Author: John V. Berry

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.

The Merit Systems Protection Board (MSPB) is an appeals process for federal employees and former federal employees to challenge a variety of federal agency actions. These include serious disciplinary actions (adverse actions), retirement appeals, whistleblower retaliation cases, and other types of personnel disputes.

The most common type of MSPB Appeal for federal employees involves serious disciplinary actions, such as a proposed removal, suspension over 14 days, or demotion. Although federal employees have the right to represent themselves, federal agencies are almost always represented by counsel.

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

One key reason to retain an MSPB lawyer is that it often changes how a federal agency approaches an MSPB appeal. Agencies typically allocate more time and resources to cases in which the federal employee is represented by counsel. When a federal employee has an attorney, agency counsel knows the opposing party will be able to understand deadlines, evidentiary rules, and litigation strategy.

The MSPB Process is Much Like a Regular Civil Case

The MSPB Appeals Process functions much like a regular court case. A major misconception is that the MSPB process is simple enough for an employee to handle alone. In reality, an MSPB appeal operates similarly to a civil court case and includes discovery, depositions, and motions among other similarities.

Federal employees often contact us after discovery deadlines have passed. This can significantly limit the chances of winning or negotiating a favorable settlement. Retaining an MSPB attorney early in the process is critical to preserving your rights and building the strongest possible case.

Having an Attorney Can Increase Your Chances of Settlement

In our experience, federal employees represented by counsel are more likely to resolve their MSPB appeals through settlement. Federal agencies evaluate settlement based on various factors such as risk, including the risk of losing the appeal, which increases when the employee has effective representation.

Attorneys also understand how to conduct strategic discovery, take depositions, and obtain information that may encourage a federal agency to settle. Self-represented employees often struggle with these tasks, which can diminish settlement leverage and reduce the amount of useful evidence that is uncovered.

Additionally, MSPB lawyers are skilled in negotiating and drafting settlement agreements to protect the employee’s interests, minimize future risk, and help ensure compliance by the agency.

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

MSPB hearings require litigation skills that are challenging for a non-lawyer to perform effectively. A hearing typically involves opening and closing statements, presenting and questioning witnesses, cross-examining agency witnesses, making objections, and understanding evidentiary rules and providing sworn testimony.

Self-representation becomes especially challenging when it comes to testifying. Employees often end up making unscripted statements instead of providing structured testimony that effectively supports their case. An MSPB attorney can guide the employee through their testimony and ensure the strongest possible presentation of evidence.

Many federal employees come to us after filing their appeal, only to discover how complex and time-sensitive the process is. The earlier an MSPB attorney becomes involved, the better the outcome tends to be.

Our law firm represents and advises federal employees in various employment law matters. If you need legal assistance regarding a federal employment matter, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation.

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.

We defend federal employees facing discipline. Federal employees serve the public with dedication, but like any workforce, they may face proposed disciplinary actions, ranging from demotions to removals. These actions are stressful and career-threatening, but federal law and regulations provide employees with meaningful rights and avenues to respond. As lawyers representing federal employees, it is important to understand the federal employee disciplinary process.

The disciplinary process, for most federal employees, is currently on hold during the Government Shutdown, but will resume as soon as federal employees are permitted to return to work.

Understanding the Notice of Proposed Discipline

When an agency intends to discipline most federal employees, it must first issue a written Notice of Proposed Discipline (e.g. Notice of Proposed Removal). This document outlines the charges, specifications, and the proposed penalty. Importantly, this is not the final decision. It is just a proposed action. At this stage, the employee (presuming they are not probationary or in a unique civil service category) generally has the right to respond both orally and in writing.

What to Consider in Reviewing the Proposal?

When reviewing the Proposed Discipline, it is important to look for a few things in evaluating it, including:

• Specificity of Charges: Does the notice clearly identify the alleged misconduct?
• Evidence Cited: Is the proposed action supported by reliable documentation or testimony?
• Penalty Proposed: Does the penalty align with the agency’s own disciplinary table and other similar cases?

The Employee’s Right to Respond

Federal employees generally have the right to respond, usually within 7 to 30 days depending on the severity of the proposed action and the agency involved. This is a critical window to:

• Request and Review the Evidence – Request the information upon which the notice is based.
• Refute Allegations – Challenge inaccuracies or incomplete facts in the notice.
• Provide Mitigation – Explain extenuating circumstances, work history, or personal factors that weigh against severe discipline.
• Highlight Other Issues – Agencies must follow law and regulations. Many disciplinary cases also involve discrimination and/or whistleblower retaliation which is relevant to a federal employee’s defense.

Often, agencies fail to consider mitigating factors such as years of good service, lack of prior discipline, or whether progressive discipline was properly applied at the proposal stage. These arguments can substantially reduce or eliminate penalties in the final decision.

The Deciding Official’s Role

A deciding official, separate from the proposing official, will hear the employee’s response and issue the final decision. The deciding official is required to give meaningful consideration to the employee’s defense. Ensuring that the response is written carefully, supported by evidence, and persuasive is crucial. It is also important for a federal employment attorney to prepare a federal employee for the oral response.

Appealing a Final Decision

If the agency issues an adverse action (such as removal, suspension over 14 days, or demotion), the employee may have the right to appeal. Options include:

• Merit Systems Protection Board (MSPB): For most serious adverse actions.
• Union Grievance Procedures: If covered by a collective bargaining agreement.
• Equal Employment Opportunity (EEO) Complaint: If discrimination or retaliation is involved.

Each forum has strict deadline, often as short as 30 days, so employees should seek a federal employment lawyer immediately after receiving the final decision.

Why Legal Representation is Important

Defending against proposed discipline is not just about challenging allegations. It requires legal representation, for such things as:

• Reviewing agency evidence and uncovering weaknesses.
• Gathering witness statements and supporting documents.
• Framing mitigation in a way that resonates with deciding officials.
• Preparing for potential appeals to MSPB or arbitration.

An experienced federal employment attorney can significantly improve outcomes, whether by securing withdrawal of the proposal, negotiating a lesser penalty, or successfully overturning an adverse decision on appeal.

Conclusion

Federal employees facing proposed disciplinary actions should remember: the notice is not a final decision. With well-prepared responses and counsel, many employees successfully defend their careers. The process is complex, but due process protections exist for a reason. Federal employees should have a federal employment lawyer retained to assist them in this process.

Our law firm represents and advises federal employees in various employment law matters. If you need legal assistance regarding a federal employment matter, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation.

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.

Our lawyers represent and defend federal employees in appeals pending before the Merit Systems Protection Board (MSPB). While litigation through the MSPB hearing process is one potential avenue, many cases are resolved more efficiently through settlement, which is a faster, more cost-effective resolution in such cases. Federal employees have several options for settling cases at the MSPB, each with its own structure. Settlements at the MSPB frequently involve disciplinary cases.

Settlement Options at the MSPB

Settlements at the MSPB typically arise in the context of appeals filed by federal employees challenging adverse actions taken by their employing agencies. These actions may include removals, suspensions over 14 days, demotions, or other personnel decisions. A successful settlement requires mutual agreement between the employee and the Agency. The settlement process cannot proceed without cooperation on both sides. For this reason, it is key to explore settlement options early in the litigation process.

The available settlement options at the MSPB include: (1) Informal Mediation with Agency Counsel; (2) the Mediation Appeals Program; (3) the Settlement Judge Program and (4) the MSPB Settlement Program.

1. Informal Mediation with Agency Counsel– This is often the quickest method of attempting to settle a case. Typically, at the start of an MSPB case, counsel for both parties may engage in informal discussions to exchange settlement proposals. In many cases, early informal negotiations and communications can lead to favorable outcomes.
2. Mediation Appeals Program– This occurs in a more formal setting and is typically conducted in person. A mediator from the MSPB, who serves as a neutral third party, is assigned to encourage and facilitate settlement. This seems to be the more common way of attempting to settle MSPB cases these days.
3. Settlement Judge Program– An administrative judge or other mediator, who is not assigned to adjudicate the case, is appointed to assist the parties in resolving the matter. In an attempt to settle such cases, settlement judges typically conduct settlement discussions remotely. As the settlement judge is not involved in the litigation of the case, they can provide candid, unbiased feedback, which can be very helpful in attempting to reach a settlement.
4. MSPB Settlement Program– The MSPB judge assigned to hear the case at the hearing stage discusses settlement with the parties. As the judge is already familiar with the legal issues involved, they are well suited to discuss the possibility of settlement in these cases and identify potential areas for compromise. Settlement discussions in this process typically occur at pre-determined times in a case, such as at the pre-hearing stage or shortly after the case is assigned to the administrative judge.

Approval of Settlement Agreements

When a settlement agreement has been met, parties will submit the agreement to the administrative judge for review. If the settlement agreement is lawful, clear, and voluntarily entered into, the judge will issue an order dismissing the appeal as settled. Then, the agreement will be entered into the official MSPB record for enforcement purposes.

Enforcement of Settlement Agreements

MSPB has a mechanism to ensure that a settlement agreement that is placed in the record is adhered to. Though somewhat rare, if this becomes an issue for a client, the first step is to contact Agency counsel in an attempt to quickly resolve the issue before seeking to enforce a previously agreed to settlement. However, if resolution cannot be achieved, the MSPB has the authority to investigate and order compliance with the agreement.

Our law firm represents and advises federal employees in various employment law matters. If you need legal assistance regarding a federal employment matter, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation.

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.

Figuring out the federal bureaucracy can be daunting—especially when your health and finances are at stake. For federal employees whose medical conditions have rendered them unable to perform their job duties, OPM (Office of Personnel Management) disability retirement can provide an important option. However, the application process is rigorous and can be riddled with legal and procedural pitfalls. As federal employment attorneys who have guided many clients through this journey, we want to share a few strategies that can increase the likelihood of your OPM disability retirement application being approved.

1. Understand the Legal Requirements

Before anything else, you must meet the statutory requirements for OPM disability retirement under 5 U.S.C. § 8337 (CSRS) or § 8451 (FERS). The main criteria include:

• You must have completed at least 18 months of creditable civilian federal service (FERS) or 5 years (CSRS).
• You must have a medical condition expected to last at least one year that prevents you from performing “useful and efficient service” in your current position.
• Your agency must be unable to accommodate your condition or reassign you to a comparable position within the same commuting area.
• The disability must have arisen or worsened during your federal service.

Knowing and aligning with these requirements is the foundation of a successful application.

2. Provide Detailed Medical Documentation

Vague or insufficient medical records are the number one reason OPM disability retirement claims are denied. It is important to realize that your treating physician’s narrative must:

• Clearly diagnose your condition.
• Explain how the condition impairs your ability to perform essential duties.
• State that the condition is expected to last at least one year.
• Directly link your symptoms to specific job duties that are no longer feasible.

Don’t rely solely on forms—include comprehensive medical narratives, test results, family and friend letters, and specialist opinions where possible.

Pro Tip: Request that your doctor explicitly address your inability to perform useful and efficient service—a legal standard that OPM evaluates rigorously.

3. Develop a Strong Link Between Your Condition and Your Job Duties

OPM disability retirement adjudicators are not medical professionals; they evaluate your claim based on how your condition affects your ability to perform your job, not just whether you’re “sick.”

Include a copy of your official position description and annotate how your medical condition interferes with each major duty. For example:

• If you’re a postal worker with a degenerative spine condition, emphasize how lifting and standing requirements are no longer feasible.
• If you’re a claims examiner with severe cognitive impairments, explain how memory loss or concentration issues impact your analytical tasks.

4. Show That Accommodation or Reassignment Is Not Feasible

One critical element OPM evaluates is whether your agency attempted (or could reasonably have attempted) to accommodate your condition or reassign you.

You or your agency should document:

• Whether any reasonable accommodations were tried (e.g., modified schedules, ergonomic tools).
• Why those accommodations failed or were not feasible.
• Whether your agency explored other positions at your grade and pay level.
• Any efforts you made to engage in the accommodation or reassignment process.

If your agency initiates your removal due to medical inability to perform, request that the removal letter explicitly state that no accommodation or reassignment is possible. This can help and is known as the Bruner Presumption.

5. File in a Timely Manner

Timing is crucial. You must apply for OPM disability retirement:

• Within one year of separating from federal service, or
• Before separation if you are still employed.

Many applicants lose eligibility because they wait too long after resigning or being removed. It can be important to start the process while you are still on the agency’s rolls, if possible.

6. Prepare a Persuasive Applicant Statement (SF 3112A)

Your personal statement is your opportunity to tell your story. Explain:

• How your condition affects your daily work.
• The impact of treatments and medications.
• Emotional or psychological tolls.
• Why returning to full duty or finding another federal position is not realistic.

Use plain language but remain professional and factual. This is your chance to humanize the paperwork.

7. Seek Legal Guidance Early

An experienced federal disability retirement attorney can:

• Review and strengthen your medical documentation.
• Prepare legal arguments aligned with OPM case law.
• Draft or review your SF 3112 forms.
• Communicate with your agency and, if necessary, represent you on appeal to the MSPB (Merit Systems Protection Board).

Legal representation is particularly crucial if your agency is uncooperative or if your condition is difficult to classify (such as mental health disorders or chronic fatigue). Also, you need to be prepared with counsel should your initial filing be denied and you need to seek reconsideration.

Contact Us

Applying for OPM disability retirement can be critical when you are not well enough to continue your current federal duties. Being proactive, thorough, and strategic can significantly increase your chances of success. If you’re struggling with your health and your federal job is no longer sustainable, don’t wait. Begin building your case today—with clarity, documentation, and the right support. If you need assistance, please contact our firm at (703) 668-0070 or here.

Our law firm represents and advises federal employees in various employment law matters. If you need legal assistance regarding a federal employment matter, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation.