federal civilian employee, you enjoy various rights, protections and avenues of due process that
most workers can only dream about. There's no better time to exercise
these rights and protections than when facing a disciplinary matter that
could affect, or possibly end, your federal career.
It is the federal agency pressing the discipline - or "adverse action,"
as these matters are known - that has the burden of proof.
The government must prove that both the alleged adverse action and the
penalty being imposed are justified in order to "promote the efficiency
of the federal service." That is the vague federal standard underlying
most federal civilian employee disciplinary cases.
In a previous article we explained how federal agencies initiate disciplinary
complaints against federal workers, and we outlined the initial steps
those accused employees must take in order to preserve their rights of
due process. Now, we get down to the process for litigating such matters
before the Merit Systems Protection Board, or MSPB. You'll recall
that this is the federal equivalent of a state Civil Service Commission.
Once you have been put on notice of an adverse action against you and you
have filed your initial appeal to the MSPB, it is time to begin using
both the facts of the case and all the facets of federal law to protect
your career and defend your federal civilian employment.
At this crucial stage, federal employees stand to benefit from experienced
legal representation. I tell all of my federal clients facing this situation
that they are in charge of the facts of the case. But I am in charge of
the law. To be successful, we will need both the employee's story
of what occurred and my expert legal experience with the federal disciplinary
process to make sure that all the facts of the case are examined and challenged.
What I never recommend is trying to go it alone.
Remember, the burden of proof is on them. But to fully exercise your federal
employee due process rights, you'll want to mount a detailed and convincing
defense that challenges every fact, every assumption and every aspect
of the law as it pertains to your case.
At MSPB appeal hearings, the federal agency employer must present, explain
and defend all of the alleged evidence it used to arrive at the adverse
action against the accused employee. And the agency then must justify
the disciplinary penalty it imposed as a result. Only then does the federal
agency meet its burden of proof.
At the hearing, the employee is entitled to full legal representation.
This gives you and your attorney the opportunity to challenge the alleged
evidence against you and present favorable witnesses.
The legal question before the MSPB administrative judge is two-fold. First,
the judge must weigh the evidence presented by both sides and determine
if the allegations are justified or if the claims should be modified or
Second, the MSPB judge considers the penalty imposed by the federal agency
for the alleged offense. Again, this, too, is open to legal challenge
under the federal disciplinary process.
The system is very much a two-part equation. The adverse action taken against
the employee and even the initial appeal review of the case by the MSPB
can be attacked both on whether the disciplinary action was justified
and whether the proposed penalty was too severe.
At the MSPB hearing level, all available factual and legal arguments can
and should be brought to bear. Our goal is to first try to convince an
MSPB administrative judge that an alleged offense wasn't what the
government says it was. And failing this, we argue that the penalty imposed
isn't justified by the offense.
It's high stakes, to say the least. That's why Step One is retaining
an attorney with plenty of experience in federal employment law.
Strength in numbers?
For federal employees covered by a collective bargaining unit or union
─ and for those disciplinary actions involving an unpaid suspension of
14 days or less ─ an alternative avenue for relief is the filing of a
grievance. By doing so, the employee gains the assistance and backing
of the union.
While pursuing a grievance is more cost-effective and usually is decided
in a shorter period of time, I still recommend mounting a full MSPB appeal
and having the hearing instead.
An MSPB appeal brings with it the full panoply of due process hearing rights.
This includes the very important right to engage in discovery by seeking
and obtaining all the evidence that the agency has to factually and legally
support its case. As mentioned before, this includes not only the discipline
imposed, but the penalty imposed as well.
Unfortunately, there are numerous time limits that come with MSPB appeals.
The clock is ticking before and during the process. Time limits govern
how long federal employees have to respond to the proposed adverse action
against them. And there are time windows for submissions throughout the
process, along with deadlines for appeals of negative MSPB "Initial
Generally, these time limits are strictly followed by the MSPB. In other
words, a blown deadline can result in a negative outcome for an affected
employee. This is yet another reason not to go it alone.
Make no mistake: The stakes are high. Your career is on the line.
But the chances are very good that I can help.