MSPB Law Blog

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.