The next step beyond the Merit Systems Protection Board, of course, is a choice: You can either file an immediate appeal to the Federal Circuit Court of Appeals, or file a Petition for Review before the Merit Systems Protection Board, where the decision of the Judge at the Merit Systems Protection Board will be reviewed by a panel of 3 Administrative Judges.
Normally, I recommend taking the latter route, only because it allows for another step to win, as opposed to putting all of one’s eggs in the proverbial “one basket”. If an individual has put on a case without being represented, by going through OPM’s procedures, then putting on a case at the MSPB, I will rarely accept a case at the Petition before the Full Board level.
My reasons are essentially as follows: First, it was not “my case”. The applicable criteria to have an MSPB case reversed by filing a Petition for Full Review, is to point out an “error of law” that the Judge made. If I put on a case before an administrative judge at the MSPB, I try and put on “my case” — one that I believe in; one that I am an advocate for; one that I am passionate about, because it is a case on behalf of a client whom I represent.
That is why I win most of my cases, both at the OPM level, as well as before the MSPB. When someone else has gone through the process, it is simply not “my case”. To nitpick for an error of law that the administrative judge had made, when it was not my case, and not the case-laws that I relied upon in putting on my case, is simply something that I have little interest in doing. That is not to say that a case cannot be won at a Petition for Full Review. I have won enough of them; it is a matter of pointing out the error of law which the administrative judge made; but a passionate argument is essential to winning such a review.
Robert R. McGill, Esquire