MSPB Law Blog

What to Expect During an MSPB Hearing

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

Federal employees often ask us what happens during an actual hearing before the Merit Systems Protection Board (MSPB).  A hearing, especially for an unrepresented federal employee, can be a daunting process. This article focuses on what federal employees can expect during a typical MSPB hearing.

Location of the Hearing

Typically, the MSPB hearing takes place with the administrative judge either attending in person or by video-teleconference.  The location for an in-person hearing is typically wherever the MSPB has its local offices.  However, the hearing site might also be located at the employee’s work site.  If the hearing is conducted remotely, then the hearing is likely to be conducted at the Agency’s closest video-teleconference location.  In such a case, it is typical that all parties, witnesses and attorneys will be present at the Agency location and the administrative judge will be the only individual located in a remote location.

Before the Hearing Starts

Before the MSPB hearing begins, the administrative judge will usually ask the parties whether there are any outstanding issues before the hearing begins.  Typically, there are not, but issues could have arisen involving exhibits or witnesses which need to be resolved before the hearing starts.  In addition, the administrative judge may swear in all of the witnesses at the same time (or individually as they testify) and then sequester the witnesses (keep them in a room outside of the hearing) until their testimony is heard.  

Hearings are generally open to the public unless the administrative judge, in their discretion, believes that it would be better to close off either the entire hearing or a portion of it. This decision will be made prior to the start of the hearing.  In addition, before the hearing starts, the court reporter hired by the MSPB will set up his/her equipment and prepare to record the legal arguments, statements, objections and rulings that will occur during the hearing.  

Opening Statements

Following the introductory issues, the administrative judge may permit the parties to present opening statements. Sometimes, the administrative judge does not permit opening statements (especially if time is a concern and there are numerous witnesses).  If permitted, opening statements typically last about 10-20 minutes for each party.  The Agency’s attorney will usually proceed first because they hold the burden of proof (in disciplinary cases).  Then, the Appellant (or Appellant’s attorney) will have the opportunity to respond with an opening statement then or at the beginning of their case.  

The Actual Hearing

Following opening statements, the main portion of the MSPB hearing typically begins.  The Agency will call their witnesses in their case first.  Then the federal employee (referred to as the “Appellant” in an MSPB case) or their attorney will have the opportunity to cross-examine each of these witnesses. When the Agency’s witnesses have been questioned by both parties, the next step in the hearing process is for the Appellant to call their witnesses. 

Once the witnesses have all been questioned, there is the possibility for rebuttal evidence to be presented.  Rebuttal does not occur in every case, but there is sometimes testimony or issues that arise during the course of a MSPB hearing that require another witness (or require the parties to recall a previous witness) to testify. For instance, if the last scheduled witness in a hearing testifies, unexpectedly, that a prior witness had lied in their testimony, it would be important to recall the earlier witness through rebuttal in order to respond.   

Closing Statements or Briefs

Once all witness testimony has been concluded, the next step is generally to present closing arguments.  Again, the Agency will usually proceed first in disciplinary cases and then the Appellant will proceed after that.  Sometimes, if a case has involved a lot of testimony, is complex in some manner or requires legal arguments to be presented to the administrative judge, the parties may submit closing briefs instead of closing arguments.  After the closing arguments or closing briefs have been submitted, the record is considered closed and the case is ready for a decision by the administrative judge.  

After the Hearing

While the timeline for a decision is variable, a decision from an MSPB administrative judge has tended to take anywhere from 2 days after the hearing to 60 days.  Usually, the final decision is issued somewhere around the 30-45 day mark, in our experience.  If the final decision is positive for the federal employee, the next step may be to enforce the terms of the decision.  The Agency may also decide to appeal the decision.  If the Agency is successful in the initial decision, the federal employee may appeal the adverse decision to the full MSPB Board, which consists of a 3-person panel which oversees the MSPB.  

Conclusion

When facing the MSPB process, it is important for a federal employee to have legal advice and representation during the process.  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 at https://www.facebook.com/BerryBerryPllc.

Please visit our new Federal Employee Law Blog

Berry & Berry, PLLC, is proud to announce our latest blog, focusing on federal employment issues that federal employees face on a daily basis.  Please visit our new blog at  http://federalemployeelawblog.com/

Due Process Issues in MSPB Cases for Federal Employees

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

In our representation of federal employees before the Merit Systems Protection Board (MSPB) one of the major issues that we come across involves whether or not a federal employee has been provided with due process in the processing of a disciplinary or adverse action.  This is very important because when due process has not been properly provided to a federal employee, a federal agency’s final decision can be potentially reversed at the MSPB.  

Federal Employee’s Right to Due Process

Generally, before a federal employee can be disciplined for alleged misconduct or performance deficiencies, they are entitled to due process of law.  The core of due process for disciplinary actions consists of (1) notice of the misconduct or performance issues; and (2) the opportunity to respond to these issues.  Ward v. U.S. Postal Service, 634 F.3d 1274, 1280 (Fed. Cir. 2011).  A federal employee must be given a meaningful opportunity to invoke the discretion of the decision maker before a personnel action is finalized.  Cleveland Bd. of Education v. Loudermill, 470 U.S. 532, 546 (1985). 

Due Process Right to Information Relied Upon by a Federal Agency

A federal agency, if asked by a federal employee, must provide copies of all information relied upon in the processing of a disciplinary action in order to prepare for their response to the proposed action.  Many federal agencies provide this type of information as a matter of course when they issue a proposed disciplinary action.  However, many do not.  This is why it is usually very important, prior to the oral and/or written response to the proposed action for a federal employee to formally request all of the materials relied upon by the agency in proposing the action.  If a federal employee does not do so, then it can be hard to determine exactly what information that the deciding official considered in issuing a final decision.

If a federal agency considers important information in a case that is not provided to a federal employee this fact can be the basis for possible reversal of the action at the MSPB.  New information, not provided to a federal employee is often called “ex parte communications.”  The U.S. Court of Appeals for the Federal Circuit has held that ex parte communications that introduce new and material information about a federal employee’s case to a deciding official constitute a due process violation. Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1376-77 (Fed. Cir. 1999).

Due Process Necessary for Douglas Factors

The U.S. Court of Appeals for the Federal Circuit, in Ward v. USPS, 634 F.3d 1274 (Fed. Cir. 2011) held that information not provided to an employee regarding penalty determinations (under the Douglas factors) were also subject to due process:

“Ex parte communications that introduce new and material information whether material to the merits of the underlying charge or material to the penalty to be imposed, violate due process. There is no constitutionally relevant distinction between ex parte communications relating to the underlying charge and those relating to the penalty.”

This type of issue can come into play where the federal agency issues a decision on a proposed disciplinary action, citing an increased disciplinary penalty based upon information that was not provided to a federal employee prior to the oral and written response stages.  For example, we have seen cases where a federal employee was given a more significant disciplinary penalty for having a past disciplinary record which was not mentioned in the proposed action. This can be reversible error.

Conclusion

Our law firm advises and represents federal employees in MSPB appeals. We can beached by telephone at (703) 668-0070 or www.berrylegal.com for addition information or to set up a consultation.  

 

MSPB vs. Arbitration - A Choice for Federal Employees

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

When facing a serious disciplinary action as a federal employee, there remain a few choices as to the forum in which to appeal. This post addresses the issue of how to approach a disciplinary appeal involving federal agency removals and significant suspensions (over 15 days) in the forums available to federal employees.  These 2 forums have different procedures, so it is important to know the differences when an employee is faced with evaluating which type of forum to choose

Two Principal Options for Federal Employee Removal/Suspension Appeals: Arbitration or MSPB

When a federal employee receives a copy of a final federal agency decision sustaining a removal or significant suspension (15 days and above) they generally have 2 options if they want to appeal the decision that has been made.  The first potential option for the federal employee is to file an appeal of the removal/suspension with the Merit Systems Protection Board (MSPB).  The second option is to appeal the removal/suspension decision through the federal employee’s federal sector union through the applicable grievance/arbitration procedure.  

There are other potential legal options out there for federal employees outside of the MSPB and arbitration process, when applicable, such as the filing of a whistleblower complaint with the Office of Special Counsel (OSC) or perhaps a complaint alleging discrimination, retaliation or harassment through the federal agency’s Equal Employment Opportunity (EEO) office, but the focus of this article are the main 2 options for a federal employee in appealing the substance of the misconduct allegations which have been sustained by the federal agency involved.  The federal employee will usually only be able to appeal the removal or suspension to only one forum.  Therefore, usually the first one selected will be the forum that the federal employee must usually stay with.   As a result, it is important to evaluate each potential option before filing a grievance / arbitration request or an appeal with the MSPB.  

While many federal employees have a choice between forums, some do not.  While most career (non-probationary) federal employees have the right to appeal a removal or significant suspension to the MSPB, not everyone has the right to take their case to arbitration.  In order for a federal employee to have the right to take their case to arbitration, the federal employee must be represented by a federal sector union that agrees to take the case to arbitration.  If there is no union, then there is generally no right to file for arbitration review of serious discipline.  If this is the case, then the choice between filing with the MSPB and filing for arbitration can be fairly easy to make.  

If a federal employee has the right to file for arbitration through an existing union, then before exercising their options they should confirm whether or not their union will agree to permit arbitration.  Federal sector unions generally control the ability to go to arbitration, not the federal employee, so whether a case can go forward to arbitration is usually up to them.   If a union agrees to take the federal employee’s case to arbitration, then all of the other considerations come into play in order for the federal employee to make a well-informed decision about which forum to choose.

Seeking Information from the Agency in Arbitration and MPSB Appeals

Both arbitration and the MSPB have specific procedures to assist federal employees in attempting to obtain information for use in their appeals. At the MSPB, more typical discovery procedures (similar to those available in court) govern.  A federal employee (generally through counsel) can take depositions, serve production of documents requests, and serve interrogatories on the federal agency involved.  In general, the MSPB tends to have better discovery procedures (especially the use of depositions) than those available in arbitration. 

In arbitration, a federal employee is represented by the union either through a union or private attorney (with the approval of their union).  The union has the ability to request documents relevant to a disciplinary case on behalf of the affected federal employee.  This ability comes through the submission of what is known as a "union information request" pursuant to 5 U.S.C. § 7114(b).  The one key difference between the 2 forums (MSPB and arbitration) is that there generally is no right to take depositions in arbitration proceedings, to request responses to interrogatories or to ask for requests for admission.  

MSPB Hearings vs. Arbitration Hearings

There are also differences between MSPB hearings and arbitration hearings.  For the most part both the MSPB and arbitration hearings tend to be less formal than regular court proceedings.  In our experience, arbitration is the less formal of these two types of hearings.    

In an arbitration, the Arbitrator acts as the judge who will issue the ruling on the federal employee's appeal in the case.  Typically, arbitrators tend to be very experienced attorneys in labor and employment law issues and will be mutually selected by the parties or sit on a regular panel of arbitrators that hear cases between the individual federal agency and the union.  In MSPB cases, the proceedings are run by an appointed Administrative Judge that is assigned to a federal employee's case by the appropriate local or regional office of the MSPB.  

Generally, it takes about 120 - 150 days (this can run longer) from the filing of an MSPB appeal to the time in which a federal employee reaches an MSPB hearing. It will take between a few weeks to a few months after that hearing, usually, for an federal employee to obtain a ruling by the administrative judge.  In arbitration, the timeline can be shorter or longer (depending on what procedures the parties have in their collective bargaining agreement and the dates that the arbitrator may have available for the hearing).  Sometimes, depending on the collective bargaining agreement, the arbitration process must first start in the grievance process and will ultimately move to arbitration, causing the process to run longer.  On average, we find that it takes longer to reach a final decision in the arbitration process than in the MSPB.  

The MSPB hearing is generally held at the MSPB's local regional office, whereas an arbitration hearing can be scheduled any place that the parties agree upon or which is specified in their collective bargaining agreement (they usually take place at the agency). Both proceedings allow for the use of witnesses and examination and cross-examination by counsel.  While the MSPB tends to have better discovery procedures, arbitrators tend to be more open to reversing disciplinary cases in general.

Closing Thoughts

We advise potential federal employees to seek counsel to help them evaluate their individual cases to determine the best type of proceeding, either arbitration or MSPB, that is right for their case.  Both types of proceedings can be valuable for a federal employee facing a choice as to an appeal of serious discipline. We can beached by telephone at (703) 668-0070 or www.berrylegal.com for addition information or to set up a consultation.  

 

Taking Depositions at the MSPB

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. 

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. 

Disparate Penalties at the MSPB

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

Often times our law firm represents federal employees in appeals before the Merit Systems Protection Board (MSPB) involving adverse action cases (i.e. removal actions, suspensions of 15 days or more).  In MSPB appeals, there is generally a 2-stage process undertaken by the administrative judge in their evaluation of an adverse action (disciplinary) appeal: (1) whether or not the allegations by the agency have been proven by a preponderance of the evidence; and (2) whether or not there are mitigating circumstances which could mitigate the disciplinary penalty received. 

As part of the penalty mitigation process, the MSPB has permitted appellants to argue that they received a disparate penalty (as compared to other employees in the agency) for the same conduct.  This article evaluates the situation where a federal employee receives a penalty for certain misconduct that is more severe than a penalty received by other federal employees for similar misconduct. 

Disparate Penalties Explained

A disparate penalty is a disciplinary penalty which is different or out of line with what other similarly situated employees have received for similar misconduct.  For instance, suppose a federal employee has received a proposed removal for misuse of a government credit card.  Further, suppose that other similarly situated employees in the office (and under the same chain of command) have been found to have committed similar misuse but were only given letters of reprimand or were not disciplined at all.  

In such a situation, one can argue at the MSPB, on appeal, that the federal agency provided a disparate penalty to the appellant in an effort to reduce the penalty that was assessed. Consistency of the discipline in such cases is a part of the Douglas factor mitigation analysis.

The MSPB Standard for Disparate Penalties

The MSPB has found that disparate treatment involving disciplinary penalties is a proper issue for federal employee appeals.  See Boucher v. U.S. Postal Service, 118 M.S.P.R. 640, ¶ 20 (2012). The MSPB has held that in order to establish that a disparate penalty took place that an appellant must show that there is enough similarity between both the nature of the misconduct and other factors which would lead a reasonable person to conclude that the agency treated similarly-situated employees differently.

In proving the disparate penalty claim, the MSPB has found that an appellant has to establish that the charges and the circumstances surrounding the charged behavior are "substantially similar."  Doing so in the past required proof that the comparable penalty involved an employee in the same work unit, with the same supervisor, who was subjected to the same standards governing discipline. Von Muller v. Dep’t. of Energy, 101 M.S.P.R. 91, ¶ 22, aff’d, 204 F. App’x 17 (Fed. Cir. 2006).  In other words, the principle did not necessarily apply to a case where an employee in another work unit received a different penalty for the same type of misconduct case.  However, the chain of command issue has come under some debate since the Federal Circuit ruled in Williams v. SSA, 586 F.3d 1365 (Fed. Cir. 2009) (Agency must explain why different chain of command justify a different penalty).  Since Williams, the MSPB has avoided hard and fast rules regarding disparate penalty issues, opting for an overall review of the facts at issue to determine whether a basis exists for the disparate penalty between similar employees with similar misconduct. 

If an appellant is able to demonstrate their disparate penalty claims before the MSPB, the federal agency that took the adverse action must then prove a legitimate reason for the difference in treatment by a preponderance of the evidence before the penalty can be upheld. Boucher, 118 M.S.P.R. 640, ¶ 20.  In addition, an appellant can raise the disparity of penalties argument based on evidence that similarly situated employees received no discipline after committing similar misconduct.  Fearon v. Dep’t of Labor, M.S.P.R. 428, 434 ¶ 11 (2005). 

In sum, it is important for federal employees that have been disciplined more harshly than other employees for similar conduct to be aware of the potential legal arguments available for their legal defense at both the response stage before their federal agency and before the MSPB on appeal.  

Conclusion

When facing an MSPB appeal involving the issue of disparate penalties it is important to obtain legal representation. Our law firm represents federal employees in the MSPB process. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070.  The law firm's Facebook page is located at https://www.facebook.com/BerryBerryPllc.

The Burden of Proof at the MSPB – A Federal Employee’s Guide

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

When federal employees have disciplinary or adverse action appeals before the Merit Systems Protection Board (MSPB) it is important for them to understand how their cases should be presented and the issues regarding how a federal agency will attempt to prove it’s case against a federal employee during the appeals process.  This is where the issue of the "burden of proof" comes up.  The “burden of proof” just refers to the level of evidence needed to be shown by a federal agency during an MSPB appeal in order to prove the allegations in an adverse action (e.g. removal, demotion or suspension over 14 days in length). 

Burden of Proof Differs Depending on the Type of MSPB Appeal

The burden of proof needed for a federal agency to prove their case at the MSPB depends on the type of federal employee appeal.  In adverse action cases like those where a federal employee has been removed based on misconduct (Chapter 75 of the U.S. Code), a federal agency has to prove the allegations that were made by a preponderance of the evidence presented (51%).  In cases involving performance (Chapter 43 of the U.S. Code), like those where a federal employee has been removed following the failure to successfully complete a Performance Improvement Plan (PIP), the burden of proof is referred to as substantial evidence, which is significantly lower than 51%.

What Does the Burden of Proof Mean and How Can a Federal Employee Respond During an MSPB Appeal

The most common burden of proof for MSPB cases is the preponderance of the evidence standard.  The best way to show how this burden of proof works is through the following example:

Suppose that a federal employee has been charged with insubordination for allegedly making rude comments to their supervisor.  The supervisor takes action and proposes the federal employee for a 30-day suspension.  Subsequently, the deciding official then hears the case and decides to uphold the proposed suspension, sustaining the full 30-day penalty.  The federal employee then appeals the suspension to the MSPB.  At the MSPB hearing, the federal agency will have to prove that it is more likely than not (51% of the evidence presented) that the employee made insubordinate or rude comments to their supervisor.  This will entail testimony from any witnesses, the supervisor and the Appellant (the federal employee).  At the end of the hearing, whichever side, as viewed from the judge’s perspective, which has produced more evidence than the other side will prevail.

The key to responding to a federal agency’s attempt to meet their burden of proof in a MSPB disciplinary case is to focus on the charges and specifications that have been brought.  The entire case will center on the language used in the charge and specifications.  The more that a federal employee is able to disprove portions of the charges and specifications, the harder it will be for the federal agency to meet their 51% burden of proof in disciplinary cases.  In performance cases, the Appellant’s burden is higher to disprove the allegations of substandard performance that have been made making such appeals more intensive.

Conclusion

When a federal employee is involved in an MSPB appeal it is important for them to obtain the legal representation.  Our law firm stands ready to advise individuals on issues involving MSPB appeals and the required burden of proof. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070. 

Completing and Submitting an MSPB Appeal

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

When filing an action with the Merit Systems Protection Board (MSPB), a federal employee has a number of steps to complete in order to properly submit their MSPB appeal.  If these steps are not completed, an appeal (or important portions of the appeal) may not be accepted or considered by the MSPB for review.

Filing Timelines

The most important aspect to filing an MSPB appeal is to do so in a timely fashion.  The filing of an MSPB appeal begins with the MSPB Form 185 (last updated on May 13, 2013).  Generally, the form (and appeal) must be filed within 30 calendar days of the effective date of the action.  For example, if an employee receives a final action effective (e.g. final decision upholding a proposed removal or suspension) on July 31, 2013, their filing due date for an appeal would be August 30, 2013.  If the date that the
appeal is due falls on a weekend or holiday, that could provide an extension to file the appeal.  The key for a federa; employee seeking to appeal is to not delay and file the appeal close to the deadline. If an appeal is found to be untimely, then it will be dismissed and no further action will be taken.  It is far better to file one’s appeal as far away from the deadline as possible to avoid these issues. 

Filing with the Correct Office of the MSPB

It is also important, when filing, to file your appeal with the correct MSPB office. Currently, there are 8 regional or field offices of the MSPB.  It is important to determine which office one’s appeal must be filed with prior to filing your appeal.  The office for filing is determined by a federal employee’s duty station.   For instance, if one is employed by a Virginia office of a federal agency, then the proper office to file one’s appeal with would be the Washington Regional Office of the MSPB. 

Electronic Filing of the MSPB Appeal

Electronic filing of initial MSPB appeal forms is slowly, but surely, becoming universal.  Our law firm uses electronic filing from the filing of the appeal to the end of the process.  It is helpful and easier than that the previous mailing system.  The key to preparing the electronic filing of the MSPB appeal is to have all relevant information related to the appeal available when completing the online forms.  Once the online forms have been prepared, and all attachments submitted (i.e. the proposed action and final agency decision), then the appeal can be electronically submitted to the MSPB.  Once the appeal is electronically submitted, the e-filer will receive confirmation of the filing from the MSPB.  Following the proper submission of the appeal, the federal employee and the federal agency involved will receive an Acknowledgment Order which sets forth the procedures and initial deadlines for processing an MSPB appeal. 

Proper Completion of the MSPB Appeal Forms

Properly completing the MSPB initial appeal is very important.  We strongly advise
clients to have an attorney review and prepare the initial appellate filing.  It is important to present a well prepared appeal at the beginning of the process.  Doing so provides a federal employee with the best chance of litigating or settling their appeal.  A well prepared filing enables an Administrative Judge the ability to analyze an appeal and advise the parties on settlement early in the process.  A thoroughly prepared appeal also puts the federal employee in the best position to litigate his or her case to a hearing if the Administrative Judge understands a federal employee’s legal arguments at the start of the case.  If the Administrative Judge does not understand the appeal filed from the federal employee's initial filing, he or she is less likely to focus in on all of the potentially key legal arguments and important issues that could be raised in the case by the Appellant. 

Conclusion

When filing an MSPB appeal it is important to obtain the advice of counsel before filing the initial appeal. Our law firm stands ready to represent and advise federal employees on issues and appeals before the MSPB.  We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070.

Federal Circuit Reverses MSPB in Key Whistleblower Decision

By John V. Berry, www.berrylegal.com

The U.S. Court of Appeals for the Federal Circuit, in Whitmore v. DOL, Case No. 2011-3084 (May 30, 2012), issued a new major ruling with respect to federal employee whistleblower cases in reversing the decision of the Merit Systems Protection Board (MSPB) to dismiss Mr. Whitmore's whistleblower retaliation appeal.  

The Whitmore Decision for Whistleblowers

The case at issue involved a federal employee who had been removed from his position with the Department of Labor (DOL). The DOL, in removing the federal employee, had alleged that the federal employee's removal had been due to his alleged disruptive and insubordinate behavior while at work.  The employee, however, had alleged that the removal was the result of unlawful retaliation for his lawful whistleblowing disclosures to the DOL.

The MSPB Appeal

The federal employee appealed his removal to the Merit Systems Protection Board (MSPB) where the case was then dismissed by the assigned administrative judge.  In the proceedings before the administrative judge, most of Mr. Whitmore's witnesses on the whistleblower claims were excluded by the judge.  The full MSPB Board then affirmed the administrative judge's decision.  The employee filed an appeal of the decision to the U.S. Court of Appeals for the Federal Circuit based mostly on the fact that the administrative judge had excluded important evidence as to the whistleblowing activities by the federal employee.

The Federal Circuit Reverses in a New Major Whistleblower Decision

The Federal Circuit, in evaluating the case on appeal, found that the MSPB had improperly excluded or ignored evidence offered by the federal employee necessary to adjudicate his whistleblower retaliation claim, and had applied the law incorrectly in the dismissal.  As a result the Federal Circuit vacated the decision and remanded the case to the MSPB.  In closing their opinion, the Federal Circuit took the unusual step of reminding the MSPB about the critical responsibilities they have in whistleblower retaliation cases:

“The laws protecting whistleblowers from retaliatory personnel actions provide important benefits to the public, yet whistleblowers are at a severe evidentiary disadvantage to succeed in their defenses. Thus, the tribunals hearing those defenses must remain vigilant to ensure that an agency taking adverse employment action against a whistleblower carries its statutory burden to prove—by clear and convincing evidence—that the same adverse action would have been taken absent the whistleblowing.

Despite Robert Whitmore’s highly unprofessional and intimidating conduct, which may well ultimately justify some adverse personnel action, he is nevertheless a bona fide whistleblower. Mr. Whitmore is therefore entitled to the full scope of protection afforded by the Whistleblower Protection Act, which ensures for him and whistleblowers everywhere that they need not fear retribution for disclosing to the public such vital information concerning an agency or official as “a violation of any law, rule, or regulation, or . . . gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety . . . .” 5 U.S.C. § 2302(b)(8).

Congress decided that we as a people are better off knowing than not knowing about such violations and improper conduct, even if it means that an insubordinate employee like Mr. Whitmore becomes, via such disclosures, more difficult to discipline or terminate. Indeed, it is in the presence of such non-sympathetic employees that commitment to the clear and convincing evidence standard is most tested and is most in need of preservation."

Whitmore, at 42-43.

What the Whitmore Decision Means for Whistleblowers at the MSPB

 One of the most important issues that will result out of this decision is that administrative judges at the MSPB will now likely permit more testimony and evidence to be heard on whistleblower retaliation claims which will help to establish these claims.  The Whitmore decision makes it clear that the Federal Circuit believes that the MSPB must fully consider the evidence that an employee wishes to present in support of his or her claims under the Whistleblower Protection Act. 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. 

The full case is located at www.cafc.uscourts.gov/images/stories/opinions-orders/11-3084.pdf.  

Defending Federal Employees – The Critical Nature of the Douglas Factors

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. 

CONCLUSION

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.