If you recognized the title of this article, chances are you are an Employee Labor Relations practitioner (some capacity) in the field of federal employee labor relations or you are the appellant concerning some type of adverse action. This article is intended to introduce the concept and purpose of an “Agency File” subsequent to a Merit Systems Protection Board Acknowledgement Order (AO). This article is not intended to function as a treatise concerning the Agency File however. The goal is to provide useful practical information to the reader in an introductory format.
What is the “Agency File”
The “Agency File” also called a “Schedule 752” file is essentially the official Agency record and position concerning an Adverse Action. Submission of such a file is required subsequent to an initiated appeal and MSPB Acknowledgement Order (not to be confused with an Order to Show Cause which involves resolution of jurisdictional issues). The Acknowledgement Order provides very explicit instructions to agencies on preparation and submission of the file. Instructions are also found at 5 CFR 1201.25 (Part 1201- Practices and Procedures).
The truth is that any good agency practitioner prepares the Agency File in advance of an initiated appeal, as the case is developing. In other words, an appeal of an adverse action is always anticipated. It is rare you find any seasoned practitioner who does not anticipate an adverse action appeal at the time such a decision is made by a deciding official. Nevertheless, the submission of the Agency File is subject to the following requirements by MSPB contained in the Acknowledgement Order:
- A narrative response to the appeal and all material issues raised by appellant.
- The narrative can be exceedingly simple or very complicated.
- With the exception of Postal Service cases, a statement whether appellant is
covered by a collective bargaining agreement and whether that agreement covers
the action being appealed.
- As simple as it sounds.
- A statement whether appellant has filed a formal complaint of discrimination
on the action being appealed.
- Again, as simple as it sounds.
- Copies of all other documents, which are relevant and material to this appeal.
- Anything contained in the Agency file is guaranteed to become part of the record. This tab of the Agency File could be extensive depending on the case. It will minimally include the proposed action, decision, a complete copy of the evidence file including the agency table of penalties, as well as applicable SF-50’s (Notice of Personnel Action effecting the adverse action). It is important to remember the Agency will rarely include exculpatory or mitigating information in the file.
The Merit Systems Protection Board provides specific instructions for assembly of the File. The MSPB will actually reject a File that fails to comply with instructions. However, with the increasing use of electronic file (MSPB e-Appeal), we are noticing the slight relaxation of these sometimes archaic requirements (such as requiring “The [fastening device holes must be 2 and 3/4 inches apart”). We typically recommend clients follow the same format in preparing their own material. These instructions are contained in the Acknowledgment Order.
NOTE: Since the onset of the pandemic situation in 2020, most agencies exponentially embraced emerging technologies. Accordingly, the MSPB fully embraced its efiling system changing its processes, making it easier for all parties to exchange documents and pleadings.
The Agency is required to serve a copy of the file to you when it submits the file to MSPB. It is important to remember the Agency’s defense of the action is not limited to the information contained in the Agency File; it may introduce additional evidence in MSPB proceedings. An agency may develop evidence itself, or obtain additional evidence through the prescribed MSPB Discovery process (see, 5 CFR 1201.71 (Part 1201- Practices and Procedures: Discovery). We previously introduced Discovery in another article.
When you receive the Agency File, it is imperative you fully familiarize yourself with the entire contents of the file and look for errors. However, do not become infatuated with this file. The key to winning your appeal is to address the charges and specifications or work on explaining mitigating or Douglas factors.
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