By John V. Berry, Esq., www.berrylegal.com
In Merit Systems Protection Board (MSPB) cases, at the hearing stage, the parties will need to use exhibits in order to prove their case. Exhibits are merely documents, recordings or other items which can be used during a hearing to support a federal employee's or agency's case. There are a number of steps in order to utilize exhibits in the hearing process.
Types of Potential Exhibits
The following are some potential examples of possible exhibits for use in an MSPB hearing. These can include all types of written documents, such as letters, reports of investigation, witness statements, policies, notices and emails, among other types of documentation. Exhibits can also include recordings and video evidence.
How Exhibits are Obtained
Typically, the first step in obtaining a potential exhibit (unless the federal employee or agency already has the potential exhibit) is to request it through discovery. For instance, a federal employee may ask for a series of email communications between a supervisor and others relevant to their case through discovery. In this example, once these documents are obtained, they may be able to be used later at the MSPB hearing. Suppose, for example, in a misconduct case an email is produced that shows that the federal employee did not commit the alleged misconduct. The federal employee will definitely want to use that email as an exhibit.
How Exhibits are Introduced
The process of entering an exhibit into the record at the MSPB takes a few steps. Typically, exhibits must be provided by both parties in their pre-hearing submissions to the administrative judge in order to later use them. The MSPB administrative judge will not usually rule on the admissibility (the ability to use) of the exhibits at the pre-hearing conference, but will likely defer that decision to the hearing itself.
When the hearing takes place, the first step to have an exhibit introduced is accomplished by what is known as marking the exhibit for introduction and handing it to the witness. The witness should generally have knowledge (in most cases) about the document that is sought to be introduced in order to authenticate the document. Then, the witness is generally asked some questions such as whether they have seen the exhibit or know what it is. After the witness has confirmed that they know the exhibit (example: an email that they wrote or received), then the party can ask the administrative judge to enter the exhibit into evidence.
Depending on whether the exhibit is objected to by the other side, the judge will rule on the admission of the exhibit. Under 5 C.F.R. § 1201.61, if an administrative judge excludes an exhibit, he or she will describe the evidence intended to be admitted and the description will become part of the record. If admitted, the exhibit becomes part of the record and can be used to support one’s case. If the exhibit is not admitted, and is an important part of a parties’ case, the employee should object in order to preserve the record for a possible appeal.
When a federal employee is involved in the MSPB appeals process, it is important for them to have legal advice and representation in developing legal arguments and in introducing potential exhibits in their appeals. 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.