During this training agency lawyers were allowed to ask the judges any questions that came to them. Federal employees do not get this opportunity. The individuals who conduct the training are the same administrative judges, chief administrative judges, and Deputy Director that receive and adjudicate the federal employee cases; a conflict of interest to say the least, if not outright collusion with the agencies. Part of the EEOC and MSPB mandates are to provide impartial adjudication, they are meant to be a disinterested third party to these actions. The fact that they are providing direct hands on training to the offending agencies calls that "impartiality" into question. These services are provided for a fee, and most likely paid for via MIPRs or Economy Act requests. Meaning the agencies are paying the two agencies that were created to ensure fair and equal employment opportunity for not just federal employees but all employees. Now why does this bring to mind shades of Bernie Madoff?
The appearance of impropriety in these agencies and their processing of federal employee complaints is immense. At best it smacks of partiality, at its worst it smacks of outright collusion. The MSPB has gone as far as breaking its own regulations, not to mention the Code of Federal Regulations or CFR. For example, MSPB policy, MSBP judicial handbook and 5 CFR 1201 specifically state that appeals claiming discrimination will be decided in 120 days and that appeals are not to be suspended for more than 60 days. The MSPB has had the authors appeal for 717 days, 6 times the regulatory maximum, without even making a decision on jurisdiction with no end in sight; and suspended the appeal for 449 days, 389 days over the regulatory maximum, all without explanation or valid justification. This burying of the authors case enabled the Agency to continue their harassment and retaliation resulting in author and her family becoming homeless. It further enabled the Agency to refuse to process her retirement and engineer her removal from service.
(In all fairness the MSPB does have a training video on their website "designed for pro se appellants" entitled "Introduction to Federal Employee Appeals with MSPB." However, this video was produced in 2001 and has never been updated. The MSPB even states "Since this video was produced in 2001, some of our procedures, the law, and technology changed." This training does not discuss recent case law, the top five mistakes pro se appellants make that cause them to fail jurisdiction, or have their appeals dismissed. In other words this training is not equal to the training the MSPB is providing to federal agencies and their counsel.)
In May of 2013 the MSPB provided training to attorneys on the new pro bono project that Foley Hoag, LLP, an international law firm with offices in Washington DC and Boston Massachussetts, was piloting. Two MSPB judges conducted part of the training, Judge Bill Boulden, Chief Administrative Judge for the Northeastern Regional Office in Philadephia and Judge Craig Berg, administrative judge in Philadelphia and training special mediator. The concept for the pro bono project began with a discussion between MSPB Chief Judge Deborah Miron and one of the judges from the Court of Appeals for the Federal Circuit during a Federal Bar Association meeting. During this training the following criteria was given for appellant actions handled by the pro bono project "the person needs to be the right employee, the right agency, the right kind of action, and be timely." Adverse actions and performances cases were given as the right kind of action.
"the person needs to be the right employee, the right agency, the right kind of action, and be timely."
Other topics that were a part of this training included "burden of proof in adverse actions, charges, specifications, legal elements, due process, Also included in this training were discussions about "escape hatches" regarding the 120 day deadline for deciding cases, financial consequences to cases, merger of charges, multiple specifications, as well as what the MSPB calls "information sheets" written by judges throughout the country addressing specific areas of law. These sheets provide attorneys a two page synopsis of what that area of the law is about.
The project was to be limited to Boston applicants. In thanking the attendees for engaging in the project, Judge Berg stated "It's very helpful to us to have the appellants represented - it's helpful for us to have good attorneys like you involved."
When a federal employee goes before a federal judge they encounter an underlying thinly veiled hostility. This hostility appears to stem from and be directly related to the employee's pro se status. The judicial "fraternity," my term because that is exactly what it is, resents anyone who has the audacity or temerity to even think they can represent themselves because the legal profession is just so complicated. And if by some chance a pro se employee happens to be articulate, intelligent and can string more than one sentence together the Court makes an automatic assumption, as in my case, that a pro se employee could not possibly suffer from an cognitive impairment. That the employee is trying to game the system and just doesn't want to work. This act of partiality carries over to the adjudicatory agencies and administrative judges in the EEOC and MSPB.
The appearance of impropriety in these agencies and their processing of federal employee complaints is immense. At best it smacks of partiality, at its worst it smacks of outright collusion. The MSPB has gone as far as breaking its own regulations, not to mention the Code of Federal Regulations (CFR). For example, MSPB policy, MSBP judicial handbook and 5 CFR 1201 specifically state that appeals claiming discrimination will be decided in 120 days and that appeals are not to be suspended for more than 60 days. The MSPB has had the authors appeal for 717 days, 6 times the regulatory maximum, without even making a decision on jurisdiction; and suspended the appeal for 449 days, 389 days over the regulatory maximum, all without explanation or valid justification. This burying of the authors case enabled the Agency to continue their harassment and retaliation resulting in author and her family becoming homeless. It further enabled the Agency to deny her retirement and engineer her removal from service.
As an attorney I know once said in regard to pro se filers, "You are playing a game in a field and with rules you do not know," meaning the legal system, the legal profession, and justice as it were is a game and in order to be a player in the game you have to be a lawyer. All judges used to be lawyers. It is like a judicial fraternity and to get a lawyer to a say anything to non-lawyer, in my experience, is nearly unheard of.
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The MSPB and the Office of Personnel Management (OPM) were created as part of the enactment of the Civil Service Reform Act of 1978 (CSRA). The CSRA replaced the old Civil Service Commission (CSC) with three new agencies: The MSPB which took over the functions of the Commission; the OPM which was to serve as the President's agent for Federal workforce management policy and procedure; and the Federal Labor Relations Authority (FLRA) to oversee Federal Labor management relations. The CSRA further formed the Office of Special Counsel (OSC) as a part of the MSPB which later became a separate agency in 1989. The EEOC was established on July 2, 1965 with its mandates coming from Title VII of the Civil Rights Act of 1964, the Age Discrimination Act of 1967, the Rehabilitation Act of 1973, and the Americans with Disabilities Act (ADA) of 1990 and the ADA Amendments of 2008 (ADAAA).
- Next ~ Installment Two - The Process - Helping or Hindering?
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