By John V. Berry, Esq., www.berrylegal.com
Our law practice has represented numerous federal law enforcement officers around the United States over the past several years. One of the most difficult issues that a federal law enforcement officer (Federal LEO) can face is the potential termination of their law enforcement employment. Federal LEO careers can also be significantly damaged if an officer receives a sustained suspension of a serious nature or length.
This article addresses the issue of how to approach an appeal of these types of removals and significant suspensions in the forums generally available for Federal LEOs. The forums in which you appeal can be different, so it is important to know the differences if a Federal LEO finds themselves having to choose between the 2 different types of appeals.
The Two Principal Options for Removal/Suspension LEO Appeals: Arbitration or MSPB
When a Federal LEO receives a copy of a final federal agency decision sustaining a removal or significant suspension they generally have 2 options if they want to appeal the decision that has been made. The first option is to file an appeal of the removal/suspension with the Merit Systems Protection Board (MSPB). The second option is to appeal the removal/suspension decision through the Federal LEOs union in the grievance/arbitration procedure.
There are other potential legal options out there when applicable, such as the filing of a whistleblower complaint with the Office of Special Counsel (OSC) or perhaps a complaint alleging discrimination or harassment through the federal agency’s Equal Employment Opportunity (EEO) office, but the focus of this article are the main two options for a Federal LEO in addressing the substance of the misconduct allegations against him or her.
A Federal LEO will only be able to exercise the right to appeal their adverse action in one forum; they will have to choose between seeking arbitration and filing an MSPB appeal. Because of this, it is important to weigh the processes available before deciding on a course of action.
Sometimes a Choice Between Arbitration and MSPB, Sometimes Not
While most Federal LEOs have a choice between forums, some do not. While almost all career (non-probationary) Federal LEOs have the right to appeal a removal or serious suspension to the MSPB, not everyone has the right to take their case to arbitration. In order to have the right to go to arbitration, a Federal LEO must be represented by a federal sector union that agrees to take the case to arbitration. If there is no union, then there is generally no right to file for arbitration review of serious discipline. If this is the case, then the choice between filing with the MSPB and filing for arbitration is pretty simple.
If a Federal LEO has the right to file for arbitration through an existing union, then one must consider whether the union will permit their disciplinary case to go to arbitration. Unions control the ability to go to arbitration, not the officer, so whether a case can go forward to arbitration is up to them. One important note is that whichever process is elected first is the one that the Federal LEO will have to see through so it is important to be careful when making decisions before submitting letters, grievances or other paperwork to the agency regarding the disciplinary action at issue.
Seek Information from the Agency in Arbitration and MPSB Appeals
Both arbitration and the MSPB have procedures to assist Federal LEOs in attempting to obtain information for use in their appeals. At the MSPB, more typical discovery procedures (like in regular court procedures) govern. There are depositions, production of documents requests, interrogatories, etc. In general, the MSPB tends to have better discovery procedures (especially the use of depositions) than those available in arbitration.
In arbitration, a Federal LEO is represented by the union either through a shop steward or an attorney (with the approval of their union). The union has the ability to obtain documents relevant to a disciplinary case on behalf of the affected officer. This ability comes through the submission of what is known as an "information request" through 5 U.S.C. § 7114(b). The one key difference between the two forums (MSPB and arbitration) is that there generally is no right to take depositions in preparation for arbitration proceedings.
MSPB Hearings vs. Arbitration Hearings
There are differences between MSPB hearings and arbitration hearings. For the most part both the MSPB and arbitration tend to be less formal than regular court proceedings. In our experience, arbitration is the less formal of the two.
In arbitration, the Arbitrator is the judge who will issue an opinion in the case. Typically, arbitrators tend to be very experienced attorneys in labor and employment law that serve as arbitrators and will be mutually selected by the parties. In MSPB cases, the proceedings are run by an appointed Administrative Judge that is assigned randomly.
Generally, it takes about 120 - 150 days from filing to reach an MSPB hearing. It will take a few months after that hearing, usually, for an officer to obtain a ruling by the judge. In arbitration, the timeline can be shorter or longer (depending on what procedures the parties have in their collective bargaining agreement and the dates that the arbitrator may have available for the hearing).
The MSPB hearing is generally held at the MSPB's local regional office, whereas an arbitration hearing can be scheduled any place that the parties agree upon (they usually take place at the agency). Both proceedings allow for the use of witnesses and examination and cross-examination by counsel.
In our experience, MSPB proceedings, from start to finish take a bit less time than arbitration proceedings. While the MSPB tends to have better discovery procedures, arbitrators tend to be more open to reversing disciplinary cases in general.
Closing Thoughts
We advise potential Federal LEO clients to seek counsel to help them evaluate their individual cases to determine the best type of proceeding, either arbitration or MSPB, for their case. Both types of proceedings can be valuable for a Federal LEO facing serious discipline.
