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10 Ways to Lose an MSPB Appeal: Don't give an Oral Reply.

10 Ways to Lose an MSPB Appeal: Don't give an Oral Reply.

I’ve already posted on why the Oral Reply may be the most important part of the MSPB appeal process. ( Click here to read “The Oral Reply – the Most Important Part of Your Appeal”). In this post, I am continuing my discussion of “10 Ways to Lose an MSPB Appeal”. One sure way to help yourself lose before the MSPB is to fail to deliver an Oral Reply.

The other day, I delivered an Oral Reply on behalf of an employee whose removal has been proposed for a variety of reasons. The Deciding Official was smug and indifferent, often times refusing to answer questions I had about the Agency’s charges by becoming pugilistic and unreasonable.

The client and I knew from the outset that the Deciding Official had made up his mind before we opened our mouths, and that the Oral Reply was only going to be used to lay the foundation for several arguments later. We specifically identified the only material relied upon that had been provided, so the Agency can’t spring new information on us later. We clarified statements in the proposal letter that will illustrate, to the Judge, the severe charging flaws in the proposal letter. And, as a bonus, the worst part of the Deciding Official’s personality came out — on the record.

We knew from the outset that the Deciding Official would not change his mind. I don’t know for sure if what we did will help us win before the Merit Systems Protection Board. But what I do know, is that by fixing the Agency to its story and by drawing out the personality of the Deciding Official, our argument to the Board just got a shot of steroids.