What To Expect at an MSPB Hearing

September 23, 2022
The Law Firm of J.W. Stafford

Man taking notes at desk

If you are a federal employee and you are facing adverse action such as removal, demotion or suspension, avoiding unnecessary consequences may involve filing an appeal with the Merit Systems Protection Board (MSPB). When you file an appeal, the final stage before an administrative law judge (ALJ) renders a decision is to present your case at an MSPB hearing.  

To be clear, not all MSPB appeals result in a hearing. In many cases, federal employers will agree to settle employees’ claims. But, if you file an appeal and do not receive a satisfactory settlement offer, then you will need to go to your MSPB hearing to protect your legal rights. Here is an overview of what you can expect during this stage of the process:

The Five Stages of an MSPB Hearing

1. Preliminary Matters

Before the hearing begins in earnest, the ALJ will address some preliminary matters. This typically involves making sure all of the technology being used to conduct the hearing is working properly and then closing out any issues that may still be pending from the pre-hearing process.

2. The Agency’s Case

In MSPB hearings, the agency presents its case first. This is the agency’s opportunity to lay out its justification for the adverse action it has imposed (or is seeking to impose). To present its case, the agency will introduce witnesses and produce relevant documents for the ALJ’s review.

Federal employees (or their counsel) can object to improper witness questions and inadmissible documents produced by the agency’s attorneys, and they have the opportunity to cross-examine the agency’s witnesses as well. Once the agency has presented all of its evidence, the agency will “rest” its case, and then it will be the employee’s turn to present his or her defense.

3. The Employee’s Defense

The process for presenting the employee’s defense is similar to that for presenting the agency’s case. Federal employees can call their own witnesses and present their own documents, and they can testify on their own behalf if they choose to do so. Whether to testify is a key decision, and it is one that employees should make in consultation with their attorneys.

4. Closing Statements

After the employee rests his or her defense, the ALJ may ask both sides to present closing statements. Alternatively, the ALJ may ask both sides to submit closing statements in writing.

5. Adjudication

Finally, after considering the evidence and arguments presented by both sides, the ALJ will render a decision. In most cases, federal employees can expect to receive a decision within one to three months. If either party is dissatisfied with the ALJ’s decision, it can challenge the outcome of the MSPB hearing in federal court.

Discuss Your MSPB Appeal with an Experienced Attorney in Confidence

If you have questions about filing an MSPB appeal or how to prepare for an MSPB hearing, we encourage you to contact us for more information. To speak with an experienced attorney in confidence, please call 410-514-6099 or contact us confidentially online today.