MSPB Right to Counsel Not Absolute

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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 The appeals court rejected her argument (see, Taylor v. Merit Systems Protection Board (CAFC No. 2013-3037, 7/16/13, nonprecedential)).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.


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