, mental impairment, harassment, or bad faith, malice or provocation on the part of others involved in the matter

Explanation:  This factor is generally referred to as a miscellaneous mitigation factor which can include many potential considerations.  It is a very broad mitigating factor.  We often use this Douglas factor to illustrate personality conflicts in issuing proposed discipline by the proposing official or harassment by others in the workplace which led to the proposed discipline against a federal employee.  Other times, when there are medical issues related to the offense we can use this argument to attempt to mitigate the proposed penalty.

(12) The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others

Explanation:  This factor generally is used for purposes of mitigation of proposed disciplinary penalties.  We have argued, in cases for federal employees, that a different penalty (other than the one proposed) would be more appropriate and still serve the same disciplinary purpose. Sometimes, we have argued that instead of removing a federal employee that there are other effective resolutions to a disciplinary action.  For instance, where an individual has been placed in an unpaid suspension for several months while an investigation was ongoing, we would argue that any future disciplinary penalty consider the prior suspension and loss of pay suffered by the employee during the time at issue for purposes of mitigation.  Sometimes this factor can also lead to settlement negotiations over the ultimate penalty issued in a case where an employer is willing to consider alternative discipline. 

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When responding to a proposed disciplinary or adverse action, or an appeal to the MSPB, it is important to put forth all of the applicable Douglas factors to reduce potential disciplinary actions.  Douglas factor issues vary greatly from case to case and federal employees should retain an attorney knowledgeable about these issues prior to responding to a proposed disciplinary action or filing an appeal with the MSPB. This law firm represents federal employees in these types of federal employment matters and can be contacted at (703) 668-0070 or www.berrylegal.com to arrange for an individual consultation regarding an individual’s federal employment issues.     

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. 

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

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. 

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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 www.berrylegal.com to arrange for an individual consultation regarding your MSPB case.

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

We defend and represent federal employees in proposed disciplinary actions. When a federal employee is facing a proposed disciplinary action before their agency it is important for them to speak with an attorney knowledgeable in federal employment law for legal advice and representation in the appeal. This summary discusses some brief thoughts for federal employees as they respond to proposed disciplinary actions.

Three Different Types of Proposed Disciplinary Actions

Generally, most proposed disciplinary or adverse actions for federal employees fall into 3 general categories for federal employees: (1) a proposed suspension / demotion action based on misconduct; (2) a proposed removal action based on misconduct; and (3) a proposed removal action based on performance deficiencies (i.e. a Performance Improvement Plan (PIP)). Depending on the type of proposed disciplinary action, there can be various defenses and legal strategies used.  

Issuance of the Proposed Disciplinary Action

When a federal employee receives a proposed disciplinary action (a suspension of 14 days or less) or an adverse action (a suspension of over 14 days to removal) from a Proposing Official, they should read over this notice very carefully. Each federal agency sets their own deadlines for submitting responses and requesting the information "relied upon" and these deadlines are usually strict. The deadlines are always short.  Some agencies provide 7 days in which to respond and some agencies provide 20 or 30 days. The deadlines vary and can be someone confusing. Along with a copy of the proposed discipline, when it is issued, the federal agency may provide an employee a copy of the materials in the evidence file (documents, reports of investigation, emails, recordings, video, photographs, etc.) that they are relying upon in proposing the action (often referred to as the information "relied upon.”). It is very important for a federal employee to request and obtain these materials prior to responding in writing or orally during the response process.  

Response to the Proposed Disciplinary Action

It is important for a federal employee to not only submit a comprehensive written response, along with documentation (affidavits, character letters, statements or other evidence) refuting the charges and specifications or in providing arguments for mitigation, but also to request an oral response. Oral responses are critical in the most serious of cases, those involving removal, but can also be important in suspension or demotion cases.  

1. The Written Response

The written response to a proposed disciplinary action should address all of the allegations raised in the proposed discipline, in addition to providing records of the employee’s good performance/work records, and other commendations for use in potential reduction of any penalty. Basically, this is the federal employee's opportunity to refute the allegations.  While it is very important to both rebut or respond to the allegations, it is equally important to make arguments under the Douglas factors for purposes of reducing the penalty (e.g. reducing a proposed removal to a demotion or suspension). The purpose of mitigation arguments are to show why the federal employee, even if some or all of the charges are true, should receive a less serious penalty than proposed.

2. The Oral Response Presentation

In addition, the oral response presentation by the federal employee and his or her counsel should be straightforward and to the point. An oral response generally lasts anywhere between 30 minutes to an hour and a half depending on the nature and number of allegations made and the mitigation arguments that need to be presented. A federal employee should generally not repeat or read from their written response, but rather highlight key arguments to the Deciding Official as to why the proposal is not warranted and to focus on potential mitigation arguments. The Deciding Official usually does not ask questions, but can and sometimes do. They may also have their own attorneys present during the oral response proceeding.

Mitigating Factors (Douglas)

While noted above, it is important to address mitigating arguments in the response stage.  Mitigating arguments argue for a reduction in the penalty should the disciplinary action be sustained (e.g. no intent, lack of clarity about rules, good performance, no prior discipline, etc.)  Mitigating factors were explained in the case of Douglas vs. VA, 5 MSPR 280 (1981), which established the appropriate way to review a potential penalty in a disciplinary case. There are 12 Douglas factors, which should be reviewed. These mitigating arguments can be used to attempt to reduce the penalty issued in a case.  

The Final Decision is Issued

Following the response, the Deciding Official will then issue a final decision on the proposed discipline. The timeline for issuing a decision varies between agencies, cases and deciding officials. Typically, when a decision on the proposed discipline has been made the federal employee they will be contacted and called into the Deciding Official’s office and given a copy of the decision, along with a listing of any appeal rights in the decision. The federal employee will also be asked to sign for the decision. Depending on the severity of the discipline issued by the Deciding Official, along with the underlying basis for the action, a federal employee may have one of more types of appeals available to them. Some federal employees may be able to appeal a disciplinary action to the Merit Systems Protection Board (MSPB), the grievance/arbitration procedure, the Equal Employment Opportunity (EEO) process, or perhaps file a whistleblower defense or other actions.  

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Our law firm represents and advises employees on employment-related matters in MSPB appeals. If you need legal assistance with an MSPB appeal, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation. 

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.

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

What is an AWOL charge?

Absence Without Leave (AWOL) cases at the Merit Systems Protection Board (MSPB) are known to involve a very specific form of misconduct. An AWOL charge essentially alleges that a federal employee was absent from work without pay and permission. The MSPB, for the most part, has found a connection or nexus between absent federal employees and a disruption of the federal workplace to justify discipline. However, at the same time, federal agencies commonly seem to make mistakes in this type of disciplinary action.  For the most part, they seem to forget the issue of potential disability or family medical matters that arise.  This type of situation is different than when a federal employee is on approved leave without pay (LWOP).  

An AWOL charge is one of the more common forms of charges for disciplinary actions for federal employees. The Office of Personnel Management (OPM) notes that it is one of the most common forms of disciplinary action in their article on the subject.   It is important to understand the nature of this type of charge when an employee is defending against this type of charge at the MSPB or during proposed discipline.  I have included some samples of AWOL charges to give a sense of how these types of charges can be presented.  

Sample AWOL Charges

The following are some examples of conduct unbecoming charges that might be lodged against a federal employee:

1. On April 4, 2018, you did not report for duty at your workstation and you provided no explanation for your absence;
2. On February 2, 2019, you reported for work, but then after reporting in, left your office and went off-site without permission;
3. On January 12-19, 2019 you were absent from work without permission and then were again absent from work on February 10-24, 2019;

Elements Needed to Prove AWOL Charge

An AWOL charge is proven by demonstrating that the employee committed the misconduct alleged. In order to prove a charge of AWOL charge at the MSPB an agency needs to be able to do so by a preponderance of the evidence or by 51% of the evidence provided. The federal agency will need to establish that the employee was absent, and that his or her absence was not authorized, or that his or her request for leave was properly denied. Wesley v. U.S. Postal Service, 94 M.S.P.R. 277 (2003).

Defenses to AWOL Charges

There are a number of different types of methods of defense for AWOL charges. Some of the more common ones include:

1. FMLA Defense: The federal agency asserting AWOL charges against a federal employee holds the burden of proving that it properly denied FMLA leave in taking an AWOL based disciplinary action against an employee who is eligible for leave under the FMLA. Ellshoff v. DOI, 76 MSPR 54 (1997);
2. Disability Discrimination: A federal employee may allege that the Agency issued an AWOL charge on the basis of disability discrimination.  If a federal employee who has been removed for AWOL charges raises an affirmative defense of disability discrimination, he or she must show that he or she is a person with a disability entitled to the protection of disability discrimination laws. Davis v. Department of Veterans Affairs, 106 MSPR 654 (2007);
3. Military Discrimination: Under military anti-discrimination laws and case law, an employee who is ordered to active military duty  should not have been charged AWOL. Jeffrey v. Department of the Navy, 25 MSPR 697 (1985).

The number of potential defenses to an AWOL charge are varied and require the assistance of a attorney knowledgeable in federal employment law to determine the best strategy. It is often the case that a federal agency tends to forget the fact that an employee or an employee's family are undergoing medical issues in issuing AWOL charges.  It is far better for the federal agency involved to work with the federal employee during this difficult period than attempting to impose an adverse action.  

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In sum, when facing an AWOL disciplinary charge it is very important 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. 

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

One of the most important rights that a federal employee has in the appeals process at the Merit Systems Protection Board (MSPB) is through the discovery procedures outlined in 5 C.F.R. § 1202.72.  The discovery process allows a federal employee to ask their federal agency for information that is relevant and important to use in their defense during their appeal.

Discovery can come in a number of forms at the MSPB: (1) the taking of depositions (taking of sworn statements from witnesses); (2) requesting documents, data or video relevant to an appeal (production requests); (3) obtaining written responses from a federal agency to specific questions in a case (interrogatories); and (4) requesting that a federal agency admit certain facts as true for purposes of a federal employee’s MSPB appeal (requests for admission).

This article focuses on what we believe to be the most important form of discovery for federal employees in most MSPB appeals, the use of the deposition. 

What is a Deposition?

A deposition is a legal proceeding where a person is questioned, under oath, in response to questions posed by an attorney.  Depositions are used at the MSPB by federal employees and federal agencies to obtain information related to a federal employee’s MSPB appeal.

For example, if a federal employee is removed for alleged misconduct, the employee’s attorney will want to depose the individuals that allegedly discovered the misconduct, the individuals that investigated the misconduct allegations and the individuals that decided to take action against the federal employee for the allegation.

Take the following hypothetical in which a federal employee is removed from their position as a result of a conduct unbecoming charge:

Hypothetical Charge:  John Smith is removed for conduct unbecoming a federal employee because, on May 12, 2012, he left work early without his supervisor’s permission or knowledge.  Before leaving, he informed co-workers Sue Jones and Jim Hanover that he was leaving early to go fishing for the day and then left without approval. 

In this type of misconduct case, the federal employee’s attorney would first want to take the depositions of the two co-workers, Sue and Jim, to determine what their recollection of the events in the case were.  Often times an individual’s recollection of events may be far different than what the agency has alleged in the removal.  An employee may also want to depose John’s supervisor if there is an issue where John is contending that the supervisor did in fact give him permission to leave early.  

How Are Depositions Conducted in MSPB Proceedings?

During the MSPB process, a deposition notice is usually first sent out to the federal agency attorney assigned to an MSPB appeal, setting a proposed time and date for depositions of relevant federal agency employees. You can also take the deposition of non-federal agency employee witnesses, but a slightly different process is used for this whereby the attorney will first seek a subpoena from a MSPB judge prior to taking the deposition.   

Typically, the attorneys for both sides then discuss a mutually acceptable time and date for the depositions to take place and the federal agency then produces these witnesses for depositions. The witness will be relevant to the issues in a federal employee’s MSPB appeal and will be asked questions about his or her knowledge of the issues. Often times, the federal employee filing the appeal at the MSPB can also be deposed by the federal agency’s attorney.  In such cases, we represent the employee when they are questioned by the agency.

Depositions that we take on behalf of the federal employees that we represent are usually taken in our office unless they are out of state. The witness will be sworn in, under oath, by a court reporter.  The court reporter will take down both the questions asked and the all witness testimony. The length of a deposition in an MSPB case can take anywhere from 45 minutes to several hours, depending on the importance of the witness and the information that is needed. These can be conducted in person, videoconference or by teleconference.  

Once all of the questioning of a witness is completed by the federal employee’s attorney, sometimes the attorney for the federal agency may ask additional questions of the witness (although this tends not to be the case).  When the questioning is complete, the witness will either review their deposition later for accuracy or sign it or decide to waive further review. 

Subsequently, a written transcript of the deposition will be produced by the court reporter which can be used in the MSPB appeal.

How is a Deposition Helpful in the MSPB Process?

We have found that the taking of depositions in the MSPB process is very helpful and one of the most important tools available for establishing key facts in defending federal employees in their appeals.  It is also helpful for purposes of resolving cases early where you are able to disprove the allegations that were made against federal employees through the deposition process.  For instance, in the earlier example, suppose taking the deposition of John’s co-workers provided information that one of them was the acting supervisor on the day in question and had actually given John the okay to leave early.  In such cases, appeals can be resolved favorably for an employee.   

Often times, if you take depositions from agency witnesses that end up supporting the federal employee’s version of events in an MSPB appeal, it is also far easier to settle the case.  Finally, even if you are unable to resolve an MSPB case prior to the hearing stage, the depositions that you take can be used to establish the federal employee’s defenses at the hearing. Because each MSPB appeal is different with respect to the use of depositions and discovery it is important to consult with an attorney familiar in practicing before the MSPB.

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This law firm represents federal employees in these types of MSPB cases and can be contacted at (703) 668-0070 or www.berrylegal.com to arrange for an individual consultation regarding your MSPB case.     

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.  

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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.

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

In certain circumstances, the Merit Systems Protection Board (MSPB) can hear an appellant’s (federal employee) request for a review of a labor arbitrator’s decision. Most arbitration review requests go to the Federal Labor Relations Authority (FLRA) at the request of a union. However, some grievants seek review by the MSPB. In some cases, MSPB review is possible where jurisdiction is found.

MSPB Must Have Jurisdiction for Review

In general, the MSPB has review over a grievant’s request to review a decision under 5 U.S.C. § 7121 (d) when the MSPB has jurisdiction over the “subject matter” of the grievance, the appellant has alleged a claim of discrimination under 5 U.S.C. § 2302 (b)(1), and the arbitrator has issued a final award or decision. When it chooses to review a decision, the MSPB often gives greater deference to decisions issued by arbitrators than they do to decisions issued by their own administrative judges.

In general, in order for the MSPB to have jurisdiction to review an arbitration case, the grievant must have alleged discrimination in combination with the other claims and taken the case to arbitration, where appropriate. Where a union elected not to move forward to arbitration, the MSPB found that a grievance's decision was not appealable as a final decision. Knuckles v. Dep't of the Army, 122 MSPR 519 (2015).

When will the MSPB Reverse an Arbitrator’s Decision

The MSPB will reverse or modify a labor arbitrator’s decision only where the arbitrator has made a mistake of law in interpreting civil service laws, rules or regulations. Hidalgo v. Dep’t of Justice, 93 MSPR 645 (2003). An arbitrator's findings of fact are entitled to deference unless the arbitrator erred in his legal analysis. Cambridge v. Dep’t of Justice, 111 MSPR 152 (2009), If an arbitrator has not made specific findings on a particular issue, the MSPB will not defer to the arbitrator's decision to deny an appellant's review request related to that issue. Hollingsworth v. Dep’t of Commerce, 115 MSPR 636 (2011).

A Few Examples Where Reversal Took Place

This is a sparse area of law and there have not been a significant number of cases of arbitration review.  As as result, there are not a number of cases to cite.  However, depending on the outcome of a labor arbitration and what has been alleged, it may be a potential avenue of appeal, especially where a union is not willing to take the case to the FLRA.  There are many potential examples of potential types of cases, but here are a few reversal case examples:

1. The MSPB reversed an arbitrator’s decision that an appellant was removed for cause. The MSPB determined that the arbitrator failed to address the appellant’s claim of affirmative defense that she had been subject to retaliation by the agency. Marshall v. Dep’t of Veteran’s Affairs, 111 MSPB 5 (2008).

2. The MSPB reversed a labor arbitrator’s ruling which found that an appellant's grievances were not arbitrable and could not be heard. The arbitrator found that the union failed to pursue the grievances as required by their collective bargaining agreement because it failed to timely schedule the appellant's requested oral or written presentations to management officials in support of her grievances. The MSPB determined that the arbitrator improperly construed the CBA, as the MSPB could not find language within the collective bargaining agreement requiring that the appellant make a presentation at the required step of the grievance procedure. Morales v. SSA, 107 MSPR 360 (2007).

3. The MSPB reversed a labor arbitrator's decision finding that an individual that had previously filed an EEO complaint could not appeal her removal matter through arbitration, finding that the arbitrator was wrong as a matter of law. Galloway v. SSA, 2009 MSPB 46 (2009).

4. The MSPB reversed a labor arbitrator's decision regarding a removal based on falsification, finding that the charge had not been proven and that evidence of EEO retaliation was present.  Fitzgerald v. DHS, 2008 MSPB 17 (2008).

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In sum, when litigating an appeal of an arbitrator’s decision, it is very important to retain legal counsel familiar with the MSPB to determine the best possible appeals options. Our law firm represents federal employees before the MSPB and can be contacted at www.berrylegal.com or by telephone at (703) 668-0070. 

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

What is Lack of Candor?

Lack of candor cases at the Merit Systems Protection Board (MSPB) are unique. Candor, according to Dictionary.com, is defined as "the state or quality of being frank, open, and sincere in speech or expression." Lack of candor charges seem to be more common today than they have been in the past.  In fact, more federal agencies use this charge against federal employees today than ever before. While many individuals would think that lack of candor and falsification charges are the same type of charge, they are not.  A lack of candor charge is distinct from a standard falsification charge. A lack of candor charge is more broad than a falsification charge.  Falsification cases involve direct evidence of deception. Lack of candor is more a term of art, which can involve more general conduct. Usually, lack of candor cases involve charges alleging that a federal employee did not disclose information that the agency thinks should have been disclosed by the employee.

To prove a charge at the MSPB an agency needs to be able to do so by a preponderance of the evidence.  For lack of candor cases at the MSPB there is no need for an agency to prove an intent to deceive, but rather that under the circumstances, the information should reasonably been disclosed for completeness. Fargnoli v. Dep’t of Comm., 2016 MSPB 19 (2016). Lack of candor, however, necessarily involves an element of deception. Parkinson v. Dep't of Justice, 815 F.3d 757, 766 (Fed. Cir. 2016).  There needs to be some element of proof that the federal employee knowingly omitted or hid facts from an agency.  

Sample Charge of Lack of Candor

The following is one sample of a lack of candor charge:

Charge 1, Specification 1: Lack of Candor

On July 12, 2017, you were interviewed by investigators about the theft of computers from your office. You testified that you did not take the computers when asked.  However, even though you were not asked if you knew who took the computers from your office, you had knowledge of the individual that had taken them and did not disclose that to investigators. You did not disclose this information.

Elements Needed to Prove Lack of Candor

Lack of candor generally requires that an agency prove two elements according to the Fargnoli case. These are:

(1) the federal employee gave incorrect or incomplete information; and

(2) the federal employee (he/she) did so knowingly.

The MSPB Board in Fargnoli provided reasoning for a lack of candor analysis in their decision:

Because the agency failed to establish by preponderant evidence that the appellant knew her statement was false, we found the administrative judge was correct in not sustaining the charge. Our reviewing court recently took a similar approach in Parkinson, in which an employee of the Federal Bureau of Investigation (FBI) was charged with lack of candor under the FBI Offense Code based on his alleged “failure to be fully forthright” in his statements to agency investigators. In that context, the court found that the “element of deception” required under Ludlum entailed that the employee must have “knowingly” failed to be forthright (citing Parkinson, 815 F. 3d at 766-67).

Id. at page 9.

Hence, the key in defending lack of candor cases before the MSPB falls on the issue of whether or not the federal employee knowingly failed to be forthright. Because of the ever increasing number of lack of candor charges, federal employees involved in administrative investigations and disciplinary actions involving this type of issue should retain counsel early to attempt to avoid lack of candor charges and/or defend against them at the MSPB.  

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In sum, when facing a lack of candor charge it is very important 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.