MERIT SYSTEMS PROTECTION BOARD APPEALS

MSPB appeals can be straightforward or complex. The straightforward appeal is to a Board regional or field office, where it is assigned to an administrative judge who supervises the adjudication of the case through discovery (depositions, document requests, interrogatories), possible mediation (the mediator is often another MSPB employee), prehearing submissions, and the hearing by the judge. That is usually phase 1 of the process. After the judge issues a decision (an "initial decision"), either party may seek further administrative review through a petition for review (essentially an appeal) with the MSPB at its headquarters office in Washington. That is a paperwork review of briefs by counsel arguing points of disagreement (factual and legal) with the initial decision. Cases presenting jurisdictional issues (often whistleblower claims, protests of enforced leave, or allegedly forced removals, resignations, or retirements) often are more complicated because of the need to establish, preliminarily, a factual (and legal) basis for the case to continue to a hearing. Also more complex are cases that include an affirmative defense of discrimination or whistleblower reprisal.

We provide representation at all MSPB offices for all types of appeals: adverse actions (disciplinary cases); performance-based cases; indefinite suspensions; reductions in force; involuntary resignations, retirements, and demotions; disputes involving annuity entitlements (including disability or optional retirement appeals); cases involving allegations of violations of veterans preference laws or discrimination against individuals because of present or past military service; individual right of action cases involving whistleblowers; suitability actions. We provide representation in petitions for review to the MSPB headquarters from initial decisions. And we participate in mediation or settlement programs at both the regional and headquarters levels of the Board.

Peter Broida, a Board practitioner since its inception, writes the standard treatise on MSPB law and practice, a 5,000 page, two-volume Guide to Merit Systems Protection Board Law and Practice. He provides training or lectures on MSPB law to other lawyers, union representatives, and agency personnel specialists.

EQUAL EMPLOYMENT OPPORTUNITY

The EEO process is procedurally complex, and the process depends upon the type of case that is placed into the system. EEO cases usually start with counseling (intake), are then often referred to mediation, which if successful results in settlement and, if not, a written complaint, investigation and, depending on the nature of the case, a final agency decision, or a hearing before an EEOC administrative judge, or, for cases that could have been initiated with the MSPB, a hearing before an MSPB administrative judge. An appeal is available to the Office of Federal Operations of EEOC. We offer representation at every stage, with emphasis on the hearing process, which includes discovery, potential mediation, use of summary judgment, hearing, further appeal, and consideration of settlement and negotiation of settlements at each stage.

SCOPE OF REPRESENTATION

Most of our representation is for individuals. We represent unions for issues that develop during the bargaining relationship and on a case-by-case basis. We provide advice or representation to federal agencies—usually small agencies that need counsel specialized in civil service law or larger agencies with a conflict of interest within a management group or within agency counsel's office.

The scope of our representation is defined in a written retainer agreement that is generally developed with the client after our intake and consultation.