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What to expect at an MSPB hearing

If you are a federal employee with the right to file an MSPB appeal, the MSPB hearing is your opportunity to present your side of the story to an Administrative Judge who will decide your case. While less formal than a trial in court, an MSPB hearing is a formal proceeding where witnesses provide testimony under oath and evidence is presented.  Here is what you can expect.

Should I ask for an MSPB hearing?

You have a right to an MSPB hearing but it is important that you ask for one when you file your appeal or within 10 days of the judge sending out the initial case order. If you determine that a hearing isn’t necessary for the judge to make a decision in the case, you can always withdraw your request later. But if you don’t ask for a hearing initially, then you give up the right to one.

How do I prepare for an MSPB hearing?

After you have completed the discovery process, there will be a deadline to submit a Prehearing Statement to the judge. The Prehearing Statement includes:

  • Statement of the facts;
  • Description of the issues to be decided by the judge;
  • Any defenses you intend to raise (e.g. discrimination, retaliation);
  • Proposed witnesses and description of their testimony; and
  • List of exhibits you want to submit during the hearing.

The judge will then have a call with you and the agency to approve or deny the proposed witnesses and exhibits for both sides. At the hearing, your goal is to convince the judge that the agency’s action was wrong because their version of the facts is not true or the chosen penalty was not reasonable.  To get ready, you will want to prepare your own testimony, prepare questions for other witnesses (including the ones that the agency may call), and decide how you will use and explain your exhibits to the judge.

What happens at an MSPB hearing?

During the hearing, the agency will present its case first to try to convince the judge that the decision they reached is supported by the facts and the action they took is reasonable under the circumstances. They will question witnesses, including the deciding official, and submit documents that support their case. You will have a chance to ask their witnesses questions too.  Next, it is your turn to present your side of the case to the Judge, including testifying yourself, calling your own witnesses, and presenting documents. The agency’s representative will be able to ask you and your witnesses questions as well – and sometimes the judge will, too.  In some cases, the judge will ask both sides to make a closing statement (sometimes they ask the parties to make opening statements too) and in other cases, the judge asks for closing statements to be submitted in writing a few days or weeks after the hearing.

When will the judge make a decision?

MSPB Administrative Judges try to make decisions soon after the hearing and generally, we expect to receive a decision within 1-3 months. However, depending on the complexity of the case and the length of the hearing, it may take longer.  When a decision is issued, it will contain information for both sides about what they need to do to appeal and the deadline to do so.

Do I need an attorney for an MSPB hearing?

You are not required to have an attorney represent you at an MSPB hearing, however, it is always a good idea for an experienced attorney to represent you during the hearing. The Agency will have an attorney at the hearing presenting their case and it can be helpful to have one of your own.  An experienced attorney can help identify the best evidence to present during the hearing, conduct questioning of witnesses, including you, and make any necessary legal arguments about the testimony or evidence to the judge.

If you have received a removal decision, a demotion, or a suspension for more than 14 days and are considering filing an MSPB appeal, or you have already done so and have an MSPB hearing coming up, Alan Lescht and Associates can help.  We represent federal sector employees nationwide and around the world during the MSPB appeal process, including during MSPB hearings.

 

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