MSPB Law Blog

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. We also represent federal employees in separate or related EEO complaint matters.

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.

Contact Us

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.  

Contact Us

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

What is a Conduct Unbecoming Charge?

Conduct Unbecoming cases at the Merit Systems Protection Board (MSPB) are known to involve the most generalized form of misconduct. In other words, the charge can cover a number of different types of offenses. It is the most common charge used when no others specifically apply.  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 conduct unbecoming charges to give a sense of how broad these types of charges can be.  

Sample Charges of Conduct Unbecoming

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

1. On November 14, 2017, you engaged in conduct unbecoming when you began to argue with co-workers about an assignment that was overdue. You then approached your supervisor, Jim Jones, and told him “I am done here. You can take this assignment and shove it.” Your disrespectful attitude and profanity in the workplace is unacceptable and you.

2. On July 14, 2018, you engaged in conduct unbecoming when you informed others in the office that you were the recipient of the Purple Heart award for military service, when in fact you never served in the military. Your misconduct reflected poorly on the agency.

3. On October 5, 2017 and October 8, 2017, you engaged in conduct unbecoming when you claimed that you worked your full schedule during those two days. After an investigation, it was discovered that you did not work the two days in question, had not been in the office and falsely claimed time for hours not actually worked.

4. On November 5, 2017, you engaged in conduct unbecoming when you shoplifted a television from a local electronics store. You were subsequently caught for the theft, charged and convicted of criminal theft. 

Elements Needed to Prove Conduct Unbecoming

A conduct unbecoming charge is proven by demonstrating that the employee committed the general misconduct alleged. In order to prove a charge of conduct unbecoming at the MSPB an agency needs to be able to do so by a preponderance of the evidence. The agency will need to establish that the employee (1)  committed the misconduct as alleged and (2) that the conduct was improper or that it detracted from the federal employee’s character or reputation. Crouse v. Dept’ of Treas., 75 MSPR 57 (1997).

Defenses to Conduct Unbecoming Charges

There are a number of different types of methods of defense for general conduct unbecoming charges. The first is to challenge the actual facts alleged. If the facts can be disputed, the charge itself can potentially be defeated. Another potential avenue for challenging a conduct unbecoming charge is to argue that the charge was too vague and thus did not provide a legitimate opportunity to respond. Mason v. Dep't of Navy, 70 MSPR 584 (1996). Other defenses may involve the fact that other employees have engaged in similar conduct but not been charged with discipline. Other potential arguments, including issues where the same conduct has been charged multiple times may be challenged through the merger doctrine (the concept that the same conduct cannot be charged multiple times in the same manner). The number of potential defenses to a conduct unbecoming charge are varied and require the assistance of a attorney knowledgeable in federal employment law to determine the best strategy.  

Conclusion

In sum, when facing a conduct unbecoming 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. Our Facebook page is located here.

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

Federal employees meet with us to discuss their options for Merit Systems Protection Board (MSPB) appeals. While in other articles we go into more depth about various individual aspects of the MSPB appeals process, we thought that it would be helpful to provide a point by point synopsis of the typical MSPB appeals process in chronological order. There are sometimes some differences, but for the most part the major parts of the appeals process follow below:

1. Filing of the MSPB Appeal

The first step in the MSPB appeals process is for a federal employee to file a MSPB appeal. For most actions that the MSPB hears (those involving serious discipline for federal employees), the deadline is typically 30 days from the effective date of the adverse action to file the appeal. The MSPB appeals process is transitioning to electronic filing so it is much more efficient to file the appeal electronically. It is very important to timely file the appeal and to even file it early given that an untimely appeal will likely be dismissed.

2. Receipt of the Acknowledgment Order

Usually, within 1-2 weeks of filing the MSPB Appeal, a judge will be assigned and issue an Acknowledgment Order which basically sets the ground rules and timelines in each case. This order is about 15 pages and provides a lot of information about the processing of the individual MSPB appeal and should be reviewed carefully.

3. Filing of Agency File and Narrative Response

Typically, 20 days after the issuance of the Acknowledgment Order, the MSPB Administrative Judge will require the federal agency involved in the appeal to provide their file on the case to the MSPB and the Appellant. This file will include the documents relevant to the federal agency’s case and also their initial response to the Appellant’s appeal. It is not uncommon for a federal agency’s file to be 50 to 300 pages long, depending on the number of documents associated with the case.

4. Status Conferences

Most administrative judges will schedule a status conference following the receipt of the Agency File. The general substance of these status conferences involve an initial discussion of the issues involved in the appeal and also potential settlement negotiations. A status conference may lead to mediation or other alternative dispute resolution efforts.

5. The Filing of Discovery

Generally, 30 days after the issuance of the Acknowledgment Order, the parties are required to submit initial discovery requests if they choose to engage in discovery. The discovery stage is very important as it is the Appellant’s chance to obtain documents, correspondence, emails, video, audio which the Agency may possess and which could be used during the hearing. One of the most important parts of the discovery process includes the ability to question (under oath) relevant witnesses in an appeal through the deposition process.

6. Case Suspensions

At any point in the process, usually during discovery or when settlement talks are ongoing, a case suspension might be proposed by a party. A case suspension basically freezes the litigation before the MSPB on the case to complete certain tasks, such as complete discovery or to engage in settlement talks or mediation. A case suspension can last up to 30 days, and then, if needed, a second one case be requested. Case suspensions are at the discretion of the Administrative Judge.   

7. Pre-Hearing Submissions

Prior to the MSPB hearing, the Administrative Judge will order pre-hearing submissions from each party.  These generally include the parties' versions of the issues to be heard, the documents to be used as exhibits in the case and proposed witnesses for the case.

8. Pre-Hearing Conference

Prior to the MSPB hearing, the Administrative Judge will review both parties pre-hearing submissions and rule on witnesses, exhibits and other issues likely to come up at the hearing.  A party will want to be prepared to argue for their position during the pre-hearing conference.  Typically, the majority of the pre-hearing conference will be used to argue that certain witnesses be required to attend and to provide a basis to the judge for their relevance.  

9. The Hearing

The MSPB Hearing typically takes about 1-2 days depending on the number of witnesses involved. During the hearing process, there will usually be opening statements and the examination and cross-examination of witnesses for both sides. A court reporter will transcribe the testimony given. There may be closing arguments and/or written closing submissions prior to the issuance of the Administrative Judge’s decision in the case. The written decision is typically issued 2-6 weeks after the hearing is held. Many hearings are moving towards video and away from in-person hearings.

10. The Appeal

Should the MSPB Administrative Judge issue an adverse decision, either party can file an appeal known as a Petition for Review (PFR) usually within 35 days of the date of the initial decision.

Conclusion

In sum, when litigating an MSPB appeal, it is very important to retain legal counsel familiar with the MSPB to assist you. 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

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).

Contact Us

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.  

Contact Us

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. 



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

The Merit Systems Protection Board (MSPB) is an appeals forum for federal employees and former federal employees to challenge various types of federal agency actions, such as serious disciplinary actions (adverse actions), retirement appeals, whistleblower matters and other types of cases. The most usual type of appeal for federal employees involves filing an appeal over a serious disciplinary action, such as removal from the federal service. During an appeal a federal employee can choose to be represented by an attorney or not be. In almost all cases, however, the federal agency will be represented in the appeal by an attorney. This article discusses some of the reasons for retaining an attorney familiar with the MSPB process to assist you in an appeal. In other words, the reasons why it is important for a federal employee to retain an MSPB attorney.  Here are some reasons why it is important for a federal employee to retain an MSPB lawyer for their appeal.  

Federal Agencies Treat MSPB Cases Differently When an Employee Has an Attorney

One of the reasons why it is important to have an MSPB experienced attorney representing a federal employee is that it will very likely make a difference in how the federal agency treats the MSPB appeal at issue. Federal agencies allocate their attorney resources first to cases where an individual has their own attorney. Those cases tend to get the most attention because their are attorneys on both sides of the appeal.  In other words, where an appellant has their own attorney, the federal agency involved will focus more on that individual’s appeal merely because they have an attorney. This focus can help to settle MSPB appeals.  

The MSPB Process is Much Like a Regular Court Case

One of the most important reasons why it is important to have an MSPB attorney represent a federal employee in the appeals process is the fact that it is a very serious type of appeal, functioning much like a court case. There is a general misperception that the process is designed for an employee to effectively represent themselves. An MSPB appeal functions much like a civil court case where there is discovery, the taking of depositions and the filing of briefs. It is critical that an appellant have counsel to assist them in these difficult and sometimes complex processes. It is often the case where federal employees discovery this fact late and we are contacted after discovery deadlines have passed which can make appeals much more difficult to prevail in and/or settle. It is important to have an MSPB attorney early in the process.

Having an Attorney Can Increase the Chances of Settlement

Federal employees who retain attorneys in the MSPB process, in our experience, are more likely to resolve their MSPB appeals. Part of the calculation by federal agencies, in determining whether or not to settle MSPB cases has to do with risk. Federal agency attorneys evaluate the risk of losing an appeal (a risk which increases when an employee has an attorney), but also other types of risks including the risk of adverse information being disclosed through discovery. Individuals without counsel can run across difficulties such as how to format discovery requests or take depositions which can limit the amount of critical information uncovered in an appeal. This can decrease the chances of settling an MSPB appeal. MSPB lawyers are also able to understand and work out the legal terms of a settlement agreement with federal agency counsel to minimize risk and to attempt to ensure compliance with settlement agreements.

It is Hard for an Employee to Represent Themselves at a MSPB Hearing

One of the most important reasons for having an MSPB attorney assist an appellant in a case is the difficulty for a federal employee in presenting their own case at the MSPB hearing. MSPB hearings typically involve presenting opening and closing statements, presenting and questioning witnesses, cross-examining witnesses and making legal objections to evidence. It is also difficult for a federal employee to question themselves in a case, and their testimony as a result often takes the path of a statement which can have limitations. Having an MSPB lawyer assist them can help lead them through what can often be difficult testimony. We often have federal employees come to us following the filing of an MSPB appeal because they didn't realize how complex the process can be.  It is best to secure MSPB representation as soon as possible for federal employees. 

Contact Us

In sum, when litigating an MSPB appeal 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

Many federal employees have a limited understanding of the Merit Systems Protection Board (MSPB) and what its role is in protecting federal employee rights. The MSPB is an independent federal agency that functions as a quasi-judicial court system protecting certain federal employee rights through an appeals process.  

Types of Federal Employee MSPB Appeals

The MSPB generally handles the following types of federal employee appeals:

1. Appeals of removals (terminations) or demotions (discipline or for performance);
2. Appeals of disciplinary suspensions of more than 14 days;
3. Federal retirement-related appeals related to OPM actions;
4. Whistleblower appeals;
5. Denials of within-grade salary increases;
6. Reduction-in-Force (RIF) appeals; and
7. Appeals involving discrimination based on military service (USERRA cases).

The MSPB also has jurisdiction over other types of federal employee appeals, but the ones listed above tend to be the most frequent.  Among the 7 types listed above, the most common type of appeal, in our experience, are removal appeals where a federal employee is attempting to contest his or her termination from federal employment.  

A Brief Description of the MSPB Appeals Process

An MSPB appeal is a quasi-civil action, with an administrative judge assigned to hear the federal employee’s case. For a federal employee it is much like being a party in a regular civil case. Once an appeal is filed by a federal employee the federal agency will almost always be represented by their own attorneys and it is important for the employee to be represented by an attorney as well. Once a federal employee files his or her appeal (by themselves or through counsel), an administrative judge is assigned and the case begins when the judge issues an Acknowledgment Order.  An MSPB appeal provides a federal employee with the ability to seek discovery of facts and documents related to their appeal. This includes the ability of a federal employee to question their supervisors or other agency officials, under oath (taking of depositions), to gather facts in preparation for the upcoming hearing. Through discovery, a federal employee can also seek documentation from the  federal agency involved (and possibly others), such as emails, correspondence, video and other materials that are relevant to their legal defense.  

An MSPB appeal also permits (and encourages) the parties, where it is possible, to attempt to settle an appeal prior to the hearing stage. A settlement is a compromise between the federal employee and federal agency regarding the disposition of the appeal.  In most cases, once the discovery process is complete, the case moves to the pre-hearing stage, a hearing date is assigned and ultimately a hearing is held by a MSPB judge.  The entire process of litigating an MSPB appeal, in our experience, usually takes between 120 and 180 days. An MSPB hearing functions much like a traditional court case.  (1) there are opening and closing statements, (2) the calling and cross-examination of witnesses, and (3) the introduction of evidence in support of a case.After the hearing is complete, unless the parties brief legal issues following the hearing, the administrative judge will then issue her or her decision.  After the close of the hearing or any final briefs are submitted, a decision will then be issued.  We have seen administrative judges make decisions from a few days after the close of the record to a few months after.  The process can vary.  The Administrative Judge's decision can then be appealed by either side to the full MSPB Board (a 3 person appeals board appointed by the President) and then to the U.S. Court of Appeals.

Contact Us

If you need 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, 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.

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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.