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Legal Insider: MSPB appeals for federal employees

This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.

By John V. Berry, Esq.

When federal employees are fired, demoted, suspended, face Whistleblower issues, retirement problems, military discrimination or a host of other civil service issues they often can take their cases to the Merit Systems Protection Board (MSPB).

The MSPB is an administrative court that functions much like a civil court for federal employee claims. Here is a summary of the MSPB process, which varies depending on the type of claim.

Filing an MSPB Appeal

The first step in the MSPB appeals process is for a federal employee to file a MSPB appeal. For most types of cases that the MSPB hears (e.g., those involving removals or severe suspensions for federal employees), the deadline to file an appeal is typically 30 days from the effective date of the decision. It is critical to timely file an MSPB appeal or it will most likely be dismissed. Appeals are mostly filed electronically these days through the MSPB e-Appeals website. Different deadlines may apply for some whistleblower, military discrimination and other types of cases so having counsel is very important in MSPB cases.

Receipt of the Acknowledgment Order

Usually, within a week of filing an MSPB Appeal, an administrative judge will be assigned and issue an Acknowledgment Order setting the ground rules and timelines for the appeals case. Of key importance are deadlines to conduct depositions and/or seek documents related to the case from a federal agency. In some cases, the order may also require the federal employee to prove that the MSPB has jurisdiction (i.e., can hear the case) over their case or to require a federal employee to respond to other issues in the appeal.

The Agency Files a Response to the Appeal

Usually, 20 days after the issuance of the Acknowledgment Order, the federal agency involved in the appeal is required to provide their case file to the MSPB administrative judge and the federal employee. This file will include the documents related to the federal agency’s case and also their initial response to the Appellant’s appeal. The file is often helpful for use in the case.

Settlement

The attempt to settle an MSPB appeal can happen at any point of the MSPB appeals process. We often find that it takes place most often before or slightly after the discovery process. The settlement process at the MSPB can take many forms: (1) informal settlement talks between the parties; (2) MSPB settlement judge involvement; or (3) the Mediation Appeals Program at the MSPB. It is very important to focus on settlement early in the process, where appropriate.

Discovery (Seeking Documents and Taking Depositions)

In most cases, 30 days after the issuance of the Acknowledgment Order, the parties are required to submit initial discovery requests to each other if they choose to engage in discovery. The discovery stage is very important as it is the federal employee’s chance to obtain documents, correspondence, emails, video, data or audio in the agency’s possession which can be used to help the federal employee during the hearing. One of the most important aspects of discovery is the ability to question federal supervisors or others, under oath, in depositions. Depositions by a federal employee’s attorney can lead to very important information which can be used in a federal employee’s appeal.

Pre-Hearing Submissions

Prior to the MSPB hearing, the administrative judge will require pre-hearing submissions from each party. These generally include the parties’ versions of the issues to be heard, any agreed to stipulations, the documents to be used as exhibits in the case and potential witnesses sought for the case.

Pre-Hearing Conference

Prior to the MSPB hearing, the administrative judge will then review both parties pre-hearing submissions, meet with counsel for both sides (usually by telephone) and rule on witnesses, exhibits and other issues likely to come up at the hearing. A federal employee needs to be prepared to argue for the admission of their exhibits, witnesses and for the issues that will be heard at the MSPB hearing.

The MSPB Hearing

The MSPB hearing typically takes about 1-2 days depending on the number of witnesses involved. It can be held in person or conducted by video conference. During the hearing process, there will usually be opening statements by both sides. This will be followed by the examination and cross-examination of witnesses for both the federal employee and that agency. A court reporter will also 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 will then be issued.

Appeals from Adverse MSPB Decisions

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 after a decision is issued and will be reviewed by the MSPB’s Board on appeal.

Contact Us

If a federal employee needs assistance with a MSPB appeal, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation. We represent federal employees nationwide in MSPB appeals. Please also visit and like us on Facebook.

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