The Administrative Process
One you have cleared whatever procedures you are required to complete at the Agency, you may have a right to take your case to a hearing before an Administrative Judge. A hearing is very much like a trial in court, except that it is decided by an Agency judge rather that a judge in a court, and the rules of evidence are generally somewhat relaxed. There are advantages and disadvantages to choosing the administrative process over going to court; consult your attorney about your options.
Equal Employment Opportunity Commission
In discrimination cases, once you have been issued a notice of right to request a hearing from the EEOC (which you must do within 30 days), the EEOC Administrative Judge will at some point issue an Acknowledgment and Order beginning the case at the EEOC. There will then follow a period of discovery, in which you will be able to ask the Agency written questions (Interrogatories), ask for documents (Request for Documents), and ask the Agency to admit certain facts (Requests for Admissions). In addition, you may take depositions of federal employees and officials. At a deposition, your attorney meets with the person being deposed (the “deponent”), the Agency’s attorney, and a court reporter. You should also be present to observe and help your attorney. The deponent must answer your attorney’s questions under oath, and the answers are recorded by the court reporter for later use in the case. Sometimes depositions are also videotaped (at additional cost).
Of course, the Agency has the same rights to obtain information from you and your witnesses that you have to obtain information from them and will use the same procedures. One sure way to lose a case and perhaps face additional penalties is to lose, destroy, or conceal evidence. Never to do this! In addition, be sure that you tell your attorney about every bit of evidence you have.
After discovery, the Agency will usually file a Motion for Summary Judgment asking the judge to throw out your case, which the judge will do if the facts are not disputed and the law goes against you. Hearings are an opportunity for the judge to find out the facts and test the credibility of the witnesses. If there is no dispute over the facts, then there is no point in a hearing.
Finally, if the Judge denies the Agency’s Motion for Summary Judgment, you will get your hearing. You, your witnesses, and the Agency’s witnesses will get to testify, and you and the Agency may submit documents and other evidence in support of your respective cases, subject to the Rules of Evidence.
Merit Systems Protection Board
The MSPB also provides hearings to eligible employees who have been suspended for more than 14 days, demoted, or terminated. In addition, MSPB jurisdiction also includes reprisal for whistleblowing and violation of the rights of members of the armed services under USERRA. Once you appeal to the MSPB, it is up to you to demonstrate that the MSPB has jurisdiction over your appeal, and in many cases the judge will require you to do so. If you requested a hearing when you appealed and the judge finds jurisdiction, then you will usually have a period of discovery and then a hearing. (There is no such thing as a Motion for Summary Judgment at the MSPB.)
Office of Special Counsel
The Office or Special Counsel is entrusted with receiving certain kinds of whistleblower information (disclosures of waste, fraud and abuse), protecting employees from retaliation for whistleblowing, and addressing Prohibited Personnel Practices. In certain kinds of cases, you may or must go to OSC before taking a case to MSPB.
Appeals of security clearances have special and very restrictive rules. If you have a security clearance issue, seek out an attorney with extensive experience in security clearance matters. (I refer these cases to attorneys with this kind of expertise.) If you are applying for a clearance or a renewal of a clearance, tell the truth to the interviewer. If you have doubts about whether there are issues that you can or should disclose, consult an experienced security clearance attorney first.