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.
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.