1

PRO BONO TRAINING

May 2013

AUDIO/VIDEO RECORDING 

Transcribed for the 

Merit Systems Protection Board

Transcript 1 of 1

By: Mary E. Dring 

Burke Court Reporting, LLC
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1 TRANSCRIPTION OF AUDIO PROVIDED

2 MS. CAZABON: Hi, everyone. I think we're going 

3 to go ahead and get started.

4 I'm Rebecca Cazabon. I'm the pro bono managing 

5 attorney here at Foley. I know everyone here in the room;

6 and have just met in person Judge Boulden and Judge 

7 Craig -- I'm sorry, Judge Berg. So thank you all for 

8 coming today. 

9 I wanted to thank in particular Judge Boulden

10 helping us put this all together. And the training we're 

11 about to have is to introduce everyone to the Merit 

12 Systems Protection Board Appeals and a new pro bono 

13 project that we are piloting here at Foley. 

14 We're really excited to get this going. And I 

15 wanted to let folks know that in terms of the case intake 

16 and the screening, I will be doing that for the firm. So 

17 that you don't need to worry about taking calls from folks 

18 who are interested in pro bono representation. I will be 

19 handling that, doing the eligibility -- financial 

20 eligibility screening and also the issue, conflict and 

21 other conflict screening, along with Jonathan Keselenko 

22 who will be helping with that process, as well.

23 So today's training is about an hour and a half 

24 and hopefully everyone has materials which are on the 

25 tables.
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1 In addition, I wanted to let folks know that we 

2 are recording the training, and the microphones are on, so 

3 just keep that in mind. If people could put their phones 

4 on vibrate or shut them off that would be great. And if 

5 you have a question I think -- I'm not sure if the judges 

6 would prefer us to ask during the presentation, or if it 

7 would be preferred to wait at the end, but we can let you 

8 both know -- let us know what you prefer.

9 We will also have this recording available to 

10 folks afterwards. And I know a few of you -- a few 

11 associates weren't able to attend today so you'll be able 

12 to view it later.

13 I think that's about it, so Jonathan wants to 

14 come up and say a few words.

15 MR. KESELENKO: Thanks. Good morning, Your 

16 Honors down in Philadelphia. 

17 My name is Jonathan Keselenko; I'm a partner 

18 here at Foley, and we're very excited about this program 

19 and the potential both to help the individuals who we 

20 would be representing, and also the opportunity for 

21 associates to be involved in this and get some good 

22 experience, involved with regard to the representation.

23 I don't have much to add to what Rebecca said. 

24 Again, we're delighted to have this program hopefully get 

25 underway as quickly as possible after the training session 
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1 ends.

2 If any of you here in the room have questions 

3 about this internal to Foley, ask Rebecca or I after the 

4 training. If you have questions about the training 

5 itself, I don't know if the judges would like us to hold 

6 questions or what not, but I suspect it will be somewhat 

7 an interactive process, and let's get going. Thanks.

8 JUDGE BOULDEN: Thank you.

9 Good morning everybody, we're really glad that 

10 you're here today. I'm Bill Boulden, the Chief 

11 Administrative Judge for the Northeastern Regional Office. 

12 And with me is Judge Craig Berg, who's one of our great 

13 judges here in Philadelphia, and also one of our trained 

14 mediators, and I'll be talking a little bit more about our 

15 settlement program, but we do try to settle as many cases 

16 as we can, so Judge Berg is one of those special mediators 

17 that we have.

18 We really appreciate Rebecca's efforts on this 

19 project. And it began really with -- I think it's Phillip 

20 Swain, one of your partners, was speaking with Deborah 

21 Miron who's our Chief Judge for the MSPB and our Director 

22 of Regional Operations. And they were sitting with one of 

23 the judges from the Court of Appeals for the Federal 

24 Circuit at a Federal Bar Association meeting, and they 

25 began discussing how important it is for the MSPB to have 
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1 pro bono counsel for some of our appellants.

2 So I had some e-mail exchanges with Mr. Swain, 

3 and then Rebecca and I talked and had some e-mail 

4 exchanges and she's done a lot of work on this. And I 

5 think a nice connection is that Claire Laporte, who I 

6 understand is your pro bono partner, knows Deborah Miron 

7 and also Jim Eisenmann, who's now our Executive Director, 

8 who all have been involved together on committees with the 

9 Federal Bar Association, so it's -- as I said it's a nice 

10 connection there.

11 We'll definitely try to do this in an hour and a 

12 half; there's a lot of material on the slides and we won't 

13 go into detail on everything that's on the slides but 

14 they're certainly for your information. And there's other 

15 ways that you can get other information that I'll talk 

16 about.

17 We would be happy to take questions any time if 

18 there's something that's really burning that you don't 

19 want to forget about. We'll be happy to have you ask the 

20 question while we're speaking.

21 So I'm going to go first and talk about the 

22 basic -- the history of the Board a little bit and what 

23 the Board is and the kinds of cases that we hear. And 

24 then after that, Judge Berg is going to talk in some more 

25 detail about adverse actions, which are -- have been, I 
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1 guess historically, sort of, our bread and butter. 

2 "Adverse actions," meaning basically a charge of

3 misconduct of some kind and then an action such as 

4 termination following the misconduct.

5 So that's our plan. I'll try to do my portion 

6 in about a half an hour, and I think Craig also will do 

7 that, and then if we don't have questions in the meantime, 

8 if there's questions at the end we'll be happy to address 

9 those.

10 The MSPB -- there's a great deal of information 

11 on our website, so just as an initial thing I would tell 

12 you that you can go on the website, which as you can 

13 imagine is just mpsb.gov, and there's lengthy discussions 

14 about the Board's process, the kinds of cases that we 

15 hear. There's actually a video presentation of a mock 

16 hearing so that you can see what a hearing is like. 

17 And there are also what we call "Information 

18 Sheets" which have been written by judges throughout the 

19 country. And they address specific areas of the law, so 

20 that if you were presented with a particular kind of case, 

21 you could just go on the website and look at this 

22 information sheet and it would give you a two-page

23 synopsis of what that area of the law is about.

24 So if you -- I remember from law school, I'm 

25 looking at the slide that says "Appeals System Required by 
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1 Law." I remember in law school the Loudermill case, which 

2 is cited here for you as standing for the proposition of 

3 "some kind of hearing", if you recall that from your law 

4 school days.

5 This is the case that the Board often cites and 

6 it essentially held that a tenured public employee had a 

7 due process right. In other words, a property right 

8 interest in their employment, which could not be denied 

9 without "some kind of hearing", as the Supreme Court said

10 and so this is, sort of, the bedrock case for the Board's 

11 jurisprudence.

12 Over time the statutes at 5 USC, in two of our 

13 biggest areas the basic things that you would think about 

14 is due process, notice, a right to respond, a written 

15 decision, et cetera are actually in the statute itself.

16 In other areas it's really a question of the 

17 Supreme Court and other case law that Judge Berg will be 

18 talking to you about, but as we talk about the Board, it's 

19 always a good idea to keep in mind this old Loudermill

20 case.

21 So I wanted to tell you a little bit about the 

22 Merit Systems Protection Board itself. The Board is made 

23 up of three presidential appointees who are in Washington, 

24 no two -- no more than two of whom may be from the same 

25 political party; so it's truly a non-partisan organization 
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1 in that sense.

2 Generally the chair, right now Susan Grundmann, 

3 generally the chair would be the same party as the 

4 President, but not necessarily, and the other two board 

5 members may or may not, but as I said at least one is 

6 going to be from another political party.

7 Most of the cases are heard first out in the 

8 regions by Administrative Judges such as ourselves, and we 

9 hold full trials, except for the absence of a jury; but 

10 other than that it's really a full trial that you might 

11 see in any other setting. Most of the offices have 

12 courtrooms. Occasionally we might have a hearing in a 

13 conference room if there's no courtroom available.

14 There's about -- there are eight regions or 

15 field offices at the Board, and there's about 67 judges by 

16 last count throughout the country, and the Administrative 

17 Judges issue what are called "initial decisions" after the 

18 hearing. But the initial decisions, unlike some agencies, 

19 the initial decisions actually become final unless one 

20 side or the other files some sort of appeal from our 

21 decision, so many of the Administrative Judges decisions 

22 actually become the decision of the Board.

23 Either side can file an appeal to the Board 

24 members, who essentially, sort of -- you can think of as 

25 the Appellate body of the MSPB, and usually that's a 
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1 record review. Sometimes the Board has held hearings. 

2 This Board in particular has held a few hearings recently. 

3 And/or it's not necessary to appeal to the 

4 Board. Many parties do. But there's also an appeal to 

5 the Federal Courts following a final board decision, as I 

6 said, which might be the AJ's decision, or if there was an 

7 appeal to the Board, it would be the Board's decision.

8 Our reviewing court is almost always the Court 

9 of Appeals for the Federal Circuit, and I'll talk about 

10 the exceptions in a few minutes, but the nice thing about 

11 that for me, and I think for practitioners, is we really 

12 have a very unified body of law in most cases. So that 

13 it's not necessary to go around to different district 

14 courts or different circuit courts of appeal to try to 

15 figure out what the law is in that particular circuit, but 

16 instead the Federal Circuit speaks, you know, for the 

17 entire process.

18 The Board also is reported in a West reporter 

19 service, the "Merit Systems Protection Reporter" service, 

20 so probably not in your -- in Foley Hoag's library, but 

21 certainly in major libraries and obviously available 

22 online, as well. So I think that -- it makes it easy in 

23 terms of figuring out what the law is.

24 I've shown you on the next slide just a quick 

25 view of the regions in the country, and you'll see that 
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1 Boston is in the Northeastern region, obviously, and the 

2 Northeastern region has seven judges, plus myself. And we 

3 also have a field office in Manhattan with five -- four 

4 judges and a Chief Judge for that field office.

5 We used to have an office in Boston years ago 

6 but the case -- caseload had really dwindled to some 

7 degree in Boston and it was decided that that office would 

8 be abolished. So in terms of the cases that you might 

9 have, you would most certainly being hearing -- having the 

10 case heard by one of the judges here in the Philadelphia 

11 office. We might travel up there in person or we might do 

12 a hearing by video. In some very simple cases we might 

13 even -- a retirement case, for example, it might be by 

14 telephone.

15 So the next slide, I wanted to just give you a 

16 little sense of where the Board fits in the legal 

17 framework and the Board is actually a creature of 

18 statutes, as most federal administrative agencies are. So 

19 you see that it's set out in 5 USC section 1201 and we 

20 have very extensive regulations in the Code of Federal 

21 Regulations under part 1201 that talk about our 

22 jurisdiction. Talk about our process in great detail. 

23 Talk about the appeal process. So it's really -- if you 

24 have an MSPB case you really need to get into the CFRs at 

25 Part 1201.
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1 Just to let you know, the Board just had a very 

2 large overhaul of our regulations, and until the next set 

3 of Federal Regulations are issues next year, you need to 

4 look at the Federal Register version of the Board's 

5 regulations to make sure that you have the latest version 

6 for the rest of this year. And again, that can be found 

7 on the Board's website without any problem. You can just 

8 link right to the next regs.

9 So the Board's jurisdiction, as most federal 

10 agencies are, being a creature of statute, we're a limited 

11 jurisdiction organization. We only can hear cases that 

12 are -- that we're designated to hear by statute or some 

13 law or rule. So that means that there's a number of 

14 hurdles that appellants have to meet in order to be able 

15 to have their case heard before us, and I'll talk about 

16 this a little bit further, but they have to be in the 

17 right kind of agency. 

18 They have to be -- have the right kind of status 

19 as an employee. It has to be an action over which we can 

20 hear. And it has to be filed timely. So you'll see that 

21 there are a number of potential jurisdictional or 

22 timeliness problems that would be presented to us with 

23 appeals. And we try to alert the parties immediately upon 

24 getting the appeal if we think there's some sort of an 

25 issue that we might not have jurisdiction or the appeal's 
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1 not timely, and I'll talk about that a little bit more.

2 Just to let you know where the Board -- you'll 

3 see the Board's seal goes back to 1883, and that's because 

4 that's when the Pendleton Act was enacted. And you might 

5 recall that President Garfield was assassinated by what 

6 the history books call it -- was a "disappointed office 

7 seeker." And because of that, Teddy Roosevelt decided 

8 that we needed a statutory basis for a career federal 

9 service, not one based on patronage, and one that was 

10 based on merit. So that's where the "merit system" comes 

11 from, going back to 1883.

12 Now, we were actually created as an entity in 

13 the Civil Service Reform Act in 1978. I think this was 

14 the Carter administration. The Civil Service Commission 

15 had been around for a long time, but the Civil Service 

16 Commission brought charges and basically was reviewing 

17 itself in discipline actions, and it was deemed that that 

18 was really a conflict. So through President Carter and 

19 Congress, the Civil Service Commission was cut up into a 

20 number of sub-agencies and I've listed them there for you, 

21 because you may -- you may come in contact with these. 

22 You may know some of them now. But if not, you'll come 

23 into contact with these in terms of Board cases. So 

24 obviously there's the Merit Systems Protection Board. 

25 The old Civil Service Commission really now is 
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1 OPM, the Office of Personnel Management, which we get 

2 involved with in retirement appeals. So I'll talk about 

3 that a little bit more. But those are where our 

4 retirement appeals come from.

5 There's the FLRA, which you may know about that 

6 deals with union issues with federal employees.

7 And there's the Office of Special Counsel, OSC. 

8 And this is an agency that is setup to investigate and 

9 prosecute violations of Whistleblowing reprisal. And 

10 there's a connection with the MSPB that I'll talk about in 

11 a few minutes. But that's an organization that you'll 

12 also run into.

13 And also don't forget about the EEOC, which 

14 deals with discrimination. And there's a federal 

15 component to the EEOC, and there's a crossover with us 

16 because discrimination may be brought up as an affirmative 

17 defense in MSPB cases.

18 In other words, if we have a removal action that 

19 we have jurisdiction over, the employee often will raise 

20 discrimination. So they'll say even if the Agency can 

21 prove that I was AWOL, for example, the reason the Agency 

22 brought this against me is because, you know, I'm over 40, 

23 or you know, I'm in some other protected category. Or 

24 perhaps disability discrimination was involved. So that's 

25 called a mixed case because there's a mix of 
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1 discrimination and an action that we have jurisdiction 

2 over and it gets complicated but all of these agencies you 

3 may run into as you're dealing with Board cases.

4 So this next section that I want to talk about 

5 is, sort of, my pitch for why it's so important for 

6 counsel to be involved in our cases. But you should be 

7 aware that there's actually no requirement for counsel, 

8 and the Board has no authority to appoint counsel. So 

9 it's not a criminal jurisdiction, obviously, so there's no 

10 right to counsel and we can't go out and find counsel for 

11 appellants.

12 They obviously can have counsel if they want. 

13 And some appellants are represented by non-attorney 

14 counsel. Some are represented by union representatives, 

15 for example. Or in retirement cases they may even be 

16 represented by a friend or a spouse. Or they'll be 

17 proceeding pro se.

18 So the -- to me the issue with that is the 

19 Board's law and this area has, since 1978, has become 

20 increasingly complex and I'll talk about that in a few 

21 minutes. But it has become complex. It's difficult, I 

22 think, for non-attorneys to navigate the process and keep 

23 up with the latest case law.

24 There's one area where counsel is required, 

25 although again the Board can't appoint this counsel, but 
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1 you'll see the French case that's cited there on the 

2 slide, and this is a disability retirement case where the 

3 appellant missed the filing deadline and claimed that they 

4 missed the filing deadline because they were mentally 

5 incompetent. And the Federal Circuit rightfully obviously 

6 said, well, we can't have mentally incompetent people 

7 having to prove their own mental incompetence. Obviously, 

8 that just seems impossible and unfair. So in that one 

9 limited area appellants must have counsel and we try to 

10 find counsel for them, but if we can't, then we just have 

11 to dismiss the case without prejudice until they can 

12 locate counsel or our efforts are successful.

13 So I talked about the complexity a little bit 

14 and I just wanted to highlight that for you, because last 

15 term kind of amazingly enough two MSPB cases ended up at 

16 the Supreme Court. So -- and this had to do with the 

17 rights to appeal beyond the Board's decision. So you'll 

18 see that obviously this is something way beyond the can of 

19 the average pro se appellant to figure out.

20 But the first case, this -- and this involved 

21 mixed cases, this is why I wanted you to understand mixed 

22 cases, the Board dismissed a mixed case as untimely filed. 

23 And the exception for our usual jurisprudence of going to 

24 the Federal Circuit Court of Appeals is that if there was 

25 discrimination alleged in a mixed case the appellant can 
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1 choose to pursue the discrimination or must pursue the 

2 discrimination if they won in court in the district court 

3 of pertinent jurisdiction. The Federal Circuit Court of 

4 Appeals does not deal with the discrimination aspect of 

5 these cases.

6 So the Board dismissed the case as untimely. 

7 And the Eighth Circuit said, well, this -- the Board 

8 didn't get into the discrimination issue, so therefore the 

9 proper place for this appeal is the Court of Appeals for 

10 the Federal Circuit. And the Supreme Court disagreed and 

11 said even if the Board didn't address the merits of the 

12 discrimination claim, if discrimination was alleged it 

13 belongs in the district court like any other mixed case 

14 would belong.

15 In the other case, the Elgin case, it's actually 

16 in the First Circuit and Mr. Elgin actually started his 

17 appeal in our office here in Philadelphia. But he was 

18 terminated when OPM discovered that he had not registered 

19 for the draft, as required, to be a federal employee and 

20 one of our judges had the case and decided that we 

21 couldn't delve into OPM's discretion. OPM can waive that 

22 requirement of registering for the draft under some 

23 limited circumstances and they didn't waive it in that 

24 case. So our judge dismissed the case saying that we 

25 couldn't delve into that.
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1 And then Mr. Elgin joined a group of appellants 

2 or petitioners in the First Circuit who alleged that the 

3 draft-- the registering for the draft was unconstitutional 

4 because only men were required to register. And this then 

5 went to the First Circuit Court of Appeals and they -- the 

6 First Circuit said no, this can only go to the Court of 

7 Appeals for the Federal Circuit; we can't look at this

8 because this was an MSPB matter.

9 So once again, this went all the way to the 

10 Supreme Court. And the Supreme Court, in this instance, 

11 decided that yes, the Court of Appeals for the Federal 

12 Circuit is the only venue for this sort of case, despite 

13 the unconstitutionality claim, and that obviously the --

14 as a Court of Appeals, the Federal Circuit has the power 

15 to rule a statute unconstitutional, as any other federal 

16 circuit court of appeals would. So that case was sent 

17 back to the -- remanded to go to the Court of Appeals for 

18 the Federal Circuit.

19 So you can see from those two cases how complex 

20 this process is, requiring two Supreme Court decision just 

21 last term, and there are others through the years that 

22 have gone to the Supreme Court regarding the Board.

23 Not only are the cases complex and obviously the 

24 cases are important personally to the appellants and 

25 important to the agencies and important to the taxpayers, 
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1 et cetera, but there's also some -- sometimes some 

2 national impact in what the Board does. And I just wanted 

3 to highlight, for example, the Defense Of Marriage Act 

4 cases.

5 Two of the appellants that were part of the 

6 challenge to the constitutionality of DOMA in the First 

7 Circuit, Mr. Harra and Mr. Koski actually were both 

8 appellants also in this office before they joined that 

9 case of the First Circuit. So obviously the Board does 

10 not declare statutes unconstitutional and DOMA does seem, 

11 on its face, to bar spousal annuity benefits, for example, 

12 or other federal benefits for same sex married couples. 

13 But obviously these cases are now all pending what the 

14 Supreme Court does.

15 One of the important issues for Mr. Harra was a 

16 question of timely notification to OPM of his post17 retirement marriage. And there's a timeliness requirement 

18 for that, and of course the question is if you have a 

19 post-retirement marriage recognized by Massachusetts but 

20 not recognized by the federal government is there a 

21 requirement to notify OPM of the marriage when the 

22 marriage is not deemed to exist for federal purposes under 

23 DOMA? So those issues and others I think will be 

24 presented shortly when the Supreme Court issues its 

25 decision.
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1 And again, I think in Mr. Harra's case, if I'm 

2 not mistaken, the First Circuit kicked him out of the, or 

3 removed him from the, First Circuit case involving the 

4 constitutionality of the Defense Of Marriage Act, holding 

5 that since he had gone to the MSPB in this office, his 

6 right of appeal for that entire case was with the Federal 

7 Circuit Court of Appeals, including the constitutionality 

8 issue, so he has a case, I think, pending there on hold 

9 also. 

10 But again, just to highlight some -- the 

11 significance of some of these cases for you, you may have 

12 also been hearing about the furlough issues with the 

13 sequester, and so for those who really haven't heard of 

14 the MSPB, all of a sudden we're in the national news again 

15 because furloughed employees can appeal to the MSPB.

16 Actually, Rebecca and I talked about this and we 

17 thought it probably wasn't something we wanted to hit 

18 Foley Hoag with for this project, since it's kind of a 

19 unique blip, bump in the road for us in terms of these 

20 cases. And we're not exactly sure how they're all going 

21 to trickle through the system. But I don't -- I don't 

22 think their plan is to have you hear those cases, but just

23 to let you know this is the kind of thing that sometimes 

24 gets national attention for us.

25 Flipping over to the next page, I just wanted to 
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1 highlight for you the notice that is going to go out to 

2 pro se's who are from the Boston area when we get an 

3 appeal. So you'll see Rebecca's there as the point of 

4 contact and she'll be the gatekeeper for these cases.

5 What we are -- what we're going to do is include 

6 this notice in every appeal that comes to us from the 

7 Boston area where someone has not designated that they 

8 have counsel when they file their appeal with us. And we 

9 looked at the statistics over the last two years and it 

10 looked like roughly 16 or so appellants from the Boston 

11 area every year filed pro se with us. So we're not 

12 anticipating a huge number of cases, but certainly still 

13 very important for us.

14 And I guess I should note -- I meant to let you 

15 know that the Board is trying to expand this pro bono 

16 program nationwide in a number of different areas through 

17 law schools and law firms and it's very near and dear to 

18 our chair's heart, as well as Deborah Miron's. And so 

19 we're really pleased to have Foley Hoag be part of that 

20 national effort.

21 So let me just tell you a little bit about the 

22 kinds of cases that you could expect to see in -- with 

23 appellants that come before us. And as I was saying 

24 before, the person needs to be the right employee, the 

25 right agency, the right kind of action, and be timely. 
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1 So, sort of, the first two bullets there, the adverse 

2 actions and the performance cases, those are really what 

3 the MSPB was created for back in 1978.

4 The Civil Service Commission used to be able to 

5 hear any kind of adverse action; a reprimand, a bad 

6 performance appraisal, et cetera, something that might --

7 you might think of as fairly minor. And the Board was 

8 created to hear just the big -- the big misconduct or 

9 performance actions, so that meant someone who was fired 

10 or demoted or suspended for 15 days or longer, and not 

11 those other relatively minor kinds of actions. And also 

12 to hear performance cases where someone could be fired or 

13 demoted because of poor performance. So those are your 

14 first two bullets there.

15 Those kinds of actions start with the Agency. 

16 The Agency gives the employee notice, for example that, 

17 you know, "We're charging you with having struck your 

18 supervisor." The employee gets an opportunity to reply in 

19 writing and/or in person. Then they get what we call the 

20 decision letter. So there's a proposal notice, the reply, 

21 a decision letter, and then after the decision letter is 

22 issued they have to tell the employee "You can appeal to 

23 the MSPB." At that point we get the case.

24 Now, the other -- the next two bullets are --

25 these are avenues of appeal that were added later to our 
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1 jurisprudence after the Civil Service Reform Act, and 

2 they're really requests for correction action. They're 

3 not initiated by the Agency. In other words, there's no 

4 notice and an opportunity to reply. Instead, the employee 

5 believes that there's been some sort of adverse personnel 

6 action or a benefit of employment that they've been denied 

7 and they're alleging that it's because they were a 

8 whistleblower or because they're a veteran or because, you 

9 know, they're currently in the reserves, and they bring 

10 that to us. So it's a different -- as you see, the 

11 posture of that case is different. It's not -- it's not 

12 initiated by the Agency, it's initiated by the employee. 

13 So that's what we mean.

14 The "IRA" is an Individual Right of Action. The 

15 "VEOA" is a Veteran's Employment Opportunity Act case, and 

16 that's an action brought in which the employee alleges 

17 that their veteran's preference rights have been violated. 

18 And "USERRA" is a mouthful that's the Uniformed Services 

19 Employment and Reemployment Rights Act, and that's the 

20 veteran's discrimination act; you probably should think 

21 about it that way..

22 Now, the important thing with those kinds of 

23 cases are particularly with the whistleblowers and the 

24 veterans preference cases there is an exhaustion 

25 requirement before the employee can come to us. There's
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1 not an exhaustion requirement with USERRA cases. But in 

2 the case of whistleblowers they have to go to the Office 

3 of Special Counsel, this is the OSC that I was mentioning 

4 to you before. They must try to get OSC to grant them 

5 relief and if OSC does not grant them relief then they're 

6 given a "Right to Sue" letter, if you will, to come to the 

7 Board. 

8 And the same in the VEOA context; the employees 

9 must go to the Department of Labor and again request that 

10 they investigate and grant them relief. If the Department 

11 of Labor does not grant them relief then again they can 

12 come to the Board.

13 And then then the third category of cases that 

14 we hear are retirement cases and those cases require the 

15 employee to have what we call a reconsideration letter 

16 from the Office of Personnel Management. And those cases 

17 can involve a request to retire on disability. There

18 might be a request to simply be allowed to retire. There

19 are disputes about who is entitled to annuity benefits. 

20 Sometimes there's a family dispute because of who the 

21 employee designated when they first came into the -- to 

22 employment and they never changed it. So they might have 

23 an old girlfriend or boyfriend, for example, and now the 

24 family -- you know, the wife 30 years later obviously 

25 wants to be the beneficiary. And there are overpayment 
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1 claims that we get from OPM or from people that usually 

2 it's because they were granted disability and they got a 

3 huge payment from Social Security Disability and they owe 

4 a lot of money back to the federal government.

5 In any event, all of those retirement sorts of 

6 cases, the way that process works is the employee will 

7 have an initial decision from OPM that's adverse to them. 

8 They request reconsideration. And OPM issues what we call 

9 a reconsideration decision, and it's that letter that they 

10 must have before they can come to the Board.

11 This is a category that we probably -- there's a 

12 good likelihood that in many of those cases that the 

13 appellant, especially if it's a spouse, for example, may 

14 well meet your category for income. Many people in those 

15 cases find themselves in really difficult financial 

16 straits.

17 So let me -- I'm just looking at the time here.

18 JUDGE BERG: It's 20 of.

19 JUDGE BOULDEN: Okay. All right, so I'm -- I 

20 can probably --

21 I'll finish up quickly then --

22 JUDGE BERG: Yeah.

23 JUDGE BOULDEN: -- because I don't want Craig 

24 not to have a chance.

25 But I would just recommend if you get cases, 
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1 you've got to delve into what their specific employment 

2 status is. The key document, you may have seen these or 

3 you may not have, but there's an -- there's a form 

4 called -- in the government there's always a form; it's an 

5 SF-50 or an SF-52, Standard Form. And this is the 

6 document that has all of the pertinent information about, 

7 you know, someone's -- what the legal basis for their 

8 appointment was, what retirement system they're in, what 

9 their agency is, whether they have veterans preference or 

10 not. There's a lot of important information there. 

11 That's a good key to use when you're trying to figure out 

12 exactly what the person's status is.

13 So let me talk about the process very quickly 

14 from what you would see. When the appeal is filed with 

15 us, we respond within two to three business days, which is 

16 quick, I think, with an Acknowledgement Order. And the 

17 Acknowledgment Order goes back to the employee or the 

18 appellant and to the Agency. And if we've identified a 

19 timeliness or jurisdiction issue, we'll highlight it in 

20 the Acknowledgement Order, what the law is, why we think 

21 there's an issue and it puts both sides on notice and 

22 gives them a chance to respond quickly about that. So you 

23 should look for that.

24 We often -- we usually have some sort of status 

25 conference with the parties. There's full discovery under 
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1 the Board's rules, which can be very quick, and you should 

2 take a look at those deadlines very carefully. We have a 

3 pre-hearing conference, which is usually by telephone and 

4 that's a very key stage in the process because any 

5 defenses or issues or witnesses that are not identified by 

6 the pre-hearing conference will almost always not be 

7 allowed to be raised later, so that's a very important 

8 part of the process. As I said we have hearings if the 

9 appellant requested a hearing. A hearing's not required 

10 and it's the appellant's right to have a hearing or not.

11 The initial decision is issued -- our very 

12 strong goal is to issue the initial decision by the Judge 

13 within 120 days after the appeal was filed. So you can 

14 see that that's a very quick turnaround time. That 

15 includes discovery, the entire hearing, the Administrative 

16 Judge writing a very detailed decision, so it's a very 

17 fast process.

18 There are -- there is a suspension program, if 

19 the parties think they need more time, so a case can be 

20 suspended. Sometimes cases are dismissed without 

21 prejudice if there's a good reason to do that. So there 

22 are some "escape hatches," if you will, from the 120 days, 

23 but we issue at the regional level the great majority of 

24 cases within 120 days.

25 So I guess the other thing I wanted to mention 
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1 is that the Federal Rules of Evidence are -- and the rules 

2 with regard to discovery are instructive for us, they're 

3 not required, so hearsay is technical admissible, although 

4 its weight has to be carefully considered. So you will 

5 not necessarily have the very, very strict rules that you 

6 might have in Federal District Court for the Rules of 

7 Evidence, but nevertheless, you know, we still all look to 

8 those rules; the 404(b) exceptions, the hearsay, et 

9 cetera, all those things. So I mean, you should expect --

10 you should expect something that looks like a very serious 

11 hearing process if you get to the hearing stage.

12 The only other thing I wanted to mention, I 

13 guess before I let Judge Berg start is we do encourage the 

14 parties, although it's adversarial, we encourage voluntary 

15 discovery and we encourage cooperation with regard to 

16 motions. So it is possible to file a motion to compel 

17 discovery but you'll see when the Agency responds to the 

18 Acknowledgement Order that they will give you what they 

19 consider to be the key documents in the case. So they 

20 will turn over right away, within 20 days of the appeal, 

21 you'll see the proposal notice, you'll see the appellant's 

22 reply, you see the decision letter, you'll see the basic 

23 evidence that they used; so those things come to you very 

24 quickly.

25 In a retirement case OPM will turnover its --
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1 the basis of its action very quickly. So you'll have all 

2 those things.

3 Then we encourage voluntary discovery. We can 

4 issue subpoenas for depositions, for court appearance if 

5 necessary. We encourage the parties to work it out. We 

6 don't -- you don't need to file your discovery with us; 

7 it's a voluntary process until one party or the other 

8 disputes what the other side did, and then obviously you 

9 can file a motion to compel and we'll get involved.

10 With motion practice there -- you know, there's 

11 often motions for maybe a delay of some kind. A motion to 

12 compel, as I said. Maybe a motion to suspend. We ask the 

13 parties to try to, again, at least talk to each other and 

14 say, "Look, I'm going to file -- the appellant is very 

15 ill," or "their spouse is very ill. We need -- we're 

16 going to need some extra time. We're going to file a 

17 motion to suspend." We ask both parties to just touch 

18 base with the other side first and tell us whether the 

19 other side objects. If the other side doesn't object then 

20 it's probably a much easier matter for us to rule on. But 

21 it's very helpful for us if in the motion we're told that 

22 you've contacted the other side and the other side does or 

23 does not object.

24 The -- I just wanted to mention quickly the 

25 suspension or the settlement program. We do encourage 
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1 settlement. About roughly 50 percent I would say of the 

2 cases nationwide settle that we -- that we have 

3 jurisdiction over. You know, they're headed toward the 

4 hearing process. 

5 You can -- the adjudicating judge can discuss 

6 settlement with you. The parties sometimes waive ex parte 

7 communicates with the judge to encourage discussions. You 

8 can seek a judge other than the adjudicating judge to talk 

9 about settlement. Or you can go through the Mediation 

10 Appeals Program, the MAP Program, which Judge Berg is one 

11 of the mediators for, and this really takes the case 

12 completely off of the adjudication docket and you'll have 

13 an in-person mediation. I think the goal probably within 

14 30 to 60 days and many cases settle through that program. 

15 And it's been really, really an excellent settlement 

16 program.

17 So don't be surprised if early on the judge gets the 

18 parties together and says, "Where is this case settlement 

19 wise?" And you know, maybe in the first status conference 

20 the judge may be already talking about settlement.

21 I've included in the slides some of the, sort 

22 of, common things that the parties settle for so that 

23 might give you some ideas of what's possible. Sometimes 

24 the appellant simply wants a "clean record" as we call it, 

25 so they don't have a record of having been fired. 
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1 Sometimes it involves a lot of money if the Agency wants 

2 the appellant to withdraw their discrimination claims, for 

3 example, so we see sometimes a lot of money in these 

4 cases. Sometimes there's a "Last Chance Settlement 

5 Agreement" where the employee comes back to work with the 

6 idea that if they get in trouble again that they can be 

7 terminated without going back to the Board. So there's a 

8 number of -- and there's other creative avenues that can 

9 be pursued.

10 And just speaking of money quickly, the Board --

11 if an appellant is the prevailing party, both in our 

12 regular jurisprudence and under the Whistleblower 

13 Protection Act and in the veterans area, damages are 

14 available, including many times full back pay with 

15 interest, restoration of all benefits. And if a 

16 discrimination or whistleblowing reprisal has been found, 

17 there may be a follow-on proceeding for damages. So these 

18 can involve -- there can be some real financial 

19 consequences to these cases.

20 So that's really all -- I know that's quick and 

21 I hope I didn't go through it too quickly, but there's a 

22 lot of other information on the slides and as I said on 

23 the Board's website. And again, we're really -- we're 

24 hoping, I think, Rebecca can clarify this but I think 

25 we're hoping to put the notice for Boston appellants in 
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1 acknowledgement orders within a couple of weeks here. So 

2 hopefully we'll start getting some appellants shortly.

3 So thank you very much again for doing this and 

4 for giving your time today.

5 JUDGE BERG: Okay, before I start I just want to 

6 make -- because we can't really see what's on there, 

7 does -- is this other slide show up yet or do I need to 

8 give you a minute --

9 MS. CAZABON: (Inaudible) working on it so --

10 JUDGE BERG: Okay.

11 MS. CAZABON: Yeah, we're almost there. You 

12 should go ahead; we'll get it up soon.

13 JUDGE BERG: Okay. Yeah, I'll just start and 

14 then hopefully you'll be right behind me.

15 I also -- I want to reiterate what Judge Boulden

16 said, we really do appreciate you engaging in this 

17 project. It's very helpful to us to have the appellants 

18 represented. You know, our job is to make a good record 

19 and to hopefully, you know, get the evidence we need to 

20 make the right decision, and it's very helpful for us to 

21 have, you know, good attorneys like you all are involved. 

22 And obviously even more importantly it's, you know, it's 

23 great for the appellants; they really, you know, benefit 

24 from -- will benefit from your help.

25 Just to start, the first slide -- substantive 
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1 slide, just should say "Adverse Actions." And I looked 

2 this up; in 2012 48 percent of the case that we received 

3 nationwide were adverse actions. I think that's probably 

4 down a little bit from what it used to be because we now 

5 have -- there's some other statutes that have created 

6 appeal rights for us, but it's still really by far the one 

7 area that, you know, in which we get the most appeals. So 

8 it's likely that a significant number of cases that you 

9 would get would be adverse actions I would assume.

10 And when we say "adverse actions" we're talking 

11 about, as the slide says, removal, and I think Bill said, 

12 reduction in grade, reduction in pay, furlough of 30 days 

13 or less, and suspensions of more than 14 days. So I 

14 think, you know, obviously you'll see when you get the 

15 case, you know, when someone comes to you that, you know, 

16 one of these, if it's an adverse action, has to be in 

17 place.

18 Reduction in grade and reduction in pay, you'll 

19 see sometimes people will say they got demoted. What 

20 we're really looking at for jurisdictional purposes is was 

21 there, you know, was their grade reduced or was their pay 

22 reduced. Usually it would be both. There are cases that 

23 are exceptions where an agency tries to give someone, 

24 let's say, saved pay, which means their pay doesn't go 

25 down but there's a grade reduction. That's still 
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1 appealable and vice-versa. But that's really what we're 

2 looking at to make sure it's within our jurisdiction.

3 Or a reassignment at the same grade and pay. 

4 While it might be something that an employee does not want 

5 would not be appealable to us, you know, absent some 

6 exceptions, which, you know, which are probably beyond 

7 what we want to talk about.

8 So that's -- those are the types of cases that 

9 would come in for adverse actions.

10 I mean, furloughs, again as Bill said, we really 

11 don't see those. You're not going to be involved in the 

12 sequester furloughs. Furloughs of more than 30 days are 

13 within our jurisdiction under a reduction in force. And I 

14 would also say the likelihood that you're going to see 

15 something like that is slim and none.

16 The next slide, "Burden of Proof," in adverse 

17 actions the Agency has the burden to prove the charge, and 

18 the burden is by preponderance of the evidence. And so I 

19 have it quoted here, "The degree of relevant evidence a 

20 reasonable person considering the record as a whole would 

21 accept as sufficient to find a contested fact is more 

22 likely to be true than untrue." And I think for short --

23 for your purposes, you know, for shorthand, the way a lot 

24 of us look at this is really "more likely than not".

25 You know, it's obviously, you know, you know 
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1 that there are other -- in other areas of the law there 

2 are other standards, other burdens. You know, obviously 

3 criminal, beyond a reasonable doubt. We -- and in other 

4 areas of the law. We have some cases that are clear and 

5 convincing evidence is the burden; that's an Individual 

6 Right of Action appeal. That's a higher burden. 

7 You know, this burden, again, we really -- the 

8 way I look at it is really if it's a tie, if I really 

9 can't determine that it's more likely than not then the 

10 appellant would win. So that's -- that's really what 

11 you're looking at and you want, you know, from your 

12 purposes, you know, you're going to be trying to prevent 

13 the Agency, obviously, from meeting that burden.

14 The next slide, "Types of Charges," and I -- and 

15 I'm going to go through some of these a little bit quickly 

16 because we probably don't have time to go through all of 

17 it, and I should have said at the beginning this is 

18 really, I think we created this also as a reference for 

19 all of you so you can go back and look at it later if need 

20 be. 

21 The other purpose really also, you know, when I 

22 created this was thinking issue spotting things that 

23 might, you know, would kind of, get in your head so that 

24 when you get a case you would see that, you know, here are 

25 some issues that I have to be aware of.
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1 So types of charges that we see, number one, the 

2 "Descriptive and specific charge," that's really, you 

3 know, a charge which has a label, and that's probably, you 

4 know, the most common we would see. And the example would 

5 be maybe theft or you know, we see conduct unbecoming a 

6 federal employee, things like that, so that would be a 

7 charge with a label.

8 We get cases also somewhat frequently with what 

9 we would call "Generic charge," and that would really be a 

10 charge like improper conduct, inappropriate conduct, 

11 unacceptable conduct. Something like that would be very 

12 generic and you know, we would really be looking at what 

13 the specifics are underneath that, so that the label 

14 doesn't really tell us a lot.

15 A "Narrative charge," something I think that's 

16 pretty rare these days, it's a charge where there's really 

17 no label and the Agency would really just put in their 

18 notice, they would just, sort of, launch into "Here's what 

19 you did wrong" and just explain it in narrative fashion.

20 The parts of a charge, again, as I said, the 

21 label -- the Agency would -- chooses the label and that's 

22 what they're stuck with. That's what they have to prove.

23 When we say "specifications" what we're talking 

24 about is the description underneath the label. So you 

25 know, for example if it's -- if it's theft, if the 
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1 charge -- if the label is theft, under it you would have 

2 specifications. There could be more than one instance 

3 where the Agency believes the employee has stolen 

4 something and they would usually list them one after 

5 another, and I would say, you know, "On June 22nd you," 

6 you know, "you were spotted with copper tubing," or 

7 whatever it is. It would specify what the charge is.

8 "Legal elements," when we talk about that also 

9 we, you know, we all go back to law school. You know what 

10 the -- what we're talking about when we say "elements." 

11 For example, the theft example, the Agency would have to 

12 prove that there was an appropriation or deprivation of 

13 property of another with intent to permanently deprive. 

14 It's going to be, for our purposes it's going to be 

15 government property for the most part. It's rare that we 

16 see anything other than that. But that's the legal 

17 elements. And again, if that's the charge the Agency 

18 chose to bring, that is -- they're going to have to prove 

19 those elements. Even if they prove part of it, but not 

20 all, that's not enough and the charge would fail.

21 The next page, something that Bill touched upon 

22 briefly and I think is something very important to be 

23 aware of when you get these cases is the due process 

24 issues. 

25 So first, as Bill said under the statutes at 5 
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1 USC 7513, what the employee's entitled to, notice and 

2 opportunity to be heard, 30 days advanced written notice, 

3 a reasonable time to answer orally and in writing, and it 

4 actually specifies there has to -- the minimum time is 

5 seven days. The employee has a right to representation 

6 and the Agency would need to write -- give -- provide a 

7 written decision that explains the reasons for taking the 

8 action.

9 And these are all things that are absolute 

10 requirements. If the Agency fails in any of these, you 

11 know, there's a very good chance, you know, absent some 

12 obscure argument to the contrary that the action will 

13 simply be reversed. So these are really things you want 

14 to look at and make sure, you know, that the Agency met 

15 its requirement to provide this type of due process.

16 The next page, also "Due Process," I put these 

17 two cases at the top of the page, these are also going to 

18 be very important. If there are any potential due process 

19 issues in cases that you would be handling. 

20 Stone and Ward, these are Federal Circuit cases. 

21 Essentially what they said is that the -- we call it the 

22 "Deciding Official" is the person who signs the decision 

23 letter, whose making the decision, the final decision for 

24 the Agency, may not consider new and material information 

25 without providing it to the appellant and giving the 
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1 appellant a chance to respond. So that's definitely 

2 something that as of late comes up very frequently.

3 The Ward case came out in 2011 and added to the 

4 Stone case from about 12 years before. Originally, the 

5 way we looked at it and we thought the court was really 

6 saying that this only pertained to the charges and if 

7 there was an error with respect to the penalty 

8 determination we looked at that more as a harmful 

9 procedural error analysis. The Court has made it clear in 

10 Ward that it's a due process situation. So as I said, it 

11 applies to evidence on the merits and the aggravating 

12 factors considered in the penalty determination. 

13 So the Agency just, in short, in each case -- in 

14 each adverse action is going to be required not only to, 

15 you know, assess the charge but the deciding official also 

16 has to go through a list of factors that pertain to the 

17 penalty and evaluate them. And then the Agency would be 

18 required to come in and support the penalty determination, 

19 as well.

20 So in essence, this due process issue is -- the 

21 Agency can -- that deciding official really should be 

22 deciding these issues, sort of, in a vacuum. I mean, the 

23 appellant will come in and either do an oral or written 

24 response, or both, and after that the deciding official is 

25 really not supposed to go back and, you know, talk to 
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1 anyone or get additional evidence. If they do -- they can 

2 do it, but if they do it they would need to then 

3 supplement the proposal notice and provide additional 

4 notice of what conversation they had or what additional 

5 evidence they looked at to the appellant and give the 

6 appellant a chance to respond.

7 And I think a lot of agencies are really just 

8 becoming aware of this. And this comes up very 

9 frequently. Sometimes it comes up in the middle of a 

10 hearing and we -- you know, we become aware that a 

11 deciding official, you know, did a whole investigation 

12 after the fact, and in many cases that's going to be 

13 enough for us to just reverse the action. So something 

14 important to look at.

15 So I put in some common charging issues. 

16 Without going into great detail, but this is something 

17 you -- you know, when you're look -- when you have a case 

18 and you're looking at the charges, something that does 

19 crop up, "splitting of a charge." So that's probably not 

20 something that's going to come up frequently. 

21 But, for example, in this Burroughs case that we 

22 put in as an example, the charge was directing 

23 unauthorized use of government materials, manpower and 

24 equipment for other than official purposes. Not really a 

25 wise charge for an agency to bring because they have to 
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1 prove every aspect of that. 

2 And in that case they proved all of it except, 

3 the Administrative Judge found that the actions were 

4 actually for an official purpose. So they may have been, 

5 you know, improper but they were used -- it was, I think 

6 some equipment and manpower and materials that were used 

7 for an actual project, but the judge sustained the charge 

8 anyway, saying that, you know, enough of it -- essentially 

9 split the charge and said enough of it was proven and 

10 separated it out. The Court said we cannot do that so 

11 it's now clear, the -- you know, the charge, as I said 

12 before, the Agency brings a charge, they've got to prove 

13 every aspect of it. Every element.

14 "Merger," an agency can take -- frequently there 

15 will be one serious incident that the -- that will concern 

16 an agency. They will investigate it and decide that 

17 there -- they can bring multiple charges. For example, 

18 you know, criminal conduct sometimes would lead to, you 

19 know, an appellant being -- an employee being 

20 incarcerated. The Agency looks into it and decides, "We 

21 have to do something. We have to charge them with this 

22 criminal conduct in some way." They can also charge AWOL 

23 if the employee doesn't, you know, is absent and doesn't 

24 have leave that's granted.

25 So that is okay. However, sometimes the Agency 
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1 will really try hard to pile on charges and we will merge 

2 charges if they're based on the same conduct and proof of 

3 one charge automatically constitutes proof of the other 

4 charge. So that's merger.

5 "Multiple specifications," this is important to 

6 just keep in mind. If there is a single charge and 

7 multiple specifications, proof of one specification will 

8 mean that the charge is sustained. So sometimes agencies 

9 will, for -- using the AWOL example, they'll bring an AWOL 

10 charge and there will be 20 days, for example, and if they 

11 only prove 10 days the charge is still sustained. Doesn't 

12 mean that we don't look at the fact that some of the 

13 specifications were not proven and that factor that in at 

14 times with respect to the penalty. But you know, the 

15 charge itself is sustained. 

16 "Lesser included offenses," really not something 

17 that comes up too often, but just to be aware we are not 

18 able to eliminate elements of a charge brought by an 

19 agency. If it's -- again, same concept, if a charge is 

20 brought that's the charge the agency has to prove.

21 The next slide, "Criminal Offenses," this 

22 actually is something that comes up fairly frequently. A 

23 federal employee is charged with a criminal act. If the 

24 Agency chooses to also charge -- if the Agency has a 

25 concern with that and also chooses to take administrative 
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1 action and charge the employee with the criminal offense, 

2 they have to prove the elements of that offense. So it's 

3 really something I think most federal agencies are trying 

4 to get away from. If they're smart now they can just 

5 bring an improper conduct charge and just explain what 

6 happened and, you know, they wouldn't be required to prove 

7 all those elements.

8 But in addition, keeping in mind when there's a 

9 criminal -- when there's an issue with criminal charges

10 against someone who might be a client of yours, you have 

11 to look and see what the charge is. The Agency has to 

12 make a decision, are they going to charge -- you know, if 

13 it's something where they feel we really can't have this 

14 person in the workplace, we have to bring a charge, they 

15 have to decide are they going to charge the person with 

16 the underlying conduct or are they going to indefinitely 

17 suspend the person, which is -- there's a provision for 

18 that. And then wait it out. And then really try and 

19 terminate the person based on conviction. So these are 

20 just issues that crop up if there's involvement -- you 

21 know, criminal charges that are involved here. 

22 If they -- you know, there's downsides for the 

23 Agency to waiting for a conviction because then they never 

24 know, it could be reversed on appeal and then their 

25 charge, which is based on, you know, the fact that the 
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1 court initially convicted the person, is also 

2 automatically going to be reversed. So these are just 

3 some of the issues to keep in mind when there's a criminal 

4 matter involved.

5 The next slide, just loaded words. Words that 

6 you should be aware of when you're looking at a charge and 

7 figuring out what exactly the Agency meant. There's words 

8 that we look at -- the Board looks at that imply 

9 intentional misconduct.

10 When we see in a charge "knowingly," 

11 "willfully," -- "threatened" is, sort of, a separate word 

12 that's part of a separate type of charge, which I'll get 

13 to briefly if we have time. But you know, there are a 

14 number of types of charges that you or the agencies use 

15 these words and then automatically, you know, you would be 

16 aware that the Agency has to prove intent.

17 When we're trying to figure out, and when you're 

18 trying to figure out, what the charge -- you know, what 

19 the Agency's required to prove when it brings a specific 

20 charge, if it's confusing, which does happen, and 

21 everybody's trying to figure out and parse the charge, the 

22 Board will look at the -- has said it will look at the 

23 structure and language of the proposal notice. So we 

24 really consider that to be the main charging document. I 

25 mean, we will also, if that's not clear, there will be 
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1 other things that we would look at, as well, but that's 

2 the principle document. So that's what you would want to 

3 look at in figuring it out if you have an issue there.

4 Then I just really put in some charges that I 

5 think are common that you might see. So, first, you know, 

6 these are charges that we see frequently that agencies 

7 bring that require proof of intent. And as it says here 

8 at the top, "Intent's a state of mind generally proven by 

9 circumstantial evidence." You know, as we know it's rare 

10 that you're going to get the case where the person 

11 expresses an intent -- the intention in some overt way, so 

12 it's really the surrounding circumstances that the Agency 

13 needs to present to establish that the intent was present.

14 So I gave some examples here. I think we're --

15 we wanted to leave you some time to ask questions, I won't 

16 go through all of them. 

17 "Theft" is something I mentioned before. 

18 "Threat," something to keep in mind. If you see 

19 a charge that includes the word "threat" it's very likely 

20 the Board is going to look at -- you know, the Agency may 

21 try and get out of having to prove a threat, but you'll 

22 want to look at it and see if you can hold them to that 

23 standard. And if they -- if so, there's a test that the 

24 Federal Circuit has told us to follow, reasonable person 

25 test, and I have listed here the things that, you know, we 
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1 would look at, the listener's reactions, apprehension of 

2 harm, speaker's intent, circumstances, and whether the 

3 threat was conditional. And these cases can get very fact 

4 specific, obviously, but there are circumstances. 

5 You might have a client who makes, you know, a 

6 very -- says something that, you know, is really seemingly 

7 terrible on the surface and, you know, it turns out it was 

8 said, you know, in gest or it was said in a psychiatrist's

9 office or something like that. So these are the factors 

10 you really want to look at.

11 "Insubordination" is something we see 

12 frequently. Just the thing to keep in mind is this is --

13 the Agency does have to prove intent, willful and 

14 intentional, as opposed to a failure to follow 

15 instructions, which is another charge we see frequently 

16 where the Agency does not have to prove intent.

17 "Falsification" also an intent charge that the 

18 Agency, if they use the word "false" in any way -- I mean, 

19 I put one case here, this George case, which was my case, 

20 and was very confusing the way the charge was set out. 

21 But the Board believed that the Agency -- because the 

22 Agency used some form of the word "false" that the -- that 

23 intent was required to be proven. 

24 And the other thing to keep in mind with an 

25 intent charge, falsification charge, they don't have to 
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1 prove actual intent. They can prove reckless disregard 

2 for the truth. So it's not, you know, as we all learned 

3 in law school, the different, you know, levels of proof, 

4 that there's -- it's not a negligence -- negligence would 

5 not be enough; it would have to be reckless disregard. Or 

6 actual intent for any of these charges.

7 The next page, charges with elements that don't 

8 require intent, these are just again, these are examples

9 of -- so that you'll recognize things if you're 

10 representing someone in an adverse action case. 

11 "Misuse of government property" you know, really 

12 explains there what it is. That's something that we do 

13 see frequently and it's something, you know, an agency 

14 finds out an employee is, you know, has a side business 

15 and is using their computer. You know, they do a search 

16 on the computer and find out there's all sorts of, you 

17 know, stationery and you know, thousands of e-mails 

18 conducting a side business. They might -- one of the 

19 charges they might bring is misuse of government property. 

20 And you know, misuse of the telephones. 

21 Government charge card, we see that frequently. 

22 People have a government charge card, it's supposed to be 

23 used for travel, and instead are out charging things left 

24 and right, which is definitely a no-no. But these 

25 charges -- this does not require specific intent to prove.
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1 "AWOL," another one you should be well aware of, 

2 that's a charge that we see very frequently. The Agency 

3 has to prove that the employee was supposed to be at the 

4 duty station, that he or she wasn't there, and that the 

5 absence was either not authorized or the employee 

6 requested leave and the denial of the request was proper.

7 And then I have the -- I didn't spell this out 

8 entirely but it says, "If based upon a denial of LWOP," 

9 that refers to leave without pay, "the Board will 

10 determine whether the denial was reasonable." So 

11 sometimes employees run out of leave, they you know, 

12 either can't be at work or want to take leave. You know, 

13 sometimes they just don't show up, but other times they 

14 ask for leave without pay. And we would look -- there's 

15 some discretion but we would also look just to make sure 

16 that the denial of leave without pay is reasonable.

17 The FMLA issues that I've put here, the Agency 

18 has the burden. 

19 If you go to the next slide, "Failure to follow 

20 leave requesting procedures." This explains the FMLA a 

21 little better, which stands for Family Medical Leave Act. 

22 Some of you may have heard of it or have some familiarity

23 with it. So this charge, the "failure to follow leave 

24 requesting procedures" is really a charge agencies bring 

25 because they're concerned that an AWOL charge will be 
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1 overturned on appeal. 

2 If the employee brings in medical evidence, the 

3 Board -- I think the Board has gone back and forth on 

4 this, but I know that, you know, there have been times 

5 where the Board will accept medical evidence that shows 

6 that sick leave, let's say for example, or even leave 

7 without pay, should have been granted, and you know, we 

8 can, you know, accept that even at the appeal stage. 

9 So you know, supervisors feel obviously that's, 

10 and agencies feel that's not fair, so they will frequently 

11 bring this charge, "failure to follow leave requesting 

12 procedures," and so they just have to show that they had a 

13 procedure, the employee knew the procedure and failed to 

14 follow it. 

15 And this is also where these Family Medical 

16 Leave Act issues come in. With any charge that's 

17 attendance related the -- if there's a Family Medical 

18 Leave Act issue, the Agency has the burden on that. So 

19 that's important to note. It's not an affirmative 

20 defense. If the employee at some point requested Family 

21 Medical Leave Act and, you know, was denied that's 

22 something the Agency would have to show, that that was a 

23 proper denial. Or you know, other circumstances that 

24 arise under the FMLA, a couple of which I have put in 

25 here.
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1 So just something to be aware of if you end up 

2 with an employee whose had illnesses or family problems 

3 and is terminated or there's some other action taken 

4 against.

5 "Failure to follow instructions," as I said before, 

6 that's a non-intent charge. Similar to insubordination

7 but easier for the Agency to prove. And they do have to 

8 prove that there were proper instructions given so that 

9 does come up at times. You know, there are some 

10 exceptions and it's -- you know, obviously a supervisor 

11 can't ask an underling to do something that's unsafe. Or 

12 you know, there's a few other exceptions but something you 

13 want to look at, whether it was a proper instruction 

14 given.

15 The next slide, just a couple more charges 

16 that -- a few more charges that I thought you should just 

17 be aware of their existence; "Lack of Candor," agencies 

18 use this when they -- essentially when they really can't 

19 prove falsification. They're concerned that they won't be 

20 able to prove intent. 

21 In my experience where this would come up would 

22 be that the Agency's concerned with something, they're 

23 conduct -- something an employee's done, they're 

24 conducting an investigation, you know, they have somebody

25 that is questioning the employee at length and the 
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1 employee's answering the questions and they can't really 

2 prove that they -- that they lied in any of the answers, 

3 but you know, the employee left something out that was 

4 very important, maybe that wasn't responsive exactly to a 

5 question, but that clearly should have been something that 

6 was volunteered by the employee.

7 So it's kind of a tough charge to even put your 

8 hand on what the elements are as -- our reviewing court in 

9 this Ludlum case I cited, has said that the elements 

10 depend on the context and the conduct. So it's really 

11 generally better to disclose. Agencies do use it where --

12 where they could have used falsification, where it is 

13 something where they're really claiming that it was -- it 

14 was a false response but they're just not convinced they 

15 can prove intent.

16 "Unauthorized use of government vehicle," that's

17 brought this way, just "unauthorized use," there's no need 

18 to prove intent. But there's a mandatory 30-day 

19 suspension under the statute that I listed here if it was 

20 willful or done with reckless disregard. So that's 

21 important to note if you get -- see a charge like that, 

22 you have to see did the Agency charge it under the 

23 statute, in which case they do have to prove that it was 

24 willful. If they didn't, there is no intent and there's 

25 no requirement that it -- that the suspension or whatever 
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1 adverse action they take be 30 days at minimum.

2 The others, I won't really go into, "Sexual 

3 harassment," I think is something we don't see too often 

4 these days, but just there for your edification. 

5 I guess the one that we probably do see a little 

6 bit more, I don't think we see really the quid pro quo 

7 type of sexual harassment almost ever, at this point, at 

8 least. 

9 We do see more of the hostile working 

10 environment type of sexual harassment, so I put that as 

11 the last sentence there, that the conduct -- "The Agency 

12 has to prove the conduct was offensive based on the 

13 victim's sex, unwelcome and sufficiently severe or 

14 pervasive to interfere with the victim's job performance 

15 or create an abusive work environment." So that's 

16 probably what we would see most of the time.

17 We -- the one thing to note about sexual 

18 harassment is a lot of agencies have their own rules on --

19 you know, that prohibit sexual harassment. And when they 

20 bring a charge like this, it's important to look at 

21 whether they're charging the employee with breaking the 

22 internal rules or sexual harassment under Title VII. And 

23 the Board has said that if it's really -- if their 

24 internal rules basically track Title VII, they're going 

25 to, you know, go with the Title VII standard of proof.
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1 So it's just something to look at. It does come 

2 up in these cases, as what is -- you know, what is the 

3 burden because sometimes the agencies don't even realize 

4 it, what they're actually -- you know, what their burden 

5 would be and, you know, what the basis for the charge is.

6 And finally, "Approved leave," just something to 

7 be aware of. There is this one exception, generally a 

8 federal agency cannot take action against an employee 

9 after they've approved leave. There is this one exception 

10 in the Cook case here, I won't -- you know, it's there for 

11 you to look at. It's very narrow but it does come up. 

12 I've had a number of these cases where it really was 

13 someone who's, you know, out of the work place for a long 

14 time and the Agency just feels it needs to replace this 

15 person. They've approved their leave for whatever reason 

16 for a lengthy period but really just want to take an 

17 action. So that's there in case you ever see that.

18 And I think that's about all I have for adverse 

19 actions.

20 JUDGE BOULDEN: Right.

21 JUDGE BERG: I didn't get into really the 

22 penalty part, so that's something we, sort of, left out. 

23 You know, but it's something -- there is a case called 

24 Douglas v. Veterans Administration, that is you want to 

25 look at what the factors are that an agency needs to 
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1 consider when determining what the reasonable penalty is, 

2 you should look at that case. I think it's 5 MSPR 3 --

3 JUDGE BOULDEN: It's in the 5, right.

4 JUDGE BERG: -- 380 or something like that. But 

5 you'll see it if you handle a case like this and the 

6 penalty's an issue, you'll definitely see a reference to 

7 that case.

8 And I think that's all I have.

9 JUDGE BOULDEN: Okay.

10 JUDGE BERG: So we have hopefully a little time 

11 for questions, right?

12 JUDGE BOULDEN: Yeah.

13 MS. CAZABON: Great. Thank you so much. I 

14 again, I want to thank Judge Boulden and Judge Berg for 

15 doing this training for us today and putting together

16 these terrific materials.

17 Just to let folks know in addition to the 

18 PowerPoint slides, we've also provided you with an appeal 

19 form, which I recommend everyone read. 

20 And in addition, you know, we're going to 

21 support you here internally. We'll have plenty of partner 

22 supervision, and hopefully if there's enough interest and 

23 we have enough cases we'll be able to have some small 

24 group discussions and periodic meetings to talk about the 

25 issues and the cases.
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1 And as Judge Boulden mentioned, I hope that in 

2 the next probably -- by mid-May or at least late May we'll 

3 start taking these cases.

4 So I wanted to see if people here had any 

5 questions? Brian?

6 BRIAN: Is there a regular Bar Association or 

7 regular lawyers who do these types of cases that -- I'm 

8 just envisioning taking one of these cases and not knowing 

9 what a brief is supposed to look like necessarily or 

10 exactly what type of stage I'm in in a certain case and 

11 what's going to happen next. Are there regular 

12 practitioners or Bar Association that we might be able to 

13 consult once in a while if we get stuck in one of these 

14 cases?

15 JUDGE BOULDEN: There are certainly some major 

16 players that we see in D.C. in particular and in Boston, 

17 actually. There's the Lafferty Law Firm we see often. 

18 But I don't know if there's actually an MSPB Bar, per se. 

19 I think there's a federal employment bar, Passman & Kaplan 

20 in Washington, D.C., for example, is involved in that.

21 Peter Broida, I don't know if you know his name, 

22 actually writes a compendium of, sort of, the history of 

23 Board cases over time.

24 I don't know, Craig, do you know of any?

25 JUDGE BERG: I don't -- yeah, other than that I 
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1 mean, I know obviously there's a federal employment bar, 

2 but I don't think there's anything more organized than 

3 that, really.

4 JUDGE BOULDEN: Yeah.

5 MS. CAZABON: All right, looks like we have 

6 another question.

7 UNIDENTIFIED SPEAKER: Hi. I just had a quick 

8 question. Do the usual rules of privilege and disclosure 

9 and things like that apply? It seems like they would.

10 JUDGE BOULDEN: Yes.

11 UNIDENTIFIED SPEAKER: To any client.

12 JUDGE BOULDEN: Um-hmm.

13 MS. CAZABON: Anything else?

14 (No response.)

15 MS. CAZABON: Okay, looks like all questions 

16 have been answered. So thanks again, Judge Boulden and 

17 Judge Berg. We look forward to taking on these cases. 

18 And you know, we really appreciate the time you put into 

19 doing this presentation.

20 JUDGE BOULDEN: Yeah. Could I just mention one 

21 thing? I forgot to tell everybody, the Board has a very 

22 sophisticated electronic filing process and you'll see 

23 it's referred to there on the paper form, but most -- many 

24 attorneys today are filing electronically the appeal 

25 itself. And also if you register as a e-Filer there --
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1 all of your pleadings can be done electronically and 

2 you'll be served electronically by the other side if they 

3 do it, too. So it's a pretty sophisticated system I think 

4 you'll find.

5 MS. CAZABON: Great. Well, thanks again.

6 JUDGE BOULDEN: Okay, thank you.

7 JUDGE BERG: Thank you.

8 (Whereupon, the above audio was concluded.)
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CERTIFICATION 

I, Mary E. Dring, the assigned transcriber, do hereby 

certify that the foregoing transcript of proceedings on 

Pro Bono Training, Track 01, is prepared in full 

compliance with the current Transcript Format for Judicial 

Proceedings and is a true and accurate non-compressed 

transcript of the proceedings as recorded. 

NJ AOC AD/T 582

_________________ ______________ 

Signature/Date

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