Merit Systems Protection Board Faq

  1. What is the Merit Systems Protection Board?

The Merit Systems Protection Board (MSPB) is an independent agency of the executive Branch. The MSPB is a quasi judicial agency charged with protecting the integrity of the federal merit systems and the rights of individuals within those systems. The MSPB hears appeals of federal governmental employees who have been denoted, suspended, or terminated on the basis of conduct or performance.

  1. What due process rights does the MSPB guarantee under the Civil Service Reform Act?

In order to prevent federal employees from taking arbitrary, abusive, or politically motivated actions against federal employees the following due process rights must be complied with by the federal employer.

– You have rights if you are investigated regarding noncriminal or criminal allegations.

– You have a right to be notified in advance of potential discipline or removal.

– You are entitled to respond to proposed discipline to try to avoid or mitigate the fallout.

– If the adverse action is actually carried out you have the right to contest the action through an MSPB hearing or appeal of a hearing judge unfavorable decision.

  1. What type of cases are heard by the MSPB?

The MSPB hears cases for major adverse actions, removals, suspensions for more than fourteen days, a reduction in grade, a reduction in pay, and a furlough of thirty days or less.

  1. How does the MSPB appeal process work?

A Form 185 is filed with the MSPB. The Form 185 can be e-filed. The MSPB appeal process can be initiated online through the MSPB e-filing system.

  1. How long does it take to complete a MSPB appeal?

Most MSPB appeals are completed within one hundred twenty to one hundred sixty days.

  1. What is an Acknowledgement Order?

Subsequent to a federal employee filing a MSPB appeal an acknowledgement order is issued by the MSPB regional office handling the appellant’s appeal. The acknowledgement order is the initial document issued by the MSPB.

The acknowledgement order lists discovery deadlines based on the date the acknowledgement order was served. An appellant has twenty five days from the date of the acknowledgement order to serve discovery demands.

Discovery is the legal process in which a federal employee or an agency can legally obtain previously unknown information. A federal employee can take advantage of the discovery process during an MSPB appeal by utilizing production requests. Federal employees should not be under the impression they received all available documentation information because their federal agency provided them with information at the proposed discipline (i.e., during a proposed removal).

Prior to a final decision a federal agency is required to provide an employee with the materials relied upon in proposing the disciplinary action. This is not the same as providing an employee with all available information.

An agency might provide a federal employee with all of the witness statements demonstrating misconduct in a proposed removal case but hold back witness statements that could help the employee disprove the alleged conduct.

An appellant can request various documents from a federal agency during the discovery phase of an MSPB appeal. The formal request is referred to as a Production of Documents and Things (Production Requests) under 5 C.F.R. § 1201.72 (c).

Production Requests can include items such as copies of relevant e-mail messages, policies, memorandums, correspondence, audio, or video recordings, and copies of investigative reports if relevant to a federal employees MSPB appeal.

In disciplinary actions involving federal employees this office frequently requests, copies of e-mail messages between supervisors and investigators involved with the disciplinary investigation. Appellant has the option of requesting the agency produce documents, answer informational questions or admit to certain facts.

The appellant can demand an agency representative appear for a deposition. The MSPB permits an employee and the federal agency to take depositions of relevant witnesses. We recommend key witnesses be deposed. Deposing key witnesses can increase a federal employees chances of obtain a settlement or positive hearing result if important facts are uncovered during the deposition. A federal employee is allowed to take up to ten depositions.

If the deponent is employed by the federal government a federal employees attorney will notice the deposition by contacting the agency’s counsel to set the deposition location date, and time for the deposition. If the agency counsel uncooperative or objects to producing a particular witness, a motion to compel can be filed with the court. If the witness is not employed by the federal government and does not voluntarily agree to be deposed the employee’s attorney can move for a subpoena to be issued by the MSPB administrative judge to obtain the witness deposition appearance.

MSPB depositions are similar to depositions conducted in general civil actions. A deposition can take from thirty minutes to several hours to complete.

Witnesses with extensive knowledge of information related to the appeal, e.g., the investigator, a direct witness or the agency’s deciding official may require more time than witnesses having minor roles regarding the case.

Once the deposition is scheduled a court reporter is contacted to appear at the deposition. Depositions can take place in person, by telephone, or by video.

The federal employee attorney will begin with background questions and subsequently ask factual questions.

The agency’s attorney will be present when agency employees are deposed. The agency’s attorney may object to questions asked. If an agency attorney objects the witness must still answer the question posed. There are a few exceptions. The exceptions involve privilege issues attorney-client, physician-patient, etc.

Taking a break after a question has been asked but not answered is not permissible. Breaks may be taken to use the restroom.

If the witness wishes to review the deposition transcript arrangements will be made for the witness to review a copy of the deposition transcript. If the witness has any changes he or she wishes to make, the court reporter will make the necessary changes and provide a final copy of the deposition transcript. Depositions are the most important form of discovery in MSPB appeals.

  1. What is a deposition?

A deposition permits legal counsel to ask questions of an individual who is under oath to tell the truth. After the deposition is completed a deposition transcript is created. The deposition transcript sets out word for word questions asked and answers given. Deposition transcripts are used by counsel to obtain information about a case. Deposition transcripts can be used at trial to cross-examine a witness.

  1. Do agencies have to advise employees of their right to appeal personnel actions to the MSPB?

When an agency issues a decision notice to an employee on a matter appealable to the MSPB the agency must provide the employee with the following: (1) notice of the time limits for appealing to the Board and the address of the appropriate MSPB office for filing the appeal; (2) a copy or access to a copy of the MSPB’s regulations; (3) a copy of the MSPB’s appeal form; and (d) notice of any right the employee has to file a grievance. 5 C.F.R. § 1201.21.

  1. How do I file an appeal with the MSPB?

You must file an appeal in writing with the regional or field office of the MSPB having jurisdiction over the area where your duty station was located when the agency took disciplinary action. Appeal of Office of Personnel Management reconsideration decisions concerning retirement benefits and appeals of adverse suitability determinations under 5 CFR Part 731 must be filed with the regional or field office having jurisdiction over the area where you live. See 5 C.F.R. § 1201.4(d).

An appeal must be filed within thirty calendar days of the effective date of the action, if any, or within thirty calendar days after the date of receipt of the agency’s decision whichever is later. The electronic filing method is the most efficient for filing an appeal.

Our law firm utilizes the electronic filing method for filing the initial appeal. The key to preparing the electronic filing of the MSPB appeal is to have all relevant information available when completing the online forms.

Once the online forms and all attachments such as the proposed action and final agency decision have been prepared the appeal can be electronically filed with the MSPB. Once submitted the e-filer will receive confirmation of the filing from the MSPB. Following the proper submission of the appeal the federal employee and the federal agency involved will receive an acknowledgment order.

An MSPB appeal must be timely filed. The filing of an MSPB appeal starts with the completion of the MSPB Form 185. The appeal form and appeal must be filed within thirty calendar days of the effective date of the action. If an employee receives a final action e.g., a decision upholding a proposed removal or suspension effective on June 25, 2013 the filing due date for an appeal would be July 25, 2013. If the due date of the appeal falls on a weekend or holiday the due date will be extended to the next business day.

It is also important to file an MSPB appeal with the correct regional or field office. There are eight regional or field offices. The offices and their jurisdiction change from time to time. It is important to check the MSPB website for updated office information.

The MSPB where the appeal must be filed is determined by the federal employee’s duty station. If the employee is employed in Raleigh, North Carolina the appeal would have be filed in the Washington D.C. regional office. If an employee’s duty station is in South Carolina the correct office at would be the Atlanta Regional Office. Verify the correct regional or field office by contacting the MSPB (202) 653-7200 or www.mspb.gov.

  1. Does the appeal have to be in a particular format?

Although an appeal may be in any format it must be in writing and contain all of the information specified by MSPB’s regulations. An appeal must be signed by appellant or appellant’s representative if designated.

  1. Do I have any recourse if I miss the deadline for filing an appeal?

Yes. If an appeal is filed late the appellant may be ordered to explain the delay and show good cause for the late filing.

  1. Who can represent me in an appeal before the MSPB if I choose to have a representative?

You can choose any person to represent you if that person is willing and able to serve. You can also represent yourself. Typical representatives include private attorneys, union attorneys, and other union representatives.

  1. How is the hearing conducted?

The MSPB hearing 1) begins with opening statements; 2) allows for calling of witnesses for direct examination and cross-examination; 3) allows for the use of court reporters for the taking of testimony; and 4) allows for the introduction of exhibits into the record. Post hearing briefs and closing arguments one permitted by the administrative judge.

The hearing takes place at the appropriate regional or field office of the MSPB. Hearings can take place at other locations such as the agency’s location or by video conference.

The hearing begins with opening statements followed by each party presenting witnesses and exhibits. Closing statements are offered by the parties. An initial decision is issued one to three months after the hearing date.

If the initial decision is unfavorable a party can appeal the adverse decision to the full MSPB Board for a ruling by filing a Petition for Review (PFV). A PFV must be filed within thirty five days after the date of issuance of the initial decision.

  1. Who decides my appeal?

When a MSPB regional or field office receives an appeal the case is assigned to an administrative judge located in that office. The administrative judge will issue a decision after considering all relevant evidence.

It takes one hundred and twenty days to one hundred and fifty days or more depending on the case from the filing of an MSPB appeal to obtain a MSPB hearing date. Following a hearing it takes two weeks to two months for the administrative judge to issue an order.

  1. Are hearings held on all appeals?

Once it is established your appeal was timely filed and the MSPB has jurisdiction you generally have a right to a hearing on the merits of your case. The exceptions to this right are USERRA and VEOA appeals. The administrative judges have discretion whether to hold a hearing requested by an appellant. You may waive the right to a hearing choosing instead to have the appeal decided on the written record, all pleadings, documents, and other materials filed in the proceeding.

If there is a hearing you will have the opportunity to present evidence including the testimony of witnesses. Hearings are sometimes conducted by telephone or video conferencing rather than in person.

  1. Who has the burden of proof in appeals proceedings?

The Agency. The agency has the burden of proving it was justified in taking the action.

If the agency meets its burden of proof the MSPB must decide in favor of the agency unless you show there was harmful error in the agency’s procedures or the agency decision was based on a prohibited personnel practice, or the decision was not in accordance with the law.

  1. What constitutes the MSPB pre-hearing process?

Pre-hearing written submissions and a pre-hearing conference takes place before a case is tried before a MSPB judge. The pre-hearing written submissions must be filed thirty days prior to the MSPB trial. A pre-hearing conference takes place thirty days prior to the MSPB hearing. The parties submit pre-hearing written submissions prior to the pre-hearing conference specifying each party’s view of the issues. Proposed exhibits, material facts not in dispute, and the proposed witnesses for the hearing are included when submitting pre-hearing written submissions. Pre-hearing submissions will be submitted to the MSPB administrative judge and the federal agency’s attorney. The federal employee will receive a copy of the federal agency’s pre-hearing submission from the federal agency’s attorney.

  1. What occurs at the pre-hearing conference?

The pre-hearing conference is conducted by telephone between the MSPB administrative judge, the federal agency’s attorney, and the federal employee’s attorney and the federal employee. During the teleconference, the parties will discuss the issues, locations, and procedures for the upcoming hearing. The MSPB administrative judge will discuss possible settlement. Pre-hearing conferences take thirty to ninety minutes to complete.

During the pre-hearing conference the MSPB administrative judge will inquire as to the proposed witnesses testimony that will be elicited at trial. The administrative law judge will ask counsel how many days they anticipate it will take to try the case. Most cases take one to two days to try.

  1. What is a hearing order?

MSPB administrative judge issues a hearing order and summary of the pre-hearing conference. The hearing order will list hearing date(s), hearing location, issues to be heard at the hearing, witnesses approved to testify and rulings made on exhibits.

  1. What occurs at an MSPB hearing?

The MSPB hearing takes place with an administrative judge who either attends in person or by video-teleconference. The location for an in-person hearing is typically at an MSPB local office. The hearing site might be located at the employee’s work site. If the hearing is conducted remotely the hearing will likely be held at the Agency’s closest video-teleconference location. In such a case it is typical all parties, witnesses, and attorneys will be present at the video-conference location and the administrative judge will be the only individual attending the hearing remotely. The agency’s attorney proceeds first because the agency has the burden of proof in disciplinary cases.

The agency calls its witnesses. The appellant or his or her attorney will have the opportunity to cross-examine each of the agency’s witnesses. When the agency’s witnesses have been questioned by both parties and the agency completes its presentation of it’s case appellant calls his or her witnesses.

Closing arguments are presented after the witnesses testified. The agency proceeds first in presenting closing arguments followed by the appellant. After closing arguments one presented the record is considered closed. The case is decided by the administrative judge. An MSPB administrative judge typically issues a decision sixty days after the hearing. If the final decision is positive for the appellant the next step is to ensure the terms of the decision are enforced. The agency may appeal the final decision. If the agency is successful in the initial decision the appellant may appeal the adverse decision to the full MSPB Board, which oversees the MSPB. The MSPB Board consists of a three person panel.

  1. Is the decision issued by the administrative judge final?

The initial decision of the administrative judge will become the final decision of the MSPB thirty five days after the date of the decision unless a party files a petition for review with the three member board in Washington., D.C. A petition for review by the MSPB must be filed within thirty five days after the date the initial decision is issued or within thirty days after the date you receive the initial decision whichever is later.

  1. What actions may administrative judges take on appeals?

The initial decision of the administrative judge may dismiss the appeal if the matter is not within the MSPB’s jurisdiction or if the appeal was not filed within the required time limit and good cause for the untimely filing is not shown.

Appeals may be settled voluntarily by the parties. If the parties wish to have the settlement agreement enforceable by the MSPB they must request the administrative judge enter the agreement into the record.

Appeals decided on the merits may affirm the agency’s action, reverse the action, or reduce the penalty imposed by the agency.

  1. What are the Douglas Factors?

The Douglas factors are factors that must be considered by the deciding official before determining the discipline if any, to be imposed upon a federal employee.

The Douglas factors originate from a case, Douglas v. VA, 5 MSPR 280, 5 MSPB 313 (1981). The MSPB identified twelve factors that must be considered when evaluating the reasonableness of a disciplinary penalty imposed on a federal employee.

  1. What resources are available regarding appeals filed with the MSPB?

A website maintained by the MSPB contains cases decided by the MSPB. Using search terms one can research the holdings of MSPB cases factually similar to the facts of the case the appellant filed.

The site can be found at https://www.mspb.gov/search.html.

The MSPB produces an annual report compiling statistics providing an appellant with information as to his or her chances of winning his or her appeal.

The MSPB Annual Report can be found at https://www.mspb.gov/publicaffairs/annual.htm.

Dewey Publications, Inc. publishes reference materials providing detailed information about the MSPB. For a complete list of books dealing with the MSPB see http://www.deweypub.com/store/MSPB.html. The books published by Dewey Publications, Inc. are typically used by attorneys specializing in adjudicating MSPB cases.

The Law Offices of Steve Newman has access to the most important publication required to maintain up to date knowledge regarding the MSPB, A Guide to Merit Systems Protection Board Law and Practice, by Peter Broida, 34th Edition, 2017.

Law Offices of Steve Newman

65 Broadway, Suite 1603
New York, New York 10006

Tel: (212) 405-1000
newmanesquire@aol.com

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