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10 Ways to Lose an MSPB Appeal: Fail to submit relevant documents prior to the hearing.

10 Ways to Lose an MSPB Appeal: Fail to submit relevant documents prior to the hearing.

The seventh of “10 Ways to Lose an MSPB Appeal” is to fail to timely submit relevant documents prior to the hearing.

When you receive the Acknowledgment Order and/or Scheduling Order from the Judge, usually within 14-30 days of filing your appeal, there will be a section in either or both of those Orders directing you to produce “Pre-Hearing Submissions” to the Administrative Judge. Typically, Judges require this document 3-10 days before the Pre-Hearing conference, but read your Acknowledgment and Scheduling Order to be sure. The Pre-Hearing Submissions will include, among other things, a list of documents that either party would like to use as evidence at the hearing.

If you have a document that you might like to use, put it on the list. There is no requirement that you use it, but if you had, or could have had, the document in your possession in your control at the time of the Pre-Hearing Submission deadline, 99% of all Judges are either going to not allow you to admit the document or are going to give the document no evidentiary value.

The reason that this rule exists is to prevent “trial by ambush”: both sides should be able to know the other side’s evidence before the hearing. The rule cuts in favor of Appellants as much as (or more than) it cuts in favor of Agencies, so don’t complain that it is not fair.

As a former Agency Counsel, it was painful to watch an Appellant, who had a document that might have helped his or her case, have the document excluded from evidence because they didn’t follow the rule. (Rest assured that an Agency Counsel won’t push this issue unless they are sure the document is harmful to their case.)

If you feel strongly that the Judge should consider the late or un-filed document, don’t argue with the Judge – you won’t win. Ask for a reconsideration of the Judge’s decision, ask for a clear ruling stating that the admission is denied, and make an “offer of proof”. This will preserve the error for a petition for review to the full Merit Systems Protection Board, if the document turns out to have a significant effect on the outcome of your case.