It is essential when seeking an attorney to represent you before the Merit System Protection Board (MSPB) you retain an attorney experienced in trying cases before the MSPB. If you, an employee of a federal agency have been terminated or demoted an experienced MSPB attorney can advise you as to various unique aspects involved in trying an appeal before an MSPB judge.
The rules of evidence do not apply when trying an appeal before the MSPB. Typically if one is trying a case before a judge in any state court or federal court an attorney must comply with specific rules relating to how evidence can be admitted in a court of law. The MSPB rules do not have any rules governing the introduction of evidence. An experienced MSPB attorney is aware it is a simple exercise to introduce documentary evidence potentially supporting his or her client’s case.
Another unique aspect of adjudicating one’s appeal with the MSPB is the fact that MSPB judges are always willing to become actively involved assisting in resolving an appeal by settlement. MSPB judges will frequently upon request by appellant’s counsel engage in a telephone conference with appellant’s counsel and appellant.
I inform my clients the ability to converse a MSPB judge prior to the appeal being adjudicated provides the client with invaluable insight as to whether the appellant should risk going to trial. All MSPB judges in order to further the settlement will inquire of counsel whether counsel is willing to permit the judge to engage in ex parte conversations with counsel and the client. Ex parte conversations are conversations where the MSPB judge speaks with the attorney and client without an agency attorney participating.
All MSPB judges in adjudicating appeals taken by federal employees who have been terminated or demoted will continually inform appellants trained mediators are available at no cost to assist in settling cases.
Another unique feature of the MSPB is the fact that discovery is limited in scope and time. Unlike civil litigation in state and federal courts the standard and goals set for adjudicating MSPB appeals is within a short time frame. Litigants are permitted to serve document requests and conduct depositions. It is rare this office serves document demands. The agency is required to file with the MSPB the agency file. The agency file contains all relevant documentation relating to the specifications filed by the agency.
This office frequently conducts depositions of agency investigators. Experience has shown valuable information can be obtained in deposing investigators. The agencies deciding officials base their final decision on the investigative report drafted by the agency investigators.
