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Right to counsel in MSPB hearings?

The Merit Systems Protection Board (MSPB) is where federal employees file their appeal of any adverse job actions, like disciplinary proceedings or terminations. The MSPB has been in the news recently as they have been receiving many appeals caused by agency furloughs.

As we noted last week, the volume of appeals being filed have reached overwhelming numbers, with thousands of Department of Defense (DoD) appeals related to sequestration furloughs.

The volume of these cases has exceeded the numbers from the Air Traffic Controllers cases of the early 1980s. The MSPB has temporally placed these cases on hold while it attempts to sort and organize the matters in manner that promotes the greatest efficiency and allows it to manage the significant increase in its workload. 

The MSPB, however, does have other cases that concern other federal employment law issues. Last month, the Federal Circuit dealt with an appeal from the MSPB over a right to counsel in an MSPB hearing. The MSPB found that federal employees have no right to appointed counsel in hearing.

The woman, an IRS employee who had been removed from her position due to absences and failing to properly follow leave procedures, then filed an appeal with the Federal Circuit.

The court explained that appointment of counsel is typically limited to criminal cases. For civil cases, like a MSPB hearing, the right to appointed counsel is "highly circumscribed, and has been authorized in exceedingly restricted circumstances," that relate to disability or retirement.

For all other cases, you should contact an attorney experienced with federal employment law and handling matters in front of the MSPB or the Federal Circuit. If you have a valid claim, representation by your own attorney ensures your arguments are properly raised.

Source: FedSmith.com, "No Right To Counsel In MSPB Appeal," Susan McGuire Smith, July 30, 2013

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