For federal employees, preparing your appeal to the Merit Systems Protection Board (MSPB) can feel complex and intimidating. Even though it’s your legal right to challenge unfair or unjust adverse employment actions, many employees still feel disadvantaged compared to their agencies.
Fortunately, employees can access a powerful tool to help level the playing field: the MSPB discovery process. During discovery, federal workers can obtain crucial evidence that can make a significant difference in the outcome of their appeal.
In this blog post, we’ll explain what federal employees should know about the discovery process in MSPB cases and how they can use it strategically to protect themselves and their careers.
What Is the MSPB Discovery Process?
Discovery is the legal process where both parties in a dispute exchange information before they meet in a formal hearing. It allows each side to gather and understand the evidence the other side is relying on.
In MSPB appeals, discovery allows federal employees to collect documents, records, and testimony that can challenge the legitimacy of their agency’s decision.
If you intend to claim that discrimination, retaliation, or procedural errors were behind your agency’s actions, discovery is vital to gathering the concrete evidence you might otherwise not have access to.
What Does the MSPB Discovery Process Involve?
Under MSPB discovery rules, federal employees must begin making information requests no later than 25 days after the acknowledgment order for the appeal is issued. The scope of federal discovery rules allows employees to request any information that they believe could help prove their case or detract from an agency’s claims.
Here are some of the different ways that federal employees can seek information during MSPB discovery:
- Document requests. Employees can submit a “Production Request” for their agency to share physical documents and digital information related to their case, such as emails, memos, internal reports, surveillance footage, and other communication records.
- Depositions. In a deposition, employees can ask potential witnesses questions under oath. Depositions offer a valuable opportunity to establish an official record of an agency’s motivations and uncover potential biases by obtaining testimony from supervisors, HR personnel, or investigators.
- Interrogatories. Interrogatories are written questions that the agency must answer under oath. They can clarify key details, such as who decided to take adverse action and what policies were considered.
For example, imagine a TSA officer is facing removal based on alleged misconduct. They use discovery to request emails between their supervisor and HR officials discussing the proposed termination. These emails reveal that personal bias motivated by the employee’s religious faith rather than performance issues influenced the decision. This evidence becomes key in proving that the action was unjustified and discriminatory.
How to Use MSPB Discovery Effectively
Many federal employees assume they already have all relevant information about their situation when they appeal to MSPB. However, this is far from the case.
Although federal agencies must share some relevant information with employees when they deliver the notice of proposed action, they often withhold other documents that could be crucial for your case. Don’t assume you understand the whole picture based on your agency’s initial disclosure.
Additionally, the discovery process isn’t just about building your case—it’s also about anticipating the agency’s arguments. Discovery allows you to be proactive and avoid potential claims against you.
For example, if you expect the agency to claim that your termination was due to performance issues, you can use discovery to obtain all performance reviews, commendations, and evidence that supports your track record.
Discovery is a complex legal process, and navigating it can be challenging for federal employees whose careers may be on the line. The best way to make the most of the discovery process is to seek qualified legal assistance. An experienced federal employment lawyer can help draft information requests, stay on top of deadlines, and prepare a strong legal strategy to increase your chances of a positive outcome.
Protect Your Federal Career with Trusted Legal Guidance
If you are facing an MSPB appeal, you need a legal team that understands the complexities of the discovery process and how to use it to your advantage.
The Federal Employment Law Firm of Aaron D. Wersing PLLC has years of experience successfully supporting federal employees through their MSPB appeals. Our team can uncover key evidence, challenge agency defenses, and build a compelling case on your behalf.
To learn more about how we can help you, contact our office today to schedule a consultation.
Aaron Wersing, Attorney at Law
Aaron Wersing is the founder of the Law Office of Aaron D. Wersing. Mr. Wersing graduated from the Georgia State University College of Law with a Doctorate in Jurisprudence and was the recipient of the CALI Excellence for the Future Award. Mr. Wersing previously attended the University of Georgia, where he received a Bachelor of Business Administration degree in Accounting. Mr. Wersing is an active member of his local community. Mr. Wersing acts as a volunteer attorney with Houston Volunteer Lawyers, the pro bono legal aid organization of the Houston Bar Association. He is also a member of professional legal organizations such as the National Employment Lawyers Association and the American Inns of Court. To reach Aaron for a consultation, please call him at (833) 833-3529.
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