MSPB Right to Counsel: What Federal Employees Need to Know

MSPB Right to Counsel is Not Absolute: Understanding Your Options as a Federal Employee

If you are a federal employee facing an adverse action, like removal, and considering an appeal to the Merit Systems Protection Board (MSPB), one of the first questions you might have is: Do I have a right to an attorney?

The short answer, as confirmed by appellate courts, is no, there is no absolute MSPB right to counsel that the Board must appoint and pay for on your behalf.

The Legal Precedent on Appointed Counsel

A federal employee recently argued that the MSPB "abused its discretion" by failing to appoint (and pay for) an attorney to represent her in her removal appeal from the Internal Revenue Service. The appeals court soundly rejected this argument.

In the case of Taylor v. Merit Systems Protection Board (CAFC No. 2013-3037, 7/16/13), the court noted that the right to court-appointed counsel is usually limited to criminal cases. It generally applies to civil cases only when "an indigent party’s liberty is potentially threatened."

An appeal of a federal employment action, such as a firing, does not meet this high standard. Therefore, if you appeal to the MSPB, the Board will not incur the cost of appointing a representative or consultant for you.

🛑 What This Does NOT Mean

This decision regarding the MSPB’s obligation to pay for counsel should not be interpreted to mean you are without options or a right to assistance. While the Board won't pay for it, you absolutely have the right to a representative before the MSPB and the right to professional consultation in connection with your appeal. It simply means you will have to bear the cost of your chosen representative. In some cases, you local labor union may have a process in place for either directly covering consultant fees or otherwise reimbursing you for the expenses.

A Viable and Cost-Effective Alternative

The choice of seeking representation for your MSPB appeal does not have to be a binary, "all-or-nothing" decision between hiring an expensive law firm or completely giving up on your complaint.

For many federal employees, expensive legal counsel is simply not feasible. However, in instances where you have:

• Some merit to your case.

• Mitigating factors that could influence the outcome.

• Goals that include seeking an alternative solution (like a Last Chance Agreement or an Abeyance Agreement).

...retaining a consultant might be a viable and cost-effective option.

Introducing the InformedFED Consultant Option

An InformedFED consultant is a senior-level practitioner with advanced academic credentials and decades of experience (often twenty to thirty five years) in the full spectrum of federal sector employment regulations, including:

• EEO

• MSPB

• Arbitration

• Grievance

• FERS Retirement/Disability

• Workers' Compensation

• ULP (Unfair Labor Practices)

Our consultants can:

1. Guide you through the often arcane and complex MSPB processes.

2. Prepare documents on your behalf.

3. Conduct and apply primary source research tailored to your specific facts and circumstances.

4. Provide a wide array of other services to strengthen your appeal.

Crucially, in the event your consultant believes your case requires, or would otherwise be better served by, full legal counsel, you will be advised immediately.

Don't let the high cost of an attorney force you to walk away from a legitimate appeal. Explore all your options for professional, expert guidance.

💡 InformedFED Consultant Services for MSPB Appeals

• Appeals of Adverse Decisions: They specifically handle appeals of proposed and

  effectuated adverse actions, such as removals or suspensions greater than 14 days, to the U.S. Merit Systems Protection Board (MSPB).

• Procedural Assistance: They provide comprehensive support during the appeal process, which can involve:

  • Responding to Jurisdictional Orders to assert MSPB jurisdiction.

  • Preparing discovery-related motions and providing consultation during the discovery phase.

  • Consulting during pre-hearing procedures and at hearings before an Administrative Judge (AJ).

  • Preparing the employee for status conferences.

• Responding to Agency Motions: They assist in responding to the agency's Motions for Summary Judgement (MSJ).

• Settlement Negotiation: They help in negotiating and crafting settlement agreements or Last Chance Agreements (LCAs), which may include monetary compensation components.

• Documentation and Strategy: Their services include preparing written responses and supporting evidence files to proposed disciplinary/adverse actions and assisting in the overall strategy for the appeal.

• Expertise: InformedFED consultants are senior-level subject matter expert (SME) practitioners with decades of specialized experience in federal sector labor law and employment relations.