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Just what is a non-frivolous allegation?

In all types of litigation, there words that have a special meaning and they are called terms of art. This can be very important if your employment is controlled by a contract, or by other special rules, such as those that govern employees of the federal government. If you have a problem with your agency, and are subjected to some form of discipline, your ability to contest that adverse job action will depend on how well you understand the practice and procedure of the Merit Systems Protection Board (MSPB).

Last week the MSPB issued a request for comments in proposed changes to the rules that apply to how actions are brought to the MSPB. A special working group from the MSPB created four potential changes for these rules. The MSPB expressed no preference between the four, but requested comments from the public. 

Some of the changes involved moving the location of definition of terms like "substantial evidence," "preponderance of the evidence," and "harmful error" and adding a definition for "non-frivolous allegation."

While changes like this may appear minor, understanding the meaning of the terms and reason behind why the MSPB would move them is essential.

For instance, some issues may need to shown by "substantial evidence," and other issues may require a "preponderance of the evidence." These terms have different meanings and if you misunderstand or are confused by the difference during your hearing in front of the MSPB, you could inadvertently damage your case.

This is why most federal employees are better served by working with an attorney who understands these terms and ensures you do not lose your case because you misunderstood a definition or made some other procedural error.

Source: Federal Register, "Practice and Procedures," 78 FR 67076, November 8, 2013

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