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Blog Posts in March, 2007

  • MSPB: Can the appellant recover attorney fees?

    An appellant before the MSPB can recover attorney fees. Many cases settle before getting to an MSPB hearing. In settlement agreements, it is common for the parties to agree on a sum that includes attorney fees, costs and expenses. When a case doesn’t settle and goes to hearing, the appellant must be a prevailing party in order to recoup attorney fees. After your attorney shows that you are a ...
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  • MSPB: Credit Card Misuse Charges

    One very serious situation for Federal employees are allegations that the employee misused a government credit card. The scenario that commonly arises usually involve a government credit card or travel card holder who makes a purchase which is not authorized. Most commonly, this type of discipline involves employees who allegedly purchase a personal item using their government credit card. Other ...
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  • Federal Employees: Can management tell your co-workers you have a disability?

    Imagine this scenario – you have a disability, and your management chain has just agreed to provide you a modified work schedule or modified work duties in order to accommodate that disability. Your co-workers start to become curious why you’re not at work when they are, or you’re not doing the same tasks that they are. They approach your manager to ask why you are getting preferential treatment. ...
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  • Federal Circuit: USPS Breached Settlement Agreement with Former Employee

    A recent Federal Circuit decision held that the Agency breached a settlement agreement it made with its former employee. The former employee, a USPS worker, was terminated for “Failure to Maintain a Regular Work Schedule/Tardy”. In fact, the Plaintiff suffered from Sleep Apnea, a disability that affected his breathing and sleeping and caused him to frequently arrive late for work. In settlement ...
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  • MSPB and EEOC: Can the Agency make a Federal employee take leave indefinitely?

    If an Agency places an employee on indefinite enforced leave, the Merit Systems Protection Board (MSPB) may have jurisdiction to review this action. Typically, an Agency will place an employee on enforced leave, pending the results of a voluntary or involuntary application for medical/disability retirement, or in other scenarios where the Agency has questions (legitimate or not) about an ...
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  • Deciding Official in MSPB removal case fails to consider Douglas factors.

    All too often in Chapter 75 removal cases, the Deciding Official glosses over the Douglas factors, placing inappropriate emphasis on certain factors. Agency Deciding Officials all too frequently over-emphasize factors such as the gravity of the offense, the harm to the “national interest”, and sometimes, the fact that the appellant is a manager or supervisory employee. By contrast Agency Deciding ...
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  • MSPB: What is the charge "Failure to follow instructions"?

    When an Agency charges an employee with failure to follow instructions, they are required to prove certain facts: An instruction or order was issued; The Agency was entitled to have the instruction followed; and, The employee did not follow the instruction. It is important that the instruction to the employee be clear – enough to put the employee on notice that some action or inaction is required ...
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  • MSPB: Who can appeal to the MSPB?

    Not every employee can appeal an adverse action to the MSPB. Here is a brief list of who can make an appeal to the MSPB: Competitive Service employees who have completed a 1-year probationary or trial period; Veterans preference-eligible employees with at least one year of continuous employment in the same or similar positions outside the competitive service; Postal Service supervisors, and some ...
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  • MSPB: What is "Harmful Error"?

    In MSPB Appeals, the Appellant (employee) can assert “harmful error” as a defense to an Agency adverse action. Harmful error can be a difficult concept, even for many attorneys. Here is what it is, in layman’s terms. First – a little background. Because Federal Employees are employed by the United States Government, they typically have a “property interest”, protected by the U.S. Constitution, in ...
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  • MSPB: Burden of proof in performance actions.

    To establish the elements of a performance-based removal action, the Agency again has the Burden of Proof. That is, the Agency must prove the elements of the removal – however, the burden is much lower than in misconduct cases. In a performance case, the Agency must only prove their case by “substantial evidence”. This is the lowest burden of proof in the legal system. Essentially, it means that ...
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  • MSPB: Understanding the MSPB Appeal Process

    For attorneys and pro-se appellants, understanding the MSPB Appeal Process can be a bit daunting. Here’s the various stages of your appeal, beginning with the Adverse Action Proposal Letter and continuing through an Appeal to the Full Board. Proposal Letter: This is the most crucial document in the entire process – it proposes the action that the Agency wants to take. The letter should indicate ...
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  • MSPB: What is the difference between an "Adverse Action" and a "Disciplinary Action"?

    A question folks frequently ask when contacting my Firm is an explanation of the difference between a “disciplinary action” or an “adverse action”. A “Disciplinary Action” is a suspension of 14 days or less, written letter of reprimand, or oral counseling. Aside from truly egregious misconduct, an Agency will usually propose a disciplinary action before taking more serious steps. Disciplinary ...
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  • MSPB: What are the Douglas Factors?

    In almost every adverse action case before the MSPB, the issue of the “Douglas Factors” is likely to come up. In short, the Douglas Factors are a tool that the Deciding Official should use in choosing the property penalty to take when a Federal Employee commits misconduct. Later, at hearing, the MSPB will either take testimony regarding the consideration of the Douglas Factors (if the penalty is ...
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  • MSPB: Burden of proof in charges of misconduct.

    When a Federal Agency charges you with misconduct, it has the burden of proving its case against you. What does the Agency have to prove? The first thing the Agency has to prove is that the misconduct occurred. This is usually broken into two parts: The conduct charged actually occurred; The conduct charged is misconduct; Many times, one or the other is not disputed. For example: an employee and ...
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