By John V. Berry, Esq., www.berrylegal.com
Federal employees often ask us what happens during an actual hearing before the Merit Systems Protection Board (MSPB). A hearing, especially for an unrepresented federal employee, can be a daunting process. This article focuses on what federal employees can expect during a typical MSPB hearing.
Location of the Hearing
Typically, the MSPB hearing takes place with the administrative judge either attending in person or by video-teleconference. The location for an in-person hearing is typically wherever the MSPB has its local offices. However, the hearing site might also be located at the employee’s work site. If the hearing is conducted remotely, then the hearing is likely to be conducted at the Agency’s closest video-teleconference location. In such a case, it is typical that all parties, witnesses and attorneys will be present at the Agency location and the administrative judge will be the only individual located in a remote location.
Before the Hearing Starts
Before the MSPB hearing begins, the administrative judge will usually ask the parties whether there are any outstanding issues before the hearing begins. Typically, there are not, but issues could have arisen involving exhibits or witnesses which need to be resolved before the hearing starts. In addition, the administrative judge may swear in all of the witnesses at the same time (or individually as they testify) and then sequester the witnesses (keep them in a room outside of the hearing) until their testimony is heard.
Hearings are generally open to the public unless the administrative judge, in their discretion, believes that it would be better to close off either the entire hearing or a portion of it. This decision will be made prior to the start of the hearing. In addition, before the hearing starts, the court reporter hired by the MSPB will set up his/her equipment and prepare to record the legal arguments, statements, objections and rulings that will occur during the hearing.
Following the introductory issues, the administrative judge may permit the parties to present opening statements. Sometimes, the administrative judge does not permit opening statements (especially if time is a concern and there are numerous witnesses). If permitted, opening statements typically last about 10-20 minutes for each party. The Agency’s attorney will usually proceed first because they hold the burden of proof (in disciplinary cases). Then, the Appellant (or Appellant’s attorney) will have the opportunity to respond with an opening statement then or at the beginning of their case.
The Actual Hearing
Following opening statements, the main portion of the MSPB hearing typically begins. The Agency will call their witnesses in their case first. Then the federal employee (referred to as the “Appellant” in an MSPB case) or their attorney will have the opportunity to cross-examine each of these witnesses. When the Agency’s witnesses have been questioned by both parties, the next step in the hearing process is for the Appellant to call their witnesses.
Once the witnesses have all been questioned, there is the possibility for rebuttal evidence to be presented. Rebuttal does not occur in every case, but there is sometimes testimony or issues that arise during the course of a MSPB hearing that require another witness (or require the parties to recall a previous witness) to testify. For instance, if the last scheduled witness in a hearing testifies, unexpectedly, that a prior witness had lied in their testimony, it would be important to recall the earlier witness through rebuttal in order to respond.
Closing Statements or Briefs
Once all witness testimony has been concluded, the next step is generally to present closing arguments. Again, the Agency will usually proceed first in disciplinary cases and then the Appellant will proceed after that. Sometimes, if a case has involved a lot of testimony, is complex in some manner or requires legal arguments to be presented to the administrative judge, the parties may submit closing briefs instead of closing arguments. After the closing arguments or closing briefs have been submitted, the record is considered closed and the case is ready for a decision by the administrative judge.
After the Hearing
While the timeline for a decision is variable, a decision from an MSPB administrative judge has tended to take anywhere from 2 days after the hearing to 60 days. Usually, the final decision is issued somewhere around the 30-45 day mark, in our experience. If the final decision is positive for the federal employee, the next step may be to enforce the terms of the decision. The Agency may also decide to appeal the decision. If the Agency is successful in the initial decision, the federal employee may appeal the adverse decision to the full MSPB Board, which consists of a 3-person panel which oversees the MSPB.
When facing the MSPB process, it is important for a federal employee to have legal advice and representation during the process. 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.