No basis exists for an absolute MSPB right to counsel. A Federal employee argued the Merit Systems Protection Board (MSPB) “abused its discretion” by failing to appoint (and pay for) an attorney to represent her before the Board concerning her removal (“firing”) from the Internal Revenue Service. The appeals court rejected her argument (see, Taylor v. Merit Systems Protection Board (CAFC No. 2013-3037, 7/16/13, nonprecedential)). In short order, Federal employees do not have a constitutional right to court appointed counsel as the court notes, such counsel (court appointed) “is usually limited to criminal cases, and generally applies to civil cases…only when an indigent party’s liberty is potentially threatened.” (see, P.4).
What This Does Not Mean Concerning MSPB Right to Counsel
In the context of whether an MSPB right to counsel exists. the decision of the Board in this case should not be interpreted to mean you do not have a right to a representative before MSPB or professional consultation in connection with your appeal. It simply means you will have to pay the cost as the Board will not appoint a representative or consultant for you and incur such costs.
A Viable Option
The choice or decision whether to proceed with or without expensive legal counsel is not a binary “yes or no” decision point requiring you to choose between taking out a second mortgage or giving up on your complaint or appeal. In instances in which employees have at least some merit or other mitigating factors or are seeking an alternative solution such as a Last Chance Agreement or an Abeyance Agreement, and they do not intend to hire legal counsel, retaining a consultant might be a viable and cost effective option. An InformedFED consultant is a senior level practitioner with anywhere between twenty and thirty years experience in EEO, MSPB, arbitration, grievance, FERS retirement, FERS disability, workers compensation, ULP, and all the other practice areas of federal sector employment regulations. Our consultants can guide you though arcane processes, prepare documents on your behalf, conduct and apply primary source research to your fact pattern and circumstances, as well as a wide array of other services. In instances in which your consultant believes you require, or would otherwise be better served with legal counsel, you will be advised immediately.
The contents of this website (InformedFED.com) are intended to convey general information only and not to provide legal advice or opinions. Consultants at InformedFED are not attorneys. They are senior level practitioners of employee labor relations and EEO. The contents of this website, and the posting and viewing of the information on this website, should not be construed as, and should not be relied upon for, legal or employment advice in any particular circumstance or situation. The information presented on this website may not reflect the most current legal or regulatory developments. No action should be taken in reliance on the information contained on this website and we disclaim all liability in respect to actions taken or not taken based on any or all of the contents of this site to the fullest extent permitted by law. InformedFED is comprised of independent senior level practitioners and consultants who are not employees of InformedFED.