MSPB Blog

Adjudicating MSPB cases in all fifty states

March 01, 2019 by Steve Newman The Law Offices of Steve Newman provides effective legal representation for individuals appealing employment disciplinary proceedings in all fifty states. MSPB Judges permit depositions and trials to be conducted by telephone or by videoconference. If a deposition or a trial is to be conducted by video conference the agency attorney is responsible for making the arrangements for the videoconferencing. Depositions conducted by telephone and trials conducted by videoconferencing have proven to be effective in successfully litigating appeals with the added benefit of the client not being charged for traveling expenses.

Why it is important to have an attorney representing you when appealing an Agency decision?

february 25, 2019 by Steve Newman An attorney experienced in adjudicating MSPB appeals can dramatically increase the chance of a successful outcome, be it by settlement or a favorable opinion rendered by an administrative law judge. If you hire an attorney, he or she can advise you as to the strengths and weaknesses of your case. It is difficult for a client to separate himself or herself emotionally from what has occurred from the events resulting to the Agency invoking disciplinary action be it demotion or termination. The attorney has the ability to accurately assess the possibility of the appellant wining at trial. It is essential the appellant prevail at the trial level in that only a small percentage of unfavorable MSPB decisions appealed result in the administrative trial judge’s s initial decision being reversed.

What happens after you file the initial appeal?

february 25, 2019 by Steve Newman The MSPB will issue a legal document titled Acknowledgement Order. The Acknowledgment Order sets out the dates discovery demands are to be served. Discovery is the procedure the appellant’s attorney may use to learn of any facts, documents, or other evidence the Agency has that may be helpful to appellant’s case. The Acknowledgment Order requires initial discovery requests must be served within 30 calendar days of the date of the Acknowledgment Order. The appellant can demand documents possessed by the agency. The agency is required to compile a document called the agency file. The agency file typically is comprehensive, meaning the agency is required to and typically does forward to the appellant a file containing all relevant documentation related to appellant’s appeal. As a result, the appellant receives a complete record such that any document discovery demand served by appellant is limited in scope. Depositions involve questioning agency employees under oath. Depositions are an effective discovery tool. Depositions can be used to obtain information not available by reviewing the agency file. Appellant’s attorney is permitted to ask as many questions as he or she deems necessary in order to gather information supporting appellant’s appeal. Once discovery is completed appellant should be aware of the policy of the Board to decide an appeal within 120 calendar days of the receipt of the appeal.

Unique Aspects of Adjudicating Appeals before the MSPB

April 11, 2017 by Steve Newman 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.

Settlement vs. Risk of Trial

April 4, 2017 by Steve Newman In advising clients as to the strategy to adopt in litigating an appeal filed with the MSPB I ask the client how much risk the client is willing to accept in terms of continuing his or her career employed by the federal agency in question. The ability to live with risk relates to the decision whether the client is willing to try the case as compared to making every effort to settle the case. I inform the client the MSPB administrative judges are constrained by MSPB case law in adjudicating cases. The administrative judges cannot take on the role of reviewing the reasonableness of the discipline imposed by management. The rational is that management employed by the agency has the knowledge and experience to impose reasonable discipline such that the administrative judge is entitled to reduce the discipline imposed only if the discipline appears to go beyond the bounds of reasonableness. If the client informs me he or she is unable to live with the risk and uncertainty of going to trial I direct my energies to discussing settlement with the agency’s attorney. The agency attorney’s role is one of analyzing the case and informing agency decision makers as to the possibility of the agency winning or losing at trial as well as advising whether it makes sense to settle the case. I often offer as an inducement to settling the case that the client will sign a last chance agreement in conjunction with agreeing to accept a lesser form of discipline, i.e. demotion, letter of warning. The last chance agreement typically sets forth language giving the agency unilateral power to issue additional discipline if the agency declares the client violated the terms of the last chance agreement. A last chance agreement is often viewed by the client as onerous. I usually inform the client that while the terms appear harsh the result is the execution of the last chance agreement puts both sides on notice they should conduct themselves professionally so that neither party has to find themselves once again in an adversarial role in the workplace. Last chance agreements are an important tool in facilitating settlement. I am able to regularly facilitate settlement working with the concept that a good settlement means both parties the agency and the client resolve the case by being somewhat dissatisfied with the settlement agreement. Settlement means, each side compromised. Compromise means each side did not get all one hoped to obtain by settling the case.

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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