By John V. Berry, Esq., www.berrylegal.com
We represent federal employees in Merit Systems Protection Board (MSPB) appeals. In other articles we go into more depth about various individual aspects of the MSPB appeals process, but this article focuses on a general summary of what to expect during the MSPB appeals process. There are sometimes some differences between appeals, but for the most part the major parts of the appeals process follow below.
A. Filing the MSPB Appeal
The first step in the MSPB appeals process is for a federal employee to file a MSPB appeal over an action that they have plan to challenge. In most cases, the MSPB hears cases involving serious discipline (i.e. removal; suspensions over 14 days, demotions). There are deadlines for filing an MSPB appeal and it is fairly strict. Typically, a federal employee has 30 days from the effective date of the adverse (the discipline) action to file an appeal. The MSPB appeals process has mostly transitioned to electronic filing so it is much more efficient to file the appeal electronically. It is very important to timely file the appeal and to even file it early given that an untimely appeal will likely be dismissed.
B. Receipt of the Acknowledgment Order
Usually, within 1-2 weeks of filing the MSPB Appeal, a judge will be assigned and issue an Acknowledgment Order which basically sets the ground rules and timelines in each case. This order is usually about 12-5 pages in length (depending on the specific issues in the case) and provides a significant amount of information about the processing of the individual MSPB appeal. After receiving the Acknowledgment Order it is very important to calendar all of the deadlines in the case.
C. Filing of the Agency File and Narrative Response
Typically, 20 days after the issuance of the Acknowledgment Order, the MSPB Administrative Judge assigned to the case will require the federal agency involved in the appeal to provide their agency file on the case to the MSPB and to the Appellant. This file will include the documents relevant to the federal agency’s case and also their initial summary response to the Appellant’s appeal. It is not uncommon for a federal agency’s file to be 50 to 300 pages long, depending on the number of documents associated with the case.
D. Holding of a Status Conference
Not all of administrative judges conduct these, but we have found that most administrative judges will schedule a status conference following the receipt of the Agency File and sometimes even before. The general substance of these status conferences involve an initial discussion of the issues involved in the appeal and also potential settlement negotiations. It is often the case that an administrative judge will attempt to move the parties towards talking settlement as early as possible. A status conference may lead to mediation or other alternative dispute resolution efforts.
E. The Discovery Process
MSPB appeals are much like civil litigation cases, except on a quicker timeline. A part of the MSPB appeals process will involve discovery. Usually, 30 days after the issuance of the Acknowledgment Order, the parties are required to submit their initial discovery requests if they choose to engage in discovery. The discovery stage is very important as it is the Appellant’s (federal employee’s) chance to obtain documents, reports, statements, correspondence, emails, video, audio which the Agency possesses and which could be used during the hearing in defense of the action. One of the most significant parts of the discovery process includes the ability to question, under oath, key witnesses by taking their depositions. Depositions can help get to the specific facts that may not have been uncovered earlier. For instance, if a federal employee has been accused and removed for allegedly threatening another employee in front of others, it is important to depose the other employees that witnessed the events.
F. Requesting a Case Suspension
At any point in the MSPB appeals process, often during discovery or when settlement talks are ongoing, a case suspension might be proposed by a party. A case suspension essentially freezes the MSPB litigation so that parties can complete certain tasks, such as completing discovery or to engaging in settlement talks or mediation. A case suspension can last up to 30 days and if needed a second one case be requested. Case suspensions are at the discretion of the Administrative Judge. Case suspensions can be important when more time is needed to work out a settlement agreement or to finish taking depositions of other relevant witnesses.
G. Affirmative Defense Filings
When MSPB appeals involve certain types of defenses, such as discrimination claims, whistleblower defenses or military discrimination (USERRA) claims, an administrative judge is likely to order the Appellant to prepare a summary of their arguments for these issues. The Agency will have the opportunity to respond to such arguments with their own take on these types of defenses.
H. Pre-Hearing Submission
Prior to the MSPB hearing, the Administrative Judge will order pre-hearing submissions from each party. These generally 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 case. It is important to include the details behind the relevance for each witness and document. Generally, administrative judges (for most cases) will permit 5-9 witnesses in a case. Administrative judges vary on the admission of witnesses, so an appellant or their counsel must be prepared to argue for the relevance of their witnesses at the pre-hearing conference.
I. Pre-Hearing Conference
The next step prior to the MSPB hearing involves the actual pre-hearing conference. During the conference, the Administrative Judge will review both parties pre-hearing submissions and rule on witnesses, exhibits and other potential issues likely to come up at the hearing. As mentioned above, each party will want to be prepared to argue for their position during the pre-hearing conference. Typically, the majority of the pre-hearing conference will be used to argue that certain witnesses be required to attend and to provide a basis to the judge for their relevance. For exhibits, administrative judges vary on whether they will admit exhibits during the conference or defer to the hearing for such decisions.
J. The MSPB Hearing
The MSPB hearing typically takes about 1-2 days depending on the number of witnesses involved and the complexity of the case. During the hearing, there will usually be opening statements by both parties of 5 to 15 minutes. Following opening statements, there will be the examination and cross-examination of witnesses for both sides. In disciplinary cases, the Agency will typically put on their case first as the federal agency bears the burden of proof. It is usually the practice of administrative judges that if both parties call the same witness that both parties examine the witness at that time. In other words, if the Appellant is called by the Agency, then the Appellant’s attorney would conduct their examination of Appellant right after the Agency has done so. This procedure can vary. After the Agency puts on their witnesses, the Appellant will be allowed to do the same.
A court reporter will transcribe all of the testimony given and the MSPB will make the CD of testimony available to both sides following the hearing. Finally, there may be closing arguments and/or written closing submissions prior to the end of the hearing. In most cases, closing arguments are completed by both parties after the end of testimony as opposed to in written briefs. After the hearing, the Administrative Judge will then issues a written decision usually completed 3-6 weeks after a hearing is held.
K. Filing an Appeal of an Adverse MSPB Decision
Should an MSPB Administrative Judge issue an adverse decision, either party can file an appeal known as a Petition for Review (PFR) usually within 35 days of receipt of the decision. The are specific grounds for an appeal to the full Board of the MSPB, such as errors involving facts and conclusions of law. The legal basis for granting an MSPB appeal falls under 5 U.S.C. § 7701(c)(2). The appealing party can win an appeal if they are able to show:
(A) harmful error in the application of the agency’s procedures in arriving at such decision;
(B) that the decision was based on any prohibited personnel practice described in 5 U.S.C. § 2302(b); or
(C) that the decision was not in accordance with law.
Generally, such appeals can take 8 months to a year, to obtain a decision following the filing of a PFR so long as the Board has a quorum (at least 2 members). If the PFR is affirmed, other appeals options are available to the parties.
In sum, when filing an MSPB appeal, it is very important to retain legal counsel familiar with the MSPB to assist you. Our law firm represents federal employees before the MSPB and can be contacted at www.berrylegal.com or by telephone at (703) 668-0070. Please visit our Facebook page.