By John V. Berry, Esq., www.berrylegal.com
We represent federal employees before the Merit Systems Protection Board (MSPB), www.mspb.gov, in the appeals process. In doing so, we have seen a number of federal employees represent themselves before later deciding to retain counsel. As a general rule, it is important for a federal employee to have their own attorney when dealing with a federal agency attorney in an MSPB appeal. While an employee is generally permitted to represent themselves in their own MSPB appeal (pro se), the process is very similar to court proceedings and carries with it a number of legal technicalities and issues that a federal employee must be aware of. Here are some general thoughts on the MSPB process when a federal employee is dealing with an agency attorney.
Before the MSPB Appeal
Before the MSPB appeal, most federal agencies do not assign an attorney to interact with a federal employee involved in a proposed removal or suspension type case (the types that usually go to the MSPB). There are exceptions to this rule; occasionally if the employee retains their own attorney during the proposal stage the agency may appoint an attorney to represent agency interests before the MSPB appeal stage. As a result, a federal employee's case (unless they have their own attorney), is usually assigned to a Human Resources (HR) representative.
Keep in mind that HR works for the agency (management) and not the federal employee involved. They will most often attempt to not answer a federal employee's questions about a pending disciplinary case. It is important to note that HR will very likely share any information that a federal employee provides to them with management. In other words, a federal employee should not consider information provided to an HR representative to be kept in confidence. Furthermore, if the federal employee asks questions of HR personnel about their case, they may provide information that helps the Agency’s position or discourages the federal employee from later pursuing an appeal. In short, a federal employee should not rely on an agency HR or attorney representative for advice regarding their case.
After the Start of the MSPB Appeal
After an MSPB appeal is filed, an agency attorney is typically assigned to represent the agency during the course of an MSPB appeal. Agency attorneys, and their approaches, vary between individual federal agencies and within an individual agency itself. Some agency attorneys can be aggressive with unrepresented federal employees and some can take a more reasonable approach. Either way, it is critical for a federal employee to know that an agency attorney’s client is the federal agency and management, not the employee. The MSPB is an adversarial process where the job of an agency attorney is to prove that the agency was correct in taking action against the federal employee.
General Tips for Federal Employees
1. Retain or Consult with an Attorney: We know that this is a big step for many federal employees. However, it is very important. Federal employees usually come to us following the filing of an MSPB appeal when they start to uncover all that is involved in pursuing such an appeal. It can be overwhelming for many federal employees. Many times the employee has just received a notice that the agency attorney would like to take their deposition or is seeking documents from them and realize that they need an attorney's help. Usually, after the MSPB issues an Acknowledgment Order starting the case, a federal employee realizes the extensive work required to pursue an MSPB appeal.
2. Do Not Volunteer Adverse Information to the Agency Attorney: When a federal employee attempts to interact with an agency attorney in the course of an MSPB appeal, please keep in mind that they generally should not freely provide information that might hurt their appeal. It may seem okay at the time to talk openly with the agency's attorney, but keep in mind that any information learned, if negative, will be used against the federal employee late in the process. It is the agency attorney’s job to represent the federal agency in the MSPB process to the best of their ability.
3. Keep on Top of Deadlines: Deadlines are important in MSPB cases, whether they are for due dates for submitting or responding to discovery requests or due dates for responding to a filing request by the Administrative Judge. Often times a federal employee will assume that an agency attorney will keep them updated on deadlines in a case or will be flexible if the federal employee misses a deadline. Do not assume this to be the case (it generally does not work out that way), because an agency attorney’s job is to represent the agency in the case.
4. Do Not Settle an MSPB Appeal Without Having an Attorney Review the Agreement: It is important for a federal employee to have their own attorney to review a proposed settlement agreement before they sign. The federal employee should obtain an assessment as to the strengths of their case and whether the settlement agreement is reasonable and whether it adequately protects their rights. If the federal employee signs a settlement agreement and then has second thoughts later on it can be very difficult to undo an agreement that has been signed. A federal employee should definitely obtain legal advice before they sign a settlement agreement.
When a federal employee is involved in the MSPB appeals process, it is important for them to have legal advice and representation during the course of their appeal. Our law firm represents federal employees before the MSPB and can be contacted at www.berrylegal.com or by telephone at (703) 668-0070. Our Facebook page is located at https://www.facebook.com/BerryBerryPllc.