This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.
The Merit Systems Protection Board (MSPB) is an appeals process for federal employees and former federal employees to challenge a variety of federal agency actions. These include serious disciplinary actions (adverse actions), retirement appeals, whistleblower retaliation cases, and other types of personnel disputes.
The most common type of MSPB Appeal for federal employees involves serious disciplinary actions, such as a proposed removal, suspension over 14 days, or demotion. Although federal employees have the right to represent themselves, federal agencies are almost always represented by counsel.
Federal Agencies Treat MSPB Cases Differently When an Employee Has an Attorney
One key reason to retain an MSPB lawyer is that it often changes how a federal agency approaches an MSPB appeal. Agencies typically allocate more time and resources to cases in which the federal employee is represented by counsel. When a federal employee has an attorney, agency counsel knows the opposing party will be able to understand deadlines, evidentiary rules, and litigation strategy.
The MSPB Process is Much Like a Regular Civil Case
The MSPB Appeals Process functions much like a regular court case. A major misconception is that the MSPB process is simple enough for an employee to handle alone. In reality, an MSPB appeal operates similarly to a civil court case and includes discovery, depositions, and motions among other similarities.
Federal employees often contact us after discovery deadlines have passed. This can significantly limit the chances of winning or negotiating a favorable settlement. Retaining an MSPB attorney early in the process is critical to preserving your rights and building the strongest possible case.
Having an Attorney Can Increase Your Chances of Settlement
In our experience, federal employees represented by counsel are more likely to resolve their MSPB appeals through settlement. Federal agencies evaluate settlement based on various factors such as risk, including the risk of losing the appeal, which increases when the employee has effective representation.
Attorneys also understand how to conduct strategic discovery, take depositions, and obtain information that may encourage a federal agency to settle. Self-represented employees often struggle with these tasks, which can diminish settlement leverage and reduce the amount of useful evidence that is uncovered.
Additionally, MSPB lawyers are skilled in negotiating and drafting settlement agreements to protect the employee’s interests, minimize future risk, and help ensure compliance by the agency.
It is Hard for an Employee to Represent Themselves at a MSPB Hearing
MSPB hearings require litigation skills that are challenging for a non-lawyer to perform effectively. A hearing typically involves opening and closing statements, presenting and questioning witnesses, cross-examining agency witnesses, making objections, and understanding evidentiary rules and providing sworn testimony.
Self-representation becomes especially challenging when it comes to testifying. Employees often end up making unscripted statements instead of providing structured testimony that effectively supports their case. An MSPB attorney can guide the employee through their testimony and ensure the strongest possible presentation of evidence.
Many federal employees come to us after filing their appeal, only to discover how complex and time-sensitive the process is. The earlier an MSPB attorney becomes involved, the better the outcome tends to be.
Our law firm represents and advises federal employees in various employment law matters. If you need legal assistance regarding a federal employment matter, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation.
