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 Merit Systems Protection Board (MSPB) is an appeals forum for federal employees and former federal employees to challenge various types of federal agency actions, such as serious disciplinary actions (adverse actions), retirement appeals, whistleblower matters and other types of cases. The most usual type of appeal for federal employees involves filing an appeal over a serious disciplinary action, such as removal from the federal service.

During an appeal a federal employee can choose to be represented by an attorney or not be. In almost all cases, however, the federal agency will be represented in the appeal by an attorney. This article discusses some of the reasons for retaining an attorney familiar with the MSPB process to assist you in an appeal. In other words, the reasons why it is important for a federal employee to retain an MSPB attorney. Here are some reasons why it is important for a federal employee to retain an MSPB lawyer for their appeal.

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

One of the reasons why it is important to have an MSPB experienced attorney representing a federal employee is that it will very likely make a difference in how the federal agency treats the MSPB appeal at issue. Federal agencies allocate their attorney resources first to cases where an individual has their own attorney. Those cases tend to get the most attention because there are attorneys on both sides of the appeal.

In other words, where an appellant has their own attorney, the federal agency involved will focus more on that individual’s appeal merely because they have an attorney. This focus can help to settle MSPB appeals.

The MSPB Process is Much Like a Regular Court Case

One of the most important reasons why it is important to have an MSPB attorney represent a federal employee in the appeals process is the fact that it is a very serious type of appeal, functioning much like a court case. There is a general misperception that the process is designed for an employee to effectively represent themselves. An MSPB appeal functions much like a civil court case where there is discovery, the taking of depositions and the filing of briefs.

It is critical that an appellant have counsel to assist them in these difficult and sometimes complex processes. It is often the case where federal employees discovery this fact late and we are contacted after discovery deadlines have passed which can make appeals much more difficult to prevail in and/or settle. It is important to have an MSPB attorney early in the process.

Having an Attorney Can Increase the Chances of Settlement

Federal employees who retain attorneys in the MSPB process, in our experience, are more likely to resolve their MSPB appeals. Part of the calculation by federal agencies, in determining whether or not to settle MSPB cases has to do with risk. Federal agency attorneys evaluate the risk of losing an appeal (a risk which increases when an employee has an attorney), but also other types of risks including the risk of adverse information being disclosed through discovery.

Individuals without counsel can run across difficulties such as how to format discovery requests or take depositions which can limit the amount of critical information uncovered in an appeal. This can decrease the chances of settling an MSPB appeal. MSPB lawyers are also able to understand and work out the legal terms of a settlement agreement with federal agency counsel to minimize risk and to attempt to ensure compliance with settlement agreements.

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

One of the most important reasons for having an MSPB attorney assist an appellant in a case is the difficulty for a federal employee in presenting their own case at the MSPB hearing. MSPB hearings typically involve presenting opening and closing statements, presenting and questioning witnesses, cross-examining witnesses and making legal objections to evidence.

It is also difficult for a federal employee to question themselves in a case, and their testimony as a result often takes the path of a statement which can have limitations. Having an MSPB lawyer assist them can help lead them through what can often be difficult testimony. We often have federal employees come to us following the filing of an MSPB appeal because they didn’t realize how complex the process can be. It is best to secure MSPB representation as soon as possible for federal employees.

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