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Legal Insider: Representing Federal Employees in MSPB Appeals Nationwide

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.

The federal government remains the largest employer in the Washington, D.C. area.

We represent federal employees nationwide in the Merit Systems Protection Board (MSPB) appeals process. Federal employees before the MSPB facing disciplinary action, retirement or other appeals often meet with us to discuss their options.

Since the MSPB process is essentially another form of civil litigation, we thought we would list the typical steps of an MSPB appeal for federal employees. The most common steps in this process are:

1. The Filing of the MSPB Appeal

The first step in the MSPB appeals process is for a federal employee to file an MSPB appeal. For most cases that the MSPB hears (usually, those involving serious discipline for federal employees), the deadline is typically 30 days from the effective date of the discipline to file the appeal. It is critical to file the appeal timely or it can be dismissed.

2. Judge’s Initial Order

Usually, within one to two weeks of filing the MSPB Appeal, a judge will be assigned and issue an Acknowledgement Order, which basically sets the ground rules and timelines in each case. This order is about 10 to 15 pages and provides a lot of information about the processing of the individual MSPB appeal and should be reviewed carefully.

3. The Agency Response

Usually, 20 days after the issuance of the Acknowledgement Order, the MSPB judge will require the federal agency involved in the appeal to provide their file on the case to the MSPB and to the federal employee. This file will include the documents relevant to the federal agency’s case and also their initial response to the federal employee’s appeal. It is not uncommon for a federal agency’s file to be 75 to 250 pages in length.

4. Status Conference

Most administrative judges will schedule a status conference following the receipt of the Agency Response. The general substance of these status conferences involves an initial discussion of the issues involved in the MSPB appeal and also potential settlement negotiations.

5. Asking for Discovery

Discovery is the process of obtaining documents (and other information) and taking depositions of witnesses involved in the action taken against the federal employee. Usually, 30 days after the issuance of the Acknowledgment Order, the parties are required to submit initial discovery requests. The discovery stage is very important as it is the federal employee’s chance to seek documents, correspondence, emails, video or audio, which a federal agency possesses. 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. Pre-Hearing Submissions

Prior to an MSPB hearing, the judge will order pre-hearing submissions from each party. Usually these 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 hearing.

7. The Pre-Hearing Conference

Next, prior to the actual MSPB hearing, the 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 their positions during the pre-hearing conference. Typically, the majority of the pre-hearing conference will be used to discuss the importance of particular witnesses and whether they will be allowed to testify.

8. The Hearing

An MSPB Hearing typically takes about one to two 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 the agency and the federal employee. A court reporter will transcribe the testimony given. There may be closing arguments and/or written closing submissions prior to the issuance of the judge’s decision in the case. The written decision is typically issued one to five weeks after the hearing is held.

Conclusion

If a federal employee needs assistance in an MSPB appeal, it is very important to retain legal counsel familiar with the MSPB to assist you. We represent federal employees nationwide in these matters and can be contacted at www.berrylegal.com or by telephone at 703-668-0070. Please also visit and like us on Facebook or connect with us on Twitter.

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