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 the material relied upon, the Appellant does not always prevail at the MSPB. The Appellant has to show “harmful error”. This test that is discussed elsewhere, but essentially means you have to show that the Agency would have reached a different conclusion if they produced the material relied upon.

So if you have a right to request the material relied upon, but the Agency isn’t necessarily going to be “dinged” for not providing it, why is it so important to request this information?

There are three major reasons why you want the material relied upon.

You want to fix the Agency to the evidence or information it relies on in reaching its decision. If an Agency doesn’t identify, explain or disclose evidence it has against you, it cannot later rely on that information at an MSPB hearing. Unless you fix the Agency, at the oral reply stage, to the evidence it is relying on, you will never be able to show what was actually relied upon and what may have been “ex-parte”.

It is difficult, if not impossible, to argue later that you were harmed by the Agency’s failure to produce evidence if you never requested it.

You cannot make an effective and adequate oral reply if you don’t know what information the Agency is looking at to come to their decision. How can you rebut the Agency’s evidence if you don’t know what it is?

There are many more reasons that it is important to not only request the material relied upon, but to document when and by whom the material relied upon in the proposal was or wasn’t produced. You should consult an attorney, or review decisions of the MSPB to glean a few more of them.

When requesting the material relied upon, always be sure to ask for any information that the Agency will rely upon in making its Douglas Factor analysis. This includes, at a minimum your OPF (Official Personnel Folder), EPF (Employee Performance File), and drop files that Agency managers may maintain on its employees. Ask for copies of awards given to you, the Agency’s Table of Penalties, and redacted or sanitized documents showing penalties for other employees of the Agency charged with similar misconduct.

By requesting the material relied upon, you learn more about the Agency’s case against you, you improve your ability to persuade the Deciding Official to rescind the action or mitigate the penalty, and you give yourself a little room to argue “harmful error” when the Agency springs a surprise document on you at the hearing.