Fedweek Legal

A decision by the Merit Systems Protection Board on June 8 (Sachs v. OPM, CH-844E-04-0087-I-1), while not stating new law, is instructive as a reminder regarding the importance of presenting all known evidence at hearing and not at the appeal. The decision also reminds of the importance of preserving objections to the rulings of the administrative judge–not only those made at the hearing, but at the prehearing as well.

In Sachs, an employee of the Department of Navy applied for disability retirement. OPM denied the employee’s application, he appealed to the Board, and the AJ upheld OPM’s decision. On appeal, the employee claimed that the AJ erred by disallowing his request for the testimony of two witnesses. The AJ had denied those witnesses at the prehearing conference, finding that their testimony would be irrelevant. The Board found that the employee had waived any objection to the AJ’s witness rulings because the hearing record did not reflect that the employee had objected to the AJ’s prehearing witnesses rulings. Accordingly, this holding indicates the importance of noting all objections to the AJ’s rulings on the hearing record, including noting objections to rulings made prior to the start of the hearing.

In addition, the employee on appeal asked the Board to consider new evidence obtained after the close of the hearing record. The Board does not consider evidence submitted for the first time with the petition for review without a showing that the evidence was unavailable before the record was closed despite the party’s due diligence. The Board further reminded in Sachs that it is the information in the documents that must have been unavailable, not the documents themselves. So, for example, a letter from the employee’s psychologist dated after the close of the record, which supported the claim for disability retirement, was not considered by the Board. The Board noted that the letter from the doctor was not based on information not known prior to the close of the record. In contrast, a decision by the Department of Veteran Affairs that was issued after the close of the record, which retroactively upgraded the employee’s prior 50 percent disability rating to a 100 percent rating, was considered. The Board also noted that the decision by the DVA that the employee was 100 percent disabled was not issued at the time of the decision and could not have been considered by the Board, or OPM.

The Board remanded this case for further consideration of appellant’s entitlement to disability retirement in his position of record, at the time of filing his application. Sachs clearly demonstrates the importance of putting forth your best case at hearing, with all relevant evidence, and not “saving” arguments or evidence for the appeal.

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