MSPB: Advocacy Tip - Always read the Judge’s Orders
A recent experience in an MSPB Hearing reminded me of one of the most important tenets of advocacy before the MSPB: always read the Judge’s Orders. Let me tell you what happened.
At the opening of the hearing, the Agency called its first witness to testify. This particular witness was on our witness list, but not on the Agency’s witness list. When this is the case, the Agency cannot usually conduct a direct exam of that witness. I objected to the Agency calling one of our witnesses in its case in chief (most times I wouldn’t object to something like this, but in this matter, I was concerned that it might affect our case strategy a tiny bit). The Agency responded by saying that no, in fact the witness was on the Agency’s witness list, and they were entitled to call the witness in their case in chief.
The Judge looked back at her Summary of Pre-Hearing Conference, and sure enough, the witness was identified as an Agency witness. However, looking back at our Pre-Hearing Submissions, the Agency had never sought to even call the witness. The Judge made the (benign) mistake of ruling that the Agency had identified the witness for their case in chief. Nobody caught the error - and guess what? The Judge’s ruling in the Summary of Pre-Hearing Conference generally governs everything that happens at the hearing of the case.
Now, in this case, the error turned out to be harmless - very embarrassing, but harmless. The witness was, in fact, more helpful to our case on direct exam then she ever could have been on cross, for reasons I’m not going to go into on a public forum.
The morale of the story: always read the Judge’s Orders. If you do not feel that the Judge’s Order is correct, you usually have ten (10) days from the date of the Order to file an objection and/or a Request for Correction. If the Judge’s “mistake” is significant - do not hesitate to object to the Order and seek a correction of the Order.
That can be a pretty big “IF”. Don’t challenge every mistake for the sake of having a “perfect record”. If the mistake won’t affect the outcome of the case, it is probably not worth the effort to change it. Moreover, if the mistake is inconsequential, objecting and/or trying to correct the mistake may only serve to alienate the Judge.
No post on this website is legal advice, is meant to be legal advice, and certainly does not serve as a substitute for legal advice. Information is power, and we are providing this information to give you, the federal employee, with some power. This information is not widely or easily accessible to Federal Employees. It is best to consult with a lawyer familiar with Merit Systems Protection Board (MSPB) appeals to discuss the facts and law of your particular case.
