If you are a federal employee filing a Merit Systems Protection Board (MSPB) appeal, you can represent yourself. However, it would be highly beneficial for you to hire an attorney.
Just because you can represent yourself doesn’t mean it’s a good idea, and you need to understand that the process of filing an MSPB appeal shares many similarities to regular court proceedings and includes various legal technicalities. Consider that a federal agency attorney is who you will be dealing with, and hiring an experienced MSPB attorney is both intelligent and essential.
Reasons to Hire an Attorney for an MSPB Appeal
Hiring an experienced MSPB attorney can significantly improve your chances of winning an MSPB appeal. An attorney can also help you assess the risk of settlement vs. the risk of trial. Here are some reasons it can be beneficial to hire an attorney for an MSPB appeal.
#1. The MSPB Is an Administrative Court
Federal employees can use an online form submission process that appears relatively straightforward when filing an appeal; however, it is essential to understand that the MSPB is an administrative court. Therefore, filing an MSPB appeal can become very complex, very quickly with the various deadlines and legal issues you may encounter.
What often happens is about 30 days into the case, the legal issues and problems that arise when a federal employee represents themselves become obvious. Usually, deadlines and other legal issues emerge as a problem as the federal employee feels overwhelmed by agency attorneys pressuring them to submit additional documents and information.
At this point is that the federal employee will begin to feel like they need to hire an attorney. Even though the MSPB acts as an administrative court, it’s the same as going through civil litigation in a regular court.
MSPB appeals include short deadlines, discovery requests, motions, depositions, and a hearing similar to a traditional bench trial. The only difference is that the deadlines and timelines in an MSPB appeal are consolidated, which results in a much quicker process.
#2. Federal Agencies Have Attorneys Who Represent Them
In most cases, a federal agency will have an in-house agency attorney representing them. This means federal employees who choose self-representation will be at a disadvantage. The attorney representing a federal agency will use their experience and skill to sway the appeal to the agency’s favor and determine how the federal employee’s case proceeds.
Federal agency attorneys also use it to their advantage that a federal employee may be unaware of the rules and orders in an MSPB appeals process and attempt to defeat the appeal. As a result, many federal employees become intimidated, and it becomes essential for them to be represented by an experienced MSPB attorney.
#3. The Discovery Procedure
Most self-representing federal employees face the most significant challenges during the discovery procedure. When a federal agency’s attorney begins to request documents and collect depositions of various individuals in the case, it can become overwhelming for the federal employee. The discovery process can contain both benefits and challenges for a federal employee.
The discovery is the perfect opportunity to gather evidence in favor of the federal agency employee’s case and either win or settle on good terms. However, a federal employee is also disadvantaged because it can become confusing when they must sit for a deposition or formulate a response to a written discovery and are unaware of proper procedures.
#4. The Pre-Hearing Process of an MSPB
MSPB appeal is very similar to a pre-trial in regular court. The federal employee who is filing the MSPB appeal will be required to prepare several things, including:
- A summary of arguments
- Exhibits that they will introduce during the trial
- A list of witnesses that they will call
- An explanation of relevance to their case
The federal agency counsel and the federal employee’s counsel will also argue whether subpoenas, claims, witness relevance, legal arguments, and exhibits should be allowed during the hearing. The judge presiding over the administrative court rules at the prehearing conference what will and won’t be allowed.
#5. The MSPB Hearing
If the MSPB appeal makes it through the pre-hearing process, the process of an MSPB hearing is very similar to a typical court hearing. The basic steps include the following:
- Opening arguments
- In a disciplinary case, the federal agency will present witnesses and exhibits
- Agencies witnesses and examination, and cross-examination by federal agency employee or MSPB attorney
- Federal employee’s present witnesses and exhibits
- Objections of witnesses and evidence from both sides will be heard during the hearing, which the administrative judge will rule on.
- Oral closing arguments or the possibility of a written submission from both sides.
- The judge will decide whether the federal employee won or lost the MSPB appeal.
Tips for a Federal Employee During an MSPB Appeal
- Hire an experienced MSPB attorney before filing your appeal or early in the process. This will ensure your rights are protected, and your attorney has sufficient time to build your case.
- Use caution when speaking to the human resources department. Often the human resource representative shares information that you tell them with management. To avoid sharing information that could damage your case, you must be cautious when speaking to the human resources department and hire an experienced attorney to represent you instead.
- Avoid volunteering information to the federal agency attorney that could damage your MSPB appeal. It is essential to remember that the federal agency’s attorney is not on your side, and they can use any information you share with them against you.
- Ensure you meet all deadlines in your MSPB case. You must keep deadlines for submitting or responding to requests, and you mustn’t depend on the federal agency’s attorney to update you on deadlines. Hiring an MSPB attorney to ensure you meet critical deadlines will improve your chances of winning your case.
- Avoid settling an MSPB appeal without an experienced attorney reviewing the agreement. It is crucial to hire an MSPB attorney to represent your best interests and review a proposed MSPB settlement agreement before signing. If you choose to sign a settlement agreement and then later have second thoughts, it can be challenging to undo it as it is already signed.
Hire an Experienced MSPB Attorney Today!
At the Law Offices of Steve Newman, we provide the highest professional expertise and service and offer experienced legal representation in all 50 states before the MSPB.
Whether you seek an attorney to help you with Medical Malpractice lawsuits, Personal Injury, MSPB, Wage Hour claims, or Construction Litigation, our office is here to help protect your rights.
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