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Introduction to Federal Employee Appeals with MSPB

Captioned video formats:

Important updates to the content of this video:

Transcript: Introduction to Federal Employee Appeals with the U.S. Merit Systems Protection Board

The Merit Systems Protection Board (MSPB) was established by the Civil Service Reform Act of 1978, Public Law 95-454.  It is an independent, quasi-judicial agency of the Executive Branch that serves as a guardian of Federal merit systems.  The Board’s Mission is to ensure that Federal employees are protected against abuses by agency management, that Executive Branch agencies make employment decisions in accordance with the merit system principles, and that Federal merit systems are kept free of prohibited personnel practices.

One of the Merit Systems Protection Board’s duties is to hear and decide Federal employee appeals from agency personnel actions.
         
This video is especially designed for pro se appellants, or agency or appellant representatives with little or no experience with the Merit Systems Protection Board’s appeals process.  This summary of the key points of this video is provided for you so you do not have to take notes while you are viewing.

This is not legal advice, but information that will help you during the MSPB appeals process.  This tape covers the subjects of:

  1. How to file an appeal with MSPB;
  2. After an appeal is filed: the Acknowledgement Order;
  3. “Discovery”— that is, the exchange of information
    between parties before a hearing;
  4. Pre-hearing submissions;
  5. The pre-hearing conference;
  6. The hearing itself; and
  7. The initial decision and further appeal rights.

          Information about the Board, including MSPB regulations, appeal forms, summaries of case law, reports, and addresses of MSPB regional and field offices is available on the MSPB Web site at www.mspb.gov.

You can E-mail the Board for information at mspb@mspb.gov, or contact us by telephone, toll free at 1-800-209-8960.

Part 1 - How to File an Appeal with MSPB

When an agency takes an appealable action against an employee, the agency must provide the employee with:

  1. A notice of the time limits for appealing to the Board;
  2. The address of the appropriate Board regional or field office for filing the appeal;
  3. A copy or access to a copy of the Board's regulations;
  4. A copy of the Board's appeal form; and
  5. A notice of any rights concerning the agency or negotiated grievance procedure. 

You must generally file an appeal in writing with the Board's regional or field office serving the area where your duty station was located when the action was taken.  Usually, an appeal must be filed within 30 calendar days of the effective date of the action, if any, or within 30 calendar days after the date of receipt of the agency's decision, whichever is later.

Prior to filing an appeal, if you and the agency mutually agree to submit your dispute to an alternative dispute resolution (ADR) process, the 30-day filing time limit is automatically extended to 60 days.  Different time limits apply, by law or regulation, to certain types of appeals.

Although an appeal may be in any format, it must be in writing and contain all of the information specified in the Board's regulations.  An appeal must be signed by you or your representative, if you have designated one. 

An appellant may choose any person, who is willing and available to serve, as his or her representative before the Board, or may choose to represent him or her self.  Any designation of a representative must be in writing; and copies of the designation must be served on all parties to the appeal. 

The Board appeal form may assist you in presenting the information required in an appeal.  The appeal form  is available on the MSPB web site and at most agency human resources offices.

Part 2 - After an Appeal is Filed: the Acknowledgement Order

Soon after you file your appeal with MSPB, you will receive an acknowledgment order.  This order confirms that the case has been received. It also explains the rules and procedures that will be followed by the Board. 

The Board does not have the jurisdiction or authority to decide every personnel issue that might arise. It may only rule in those cases made appealable to MSPB by law or regulation.

Read the acknowledgment order very carefully.  Even if you have had experience with a case with the Board before, you need to re-read the acknowledgment order: it may contain different information from what was included in an acknowledgment order in another case.

There are many different types of acknowledgment orders tailored to the specific appeal and related circumstances.  For example, many address jurisdiction or timeliness issues and provide specific guidance on what the appellant must prove regarding jurisdiction or timeliness.  The parties must respond to acknowledgment order issues, or the case could be dismissed. 

Not all personnel actions can be handled by MSPB and that is what we mean by “Jurisdiction.” You must file an appeal with the MSPB within specified time limits, and that is what we mean by “Timeliness,” that is, being “on time.”  If you don't understand what it is you need to prove in order to establish jurisdiction or timeliness, you may call the local MSPB office and speak with a paralegal or you may contact the administrative judge, preferably in writing, in order to seek additional clarification. 

You will be given an opportunity to file all relevant documents.  Please do not send documents to the MSPB judge unless the Judge asks you to do so; or a motion filed by the opposing party requires you to respond.

You have 10 days to respond to the opposing party's motion, unless the administrative judge states a different time.  Your documents may be rejected if you do not follow these rules.

A Certificate of Service must be filed with each document submission. It tells the Judge that all parties have been served with the document.  Without the Certificate of Service, the submission may be rejected.

The term “Ex Parte Communication” refers to any conversation or communication that takes place between the administrative judge and a party, without the opposing party being present or participating in the conversation. 

Some, but not all, ex parte communications, are prohibited, such as an ex parte communication concerning the merits of the case.  However, an ex parte communication that involves procedural matters only is not prohibited.

Part 3 - Discovery

Discovery is the process by which information is exchanged between parties before a hearing.  Discovery is available so that each side can fully understand the evidence that the other party has. 

It’s not like courtroom dramas on TV, where an attorney surprises his adversary with a question that the opposing side is unprepared for.  In real life litigation, that rarely happens. Rules about discovery enable each side to fully understand what evidence the opposing side has before the hearing begins. 

Under the MSPB's rules, you must begin asking for information no later than 25 days after the judge issues the acknowledgment order.  You can ask for a wide range of information. You can ask for any information that you believe is relevant to your case.  Relevant means that the information will help you prove your case or disprove your opponent's case.  You can also ask for information that you believe could show that other relevant information exists.

These are the main discovery tools you can use to seek information from the opposing party:

  1. Requests for the production of documents.  You may ask the opposing side to give you copies of documents that you believe can help you prove your case or disprove your opponent's case.  You may also ask for any documents that you believe can show that other relevant information exists. You need to describe the documents you're requesting in enough detail so that the opposing side knows what kind of documents to look for.
  2. Interrogatories (or written questions).  You can send the opposing side a list of written questions, which is called an interrogatory.  The opposing side will be required to answer those questions to the best of its knowledge and belief.
  3. Requests for admission (or denials) of assertions.  You can ask the other party to agree or disagree to particular facts.  If the other party admits a fact, you don't have to submit evidence at the hearing to prove that fact.  For example, an employee could submit a request for admission asking the agency to admit or deny that during the past three years the employee has received fully successful performance ratings. If the agency admits that fact, the employee does not have to submit copies of his performance ratings to prove that they were fully successful.
  4. Depositions -  Questions under oath.  Depositions give you the opportunity to ask a prospective witness questions under oath.  In most cases, all parties will be present at a deposition, and it will be recorded by a court reporter.  In some cases, however, the parties may agree to more informal depositions, for example, by telephone.

Discovery is a way for you and your opponent to gather information to prove your cases.  You should send your discovery requests directly to your opponent and not involve the judge.  However, if the other party does not respond to your request for information, or does not provide all the information you requested, you may file a "Motion to Compel"...

A motion to compel asks the judge to order the opposing party to provide the information you requested.  You should include a copy of your discovery request and any response that you have received.  You should also explain why you think the other party is not responding.

(Remember that the opposing party may also request information from you during discovery.  You may be asked to answer a list of written questions or to come to a deposition and answer questions under oath.  If you refuse to provide information in response to a discovery request, the judge may not permit you to use that information at the hearing.)

If the judge agrees with you, the judge will issue an “Order to Compel” discovery.  If the other party continues to be non-responsive, the judge can impose sanctions. 

Please don’t send the judge a discovery response, unless it is with a “Motion to Compel” or you are asked to do so, to prove you have complied.

 Part 4 - Pre-Hearing Submissions.

You have a right to request a hearing in your case. It will be granted unless the Board clearly has no jurisdiction over the matter appealed or it is clearly untimely. 

If you do request a hearing, the judge will schedule one and issue a scheduling order.  This order includes the date of the pre-hearing conference, the date of the hearing, and other specific requirements. 

The administrative judge may also schedule a status conference or a settlement conference in addition to a prehearing conference.  The scheduling order is a critical document that should be examined carefully, because it imposes specific requirements on the parties to file documents and present facts or evidence to support the case.

Each party’s prehearing submission will contain a statement of issues, list of witnesses, list of exhibits and a list of material facts that are not in dispute.

  1. Issues. It is important to define issues carefully. For example, “Removal from service in retaliation for whistleblowing;” or “The penalty was too severe.”
  2. Witnesses. The witness list should include all witnesses you want to call and a brief summary of the expected testimony of each of these witnesses.  “Testimony” means the words “they will say” and these words should be summarized sufficiently so that the judge can determine if they are related to your case.  Saying “John Smith was a co-worker” doesn’t say enough for the judge to determine if this witness is necessary.  But this short description does: “I was fired for disruption in the workplace. John Smith was present and will testify that I was not disruptive.” This is the type of summary the judge is looking for.
  3. Exhibits.  You should send the judge a list of exhibits and a copy or description of each one.  If you do not identify proposed exhibits or do not submit copies of your exhibits with your prehearing submission, you may not be permitted to do so later.
  4. Material Facts Not in Dispute. You should list key facts that you believe are not in dispute.

After the prehearing submissions are received, the administrative judge will conduct a prehearing conference and may also conduct a settlement conference and/or a status conference.  Ordinarily, these conferences will be conducted by telephone, but in some cases you may be asked to appear in person.  You must be available for these conferences.  If you have a conflict, notify the administrative judge immediately.

 Part 5 – The Pre-Hearing Conference.

At the pre-hearing conference the judge will make specific rulings on the pre-hearing submissions including proposed witnesses, issues, exhibits, material facts not in dispute.  The judge’s rulings will narrow and define the issues in a case. 
                            
It is very important that you be prepared for the prehearing conference.  It will not help your case if you say, “I don’t know” or “I’ll have to see” or “I’m not sure what the witness will say.” 

You must know what your witness will say; what your defense will be; your opinion of the case--and you must talk about your facts clearly to the judge.

The judge will make pre-hearing rulings, and the parties may state their objections.  After the pre-hearing conference, the judge will issue a summary of the rulings including stated objections and the basis for each objection.  Read the summary carefully: you can add objections, if you think the summary is incomplete or inaccurate.

Regarding witness appearances, the agency is responsible for ensuring agency employees to appear at the hearing.  If the witness is a non-Federal employee, you should ask the Judge for a subpoena when you are listing witnesses.  Typically, you can request a subpoena at the same time you file your prehearing submission. 

If you do request a subpoena, it will be your responsibility to ensure that that subpoena is served on the witness in question, and you will be responsible for any expense involved.  Subpoenas may also be issued for the appearance of witnesses at depositions.

Some judges will conduct settlement conferences and status conferences in addition to the prehearing conference.  Other judges will discuss settlement during the prehearing conference itself.  At some point, it is likely that the subject of settlement may be raised by the administrative judge.

About 50 percent of MSPB cases that are not dismissed are settled, and settlement will most likely be discussed in your case.  The acknowledgment order orders the agency to discuss settlement with the appellant within 35 days of the order.  If the agency fails to bring it up, the best thing for you to do is to call the agency to discuss settlement.

If the parties arrive at a settlement and the Board has jurisdiction over the case, the parties can request that the settlement agreement be entered into the Board's record for purposes of enforcement.  That means that if you enter a settlement agreement into the record and the opposing side doesn't comply with the terms of the agreement, you can file a petition for enforcement with the Board and use the Board's authority to ensure compliance with the agreement or to have the agreement set aside.

If the appellant requests a hearing, the hearing ordinarily will be conducted in person. However, when it is appropriate, the Board also conducts hearings by telephone or by video teleconference. 

 Part 6 – The Hearing.

A hearing before the Board is a formal proceeding.  It is very serious, and the parties should consider it as such.  All judges will have witnesses sworn in, so that they are testifying under oath.  A court reporter will record the hearing for the judge.

If you want a transcript of the hearing, it is your responsibility to contact the court reporting service that handles the case and arrange for the purchase of a transcript.  The Board typically does not purchase written transcripts.

Most judges do not allow opening statements because the judge already knows what the issues are from the pre-hearing conference.

These rules are used for guidance only and the MSPB judge has discretion on which rules to follow.  Most judges apply the rules more strictly if both sides are represented by attorneys.  If one or both parties are not represented by an attorney, the rules will be relaxed somewhat.  It is within the discretion of the administrative judge to apply or not to apply the Federal Rules of Evidence.

Hearsay is testimony given by a witness who relates what another has said and not what the witness personally knows.  The Federal Rules of Evidence generally prohibit the admission of hearsay unless the testimony can be admitted under one or more specific exceptions.  Hearsay is admissible before the Board if it is relevant, material, and not unduly repetitious.

The agency can call the appellant as a witness and the appellant will be expected to testify truthfully in response to the agency's questions.  While an appellant can refuse in a criminal case to be a witness against himself, this does not apply in an administrative proceeding, such as a Board hearing, if there is no threat of criminal action.

If an appellant does refuse to testify under such circumstances, the administrative judge may draw a negative inference or may impose other sanctions at the request of the agency. A negative inference, which means drawing a negative conclusion, might result in the administrative judge determining that the appellant's refusal was based on the fact that he had something to hide relating to the subject of the agency's questioning.  Other sanctions that could be imposed include not considering any of the appellant's evidence on the issue on which he refused to testify.

The agency usually presents its case first because the agency usually has the burden of proof on the merits of the case.  In a typical case, the agency must present a preponderance of evidence, that is, enough evidence that a reasonable person considering the record as a whole would accept that a contested fact is more likely to be true than untrue.

Sometimes the appellant will present the case first.  An example of such an exception is a hearing on jurisdiction, or a whistleblower case, where the appellant has the burden of proof.

After the agency has finished presenting its case, it's the appellant's turn to tell the judge their side of the case.  When both parties have called the same witness, the administrative judge may require the appellant or the appellant's representative to question that witness – called "direct examination"- at the same time the witness is cross-examined, so that he or she is called only once.

The appellant then presents his/her case, including a defense of the charges and any affirmative defenses.  The appellant has the burden of proof on any affirmative defenses to the agency's action, such as harmful error, discrimination, or retaliation based on a prohibited personnel action.

After the appellant presents his or her case, the agency may present “rebuttal” evidence.  Normally, the hearing is then over, although sometimes the appellant may respond to the rebuttal.

Each party usually presents a brief closing argument.  In some cases of extreme complexity, the judge allows the parties to submit written closing arguments.

Part 7 - The Initial Decision and Further Appeal Rights.

Most decisions are written but a judge may issue a “bench” decision immediately following the hearing.  The advantage of a bench decision is that the parties know right away who has won.  A bench decision is usually not appropriate for cases in which issues are complex.

After the hearing ends, no new evidence is allowed, unless a motion is filed by a party showing that the evidence is “newly discovered” and could not have been provided earlier.

The administrative judge’s initial decision will contain a detailed written explanation of your rights for further appellate review.  It is important to observe the time limits for seeking Board review as set forth in the initial decision.  There are some matters you should be aware of after the initial decision is issued.  Any final decision of the Board will also contain a detailed explanation of your appeal rights. 

The judge’s decision is called “initial,” because it may be appealed to the full Board through a Petition for Review, or PFR.  Either party may file a PFR.  After a PFR decision, an appellant can file a petition with the U.S. Court of Appeals for the Federal Circuit.  The agency can file with the Court only in limited circumstances.  The appellant may by-pass the PFR process and file a petition directly with the Court, but the agency cannot do this.  The appellant must wait 35 days until the initial decision becomes the “final” MSPB decision.

A mixed case is an action that is appealable to the Board, in which the appellant is alleging prohibited discrimination or retaliation for EEO activity.  In a mixed case, after there is a final decision of the Board, the appellant will also have the right to appeal the discrimination issues to the Equal Employment Opportunity Commission and/or file for a trial de novo on the discrimination claims only to a U.S. District Court. 

Mixed cases are often complex. Read the Board’s regulations very carefully.  The initial decision and/or the PFR decision will contain a detailed explanation of mixed case appeal rights.

An Administrative Judge may grant Interim Relief in a decision.  For example, if the appellant prevails in a removal case, the judge may order the agency to return the appellant to his/her job on a temporary basis, while the agency exercises its right to file a PFR.

We hope that you found the information on this tape helpful.  But remember: this is only an “introduction” to the MSPB appellate process. There is a lot more to learn. 

If you are watching this in an MSPB office, a staff member is available to answer your questions.  The staff member cannot discuss the particular aspects of your case, and cannot provide legal advice. 

You may want to access the Board’s web site at www.mspb.gov which contains information about the Board, the Board’s regulations and Board decisions.

Thank you for your interest.

The End