Attig Law Firm P.L.L.C

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 necessarily a lie. Sometimes a witness is just stating the version of events as they perceived it, not as you did.

However, most pro-se appellants in the MSPB (and even quite a few who are represented by an attorney) want to just come out and tell the Judge “Mr. Smith is a liar - that’s not what happened”. I’ve heard this happen during settlement talks, pre-hearing conferences, and worst, at the hearing. Simply telling the Judge that someone is lying isn’t going to get you anywhere - and it may make the Judge less inclined to want to listen to your story. This is a natural phenomena - think about the last time you heard someone accusing someone of being a liar without anything to back up their story. Did you get tired of listening to them? Did you, in your mind, decide that they were not being reasonable?

The better strategy in the court-room is to show the Judge that the witness is lying, and let the Judge draw that conclusion him or herself. You should use your time on cross-examination of a witness to show the Judge that a witness is lying. On cross, there are, generally, three ways to attack a witness who you know is lying: attack their perception, a bias they might have, or their credibility. Let’s talk about each.

• Perception. If someone has a perception problem, it means there was a flaw in the way they saw certain events transpire - they weren’t in the room, they heard about the event from someone else and don’t have firsthand knowledge, they were talking to another person and couldn’t really hear what was said - are all common examples of a “perception problem”. You can make a witness look less credible by challenging the way they perceived the events - and it’s much more effective than just saying, “Judge, so-and-so is lying”.
• Bias. Bias is a common reason for someone to tell a different version of a certain event. Here are some examples of potential bias: The witness is a life-long friend of the person whose testimony she is corroborating. The witness will get into trouble with his supervisors if he didn’t give the version of events he gave. The witness has a tendency to say bad things about individuals of a certain race. Again, use your questioning to bring out the bias rather than just say the witness is a liar.
• Credibility. When folks hear “Credibility” they immediately think “honesty” or “integrity”. Credibility in a legal sense is a little different - if a person’s version of events don’t “mesh” with common sense, basic human experience, or other facts that have been testified to, they may not have much legal credibility. This is the most effective way to attack a witness who is not telling the truth. By discussing the inconsistencies mentioned above, a Judge will start to view the witness as less than credible, and will give his or her testimony little or no weight.

As an appellant in the MSPB, you have a tool available to you that can help you show a Judge that a witness is less than credible: the deposition. Depositions recorded by court reporters can be expensive, running $200-$400 per hour, depending on how fast or slow you talk. But the advantage is that you “lock-in” the witnesses testimony - if they change their story at hearing, you have them “dead-in-the-water”. Better yet, you know in advance what they will testify to, and can spend more time looking for bias, perception problems, and credibility issues.

If money is a concern, the MSPB does allow individuals to take “tape-recordings” in lieu of depositions, for those interested in saving some money. But there are drawbacks - tape recorded statements are hard to use at a hearing - you have to fumble around the tape to find the right spot. Then, there’s always the evidentiary question of authenticity….more on all of this, later.

The bottom line is this - if you know a witness is going to lie, or is lying, show the Judge how that is happening. Don’t just blindly attack the witness by calling them a liar….it makes your case far less credible, and alienates the person who will have to find in your favor - the Judge.

Bill Fisher, at Bill Fisher Blogspot has compiled a pretty substantial list of recent Federal whistle-blowers, and the high price they have paid.

Click here to view the list and read an excellent article about Federal Government Whistleblowers.

Now, how about a stronger Whistleblower Protection Act, and possibly send Mr. Bloch (Office of Special Counsel) back to where he came from?

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 strictness of the timeliness requirements greatly enhances judicial efficiency.

For most Chapter 43 (Performance) and Chapter 75 (Disciplinary) appeals, you must file within 30 days of the effective date of the action - don’t miss the deadline. The MSPB even has an E-appeal system, where you or your attorney can file your appeal online (Click here to access the Board’s E-Appeal site).

The MSPB can excuse late filing for “good cause”, but it rarely does. The burden is a tough burden to meet, and most appellants who file untimely fail to show good cause. In our recent E-Newsletter, we told the story of LaDonna Schuringa, a Grade 5 employee with the I.R.S. (Click here to sign up for the Attig Law Firm’s E-Newsletter: This Month in the MSPB).  She received a suspension of 15 days for, among other things, alleged falsification of time records. (Click here to read the MSPB’s decision in Ms. Schuringa’s case).

Ms. Schuringa filed her appeal 4 days late, and the case was dismissed. Her case involved a question of whether her medical issue could justify her late filing. Because she didn’t comply with the “Lacy” factors, her medical condition did not justify her late filing. (Click here to learn more about the “Lacy Factors”).

One thing that causes employees to file untimely is a fear that they have to tell the whole story in the appeal form. Not true - you only need to plead the basic facts and legal issues in your initial appeal form.  In fact, it is often better if you just “hit the high notes” in your initial appeal. If the Judge needs more for the case to continue, rest assured they will ask for it. By way of example, the following paragraph is enough to get an MSPB Removal appeal started:

“My removal was proposed on January 1, 2007. My removal was effective on February 15, 2007. I did not commit the misconduct with which I am charged. The Agency’s penalty is not within the tolerable bounds of reasonableness. My disability (major depressive disorder) and race (African-American) motivated the Agency to remove me, not my alleged misconduct.”

In some scenarios, when the Agency fails to inform you of an appeal right (this happens most frequently in smaller Agencies, and in certain types of reinstatement rights cases), the timeline will be tolled. But as soon as you think you have an appeal right, file. If you don’t, or if you choose later not to pursue your appeal, you can always withdraw.

Don’t miss the MSPB’s deadline to file. It’s that simple.

NBC Dateline will present a report on Sunday, evaluating the merits of two different types of body armor for soldiers: Dragon Skin and the Interceptor.

Federal employees may find interesting the story of the engineer, Nevin Rupert, who spent 7 years evaluating the type of body armor that the Department of Defense decided not to purchase. Click here to read a portion of his interview with NBC.

Federal employees will not be shocked to hear Mr. Rupert’s story - whistleblowers in the Federal Government are commonly the victims of retaliatory terminations, discipline, and hostility from their supervisors. The law meant to protect these individuals - who are an integral part of maintaining the integrity and efficiency of our government - is, in the opinion of this Firm, weak and ineffective. The executive Agency charged with investigating allegations of retaliation for protected whistleblowing is, in the opinion of this Firm, largely irrelevant.

We’ll keep you posted on this story, for sure, including the outcome of Mr. Rupert’s MSPB hearing. Of course, after the Dateline story, I wouldn’t be surprised to see the case settled.

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.

1. 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”.
2. 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.
3. 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.

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 Officials often fail to consider other Douglas factors, such as length of service, prior disciplinary history and performance record, and other mitigating circumstances.

Usually, it is the job of the appellant or his/her attorney to show the Merit Systems Protection Board Administrative Judge, through testimony and documents, the shortcomings of the Deciding Official’s consideration of the Douglas Factors. In a recent decision by the MSPB, the advocate’s job just got a little easier.

Mr. Del Prete was a PS-05 S&SD Associate with the Postal Service. He was removed for several specifications on one charge of Failure to Account for Postal Funds/Failure to Follow Procedures. The triggering event was a breach in accounting procedures that resulted in shortages of postal stock totaling $45,000. Because the Administrative Judge sustained the charge (but not all of the specifications), a review of the Douglas Factors was appropriate.

The Deciding Official, according to the Judge, placed “…overwhelming concern [on] the amount of the shortage…and his belief that as the acting supervisor, the appellant should have been held to a higher standard because of his fiduciary role.” Del Prete v. U.S.P.S., MSPB Docket No. NY-0752-0143-A-1 (January 18, 2007). Additionally, the Administrative Judge found that “…the deciding official failed to consider mitigating factors, such as the appellant’s 34 years of unblemished service, prior work record, lack of intent and culpability…and his wife’s illness.” Id. As a result, the MSPB found the penalty to be unreasonable, and reduced the removal to a 60-day suspension.

The moral of the story - Agency Deciding Officials can not and should not rush to judgment just because they feel that the misconduct is serious. A Deciding Official has a duty to weigh all of the Douglas factors, particularly when an employee has invested the better part of their professional life in public service.

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

Click here to read the Firm’s blog entry regarding MSPB Misuse of Credit Card Charges 

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 appeal if you:

1. Don’t request all of the Material Relied On from the Agency at the reply stage. Agencies never provide all of the material relied upon with the proposal letter - even when they think they do, they don’t. How can you prepare an effective Oral and Written Reply if you don’t have all the facts that the Agency relied upon to charge the action against you?

2. Don’t give an Oral Reply at all. The Oral Reply is the last chance to persuade the Agency not to take an action - present your best case, and if you have a persuasive argument, a good percentage of the time, a Deciding Official will decide to mitigate or rescind the action altogether.

3. Don’t file your Appeal on time. The MSPB is strict about their filing timeline - don’t miss the deadline. While the MSPB does excuse late filing for “good cause”, it is a high burden to meet and most appellants who file untimely fail to show good cause.

4. Fail to initiate and follow-up on your discovery requests to the Agency. Information is power, and discovery is the process by which you get information - so don’t forget to seek discovery and follow-up if and when the Agency doesn’t produce what you sought.

5. Ignore a reasonable settlement offer. Settling a case does not mean you are giving up or giving in. It means you are choosing your battles. And most certainly, discussing possible settlement opportunities with the Agency is a good way to learn more about their case and explore a better resolution than you could get at hearing.

6. Don’t have a theme to your case. If you present your case to a Judge - who sees hundreds of cases each - and there is nothing that differentiates your case from the rest, then don’t expect your case to be treated differently than the 80% of cases that the Agency wins. Have a theme, and tie that theme through your entire case.

7. Don’t submit relevant documents prior to the hearing. Submit documents and potential hearing exhibits with the Pre-Hearing Submissions. Even if you are not sure you will use them, if you think you might, it is better to be safe than sorry. If you don’t have proof, you don’t have a chance to win your case.

8. Use your MSPB appeal as a tool to get revenge. You are not going to get your manager fired, and the Agency is not going to pay you millions of dollars in damages. Focus your energy on “righting the wrong”, not “avenging the wrong”.

9. Attack witnesses as liars. Yes, witnesses lie. But don’t attack them and call them a liar. Use other witnesses as appropriate, prior statements, documents and inconsistencies in their story to show they are lying.

10. Alienate the Judge. All too often pro-se litigants (and some represented by Counsel) go out of their way to alienate the Judge by accusing him or her of being partial, being a pawn of the Agency, ignoring their side of the story, etc. These things do happen on very rare occasions. For the most part, especially if you are pro-se, the Administrative Judge is going to be the one to “bail you out” if you have been wronged and have proof to support that wrong, so why alienate him or her.

I will discuss each of these points over the next few days. If you would like to discuss your MSPB appeal, or any Federal employment issue, with an attorney familiar with practice before the Board, contact the Attig Law Firm today.

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 to prepare for the reply. Their goal is to get a decision from a Deciding Official as quickly as possible.

Most Deciding Officials, by contrast, are much more objective. They understand how valuable a federal position is to their employees. They want to hear the whole story. They want to avoid litigation. More often than not, they want a reason not to impose discipline.

This is not to say that every Deciding Official is guaranteed to give you a fair shake. But that should not stop you from approaching your Oral Reply as if it is the last opportunity to convince the Agency not to take action against you.

The oral reply stage is the best time to consider hiring an attorney for a potential MSPB appeal. An experienced practitioner can use the oral reply to frame up broader issues for an MSPB appeal, and can use the oral reply period to develop the documentary record more fully. The time between an oral reply and the decision is an invaluable time for an attorney to secure more information from fact witnesses and other Agency employees.

If you would like to talk to an attorney about your oral reply or you appeal to the Merit Systems Protection Board, contact the Attig Law Firm today.

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 information, the falsification charge will most likely not prevail. The MSPB has said that falsification requires proof that the employee supplied incorrect information with the intent to deceive or mislead the Agency.

Agency attorneys often have difficulty proving intent because they usually only have “circumstantial” evidence. That is, the Agency attorney has to persuade the fact-finder to make inferences that suggest that the employee acted with intent. For example, the Agency often argues that the failure to consult regulations on how to fill out a certain form implies that the employee intended to falsify the firm. Another example is the argument that a particular employee has been with the Agency so long that it is unreasonable to think that they didn’t know the proper way to fill out a particular form, and so it can only be assumed that they intended to deceive the Agency.

The problem with inferences like this is that there is rarely a set of facts which doesn’t yield equally opposite conclusions. If an employee can show that the Agency’s proposed inference isn’t the only reasonable inference, or proves that the Agency’s inference is itself unreasonable, the Agency cannot sustain its burden of proof.

Another key to a falsification charge is that the Agency must prove that the falsification was “material”. For example, in a Federal Circuit case, the court found that the falsification of travel vouchers was not proven since the employee was entitled to the same travel benefit even if he provided the correct information. See, Bradley v. V.A. 900 F.2d 233, 237-38 (Fed Cir. 1990).

Falsification charges are very serious - Agencies rarely impose discipline less than removal, demotion or very long suspensions for incidents of falsification. However, many times these penalties are simply too harsh, and can be attacked by putting the Agency to its proof of intent and by arguing for mitigation on Douglas factors, depending on the circumstances of each case.

If you face a falsification charge, and would like to speak with an attorney who has experience before the MSPB, contact the Attig Law Firm today.