Sep 4, 2023 | By Aaron D. Wersing | Read Time: 3 minutes | MSPB

When to Consider Filing an MSPB Appeal

Have you been the target of a long suspension, demotion, or removal action? If so, then you most likely have an opportunity to file an appeal with the Merit Systems Protection Board (MSPB). Participating in the MSPB appeal process is one of many rights you enjoy as a federal employee. This appeal provides you the opportunity to contest a personnel action taken against you by your employer.  Filing an MSPB appeal is a great option if you think your employer acted against you for unlawful or unfair reasons. On the other hand, filing an MSPB appeal takes ample amounts of time and planning. Many times, you may just not know what to do. This article will help you evaluate several relevant factors that can assist you with deciding your next steps. However, your best course of action is to contact an outstanding federal employment attorney like those found at the Federal Employment Law Firm of Aaron D Wersing PLLC. An Overview of the MSPB Appeal Process The first step in your decision-making process should be to understand the MSPB appeal procedures. The appeal process begins when your agency levies an adverse action against you. The phrase “adverse action” is a legal term of art that refers to any of the following: The disciplinary process begins when you receive a notice of proposed disciplinary action. However, your MSPB appeal timeline starts when you receive a decision letter from your agency, and it affects the adverse action. In most cases, you have 30 days to appeal the disciplinary action to the MSPB.  If you choose to file an appeal, you can opt to receive a hearing before an administrative judge. During this hearing, your employer will have to prove by a preponderance of the evidence that you carried out the alleged misconduct. At the hearing, you will have the opportunity to call witnesses, produce favorable evidence, and cross-examine your employer’s witnesses. The law also grants you the right to receive legal representation throughout the entire appeal process.  How to File an MSPB Appeal Another relevant factor to consider is the difficulty of actually filing an MSPB appeal. You can file an MSPB appeal by using the Board’s e-Appeal portal. Alternatively, you can complete and file an MSPB appeal form by mail or in person. However, we generally recommend that federal employees use the e-Appeal portal. In addition to being quicker and more efficient, this portal provides you with some minimal guidance on how to submit a successful appeal. Whatever path you choose, it’s vital you include all the information required under federal regulations. If you omit any of this information, then the Board will likely dismiss your appeal on procedural grounds.  Once you file your MSPB appeal, the agency will provide you with an acknowledgment order. From there, you will have an initial status conference with the administrative judge to discuss things like settlement, discovery, and the hearing date.  Can I Represent Myself in an MSPB Appeal? Yes. Nothing stops you from acting as your own representative. However, we recommend that you obtain legal counsel for several reasons. For one, it’s very difficult to navigate the MSPB’s regulations on your own. By contrast, most federal employment attorneys have years of experience representing clients before the MSPB. That means they know every twist and turn of the process. Another reason why you should obtain legal counsel is because they can apply their specialized legal training to effectively present your case before the MSPB judge. This maximizes the chances of a successful appeal, which will protect your career and reputation. Finally, having an attorney handle your case helps reduce your stress and workload.  Still Not Sure Whether You Should File an Appeal? Contact us to schedule an initial consultation. At the end of the day, it’s always better to file an MSPB appeal rather than stay quiet. Even if you believe you deserved the adverse action, an appeal before the MSPB may reveal that your employer acted for unfair or discriminatory reasons.  If you’re on the fence about filing an MSPB appeal, you should obtain legal counsel right away. As mentioned earlier, you have only approximately 30 days to file. So act quickly to make sure that you are making the right choice.  Here at the Federal Employment Law Firm of Aaron D Wersing PLLC, our top priority is protecting federal employees. We understand the overwhelming sacrifice that public servants make for their country. Because of that, we want you to be fully aware of your rights and legal options. At your initial consultation with us, we’ll review your case with you so you can make the right choice. Contact us today to schedule an initial consultation and receive the legal guidance you need.

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Feb 13, 2023 | By Aaron D. Wersing | Read Time: 3 minutes | MSPB

What Damages Can the MSPB Award?

If you’re a federal employee, you’ve probably heard about the Merit Systems Protection Board (MSPB). The MSPB is an independent agency that hears appeals from federal employees who have been disciplined or who believe they have been subjected to some other adverse personnel action, such as a demotion, reduction in grade, or termination. Its general purpose is to protect the rights of federal employees. Yet before you request an MSPB lawsuit, you need to know what you stand to win. Are you wondering, What damages can the MSPB award? If so, then take a minute to review this article. If you still have questions, contact a dedicated MSPB attorney right away to learn more about the damages you can recover in your case.   Types of Damages You Can Recover at an MSPB Hearing In the context of a lawsuit, the word “damages” refers to the kinds of compensation that you can recover. There are several types of damages that you can seek in a lawsuit. Each one is designed to correct a particular kind of wrong, and not every kind of remedy is available in every case. Let’s take a closer look at each kind of damage available in the MSPB. Back Pay Back pay is by far one of the most common remedies available to an MSPB appellant. It is intended to compensate you for the pay you would have received if the adverse personnel action had not taken place. For instance, if your employer suspended you for 14 days, then you would be eligible to receive 14 days of pay if you prevailed in your MSPB appeal. You can also expect to receive some interest on the back pay. Compensatory Damages Generally speaking, compensatory damages attempt to compensate you for the actual harm suffered as a result of the agency’s incorrect actions. In an MSPB hearing, compensatory damages often include a lump-sum payment for out-of-pocket costs you incurred because of the unjust action. Medical bills, therapy costs, and relocation costs (stemming from an unjust termination) are all great examples of possible out-of-pocket costs that you can get compensation for. Originally, it was not clear whether the MSPB could award compensatory damages. However, the agency has repeatedly reiterated that it has the power to award compensatory damages in certain situations.  Reinstatement Reinstatement is a common remedy if your employer demoted you or fired you. If the MSPB finds in your favor, they may order the employee’s reinstatement to their former position. Punishing Bad Actors In certain situations, the MSPB can take action against employees who retaliate against you for whistleblowing. Specifically, the MSPB can order an agency to take the following disciplinary actions to reprimand, suspend, demote, or even remove the offender. In fact, the MSPB can also prohibit the bad actor from working for the federal government for up to five years and fine them up to $1000. Attorneys’ fees If the MSPB finds that the employee’s appeal was meritorious, the MSPB may order the government to pay the employee’s reasonable attorneys’ fees. Types of Damage You Cannot Receive in an MSPB Hearing The MSPB is a unique kind of judicial forum. That means that there are some key differences from federal and state courts. Not all damages available in federal and state courts are an option before the MSPB. Punitive Damages Punitive damages attempt to punish a bad actor for particularly outrageous conduct. Punitive damages also serve to deter similar conduct in the future and are rarely awarded on their own. However, the MSPB does not have the authority to award MSPB damages. Nominal Damages Nominal damages are a type of damage you can receive in a federal lawsuit if you have a technical injury without suffering any actual financial loss. Nominal damages recognize that your employer violated one of your legal rights yet also admit that no actual harm was done to you. Thinking About Requesting an MSPB Hearing? Let Us Give You the Representation You Deserve. It’s important to note that the availability of damages and the types of damages that can be recovered will depend on the specific laws and circumstances of each case. In addition, you can appeal the MSPB’s decisions to a federal court, which may modify or reverse the MSPB’s award of damages. For all these reasons, you need to have an attorney represent you. And not just any attorney will do. You need a dedicated attorney with a sterling reputation and ample experience in federal employment cases. Fortunately, all of us at the Federal Employment Law Office of Aaron D. Wersing PLLC are ready to bring you outstanding and compassionate representation. More than that, we care deeply about protecting your federal career and preserving your legal rights. Unlike many other attorneys, we focus our practice on federal employment issues. That means we know exactly how to give our clients the most effective legal representation available before the MSPB. Don’t sacrifice your future. Call us at 866-612-5956 or get in touch with us online.

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Jan 13, 2023 | By Aaron D. Wersing | Read Time: 5 minutes | MSPB

How to Win an MSPB Appeal (And What to Avoid Doing)

Thousands of federal employees file an appeal with the Merit Systems Protection Board (MSPB) each year. Over the past three years, only 3% of federal employees were successful. The success rate increases to 18% if you eliminate cases that settle before going to a hearing and those dismissed for procedural errors.  Below are some tips on how to win an MSPB appeal, but first you should understand how the appeal process works. What Is an MSPB Appeal? If a federal employee is subject to a major adverse action by a federal agency, such as demotion, suspension of 15 days or more, or removal, he or she can generally appeal to the MSPB (note that certain agencies and/or positions are not eligible for MSPB appeals, such as a Title 38 employee at the VA). The MSPB is a quasi-judicial federal agency. Its duties include resolving certain employment-related disputes between federal agencies and their employees.  What Is the MSPB Appeal Process? The MSPB appeal process is appropriate only after the agency notifies the employee of the proposed action, the employee responds verbally or in writing in an attempt to mitigate, if desired, and then the adverse action is subsequently sustained against the employee.  Jurisdiction  Before filing an appeal, the employee must determine whether the MSPB has jurisdiction over the action and the employee filing the appeal.  The MSPB has jurisdiction to hear an appeal involving the following actions, but includes others as well: The MSPB will hear discrimination cases only if they are in connection with an action otherwise within MSPB’s jurisdiction. Some appeals will be heard only after you exhaust the procedures of another governing agency, such as veteran employment and whistleblower retaliation claims. Federal employees eligible to file an MSPB appeal include: An MSPB attorney can help determine your eligibility to file an appeal. Filing the Appeal Timing Typically, you must file your appeal within 30 calendar days of the date of the action or within 30 days after receiving the agency’s decision, whichever is later. There are exceptions, however, such as actions taken by the VA under 38 USC §714, which have a reduced deadline of 10 business days to file the appeal. If the appellant and agency mutually agree in writing, prior to the timely filing of an appeal, to use an alternative dispute resolution process, the time limit for filing the appeal is 60 days.  Format The format and contents of your appeal must meet all the MSPB’s requirements. To ensure you do this, the MSPB provides an approved form if you wish to submit your claim in writing, or you can submit your appeal online through e-Appeal Online. Hearing The MSPB will assign an administrative law judge (ALJ) to your case, who will request additional information and responses from you and the agency. The ALJ will address settlement as well, which may involve the MSPB’s MAP program. If the case does not settle previously, an MSPB hearing will take place to allow the parties and witnesses to testify. The ALJ will issue an initial decision, which becomes final 35 days later unless a party petitions for review to the MSPB’s appellate division, known as the “Board”. Further appeal If you are dissatisfied with the ALJ’s initial decision, you may either file a petition for review to the Board or typically with the U.S. Court of Appeals for the Federal Circuit. Your appeal to the federal courts must be done within 60 days of the Board’s decision.  How to Win an MSPB Appeal? The MSPB says the most common reason as to why employees lose their cases is because they fail to bring forth a proper case by misinterpreting the law or not providing important evidence. Win your MSPB appeal by understanding discrimination laws, filing on time, using the correct format, requesting agency information, selecting the correct MSPB office, telling a compelling story, and making a discovery request. Here are some tips on what to do (and what not to do) to increase your chances of winning an MSPB appeal.  Request All Material Used By the Agency When an agency takes adverse action against you, you have the right to review the material it relied on to make the decision. You should exercise this right and obtain all the material to build a strong case against the agency. To create a well-crafted argument, you need to know what information was used against you.  File on Time The timeliness of filing your appeal is of utmost importance. Do not miss the filing deadline Generally, you have 30 days from the date the action is taken against you to file your appeal. Although the MSPB may excuse late filing if you have a good reason and provide supporting documentation, this rarely happens. The MSPB processes thousands of cases each year, and it is incredibly strict about deadlines. Remember, your initial appeal form only needs to include the basics, such as the facts and legal issues of your case. The ALJ will request additional information after you file. The important thing is to get the appeal in on time. Do not file too early You can only file your appeal after the effective date of the action against you or after the agency issues a final decision regarding your performance or conduct.  File a Complete and Proper Form File with the correct regional or field office. You must file your written appeal with the MSPB’s regional or field office where your duty station is located at the time the action took place. From time to time, the jurisdiction of the offices changes, so check the MSPB website for the most up-to-date information. Pay attention to every detail on the appeal form Simple mistakes on your appeal form like an incorrect address, failing to sign, or not providing the accurate date of the action can cause delay or denial of your appeal. An MSPB attorney can be quite helpful with the filing process, ensuring all information is included and accurate. Tell a Good Story  In 2019, the MSPB decided on 5,120 cases. Your appeal must stand out. Paint a clear picture...

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May 19, 2022 | By Aaron D. Wersing | Read Time: 4 minutes | MSPB

What to Expect at an MSPB Hearing

The law grants every federal employee the right to contest major adverse actions, such as suspensions over 14 days, demotions and removals. The Merit Systems Protection Board (MSPB) is the government agency tasked with providing a venue for federal employees who wish to appeal an adverse action. If you’re appealing an adverse action, your MSPB hearing will often be your best opportunity to argue your side of the case and present evidence in your defense.  Below, we review what you can expect at an MSPB hearing. While this guide can help prepare you, it cannot substitute for years of legal training and experience. Therefore, if you have an upcoming MSPB hearing, you should definitely consider contacting a qualified MSPB hearing lawyer.   What Do I Need to Do Before a Merit Systems Protection Board Hearing? Most Merit Systems Protection Board cases take several months to resolve. The Board’s policy is to adjudicate all appeals within 120 days of receipt, although this standard cannot always be met. Before the hearing, the parties have an opportunity to engage in discovery. This means that you can ask your agency to produce relevant evidence, admit certain facts, and answer certain questions that help your case. You can choose to depose certain individuals, which means you can ask them relevant questions in real-time that they have to answer under oath. The administrative judge (AJ) often also holds a preliminary status conference to discuss the case and clarify any issues from the onset. After the discovery period, the AJ holds a pre-hearing conference with the parties. At this conference, the AJ discusses several key matters with the parties based on their prehearing submissions, including: The MSPB’s hearing procedures, Any pending discovery disputes, How to define the issues of the case, Mutually agreed-upon facts (also called stipulated facts), Potential settlements options, Which witnesses each party wants to speak at the hearing, and  Potential exhibits. These matters can become complicated very quickly. In addition, you can expect a fully qualified and experienced attorney to represent your agency. That’s one of the reasons why you should have an attorney by your side during your MSPB hearing.  These days, a test call (or test Zoom meeting) is sometimes required by the MSPB AJ as a confirmation before the hearing that all parties and witnesses have the technology to participate adequately.  What You Can Expect at an MSPB Hearing  Almost all MSPB hearings begin with a brief technology check. The AJ will then give both parties one last chance to discuss and resolve any pre-hearing matters. Once that step is finished, the AJ directs the agency to call its witnesses. Witnesses participate one at a time. At the beginning of each witness’s testimony, the AJ or court reporter will put them under oath. The AJ then allows the agency’s attorney to conduct their direct examination of the witness. During the direct examination, the agency counsel will ask certain questions of the witness. You (or your attorney) are allowed to object to the questions from agency’s counsel for certain reasons, such as relevancy. After the agency counsel concludes their examination, you have an opportunity to conduct a cross-examination of the witness. This process continues for each one of the agency’s witnesses.  After the last agency witness finishes, the agency will declare that it “rests” its case. At that point, the employee can call their own witnesses. After calling each one of their witnesses, the employee or their representative conducts a direct examination. The agency counsel then has an opportunity to cross-examine the witness. Once the employee’s witnesses have all testified, the AJ allows each party to deliver a short closing statement. Sometimes, this closing statement will be required to be in writing. Parties use their closing statements to argue their case and highlight and review key points of testimony that favor their position. Once closing statements conclude, the AJ adjourns the hearing to consider the evidence. You can typically expect a decision from the AJ within several months after the hearing.   Do MSPB Hearings Involve Juries? No. Unlike many state and federal court cases, MSPB hearings do not involve juries. Instead, they include only the MSPB AJ, you (and your counsel), the Agency’s counsel, and a court reporter. The parties can call witnesses to participate. However, those witnesses must immediately leave after the AJ excuses them.  Where Do I Go For My MSPB Hearing? Because of the COVID-19 Pandemic, the MSPB generally holds hearings on video calling applications like Zoom. Therefore, most employees can participate from the comfort of their own homes, and expenses for attorney travel are greatly minimized.  Let Us Help Represent You During Your MSPB Hearing Now that you have a basic idea of what to expect at a Merit Systems Protection Board hearing, you can probably imagine how complicated they can become. In fact, it can be almost impossible to know when to object to a question or determine what kind of matters you should ask your employer during the discovery process. For that reason, it’s imperative that you have legal representation to maximize your chances of success. Your future deserves nothing but the best.  The team at the Federal Employment Law Office of Aaron D. Wersing, PLLC is committed to bringing you stellar representation. We care deeply about protecting your federal career and preserving your legal rights. We’ve zealously defended our clients’ interests at countless MSPB hearings over the years. Let us give you the representation you deserve. Don’t wait. Call us at 833-833-3529 or get in touch with us online.

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Feb 17, 2021 | By Aaron D. Wersing | Read Time: 5 minutes | MSPB

MSPB Appeal Process and How to Get Started

The Merit Systems Protection Board (MSPB) is the quasi-judicial agency responsible for overseeing the federal merit system. This system establishes rules and procedures related to the hiring, firing, and promotion of federal employees. The MSPB appeal process is an important part of federal employment because it provides a process for employees who have suffered certain kinds of adverse employment action to seek remedies. Below is an overview of the MSPB Appeal Process, as well as a helpful infographic about the process. The Law Office of Aaron D. Wersing focuses on helping federal employees resolve a variety of issues related to their federal employment. If you’ve been fired, suffered from discrimination, retaliation, or otherwise faced workplace issues, we can help you file your claim with the appropriate federal agency. Contact us online or call (833) 833-3529 today. The MSPB Appeal Process In general, the MSPB appeal process is very similar to what you would experience during a lawsuit. Instead of a trial, however, the parties ultimately present their cases during a hearing before an administrative judge. The eight major steps in the process are outlined below. The Employee Files the MSPB Appeal Technically, the first step in the process occurs when a federal agency makes a personnel decision that negatively affects the employee. The MSPB most commonly hears these kinds of cases, which include suspensions of 15 days or more, terminations, and demotions. After such an action is sustained, the federal employee may file a formal appeal with the MSPB. Employees can file appeals online through the MSPB’s e-Appeal Online service. Generally, employees must complete this step within 30 days of the adverse action prompting the appeal. However, there are exceptions, such as adverse actions taken by the Department of Veterans Affairs under § 714, which shorten this deadline. This is just one of many deadlines that will come up during the process. Hiring a federal employment lawyer will ensure that you don’t miss any of these crucial deadlines. Judge Assignment and Acknowledgement Order Within a few days or weeks of the initial filing, the case will be assigned to an administrative law judge (ALJ). The judge issues a document called an Acknowledgement Order. This order creates a timeline for the case and provides certain instructions about what each party must do next. The Agency Responds to Appeal Shortly after the ALJ issues the Acknowledgement Order, the federal agency must provide a file of their case to the judge and the employee. This file contains the agency’s initial response along with other documents relevant to the case. Status Conferences After receiving the agency file, the ALJ schedules one or more status conferences. At these conferences, the parties discuss the issues involved in the case, including any potential settlement or mediation efforts. It is possible that an MSPB case will end here if the parties reach an agreement. If the parties are engaging in settlement talks, the ALJ may order a case suspension. This suspension freezes the proceedings while the parties complete certain tasks. Case suspensions usually last 30 days, and the administrative law judge has the discretion to grant a 30-day extension if necessary. With regard to settlement, the parties may mutually agree to one of the MSPB’s mediation programs, such as the MSPB’s Mediation Appeals Program (MAP). Once both parties upload the signed MAP election forms, the appeal is taken off the docket pending the outcome of settlement negotiations.  The Discovery Process Just like in a trial, the parties engage in a discovery period to gather information in support of their case. In addition to documents, audio, or video, the parties may obtain sworn testimony through depositions. Other than the hearing, this may be the most important step in the process because it offers the employee the chance to obtain relevant evidence directly from the federal agency. The Parties Provide Pre-Hearing Submissions and Attend Pre-Hearing Conferences In the MSPB Appeal Process, the hearing is where the parties present their cases before the ALJ. Before the hearing, each party will provide information about the documents and witnesses they plan to use. This information makes up the “pre-hearing submissions.” During the pre-conference hearing, the judge may do several things: During these preliminary hearings, the parties have a chance to provide support for the evidence and witnesses they wish to use. A large part of this step involves challenging and demonstrating a basis for the chosen evidence. The Parties Present Their Cases at a Hearing Usually lasting one to several days, the hearing is very similar to what you’d see in a courtroom. The parties may perform an examination and cross-examination of any witnesses, present exhibits, and other information to support their side of the appeal. At the end, the parties may also provide closing statements, either before the judge or in writing submitted for the record. The Administrative Law Judge Issues a Decision After the hearing, the ALJ will review the evidence in the record and issue a final written decision. This can take anywhere from two to six weeks, or longer, depending on the complexity of the case. What Comes After the MSPB Appeal Process? After the administrative judge issues a final decision, the parties have the opportunity to file another appeal if the decision is adverse to them. This appeal is known as a Petition for Review, and must be filed within 35 days of the date of issuance of the administrative judge’s final order. The three Board members of the MSPB review these petitions and issue a final decision. A petition for review may also be filed online. If the MSPB’s initial or final decision is adverse to the employee, that employee gains the right to file a complaint in the Court of Appeals for the Federal Circuit. This remedy is available only after the employee exhausts their administrative options through the MSPB appeal process. Do I Need an Attorney to File an MSPB Appeal? Yes, you generally should hire an attorney to assist you through the MSPB appeal...

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