Congress should amend the law to allow for the expansion of MSPB's jurisdiction so its administrative judges can make findings on the merits of discrimination claims made in connection with mixed constructive removal cases where the appellant has made a nonfrivolous
allegation of MSPB jurisdiction, even though the judge may ultimately find that the appellant's decision to resign or retire was voluntary.
Moss rejects the view that OLC should give a legal green light to any conduct supported by a legally colorable, nonfrivolous
The line between "just enough" support for litigation and a frivolous suit is very thin, but a practitioner who does not sign a return is permitted to advise nonfrivolous
positions upon advising the client of the need to disclose to avoid potential penalties.
He has suggested that it is overly simplistic to speak of claims as either frivolous or nonfrivolous
6694-3(c)(2) and (e) provide that disclosure of a nonfrivolous
position contrary to a rule or regulation is not intentional or reckless disregard.
In light of this, it is not surprising that Richmond was able to raise nonfrivolous
arguments challenging his conviction and sentence for more than twenty years.
Tax preparers must meet either a nonfrivolous
or realistic possibility of success threshold.
The problem, however, is that DOI has to seriously reshape the law and its prior administrative practice to find this flexibility, giving rise to nonfrivolous
concerns about the legal defensibility of such agreements against third-party challenges.
Exceptions--disclosure of a nonfrivolous
position or reasonable
By contrast, other methods of mitigating case load burdens, such as "more detailed pleading and supporting affidavits," Fallon & Meltzer, supra note 183, at 1821, might have the effect of sorting for nonfrivolous
cases, but only by raising per capita decision costs.
Thus, even if there might be nonfrivolous
rational basis arguments supporting the constitutionality of the offending statute, the DOJ need not raise them if the President believes that heightened scrutiny should apply--he need not undermine his argument that a more searching standard is required by arguing, essentially, in the alternative.
It also means that general law cannot by itself supply a basis for "arising under" jurisdiction in federal court; a litigant must be able to characterize his grievances as nonfrivolous
federal constitutional claims.