Performance Issues

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. 


The Importance of Acknowledgment Orders in Merit Systems Protection Board Cases

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

Acknowledgment orders are very important in cases that are filed with the Merit Systems Protection Board (MSPB). These orders set the tone and deadlines for a federal employee’s appeal before the MSPB. Following the filing of a federal employee’s MSPB appeal, the first document that will be received is usually the Acknowledgment Order which will be issued by the MSPB Regional Office for that appeal. The Acknowledgment Order that the federal employee (referred to as the Appellant in MSPB cases) receives will be signed by the administrative judge that has been assigned to hear the appeal. 

The Acknowledgment Order is important to thoroughly review as soon as it is received because it contains many deadlines which are timed from the date that the order is issued, not necessarily received. The Acknowledgment Order will instruct a federal employee appealing a decision (i.e. removal, demotion, performance, whistleblower or userra cases, etc.) in several areas which are critical to their appeals before the MSPB. A typical Acknowledgment Order will inform an Appellant about the following issues:

Designation of Representative – A federal employee will be instructed as to how to name their representative in the MSPB case, if that task has not already been completed by their attorney of record. Typically, when our Firm is retained to represent a federal employee, we complete this form for our clients.

Discovery Deadlines – This is perhaps the most important portion of the Acknowledgment Order and often times one of the least well understood by appellants. It is critical that a federal employee prepares a list of all of the discovery deadlines related to the Acknowledgment Order, basing them on the date that the Acknowledgment Order is served (the date in the upper right hand corner of the first page of the Order). Typically, an appellant has 30 days from the date of the Acknowledgment Order (the date in the upper right hand corner of the first page of the Acknowledgment Order) to initiate or begin the discovery process. 

This is often overlooked when appellants represent themselves, but it is critical that an appellant engage in discovery efforts if there is to be significant hope of settlement in a case. This means that an appellant should have their requests for documents, interrogatories, requests for admission and/or depositions ready to be submitted in advance of the 30 day deadline. Sometimes, an appellant can also initiate some of their requests prior to the deadline, and then follow up with additional discovery. However, in order to determine the appropriate strategy here, it is recommended that an appellant be represented by counsel as to the correct legal strategy for such issues.

The Acknowledgment Order also provides that the agency or the appellant has 20 days to respond to a discovery request. An appellant must always keep this in mind, because if an agency does not respond to discovery (in full or in part), and the appellant has waited for more than 10 days following the non-response to take action, discovery can be deemed to be waived.

Initial Disclosures – The Acknowledgment Order also will usually provide notice that initial disclosures should be served by the agency and the appellant, on each other, within 10 days of the date that the order was issued. These disclosures provide basic information to both sides about the potential witnesses and documents that are involved in the appeal.

Settlement Forums – The Acknowledgment Order also provides information regarding a number of potential options for appellants in resolving their matters, such as the Case Suspension process, Alternative Dispute Resolution, the Mediation Appeals Program, the Settlement Judge Program and the MSPB Settlement Program. The goal of all of these programs and the procedures for seeking help from them are discussed in the Acknowledgment Order and should be evaluated by an appellant when these orders are issued.

Some Key Deadlines for an Appellant in the typical Acknowledgment Order

a. Designate your representative (10 days after the Acknowledgement Order is issued);

b. Prepare and Send Initial Disclosures (10 days after the Acknowledgement Order is issued);

c. Serve Discovery Requests on the (30 days after the Acknowledgement Agency Order is issued);

d. Receive Discovery Requests from (Due 20 days after they are the Agency served on the Agency);

e. File a Motion to Compel if Agency (Due no later than 10 days after Does not Respond to Discovery in Response was Due) Part or in Full; or

f.  Request a Case Suspension where needed;

The above are just a few of the deadlines from the typical Acknowledgment Order, not all of them. When facing an MSPB appeal, it is very important to have legal representation from the start of the process because many of the deadlines discussed above vary from case to case. Each case is different and requires the review of an attorney that is knowledgeable about MSPB appeals. 

Contact Us

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