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Blog Posts in May, 2007

  • 10 Ways to Lose an MSPB Appeal: Don't use a theme.

    Continuing in this thread on “10 Ways to Lose an MSPB Appeal”, I will talk a little about themes. I think this particular tip “having a theme to your case” will help you more than not having a theme will hurt you. Think about it. The MSPBhears thousands of cases each year. Each administrative judge probably handles hundreds of cases, and dozens go to hearing for each judge. After a while, every ...
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  • Federal Disability Retirement: 5 Steps to Prove Eligibility for FERS disability retirement.

    To be eligible for a disability retirement annuity under FERS or CSRS, you must be able to show that: 1) Eligibility. You completed at least 18 months of creditable service in a position subject to FERS, or five years of creditable service in a position under the CSRS,> 2) Disability.You became disabled because of a medical condition, resulting in a service deficiency in performance, conduct, or ...
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  • 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, ...
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  • 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 ...
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  • Fed Circuit: Indefinite Suspension can't go on forever.

    In a decision issued this past Wednesday, the Federal Circuit Court of Appeals held that an employee who has been indefinitely suspended has two separate MSPB Appeal rights. The first is the right to challenge the imposition of the indefinite suspension, and the second to challenge the continuation of the indefinite suspension. Rhodes v. Merit Systems Protection Board, Fed. Cir. No. 2006-3340; ...
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  • How to lose your MSPB Appeal: Use the hearing as a tool for revenge.

    In our continuing discussion, “10 Ways to Lose an MSPB Appeal”, I would like to turn to a common problem in Merit Systems Protection Board (MSPB) cases – employees want to use their MSPB appeal (or EEOC case) as a tool to get revenge. By the time most federal employees get in touch with my Firm, they have been pretty substantially harmed by their Agency. This occurs in any number of ways: they’ve ...
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  • Some examples of Material Relied On in adverse actions

    In any proposal letter, there should be a section that allows you to request the “material relied on” before responding to the proposed action. It is important that you request this information, for many reasons. One of the biggest reasons is that it is much harder to get the information from the Agency in the discovery process before the Merit Systems Protection Board (MSPB). Often times, ...
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  • 10 Ways to Lose an MSPB Appeal: Ignore a reasonable settlement offer.

    Continuing in our series on “10 Ways to Lose an MSPB Appeal”, today we will discuss a common way to shoot yourself in the foot. Ignore a reasonable settlement offer. A common misconception about settlement is that it means you are giving in. This is not true. Settlement is a way for two parties to put a dispute behind them by finding some middle ground. The Agency won’t get everything it wants, ...
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  • How to lose an MSPB appeal: attack Agency witness as liars.

    The next post in the series “10 Ways to Lose an MSPB Appeal” discusses a common problem in appeals before the Merit Systems Protection Board (MSPB) – attacking Agency witnesses as liars, without evidence. Now, people do lie. It’s a fact of life that unfortunately seeps into just about every courtroom at one time or another. However, not every statement that doesn’t echo your version of events is ...
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  • How to lose an MSPB Appeal: Don't File your appeal on time.

    Today’s post, the next in the series “10 Ways to Lose an MSPB Appeal” discusses the easiest problem to avoid, but the one problem that occurs most commonly: Don’t file your Appeal on time. The Merit Systems Protection Board is strict about their filing timeline. With thousands of appeals filed each year, and with the short time that an MSPB Judge has to hear a case an issue a decision, the ...
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  • How to Lose an MSPB Appeal: Don't request the Material Relied On.

    Today’s post addresses the first of 10 Ways to Lose an MSPB Appeal: Don’t request the material relied upon at the Reply stage. Federal statutes require that the Agency inform the employee of his right to review the material relied upon to support the proposed action. This right will customarily be stated in your proposal letter. Despite having this right, if the Agency fails to offer and provide ...
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  • 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 ...
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  • Here's a link with helpful information about MSPB misuse of credit card charges.

    Here is a link to a great blog entry with a downloadable collection of MSPB cases addressing “Misuse” charges. http://www.typepad.com/t/trackback/22175/7785561
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  • The oral reply - the most important part of your MSPB appeal.

    Agencies often view Oral Replies as mere rituals. But they are much more than that. An Oral Reply is your only chance to convince a Deciding Official not to take the action that the Proposing Official would like to take. Agency proposing officials and human resources specialists look at oral replies as mere rituals. They will give you a limited time to schedule a reply, and even more limited time ...
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  • MSPB Charge: Burden of Proof in charges of Falsification.

    Agencies often charge employees with a variety of misconduct charges that all come under the umbrella of “Falsification”. These charges are typically: fraud, forgery, misrepresentation and falsification. The key to each of these charges is that the Agency must show that the employee intended to deceive or mislead the Agency in some way. If an employee is just negligent and provides erroneous ...
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