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 [...]

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 [...]

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 ChargesÂ

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 [...]

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. [...]

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 [...]

OPM has issued a proposed regulation that will, according to the MSPB, “…[provide] additional procedural and appeal rights to individuals who are serving a probationary period in the competitive service or a trial period in the excepted service if they have sufficient “current continuous service” to qualify as employees with those rights under 5 U.S.C. § 7511.”

The proposed regulation was added to conform to decisions of the Federal Circuit in Van Wersch v. Department of Health and Human Services, 197 [...]

WIGIs, or within-grade increases, are fairly routine increases in salary for GS employees. They are typically earned by service in a particular grade for a particular period of time. The WIGI is only earned if an employee has maintained an “acceptable level of competence” (ALOC) during the entire “waiting period”.
When an employee is denied a WIGI, they have a right to appeal the denial to the Merit Systems Protection Board (MSPB). However, the employee must first [...]

Federal employees who are involuntarily separated, other than for misconduct or delinquency, and who have 25 years of service (or are 50 years old and have only 20 years of service) will be entitled to a Discontinued Service Retirement annuity.

The purpose of the discontinued service retirement is to cushion the blow to a federal employee who finds himself or herself involuntary separated from their Agency after investing years in federal service.
An involuntary separation includes any separation without an employee’s [...]

The MSPB has a little-known program known as the Mediation Assistance Program (MAP), wherein Federal Employees can attempt to negotiate a resolution to their MSPB appeal with their Agency.

In my experience, very few Agency attorneys have experience with, or even know of, the Mediation Assistance Program. This is unfortunate, because the program is probably one of the better mediation forums available to Federal employees.

Upon request to the Administrative Judge (preferably upon agreement of both sides), your case will be assigned [...]