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10 Ways to Lose an MSPB Appeal.

10 Ways to Lose an MSPB Appeal.

Over the next few days, I will discuss each of these in turn. For now, I want to briefly outline what are the ten (10) things that I have noted tend to contribute to a Federal employee’s loss of his or her case before the Merit Systems Protection Board (MSPB). Click on the underlined header to each section to read more about that particular point.

You can increase your chances of losing your MSPB appeal if you:

1. Don’t request all of the Material Relied On from the Agency at the reply stage. Agencies never provide all of the material relied upon with the proposal letter – even when they think they do, they don’t. How can you prepare an effective Oral and Written Reply if you don’t have all the facts that the Agency relied upon to charge the action against you?

2. Don’t give an Oral Reply at all. The Oral Reply is the last chance to persuade the Agency not to take an action – present your best case, and if you have a persuasive argument, a good percentage of the time, a Deciding Official will decide to mitigate or rescind the action altogether.

3. Don’t file your Appeal on time. The MSPB is strict about their filing timeline – don’t miss the deadline. While the MSPB does excuse late filing for “good cause”, it is a high burden to meet and most appellants who file untimely fail to show good cause.

4. Fail to initiate and follow-up on your discovery requests to the Agency. Information is power, and discovery is the process by which you get information – so don’t forget to seek discovery and follow-up if and when the Agency doesn’t produce what you sought.

5. Ignore a reasonable settlement offer. Settling a case does not mean you are giving up or giving in. It means you are choosing your battles. And most certainly, discussing possible settlement opportunities with the Agency is a good way to learn more about their case and explore a better resolution than you could get at hearing.

6. Don’t have a theme to your case. If you present your case to a Judge – who sees hundreds of cases each – and there is nothing that differentiates your case from the rest, then don’t expect your case to be treated differently than the 80% of cases that the Agency wins. Have a theme, and tie that theme through your entire case.

7. Don’t submit relevant documents prior to the hearing. Submit documents and potential hearing exhibits with the Pre-Hearing Submissions. Even if you are not sure you will use them, if you think you might, it is better to be safe than sorry. If you don’t have proof, you don’t have a chance to win your case.

8. Use your MSPB appeal as a tool to get revenge. You are not going to get your manager fired, and the Agency is not going to pay you millions of dollars in damages. Focus your energy on “righting the wrong”, not “avenging the wrong”.

9. Attack witnesses as liars. Yes, witnesses lie. But don’t attack them and call them a liar. Use other witnesses as appropriate, prior statements, documents and inconsistencies in their story to show they are lying.

10. Alienate the Judge. All too often pro-se litigants (and some represented by Counsel) go out of their way to alienate the Judge by accusing him or her of being partial, being a pawn of the Agency, ignoring their side of the story, etc. These things do happen on very rare occasions. For the most part, especially if you are pro-se, the Administrative Judge is going to be the one to “bail you out” if you have been wronged and have proof to support that wrong, so why alienate him or her.

I will discuss each of these points over the next few days. If you would like to discuss your MSPB appeal, or any Federal employment issue, with an attorney familiar with practice before the Board, contact the Law Offices of Eric L. Pines today.