PRACTICE AREAS

M.S.P.B./Discipline

Maryland/ Washington, D.C., M.S.P.B./Discipline Lawyer

The U.S. Merit Systems Protection Board is an independent, quasi-judicial agency in the Executive branch that serves as the guardian of Federal merit systems.   It is responsible for adjudicating employee appeals of:

• personnel actions over which the Board has jurisdiction, such as removals, suspensions, furloughs, and demotions;
• administrative decisions affecting an individual's rights or benefits under the Civil Service Retirement System or the Federal Employees' Retirement System;
• complaints filed under the Whistleblower Protection Act, the Uniformed Services Employment and Reemployment Rights Act, and the Veterans Employment Opportunities Act;
• cases brought by the Special Counsel, principally complaints of prohibited personnel practices and Hatch Act violations;
• requests to review regulations of the Office of Personnel Management that are alleged to require or result in the commission of a prohibited personnel practice-or reviewing such regulations on the Board's own motion;
• ordering compliance with final Board orders where appropriate; and
• conducting studies of the Federal civil service and other merit systems in the Executive Branch to determine whether they are free from prohibited personnel practices.

Our office handles M.S.P.B. cases anywhere in the United States.  We handled one case in Marfa, TX, against the U.S. Border patrol.  Morris Fischer, explained, “it was a real pleasure traveling to Marfa, with a sign saying, ‘population 2121’ to assist a federal employee in need.  Deserts don’t’ stop us.  It’s really a beautiful part of the country and I’ll help any employee, anywhere in the United States.”

If you’re a federal employee who believe is the subject to a personnel action that is unfair or adverse to you.  Call our office.  We will explain federal law with you.

What does the M.S.P.B. consider in employee termination decisions?

There are twelve factors determining the appropriate discipline for Federal employees as articulated in Douglas v. Veterans Admin, 5 M.S.P.R. 280 (1981). These factors consist of the following:

• nature and seriousness of the offense;
• employee's job level and type of employment;
• employees past disciplinary record;
• employees past work record;
• effect of the offense upon the employee's ability to perform at a satisfactory level and it's effect upon a supervisor's confidence in the employee's ability to perform assigned duties;
• consistency of the penalty with those imposed upon other employees for the same or similar offenses;
• consistency of the penalty with a table of offenses;
• notoriety of the offense or its impact upon the reputation of the agency;
• clarity on the employee was on notice of the rules that were violated;
• potential for rehabilitation;
• mitigating circumstances; and
• adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.

What are the factors the government uses during the M.S.P.B. process to determine the actual disciplinary charge to be given to a federal employee?

The charging process is deceptively critical. It looks pretty straightforward when the federal employee receives his or her notice to remove or other disciplinary letter. However, one of the favorite government tricks when an M.S.P.B. litigation starts, believe it or not, is at the charging stage of the case.

It's important to understand that a federal employee can be charged very differently for the same conduct. For example, a federal employee accused of physically assaulting a co-worker can be charged with assault and battery or improper conduct. The difference in these charges pertains to first, the elements of each charge, to which the government must prove were committed by the Federal employee and second, the range of penalties for that offense.

With respect to an assault case, the government will typically have to prove some form of a willful attempt or threat to inflict bodily harm. If that can't be proven, an Administrative Law Judge cannot find for the government agency and against the federal employee on the charge of assault. However, improper or disorderly conduct requires the government agency prove only that the federal employee engaged in disruptive and inappropriate conduct: a much lower threshold of proof.

The range of penalties for these two offenses can and should differ greatly depending on the agency. For example, the National Institutes of Health, otherwise known as NIH, lists the following as appropriate discipline for each of these offenses.

This table demonstrates that the penalties for assault are considerably more severe than for disorderly conduct. So here's what the government will typically do to a federal employee. They will charge the federal employee with disruptive conduct, not assault or fighting because the government agency will be unable to prove the stricter elements of the more serious charge. However, during the course of the M.S.P.B. litigation, government lawyers will attempt to convince the Administrative Law Judge that the alleged federal employee's conduct was so violent and dangerous, that it warrants the most severe penalty, that of removal.

The way to beat this is for the M.S.P.B. lawyer from the start of the litigation to take a deposition of the charging official and ask that official under oath about the nature of the offense. Specifically, if the conduct was so violent and dangerous then why wasn't the federal employee charged with assault? Inevitably, the charging official will not have a good answer to this question. This shows up at closing statement time at the M.S.P.B. trial, wherein the M.S.P.B. lawyer should argue that whatever the government proved the federal employee did, the government's own charging official basically conceded that it wasn't as severe as the government lawyers have made it out to be at trial. This may be the difference in the employee winning the M.S.P.B. hearing to the extent that he or she will not be wrongfully terminated.

I just received a scheduling order on my MSPB case, what steps should I take?

The M.S.P.B. scheduling order is an extremely important document. It lists the deadlines for various important events in the case and the rules for the litigation that are ongoing. Administrative Law Judges have the power, and it's not uncommon, for them to dismiss a federal employee's M.S.P.B. case for the federal employee not following the rules of the acknowledgement order.

Discovery, which is the information gathering stage of the case, is a process that can be the difference maker in prevailing or not prevailing in a federal employee M.S.P.B. case. For example, one of the Douglas factors as described above is the manner in which the discipline penalty has been administered by the government agency to other federal employees similar to the federal employee who is being currently charged. The M.S.P.B. lawyer during discovery has the opportunity to demand that the federal agency produce all records of other discipline given to other federal agency employees for the same conduct being charged now. Failing to request these records in a timely manner and failing to make the necessary motions when the government withholds these important documents can be a fatal flaw in the federal employee's M.S.P.B. case. The acknowledgement order contains many of these rules regarding this process. It should be immediately shown to an M.S.P.B. lawyer at the initial consultation.

Can You Tell Me About A Recent Successful M.S.P.B. Result Handled By Your Office? 

Texeira v. United States Postal Service, 2008 U.S. App. LEXIS 4335 (Fed. Cir. Feb. 28, 2008), was a case recently decided in our favor.  The case is an excellent example of the Administrative Law Judge’s failure to satisfactorily apply the Douglas factors.  Ms. Texeira was charged with Falsification in Recording Time and Failure to Follow Proper Timekeeping Procedures.  The U.S.P.S. was able to prove the second charge only, yet the Administrative Law Judge believed the Postal Service’s deciding official, who contended that he would have given the same discipline had both charges been proven, even if the  lesser of the two charges was the only one upheld.  The case was affirmed by the Merit System Protection Board.  Following that event, Ms. Texeira from Modesto, California retained our office to appeal to the Federal Circuit Court of Appeals.  To read the decision, click here.

In what ways does litigating against the Federal government differ from litigating against a typical company in an employment matter?

The government has unlimited resources, including an unlimited supply of attorneys who are in a position to ignore virtually all economic principles that the rest of us have to live by. Even large law firms who are retained by large companies to defend them in lawsuits are typically under some kind of budgetary constraint. Their clients can be very demanding as to the efficiency of the financial aspects of the case. The government has none of this.

Particularly when litigating against the government at the federal court level, you can face multiple attorneys who take different positions on the same issue. For example, we had a case where one government lawyer asked for an extension in exchange for a commitment to send to our office certain discovery documents. Another government lawyer on the same case then called our office to negotiate the same extension without sending the documents.

Much like a blitz in football, the government will send multiple attorneys and multiple positions at whoever is litigating the other side of the case. If that lawyer doesn't do a good number of M.S.P.B. cases, and hasn't seen this before, the federal employee could be disadvantaged. The difference in a successful or unsuccessful result in an M.S.P.B. case sometimes isn't much.

At our office, we've had extensive experience in litigating against the federal government on behalf of federal employees. It is our fundamental belief that every federal employee has the right to a fair hearing and proper application of the Douglas factors. Careers are very important and should be taken seriously. At our initial no-cost consultation, we'll review with you the critical facts in your M.S.P.B. case. We'll help you identify necessary witnesses and set forth a litigation plan that will make your agency deal with the veracity of the charges against you and whether the discipline proposed was reasonable in light of the law. Call us today at (800) 294-1317 for your free consultation today.