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.

How InformedFED Can Help

Our Expertise, Your Advantage.

Our expertise lies in providing comprehensive consultative and transactional administrative litigation services. We meticulously analyze and prepare your complaint, appeal, relevant documents, evidence files, and strategies to ensure that you can effectively safeguard your career, your union members, and pursue damages when appropriate and do so cost-effectively.

Our services include support for, but are not limited to:

• Discipline and Adverse Actions: Developing compelling written and oral responses to proposed removals, suspensions, and performance-based actions. These written responses will serve as the foundation for any appeal or complaint submitted to the Merit Systems Protection Board (MSPB), Equal Employment Opportunity Commission (EEOC), Agency grievance procedure, or arbitration.

• EEO Complaints: Initiating and managing informal and formal complaint stages, including mediation, investigations, reviewing Reports of Investigation (ROI), and assisting during the hearing stage.

• Appeals (MSPB & FLRA): Providing comprehensive support for Merit Systems Protection Board appeals and Unfair Labor Practice complaints.

• Career Transitions: Expert guidance on FERS Disability Retirement applications and Reasonable Accommodation requests, reconsiderations, and appeals.

• Suitability and Security: Former Suitability Adjudicators conduct document reviews and consultations regarding background checks and SF-50 coding errors. Additionally, they prepare written responses and requests for remediation.

• Union Assistance: Our consultants collaborate closely with local union representatives and leadership to ensure unions provide the most effective representation to their members. Upon request from the local union, we will either work directly with its members or with its union representatives. Additionally, our consultants provide both small group and large group training for union training programs.

Why Federal Employees and Unions Choose InformedFED

• The Cost-Control Model: We eliminate massive upfront financial risks by offering flat-fee services and low-minimum hourly retainers, making expert support affordable even for issues where the financial recovery wouldn't justify a high-priced attorney.

• Unbundled, "A La Carte" Services: You retain control and only pay for the services you need. You can hire us for a single task—like an Initial Case Assessment (ICA)—and decide your next steps from there with no ongoing obligation.

• Unmatched Accessibility: We are the only experts available to clients 24/7, including evenings, weekends, and holidays, ensuring you never miss a critical deadline.

• Insider Knowledge: Our consultants possess decades of "internal" knowledge of agency policies and HR procedures, providing a strategic advantage during early dispute stages and settlement negotiations.

• Indirect Representation: We offer "indirect representation," allowing you to retain us for specific tasks or phases—such as writing responses or second opinions, significantly reducing costs compared to full scope legal representation.

Disclaimer: InformedFED provides credentialed and recognized Subject Matter Experts to deliver administrative, litigation, and consulting support directly to federal employees and unions.  We do not provide legal representation.  Click here to book a no obligation consultation.