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Federal Employees: You be the Judge


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Small Agency Oversight  
#1 Posted : Monday, June 17, 2019 1:24:07 PM(UTC)
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Hi everyone, thanks for all your assistance so far. Writing today because I am feeling stir-crazy waiting for the MSPB judge in my case to rule on the matter of jurisdiction. I filed an appeal with MSPB nearly three moths ago and quickly received a jurisdictional order. My response was filed shortly thereafter but there has been no response from the judge and the agency refuses to cooperate with discovery absent the judge’s ruling (despite the acknowledgement order clearly stating that discovery could begin immediately).

Is the 180 day timeline for MSPB a fiction? How long will I have to wait to find out if the judge accepts my case?
TheRealOrange  
#2 Posted : Tuesday, June 18, 2019 3:17:47 AM(UTC)
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Originally Posted by: Small Agency Oversight Go to Quoted Post
Hi everyone, thanks for all your assistance so far. Writing today because I am feeling stir-crazy waiting for the MSPB judge in my case to rule on the matter of jurisdiction. I filed an appeal with MSPB nearly three moths ago and quickly received a jurisdictional order. My response was filed shortly thereafter but there has been no response from the judge and the agency refuses to cooperate with discovery absent the judge’s ruling (despite the acknowledgement order clearly stating that discovery could begin immediately).

Is the 180 day timeline for MSPB a fiction? How long will I have to wait to find out if the judge accepts my case?

Are you in the Department of Veterans Affairs? I know the MSPB 180-day rule applies to the VA, but I am not sure about other agencies. The general federal regulations indicate that the "judge will prepare an initial decision after the record closes." I didn't see a requirement that the record be closed within 180 days. On the other hand, for appeals of removal, demotion, or suspension for more than 14 days based on performance or misconduct in the Department of Veterans Affairs, "a final and complete decision must be issued within 180 days." But, perhaps I am missing something in the regulations applicable to other agencies.
TheRealOrange  
#3 Posted : Tuesday, June 18, 2019 4:03:16 AM(UTC)
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Originally Posted by: Small Agency Oversight Go to Quoted Post
Hi everyone, thanks for all your assistance so far. Writing today because I am feeling stir-crazy waiting for the MSPB judge in my case to rule on the matter of jurisdiction. I filed an appeal with MSPB nearly three moths ago and quickly received a jurisdictional order. My response was filed shortly thereafter but there has been no response from the judge and the agency refuses to cooperate with discovery absent the judge’s ruling (despite the acknowledgement order clearly stating that discovery could begin immediately).

Is the 180 day timeline for MSPB a fiction? How long will I have to wait to find out if the judge accepts my case?

Here's a link to a discussion with an MSPB attorney that has some interesting information: https://www.ivancielaw.c...on-board-representative/ .

Q: How long does a hearing last at the MSPB?

Speaker 1: Well, typically you can expect it to take around 120 days or more. Realistically an expectation is about a little less than a year. It really depends on your case specifically, how complicated it is, if it’s a multi-day hearing and how long it takes the judge to issue a decision in your case. MSPB has a rule, generally, that tries to get a case decided within 120 days, as we discussed earlier. That is not a hard and fast rule to the extent that if the judge takes more than 120 days, an employee automatically wins his case . It simply doesn’t work like that, but you can expect around 180 to 220 days. I’d say is a fair estimation of start to finish, given that there will likely be one or two case suspensions in your case, where the case is suspended or deadlines are continued for 30 days and just to account for the judge dealing with scheduling issues and the time to write a well thought out opinion for your case.
Small Agency Oversight  
#4 Posted : Wednesday, June 19, 2019 9:50:20 AM(UTC)
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Yes my mistake it was 120. I am so disappointed and stressed that the judge hasn’t even made a jurisdictional decision when nearly that time has elapsed already.
DroneBee  
#5 Posted : Sunday, June 23, 2019 12:19:03 PM(UTC)

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All deadlines for an Administrative Judge (AJ) are fallacies. Read and keep handy the MSPB Judges Handbook: https://www.mspb.gov/msp...&application=ACROBAT

Due to the fact that there is no MSPB Board, I would assume that there will be delays in all aspects of MSPB appeals. If you don't "win" at the MSPB - and there is only a 2% chance of "winning" (https://www.whistleblowersblog.org/2010/03/articles/government-whistleblowers/federal-employees-have-less-than-2-chance-of-success-before-mspb-judges/ ) - then you have to appeal to the MSPB Board (which there is none - https://www.mspb.gov/FAQ..._Quorum_March_1_2019.pdf). I'm part of the 2,000 petitions for review backlog ("The total number of petitions for review at headquarters now tops 2,000", https://fcw.com/articles...cklog-bypass-gunter.aspx), which keeps growing. President Trump wants to cut the MSPB budget by 10% for 2020. I doubt that I will get a decision before I die.

Edited by user Sunday, June 23, 2019 12:20:23 PM(UTC)  | Reason: Not specified

Small Agency Oversight  
#6 Posted : Monday, June 24, 2019 11:47:21 AM(UTC)
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@dronebee - agencies appeal if they lose, too. I agree, we'll never get decisions on appeal - but it doesn't mean it isn't worth pursuing, as it gives the agency an avenue for settlement (the general counsel at mine was a moron, and claimed they couldn't settle because I didn't have an open legal case against them. so ridiculous).
DroneBee  
#7 Posted : Friday, July 5, 2019 6:21:44 AM(UTC)

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Originally Posted by: Small Agency Oversight Go to Quoted Post
@dronebee - agencies appeal if they lose, too. I agree, we'll never get decisions on appeal - but it doesn't mean it isn't worth pursuing, as it gives the agency an avenue for settlement (the general counsel at mine was a moron, and claimed they couldn't settle because I didn't have an open legal case against them. so ridiculous).


I'm not against fighting - once someone is ousted (such as I was), there is no other recourse. I just want everyone to understand, there is virtually no chance of "winning" - anyone can look up the statistics - 2%. Don't believe that this, or any, agency system is fair; it is not.

Yes, if the MSPB AJ finds for the complainant (rare, but could happen) and orders the agency to put the complainant back to work, the agency will file an appeal (petition for review). The complainant will go back to the job and the appeal will linger, just as all appeals are now. This is the BEST case for a complainant, but remember, the complainant will be under the same ***hole bosses.

The AJs are in the agency's pockets - remember, these are not "honorable" vetted judges, they are just lawyers hired off the street into GS-14/15 positions. God forbid if you make more $ than they do when you go before them! My AJ was so one-sided that I filed a separate appeal with the MSPB against the AJ - that is in the same big pile as all the other appeals. I'll be dead before the MSPB even gets to mine.

So, yes, fight if you are at the MSPB stage - there is no other recourse. Before it gets to that - try to get another job. Losing everything isn't worth any whistleblowing retaliation that I faced - believe me.
Small Agency Oversight  
#8 Posted : Monday, August 19, 2019 8:56:32 AM(UTC)
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The judge finally ruled that they would hear my case at MSPB.
GWPDA  
#9 Posted : Monday, August 19, 2019 7:19:31 PM(UTC)
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Excellent
DroneBee  
#10 Posted : Saturday, August 24, 2019 7:03:47 AM(UTC)

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Originally Posted by: Small Agency Oversight Go to Quoted Post
The judge finally ruled that they would hear my case at MSPB.


Advice: Refute EVERY statement that the other side makes during the hearing. My attorney did not as my attorney didn't think such retorts were important to the case (which the retorts should not have been - think like little side comments during testimony); my attorney didn't want to confuse the judge, but to stick on point that has been supported by prior MSPB decisions. BIG MISTAKE! The AJ wrote these side comments as fact in his decision against me! (Example: the aggressor stated that a document I allegedly wrote (that had nothing to do with the issues at hand) had syntax errors (which was inaccurate) - my lawyer should have objected as to relevance, or, better yet, put the document in front of the oppressor and said, "Show me." I can tell you, there were no syntax errors and this would have been a powerful rebuke, but I do understand my attorney's approach, KISS - Keep It Simple Stupid.) But, it didn't work in my case; the decision is full of nonsense - including that erroneous syntax comment, without any reference to the main points that would have been clearly refuted based on MSPB case law, and the AJ ruled against me - did I tell you the AJ was a prior attorney in my agency? I didn't know until at the end of the hearing when the AJ was talking to the agency attorneys about "so-and-so" who worked there - the AJ never recused himself. My attorney should have objected and asked for recusion at that point, but, unfortunately for me, did not. As I said before, I appealed to the MSPB board which doesn't exist, so I'll be dead before the appeals are heard.

So object, object, object - counter *ALL* statements, etc. Don't leave one stone, no matter how small, unturned. The AJs are not honorable, not trustworthy, and are definitely in the agency's pocket. Remember only 2% of cases are found for the appellant - you have a 98% chance of losing, so fight like your life is in jeopardy, because it is - your career life. God Bless.

Edited by user Saturday, August 24, 2019 7:05:35 AM(UTC)  | Reason: Not specified

Small Agency Oversight  
#11 Posted : Thursday, October 3, 2019 10:43:29 AM(UTC)
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Hi folks, looks like there may be a happy ending here and I appreciate any thoughts and prayers you might send my way. The agency finally expressed an interest in settling to avoid discovery. We had been unable to settle because of my insistence on a clean record - they refuse to admit fault in a settlement, which they say is required by the executive order on clean record agreements - but the DOJ counsel assigned to represent the agency at MSPB came up with a workaround. They are unable to clean records to settle "administrative complaints," but the executive order does not apply to lawsuits. Counsel filed a "Dismissal Without Prejudice" in my MSPB case while I withdrew my EEO complaint and filed it instead in District Court.

Agency counsel claims that agency wants to settle in District Court with a global settlement, so I hope they have been acting in good faith.
DroneBee  
#12 Posted : Thursday, October 3, 2019 11:46:12 AM(UTC)

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All the best! God Bless!
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