MSPB Law Blog

Reviewing a Final Agency Disciplinary Decision Before Appealing to the MSPB

By John V. Berry, www.berrylegal.com

Before a disciplinary case moves to the Merit Systems Protection Board (MSPB) it is preceded with a final agency decision on a proposed disciplinary action. If the final disciplinary action is 15 days or more to removal, then the federal employee may appeal to the MSPB. Before making the decision to appeal, it is important to review the final agency decision and consult with an attorney.

The Final Agency Decision

A final agency decision is simply the decision made by the deciding official on a proposed disciplinary action (i.e. a proposed removal). Typically, the time period for receiving the agency’s final decision can range anywhere from 2-8 weeks from the time that an individual presents their oral and/or written response to the notice of disciplinary action. Some federal agencies are quick in issuing decisions, while others take their time in issuing a decision. During that time, the federal employee either continues to work or more often is at home in an administrative leave status. When the final agency decision is issued, there are some important considerations in reviewing the document as the federal employee considers whether to file an appeal to the MSPB.

Important Considerations

Here is a list of some considerations a federal employee should evaluate when reviewing a final agency decision on discipline before filing an appeal:

1. Check the Effective Date of the Decision: This date often differs from the date of the decision letter. The effective date usually starts the 30-day timeline for filing an MSPB appeal. This is extremely important because late appeals will not usually be considered.

2. Review which Charges were Sustained: In the final agency decision, if there is more than one charge or specification, it is possible that some or all of them have not been sustained. This can be helpful in that in may support an appeal on the basis that the penalty issued should have been mitigated.

3. Review the Language used in the Decision: Note any new information contained in the decision which was not in the proposed disciplinary action or the materials relied upon. Such information could be new and therefore potentially constitute a due process violation. It is not uncommon for final agency decisions on disciplinary actions to include information never previously disclosed in an appeal. This applies to both the deciding official’s findings of fact on the charges and his/her consideration of the Douglas (mitigation) factors.

4. Review the Appeal Rights Given: Often, depending on the federal agency involved, a number of appeals rights may be given to an employee in the final agency decision. However, it is important to have an attorney review these potential avenues in that sometimes employee relations for an agency may not have full knowledge of an employee’s eligibility for certain types of appeals, including MSPB cases. This can become a problem if an employee who could have elected one forum, elects the MSPB and later finds out that they were not eligible to file an appeal (despite the language used in the final agency decision).

In my estimation, about three quarters of final agency decisions do not include detailed factual findings by the deciding official. In about one quarter of those cases, a deciding official will provide detailed information in the decision. In representing federal employees, the general proposition is that the more information listed in the final decision the more likely it is to find potential errors in a negative decision which is then filed with the MSPB.

Conclusion

In sum, when evaluating a case for appeal to the MSPB it is important to have legal counsel review the final agency decision and evaluate an individual’s 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. Our Facebook page is located at Berry & Berry PLLC Facebook Page.

 

MSPB Gives Employees Right to Discovery in Compliance Cases

By John V. Berry, www.berrylegal.com

The MSPB, on October 30, 2015, decided to make new rules making discovery procedures more consistent in cases where a party has settled or won an appeal and the other party has not complied with the agreed to (or imposed) terms. The new provision, 5 C.F.R. § 1201.183(a)(9), has been added to make clear that discovery may be pursue in enforcement cases. Previously, whether or not discovery was permitted for compliance matters (e.g. the Agency has not complied with settlement or reinstatement terms) was an issue left to the discretion of the administrative judge. Administrative Judges tended to review requests of a party to engage in discovery by requiring the party to show the necessity for doing so. This typically affects an employee more than the agency given that in the vast majority of cases it is the appellant (employee) that is asking that the MSPB order a federal agency to comply with a previous settlement agreement or order. 

A copy of the new procedures can be found here. The new rule for MSPB enforcement cases explains:

5 C.F.R. § 1201.183(a)(9). Discovery may be undertaken in accordance with the Board’s regular discovery procedures (§§ 1201.71 through 1201.75 of this part), except that unless otherwise directed by the judge, initial discovery requests must be served no later than 15 days after the alleged noncomplying party files a response to the petition for enforcement as required under paragraph (a)(1) of this section.

This new provision should make a positive contribution to cases in which the Agency has not complied with a previous settlement agreement or has not taken actions to implement a final decision of the MSPB.

Conclusion

In sum, this new rule should help federal employees uncover the reasons why an Agency has not complied with settlement or a final order that has not been followed by an agency.  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 Berry & Berry PLLC Facebook Page.

The Agency Response to an MSPB Appeal

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

Our firm represents federal employees before the Merit Systems Protection Board (MSPB) in the appeals process. Following a federal employee’s submission of their appeal to the MSPB, there are a number of steps in the processing of an MSPB appeal.  The typical first step is for the federal employee and the federal agency to receive an acknowledgment order from the assigned administrative judge setting forth the dates and timelines for the processing of the case.  One deadline which is usually placed in the acknowledgment order is the agency’s deadline to file their response to the federal employee’s appeal, usually referred to as the Agency File or Agency Response. The deadline for the federal agency to file the Agency Response is usually within 20 days after the receipt of the judge’s acknowledgment order.  

What is the Agency Response?

The Agency Response is the federal agency’s reply to a federal employee’s appeal.  Usually, the Agency Response consists of 2 parts, a narrative legal response to the appeal that was filed, followed by a series of documents related to the appeal which are attached as exhibits.  An Agency Response, in our experience, can run from anywhere from fifty to several hundred pages depending on the issues and facts involved in a particular case.  

What does the Agency Response Contain? 

Some of the more frequent items contained in an Agency Response includes copies of the personnel action being appealed, the materials relied upon in taking the action (e.g. if a disciplinary action is involved) and/or any related investigations that have taken place. The MSPB requires a federal agency to file copies of all documents "relevant and material" to the appeal which can cover a broad range of information.

Why is the Agency Response Helpful to Federal Employees

One of the most significant reasons why the Agency Response is important to federal employees in the MSPB process is the fact that it usually contains a fairly complete record of the action that led to the MSPB appeal. The information provided can then be used by the federal employee to prosecute their appeal and also may help lead to other previously unknown documents through the discovery process.  We often find materials or references provided in the Agency Response which can lead to previously unknown documents or exhibits.  These items can then be sought in the discovery process. Basically, the Agency Response is a good beginning point from which a federal employee can start to gather important documents for use in their appeal.

Conclusion

In sum, the Agency Response is a key provider of information for use in a federal employee’s MSPB appeal.  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.

Clean Record Settlements for Federal Employees

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

Our firm represents federal employees before the Merit Systems Protection Board (MSPB), www.mspb.gov in the appeals process. Many federal employees, especially if they have been removed, consider resolving their appeal by seeking an agreement with their federal agency to clear their employment record.  This type of agreement can include what is known as a clean record settlement.  There are a number of ways in which a settlement agreement with a federal agency can help to clear a federal employee’s record for future employability. 

What is a Clean Record Settlement?

A clean record settlement is simply the notion that an employment action that was taken against the federal employee is cleared from their employment files (e.g. Official Personnel File (OPF)) by agreement.  This is accomplished through a negotiated settlement agreement between the federal agency and the federal employee involved in an MSPB appeal.  The goal in a clean record agreement is to eliminate or minimize the negative employment information which can affect the individual’s future employment in the federal or private sector.  

Types of Clean Record Settlement Provisions

There are a number of different types of settlement provisions that can be considered clean record agreements.  Some settlement provisions fully rescind a proposed removal action or previously made decision (e.g. a removal decision) from OPFs or other employment files, while other types of agreements specify the type of information that will be disclosed by an agency when contacted by another employer.  Other provisions do not rescind documentation issued, but agree to change the Form SF-50 documentation that was issued in the OPF.

In many clean record settlements a contact point at the agency is designated by parties to handle inquiries about the former federal employee. With other provisions, certain employees are directed to not talk negatively of a former federal employee. Some provisions also specify that all records pertaining to a removal action (i.e. witness statements, etc.) will be destroyed and remove from agency files.  Other provisions may include agency acceptance of a retroactive letter of resignation explaining the personal reasons for the voluntary resignation.

In all, there are many different types of settlement provisions which can provide improved employability if resolved during the MSPB process.  For a far more detailed discussion of the MSPB clean record process, the MSPB, in 2013, issued guidance in a report.

Conclusion

In sum, for some federal employees a clean record settlement is important in order to resolve an MSPB appeal.  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

E-Filing at the MSPB

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

Our firm represents federal employees before the Merit Systems Protection Board (MSPB), in the appeals process. When an appeal is filed these days it is mostly done through the MSPB e-filing process.  Basically, the MSPB has moved over the last few years to an e-filing system for federal employee appeals.  Our experience in representing federal employees in e-filing issues has generally been positive.  The MSPB e-filing process is governed by 5 C.F.R. § 1201.14 Electronic filing procedures.

What is E-Filing? 

E-filing at the MSPB is just another method of submitting and receiving documents in relation to a federal employee’s MSPB appeal. The types of documents that can be submitted and received through the MSPB e-filing system include initial appeals, motions, written responses to orders, briefs and petitions for review (appeals).  Once a document is filed electronically it is automatically served on all other e-filers (i.e. typically the federal agency’s attorney and that judge). If a federal employee doesn't use the e-filing system, then the documents must be served in other ways (i.e. fax, mail). The e-filing process saves postage, time and typically registers as filed within the e-filing system fairly quickly. The e-filing system can also make the process less formal.  One need not submit a formal pleading in certain cases and may choose instead to enter information in the electronic questionnaire. 

A Description of the E-Filing Process

Typically, the e-filing process begins with a federal employee or their attorney registering for an account with the MSPB e-filing system.  Following registration, the individual may then file their initial appeal electronically with the correct MSPB field office. Users can  save drafts of their appeal while it is a work in progress and then file it when it is completed. The administrative judge assigned to the case will then typically issue their Acknowledgment and other initial orders to the parties in the case to all e-filers with copies by mail to those not registered.  

Discovery requests and other correspondence between the parties are not typically filed in the e-filing system unless a party is having difficulty with the opposing side and must seek a motion to compel.  Following a decision on a motion or on the appeal itself, the MSPB administrative judge will issue the decision which will be electronically served if the parties have elected electronic filing.  It is much more efficient to receive these decisions right away rather than waiting for mail delays.  Furthermore, if the decision on appeal is adverse then the parties may generally file an appeal through the e-filing process.  In general, e-filing makes the MSPB process much more user friendly in our experience.

Conclusion

In sum, registering for e-filing at the MSPB is generally recommended.  When a federal employee is involved in an MSPB appeal, it is important for them to have legal advice and/or representation. 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.

 

Mitigating Penalties for Federal Employees at the MSPB

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

Our firm represents federal employees before the Merit Systems Protection Board (MSPB), www.mspb.gov in the appeals process. In doing so, we have often been called upon to represent federal employees in cases where the facts are either not in dispute or where they are less in dispute than the penalty which is assessed.  We often attempt to mitigate proposed removal actions for federal employees to lesser penalties.  Often, these types of issues move to the MSPB on appeal.   

How Does the Penalty Evaluation Process Come Into Play? 

Typically, a penalty analysis comes into play following a decision on the merits of disciplinary charges by a federal agency.  If a charge is not sustained against a federal employee then no penalty need be evaluated.  If a federal agency decides to sustain some or a portion of the charges, they will also issue a penalty, i.e. suspension, removal, demotion.  The penalty analysis will be governed by Douglas v. Veterans Admin., 5 M.S.P.R. 280, 305-06 (1981).  In Douglas, the MSPB held that 12 factors (“Douglas factors”) must be considered when evaluating possible penalties for disciplinary cases involving federal employees.

A federal supervisor is responsible for ensuring that a disciplinary penalty is fair and reasonable.  If a penalty is disproportionate to the alleged violation or is unreasonable under Douglas, it is subject to being reduced or reversed by the MSPB, even if the charges would otherwise be sustained.  As such, it is a federal agency’s duty to determine its penalty in accordance with the Douglas factors.  Furthermore, an agency must give “substantive consideration to a lesser penalty.”  Banez v. Dep’t of Defense, 69 M.S.P.R. 642, 650 (1996). 

When Does the MSPB Mitigate Disciplinary Penalties?

The MSPB mitigates disciplinary penalties when a penalty exceeds the bounds of reasonableness. While penalty selection is generally a matter of federal agency discretion, the MSPB will review a case to ensure that penalty judgment has been properly exercised.  The most typical situation is where a federal employee attempts to mitigate the penalty of removal to something less, like a suspension or demotion action.  

In making that type of determination, the MSPB must give appropriate weight to the agency's primary discretion in maintaining employee discipline and efficiency, recognizing that the Board's function is not to displace management's responsibility but to insure that management discretion has been properly exercised. See Brown v. Dep’t of Treas., 91 M.S.P.R. 60, P 7 (2002). Therefore, the MSPB will only usually disturb the agency's chosen penalty if it finds that the agency failed to weigh relevant factors or that the agency's judgment clearly exceeded the limits of reasonableness. See Toth v. USPS, 76 M.S.P.R. 36, 39 (1997).

In assessing the appropriateness of a federal agency's penalty selection, the most important factor is the nature and seriousness of the misconduct and its relation to the employee's duties, position and responsibilities, including whether the offense was intentional or was frequently repeated. See Batts v. Dep’t of Interior, 2006 M.S.P.B. 118, 102 M.S.P.R. 27, P 11 (2006).

The MSPB will modify a penalty when it finds that an agency failed to weigh the relevant factors or that the penalty the agency imposed clearly exceeded the bounds of reasonableness.   If a deciding official fails to appropriately consider relevant factors the MSPB does not need to defer to the agency's penalty determination.  And if the MSPB finds the agency's original penalty to be too severe, it may mitigate it to the maximum reasonable penalty. Lachance v. Devall, 178 F.3d 1246, 1260 (Fed. Cir. 1999). The MSPB may also mitigate to the maximum reasonable penalty when the deciding official failed to demonstrate that he considered any specific, relevant mitigating factors before deciding upon the penalty. Cunningham v. USPS, 109 M.S.P.R. 402, P 24 (2008).  

Recent samples of MSPB cases mitigating disciplinary penalties.

Some recent examples of mitigation at the MSPB follow:

1. Judy v. DOJ, 2015 MSPB LEXIS 3508 (2015) (removal mitigated to 7-day suspension where administrative judge found that deciding official had not given bona fide consideration to the mitigating factors existing in  case).

2. Solis v. DOJ, 2015 MSPB LEXIS 4426 (2015) (removal mitigated to 60-day suspension where administrative judge and Board found that the maximum reasonable penalty was a 60-day suspension in light of the appellant's positive performance record, absence of disciplinary history, cooperation during the agency's investigation, and admission of wrongdoing).

3. Seward v. DOD, 2015 MSPB LEXIS 3954 (2015) (removal mitigated to 60-day suspension where administrative judge found that although the sustained charge of sleeping on duty warranted discipline, when weighed against the mitigating factors of the appellant's years of service, his successful performance rating, his medical condition, and his efforts to correct the effects of that condition on his work, the penalty of removal was beyond the bounds of reasonableness).

4. Edmonds v. VA, 2015 MSPB LEXIS 2424 (2015) (removal mitigated to 14-day suspension where administrative judge found that there was no evidence that the offense was intentional, in addition to the fact that the federal employee had 7 years of prior service, an unblemished disciplinary record, good performance and because the agency’s table of penalties appeared to favor a lesser penalty).

5. Davis v. Dep't of the Navy, 2015 MSPB LEXIS 1917 (2015) (removal mitigated to 30-day suspension where administrative judge found that while federal employee had past discipline, that the agency had not proven all of its charges, and the employee held potential for rehabilitation).

Conclusion

When a federal employee is involved in an MSPB appeal, it is important for them to have legal advice and representation. 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.

Mediation at the MSPB

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

We represent federal employees before the Merit Systems Protection Board (MSPB), www.mspb.gov, in the appeals process. In doing so, we have often been called upon to represent federal employees in “mediation” which is a type of hearing or meeting where a federal employee and federal agency attempt to resolve the employee's appeal through settlement.  

What is Mediation?

Mediation is just one form of alternative dispute resolution (ADR) which is available to parties in litigation at the MSPB. Mediation is essentially an informal hearing, where both parties use the services of a third party, usually an administrative judge (or other experienced personnel) in order to attempt to resolve a filed MSPB appeal.  In other words, the parties try to settle the case before it goes to an administrative judge for a ruling.  

How Does Mediation Work at the MSPB?

Typically, the mediation process at the MSPB starts after the filing of an appeal by the federal employee involved.  Once the MSPB appeal is filed, then the parties, usually about 5-7 days later will receive what is known as an Acknowledgment Order (Order).  Towards the end of the Order will be instructions describing different methods in which the parties may use in order to resolve the appeal outside of receiving a final ruling.

The details for mediation will be listed in detail in the Order. The MSPB mediation program is referred to as the Mediation Appeals Program (MAP). In order for mediation to be a possibility, both parties must agree to attempt mediation. Either party can object to it. Once the parties agree to mediation, the administrative judge hearing the case is notified and the appeal is generally put on hold for a designated amount of time while the parties attempt to reach settlement through mediation.  The administrative judge that is assigned to the appeal will typically then refer the case out to a third party mediator assigned by MAP, usually a different administrative judge or other experienced mediator. 

Generally, once the referral is made, the original administrative judge will not be involved in mediation efforts, but will hear the case later if mediation ultimately fails and the case comes back to them.  

What is a Typical Mediation Session Like?

A typical mediation session can be either held in person, by videoconference or by telephone.  We generally recommend in person mediation sessions as it seems that more appeals can be resolved through face to face meetings.  The federal employee and the federal agency (usually through their counsel) begin the mediation, usually, by presenting their positions on the appeal to the other side and to the mediator.  Typically, the federal employee goes first, followed by the Agency.   During this time, the parties may offer specific proposals to resolve a case.  A mediator has no ability to force the parties to settle, but is used to try to bring the parties towards settlement. Usually, following opening statements, the mediator will then separate the parties and talk with each party separately and attempt to narrow the ground for settlement. 

For instance, a federal employee who has been terminated may ask for reinstatement, backpay and attorney fees as a settlement proposal.  In this hypothetical, the mediator would then take this proposal back to the federal agency to discuss.  Then, the federal agency may then give the mediator a counter proposal to send back to the federal employee. In this example, the mediator may come back and informed the federal employee that a counter-offer has been made where the federal agency would agree to reinstatement and attorney fees but not back pay.  The process continues until the parties decide that they cannot settle or results in an informal agreement.

Following the Mediation Session  

Following an informal agreement to settle a case through mediation, the parties then work towards finalizing the agreement in writing.  Sometimes, this can be accomplished at the mediation site, but normally the final agreement is completed within the following 2-3 days after the session, when the parties have had the chance to exchange and revise draft written settlement agreements which encompass the terms agreed to at the mediation.  

Once the agreement is finalized and signed, the administrative judge assigned to the appeal is notified about the settlement and normally enters a copy of the agreement into the record for enforcement, dismissing the appeal as settled. In the event that the parties are unable to settle, the case will return to the administrative judge and the hearing process will begin again.  In sum, the mediation program at the MSPB, in our view, tends to be helpful for cases that have a possibility of settlement.  The following link is further helpful information published by the MSPB on the mediation program. MSPB Mediation Guidance.

Conclusion

When a federal employee is involved in the MSPB mediation process, it is important for them to have legal advice and representation in order to facilitate potential settlement of their case.  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.

Representing Yourself at the MSPB

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

We represent federal employees before the Merit Systems Protection Board (MSPB), www.mspb.gov, in the appeals process. In doing so, we have seen a number of federal employees represent themselves before later deciding to retain counsel. As a general rule, it is important for a federal employee to have their own attorney when dealing with a federal agency attorney in an MSPB appeal. While an employee is generally permitted to represent themselves in their own MSPB appeal (pro se), the process is very similar to court proceedings and carries with it a number of legal technicalities and issues that a federal employee must be aware of. Here are some general thoughts on the MSPB process when a federal employee is dealing with an agency attorney.

Before the MSPB Appeal

Before the MSPB appeal, most federal agencies do not assign an attorney to interact with a federal employee involved in a proposed removal or suspension type case (the types that usually go to the MSPB). There are exceptions to this rule; occasionally if the employee retains their own attorney during the proposal stage the agency may appoint an attorney to represent  agency interests before the MSPB appeal stage. As a result, a federal employee's case (unless they have their own attorney), is usually assigned to a Human Resources (HR) representative.

Keep in mind that HR works for the agency (management) and not the federal employee involved. They will most often attempt to not answer a federal employee's questions about  a pending disciplinary case.  It is important to note that HR will very likely share any information that a federal employee provides to them with management. In other words, a federal employee should not consider information provided to an HR representative to be kept in confidence. Furthermore, if the federal employee asks questions of HR personnel about their case, they may provide information that helps the Agency’s position or discourages the federal employee from later pursuing an appeal. In short, a federal employee should not rely on an agency HR or attorney representative for advice regarding their case.  

After the Start of the MSPB Appeal

After an MSPB appeal is filed, an agency attorney is typically assigned to represent the agency during the course of an MSPB appeal. Agency attorneys, and their approaches, vary between individual federal agencies and within an individual agency itself. Some agency attorneys can be aggressive with unrepresented federal employees and some can take a more reasonable approach. Either way, it is critical for a federal employee to know that an agency attorney’s client is the federal agency and management, not the employee. The MSPB is an adversarial process where the job of an agency attorney is to prove that the agency was correct in taking action against the federal employee.

General Tips for Federal Employees

1. Retain or Consult with an Attorney: We know that this is a big step for many federal employees. However, it is very important. Federal employees usually come to us following the filing of an MSPB appeal when they start to uncover all that is involved in pursuing such an appeal. It can be overwhelming for many federal employees. Many times the employee has just received a notice that the agency attorney would like to take their deposition or is seeking documents from them and realize that they need an attorney's help. Usually, after the MSPB issues an Acknowledgment Order starting the case, a federal employee realizes the extensive work required to pursue an MSPB appeal.

2. Do Not Volunteer Adverse Information to the Agency Attorney: When a federal employee attempts to interact with an agency attorney in the course of an MSPB appeal, please keep in mind that they generally should not freely provide information that might hurt their appeal. It may seem okay at the time to talk openly with the agency's attorney, but keep in mind that any information learned, if negative, will be used against the federal employee late in the process. It is the agency attorney’s job to represent the federal agency in the MSPB process to the best of their ability.

3. Keep on Top of Deadlines: Deadlines are important in MSPB cases, whether they are for due dates for submitting or responding to discovery requests or due dates for responding to a filing request by the Administrative Judge. Often times a federal employee will assume that an agency attorney will keep them updated on deadlines in a case or will be flexible if the federal employee misses a deadline. Do not assume this to be the case (it generally does not work out that way), because an agency attorney’s job is to represent the agency in the case.

4. Do Not Settle an MSPB Appeal Without Having an Attorney Review the Agreement: It is important for a federal employee to have their own attorney to review a proposed settlement agreement before they sign. The federal employee should obtain an assessment as to the strengths of their case and whether the settlement agreement is reasonable and whether it adequately protects their rights. If the federal employee signs a settlement agreement and then has second thoughts later on it can be very difficult to undo an agreement that has been signed. A federal employee should definitely obtain legal advice before they sign a settlement agreement.

Conclusion

When a federal employee is involved in the MSPB appeals process, it is important for them to have legal advice and representation during the course of their appeal.  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.

Using Exhibits at an MSPB Hearing

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

In Merit Systems Protection Board (MSPB) cases, at the hearing stage, the parties will need to use exhibits in order to prove their case.  Exhibits are merely documents, recordings or other items which can be used during a hearing to support a federal employee's or agency's case.   There are a number of steps in order to utilize exhibits in the hearing process.  

Types of Potential Exhibits 

The following are some potential examples of possible exhibits for use in an MSPB hearing. These can include all types of written documents, such as letters, reports of investigation, witness statements, policies, notices and emails, among other types of documentation.  Exhibits can also include recordings and video evidence. 

How Exhibits are Obtained

Typically, the first step in obtaining a potential exhibit (unless the federal employee or agency already has the potential exhibit) is to request it through discovery.  For instance, a federal employee may ask for a series of email communications between a supervisor and others relevant to their case through discovery.  In this example, once these documents are obtained, they may be able to be used later at the MSPB hearing.  Suppose, for example, in a misconduct case an email is produced that shows that the federal employee did not commit the alleged misconduct.  The federal employee will definitely want to use that email as an exhibit.  

How Exhibits are Introduced

The process of entering an exhibit into the record at the MSPB takes a few steps.  Typically, exhibits must be provided by both parties in their pre-hearing submissions to the administrative judge in order to later use them.  The MSPB administrative judge will not usually rule on the admissibility (the ability to use) of the exhibits at the pre-hearing conference, but will likely defer that decision to the hearing itself.  

When the hearing takes place, the first step to have an exhibit introduced is accomplished by what is known as marking the exhibit for introduction and handing it to the witness.  The witness should generally have knowledge (in most cases) about the document that is sought to be introduced in order to authenticate the document.  Then, the witness is generally asked some questions such as whether they have seen the exhibit or know what it is.  After the witness has confirmed that they know the exhibit (example: an email that they wrote or received), then the party can ask the administrative judge to enter the exhibit into evidence.  

Depending on whether the exhibit is objected to by the other side, the judge will rule on the admission of the exhibit.  Under 5 C.F.R. § 1201.61, if an administrative judge excludes an exhibit, he or she will describe the evidence intended to be admitted and the description will become part of the record.  If admitted, the exhibit becomes part of the record and can be used to support one’s case.  If the exhibit is not admitted, and is an important part of a parties’ case, the employee should object in order to preserve the record for a possible appeal.  

Conclusion

When a federal employee is involved in the MSPB appeals process, it is important for them to have legal advice and representation in developing legal arguments and in introducing potential exhibits in their appeals.  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.

 

 

Harmful Error at the MSPB

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

What is Harmful Procedural Error?

The Merit Systems Protection Board (MSPB) requires the reversal of a personnel decision where a federal agency commits harmful error which significantly impairs a federal employee’s rights.  When a federal employee is able to show that the application of the agency’s procedures were not in accordance with statute, rule or regulation, the MSPB may order a reversal. Jones v. Dept of Treas., 93 M.S.P.R. 494, 499 (2003).  In order for a harmful error to result in reversal, however, it must substantially impair the federal employee’s rights.  

Specifically, in order to prove harmful procedural error, a federal employee must prove that (1) the agency committed an error in the application of its procedures; and (2) that the error is likely to have caused the agency to reach a conclusion different from the one it would have reached in the absence of the error. 5 C.F.R. § 1201.56(c)(3). In these types of cases, the burden of proof is on the federal employee to show that the agency committed the error and that it was harmful (i.e. that the error caused substantial prejudice to his/her rights).

Examples of Harmful Procedural Error

The following are some potential examples of possible harmful procedural error cases:

A. The agency proposes removal against a federal employee and the employee attempts to respond to the proposed removal.  However, the deciding official refuses to review the response and then removes the employee without having reviewed the response.  

B. A federal employee is proposed for removal.  The deciding official hears the federal employee’s response and arrives at a decision not to remove the employee.  The agency decides, rather than issue the decision, to replace the deciding official who then removes the employee.  This can be harmful procedural error.  

C. The agency sustains a proposed removal on grounds other than those alleged in the proposed removal.  

Need to Show Harm

In order to succeed in alleging harmful procedural error, a federal employee has to prove harm and that the error would have likely caused the federal agency to reach a different conclusion. Turner v. U.S. Postal Service, 85 M.S.P.R. 565, ¶ 5 (2000) (reversal where deciding official admitted removing federal employee for actions not listed in proposed removal); and Canary v. U.S. Postal Service, 2013 M.S.P.B. 25 (2003) (reversal where replacement of deciding official violated agency rules and where original deciding official would not have sustained the removal).  In order to show harm, the federal employee needs to show a substantial violation of law, rule or regulation which can be shown to be grounds for a different result.   

Conclusion

When a federal employee is involved in the MSPB appeals process, it is important for them to have legal advice and representation in developing legal arguments, such as harmful error, in their appeals.  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.