Discovery and the MSPB
It has often been said that knowledge is power. Litigation is no exception.
The most important consideration when litigating before the
Merit Systems Protection Board (MSPB) is how to take full advantage of the rules governing discovery in order
to get access to information and documents that can help you defend against
an adverse action and/or carry your burden of proof on affirmative defenses
that were raised. The information obtained can be used both to defend
against an adverse action such as removal and to prove claims that a federal
employee may have brought against a Federal Agency independently. In this
sense, discovery can effectively be used as both a shield and a sword.
Discovery, to be effective, requires the assistance and advice of an attorney
familiar with MSPB discovery procedures. Litigation against the Federal
Government is unique, federal employees are necessarily challenging the
largest employer; an employer who wields an unlimited amount of resources
and power. Every federal employee should consider consulting with a
federal employment attorney who is familiar with litigation before the MSPB before proceeding and
potentially overlooking an avenue that will assist you prevailing against
your employing Federal Agency.
Engaging in Discovery with a Federal Agency
Following the filing of an MSPB appeal, a federal employee/appellant will
usually receive an "Acknowledgement Order" from the Administrative
Judge assigned to the case. The Acknowledgment Order will set forth the
deadlines applicable at all stages of the litigation.
Usually, the time to commence formal discovery is 25 days from the date
on the acknowledgement order. An appellant, however, should never wait
this long to begin the discovery process, including serving Interrogatories
(Questions), Requests for Production of Documents, Requests for Admissions,
and Noticing Depositions (requests to interview an Agency Employee under oath).
If Discovery is not sent to the opposing counsel within the time period
required, you may forfeit your right to take advantage of the Discovery Process.
Why is it important to take Depositions?
Depositions allow Federal Employees to question key witnesses (supervisors,
co-workers) employed by the agency, under oath to obtain facts and sworn
testimony helpful to an employee's appeal. You may also question the
"Deciding" and "Proposing Official," under oath, to
determine why they sustained or proposed a disciplinary action against
the appellant/federal employee and to evaluate whether there were any
violations of due process rights or failure to take the
Douglass Factors into consideration. Depositions are also helpful in determining why the
Agency believes that a lesser penalty would not
"promote the efficiency of the service."
What if the Agency Fails to Respond to my Discovery requests?
It is often the case that appellants, especially if they are not represented
by counsel, can have a difficult time not only in drafting the necessary
discovery requests in their case, but also may have real difficulties
in obtaining a meaningful response from the agency's attorney. It
is critical when this occurs to have the
federal employment attorney that is representing you communicate with opposing counsel immediately
to resolve these discovery problems and if unsuccessful, to file a "Motion
to Compel" with the MSPB to ensure that your rights are protected.