Support

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.

Recent Stories

More many in Arlington, the Friday after Thanksgiving is an off day, often spent with family and friends (or braving the malls). For others — including those with jobs that…

Morning Notes

Robbery at Pentagon City Mall — “1000 block of S. Hayes Street. At approximately 3:39 p.m. on November 22, police were dispatched to the report of a larceny just occurred….

An Arlington man is behind bars after police say he shot someone in the Green Valley neighborhood. The shooting happened early Sunday morning following what police described as a dispute…

Everyone has flat screen TVs already so how about a more interesting Black Friday special? The ARLnow Press Club for free, to try out the daily Early Morning Notes email…

(This Community Post was written by the [Arlington Chorale](http://arlingtonchorale.org/) and underwritten by [Embracing Arlington Arts](https://embracing-arlington-arts.org/).

Since the Arlington Chorale returned to in-person singing one year ago, local amateur singers have been signing up for auditions in unprecedented numbers. “Thirty of our current members joined within the last year,” says Ingrid Lestrud, Artistic Director. “Many of them have recently moved to Arlington, and they want to join a community. Chorale members get to sing beautiful music and meet a diverse group of people who love singing as much as they do!”

The singers are busy preparing their December 10 concert, Christmas Joy! Featuring John Rutter ‘s Magnificat and Kirke Mechem’s _Seven Joys of Christmas_ , audiences will hear familiar Christmas carols, as well as beautiful music with hints of tango, musical theatre, and jazz. The singers will be accompanied by a chamber orchestra of local professional players, and the concert will highlight the talents of soprano Helena Colindres. Members of the Chorale’s outreach group, the Youth Community Council, and select singers from the Chorale will be singing Christmas carols outside the venue as audience members arrive. After the performance, everyone is invited to join the singers downstairs for a reception with light refreshments. It’s a special community event you won’t want to miss! Tickets are $20 for adults and free for children under 12 available here. Please join the Arlington Chorale on **Saturday, December 10 at 5:00 PM at Westover Baptist Church!**

Submit your own Announcement here.

The Optimist Club of Arlington is holding its 76th annual Christmas tree sale!

This year, the tree sale will be held at the Knights of Columbus (5115 Little Falls Road). The lot opens for sales on November 25th. The Optimist Club is selling small and large trees ranging from tabletop size to huge 14 foot tall trees! Wreaths, garlands, tree stands, and White House Christmas ornaments will also be for sale.

100% of all proceeds go towards helping Arlington County youth.

For more information, please visit the Arlington Optimists website at https://optimistclubofarlingtonva.org/.

Submit your own Announcement here.

National Chamber Ensemble – Holiday Cheer!

NCE’s Holiday Concert will bring the finest classical masterpieces and holiday favorites together for the whole family. The festivities begin with Leroy Anderson’s classic “Sleigh Ride” and “Chanukkah Festival”, music from the Nutcracker and by J.S. Bach.

Outstanding Young Artist

Washington-Liberty Annual Holiday Bazaar

Join us Saturday December 3 from 10 to 4 p.m. at W-L High School, for this much anticipated Arlington holiday tradition! We will be featuring over 65 vendors for gift shopping, our student clubs and activities fundraising booths, and food

×

Subscribe to our mailing list