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The Merit Systems Protection Board (MSPB) serves an important role in safeguarding the rights of federal employees. If you’re facing an adverse employment action, such as a suspension, demotion, or termination, the MSPB provides a formal process to challenge decisions you believe are unjust. Understanding this process can make a significant difference in defending your career and reputation. Whether you’re preparing to file an appeal or getting ready for a hearing, knowing what to expect can help you feel more confident and prepared.
Filing Your Appeal: Taking the First Step
Filing an appeal with the Merit Systems Protection Board is the first step toward challenging an adverse employment action. The deadline to file an MSPB appeal is 30 days from receipt of the adverse employment decision or within 30 days of its effective date, whichever is later. However, when an appellant and agency mutually agree in writing to attempt to resolve their dispute through an alternative dispute resolution process prior to filing a timely appeal, the time limit for filing the appeal is extended by 30 days–for a total of 60 days. See 5 C.F.R. § 1201.22(b)(1). MSPB appeals can be filed electronically at https://e-appeal.mspb.gov/.
Pre-Hearing Procedures: Preparing for Your Case
Once your appeal is filed, litigation begins—this time is critical to building your case. The MSPB will issue an acknowledgment order outlining deadlines and procedural requirements governing the litigation. This phase typically includes an initial conference where both sides clarify the issues, discuss the anticipated scope of discovery, identify affirmative defenses, and explore the possibility of settlement.
The discovery process follows, allowing you and the Government to exchange information, request documents, and take deposition testimony. Many cases are won and lost during discovery. Depositions are a key tool for obtaining vital information during the discovery process. More specifically, 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.
At the conclusion of discovery, both parties will file a pre-hearing submission. The pre-hearing submission should:
- Outline the Factual underpinnings of your case
- List the Issues to be decided during the hearing, including any affirmative defenses
- Identify Witnesses you intend to call and describe the scope of anticipated testimony
- List Exhibits
- Preserve the ability to serve subpoenas
- Make requests to exclude evidence or testimony (motions in limine)
The Hearing: What to Expect in Front of the MSPB Judge
The hearing is a pivotal stage of MSPB litigation, where you will present your case before an Administrative Judge. These hearings are formal proceedings in which witnesses testify under oath, evidence is entered into the record, and each side attempts to meet its respective burden of proof.
Here’s what to expect during the hearing:
- Opening Statements: Both you and the agency’s representative will have a chance to outline your case and discuss what you intend to prove during the hearing.
- Witness Testimony: Witnesses play a key role in the hearing. You can call individuals who can provide relevant information to your case. The agency will also call its own witnesses.
- Presentation of Evidence: Evidence is introduced by presenting documents, records, or other materials supporting your appeal to witnesses who will authenticate and provide context during their testimony. The agency will also submit evidence to justify its actions.
- Cross-Examination: Both sides can question the other party’s witnesses. This allows the judge to hear a full account of the facts.
- Closing Statements: After all evidence is presented, you’ll summarize your arguments and highlight key testimony and evidence the judge should rely on to rule in your favor.
Throughout the hearing, the Administrative Judge will evaluate the credibility of witness testimony and review admissible evidence. The goal is to present your case in a way that will make the Administrative Judge inclined to both listen and adopt your position. Portraying a calm, focused, and respectful demeanor will strengthen your case and make your arguments more compelling.
Post-Hearing: The Decision and Next Steps
After the hearing, the administrative judge will review the evidence and issue a written decision, usually within several weeks. This decision will include findings of fact, legal conclusions, and the outcome of your appeal. If the ruling is in your favor, the judge may order remedies such as reinstatement, back pay, or other corrective actions. If you disagree with the decision, you have the option of filing a Petition for Review (PFR) with the full MSPB (a panel of 3 judges appointed by the President and confirmed by the Senate) or filing an appeal with the U.S. Court of Appeals for the Federal Circuit.
Contact Our Experienced MSPB Hearing Attorneys
The MSPB hearing process can be intricate and complicated, but you don’t have to go it alone. Solomon Law is committed to partnering with you to preserve your rights and maximize your financial recovery. Contact us today to discuss your case and take the first step toward creating a litigation strategy that gives you a competitive advantage before the MSPB.