How Cases Get to the Federal Circuit

In a typical year, MSPB may receive 5,000-6,000 appeals throughout its regional offices. Each appeal will be closed out with an initial decision from the regional office, no matter whether the appeal is litigated on the merits, settled, withdrawn by the appellant, or dismissed for lack of jurisdiction or untimely filing. Many MSPB cases dismissed as untimely or for lack of jurisdiction, or lost on the merits, or settled are taken no further than the regional office initial decision, which becomes a final MSPB decision if no petition for review is filed with the Board's headquarters establishment within 35 days from the issuance of that initial decision.

But some initial decisions are appealed to the Board headquarters through petitions for review filed either by the appellant or by the agency. And those cases, perhaps 800-900 in a year, will be adjudicated and result in issuance of a final decision, except for some decisions that are either closed out by settlement at the PFR level or remanded for further adjudication to the administrative judge at the MSPB office that first adjudicated the appeal.

A judicially reviewable final Board decision results when no petition for review is filed as to the initial decision, which becomes a final Board decision 35 days after issuance of that initial decision. Or a judicially reviewable final Board decision results when, if a petition for review is filed from an initial decision, the Board adjudicates that petition for review and issues a final Board decision. If the appellant desires Federal Circuit review, the law allows only 60 calendar days from the date of issuance of the Board final decision (or the date an initial decision becomes final when the time expires to file a petition for review with MSPB) to properly file a judicial petition for review with the Clerk of the Federal Circuit in Washington.

Many appeals include allegations of discrimination as an affirmative defense. The Federal Circuit does not adjudicate appeals from the Board involving allegations of discrimination raised before the Board, unless those allegations or claims are dropped when the Federal Circuit appeal is filed with that Court (Circuit Form 10 requires a certification that "Any claim of discrimination by reason of race, sex, age, national origin, or handicapped condition raised before and decided by the Merit Systems Protection Board or arbitrator has been abandoned or will not be raised or continued in this or any other court."). If an individual wants to pursue judicial review of a claim of discrimination involved in a Board case, review is properly sought in a federal district court.


What Happens to Cases that Reach the Federal Circuit

Each year, of the hundreds of appeals resolved by the Board through a final decision (and the other appeals resolved through initial decisions that become final through the passage of time when no petition for review was filed with the Board), about 200-250 Board decisions are appealed to the Circuit. The Court hears many other types of cases, often involving intellectual property (patent) disputes. Of the cases annually docketed with the Court, perhaps 15% are from decisions from MSPB or labor arbitrators deciding federal sector adverse or performance-based actions.

The Federal Circuit does not conduct a trial. It does not re-hear the evidence that was, or should have been, presented to MSPB. The Circuit looks for legal errors by MSPB, and those legal errors involve the failure of the Board to follow statute or binding legal precedent or its own procedural regulations. The Circuit is looking to see if the Board made a legal error or an important procedural error in adjudicating the appeal or deciding its own jurisdiction over an appeal.

Historically, the Federal Circuit upholds MSPB final decisions at a rate of about 90%. In some cases where the appellant prevails at the Circuit, the case is sent back to the Board for re-examination, or the Circuit may reverse the result reached by the Board and send the case back to the Board to grant a remedy to the appellant. Some of the cases taken to the Federal Circuit are dismissed because they are untimely, withdrawn by the appellants, or, occasionally, settled. The affirmation rate is high: many of the cases taken to the Federal Circuit involve factual disputes that the Circuit does not resolve; many involve review of Board jurisdictional determinations that are well-founded in existing law from the Board and from the Circuit.

The Federal Circuit is pretty speedy. Once the appeal is filed at the Circuit, if briefs are filed on time, or if extensions are reasonably short, the Court should be able to decide the case within a year, or a little less, from the date the appeal is filed. Unlike MSPB and EEOC, where appeals and complaints are filed and litigated without cost, there is a filing fee with the Federal Circuit of $500 for the appeal. Exceptions are made for certain cases involving USERRA claims and when an individual qualifies for in forma pauperis status under the Court's rule, using an application found on the Court's website. And, if the appellant loses the case, there is the possibility, and it sometimes occurs, that the Court "taxes" costs against the appellant for the reproduction costs of the government's brief. Often the court does not tax costs, but sometimes it does. Those costs could be a few hundred dollars, more or less.


Does an Appellant Need a Lawyer

Although there is no empirical evidence to support this conclusion, long experience in the practice of law suggests that by the time many appellants have reached the level of the Federal Circuit, having progressed through a reply to an adverse action proposal, litigated and lost the case before an MSPB administrative judge, and then litigated and lost a petition for review to MSPB headquarters, there is no money in the till to hire a lawyer.

But the Federal Circuit is solicitous of individuals who represent themselves in court. And there is a source of pro bono assistance offered, for people who meet economic tests, through a pro bono representation program operated by the Federal Circuit Bar Association. The Bar Association does not guarantee the availability of representation or the quality of the representation. Information on the Bar Association's pro bono program is found at fedcirbar.org/Pro-Bono-Scholarships/Government-Employees-Pro-Bono/Overview-FAQ.

For individuals who represent themselves in the Federal Circuit, there is the choice of an informal briefing process that avoids the necessity of filing briefs that conform to Federal Circuit rules, which are exacting as to the content and format of briefs that would ordinarily be filed by lawyers (who do not always get it right and occasionally have to resubmit their corrected briefs). Information on pro se appeals and the briefing process is found on the Federal Circuit website at cafc.uscourts.gov/pro-se

Informal, inexact, review of Federal Circuit government personnel decisions over the years reveals that individuals who represent themselves can, on occasion, secure favorable review by the Federal Circuit, and many individuals who are represented by lawyers do not secure favorable review (fortunately, some do). Once in a while, if the Federal Circuit determines that a particularly significant legal issue is presented by a pro se appellant, the Court may appoint a lawyer to brief the case (without charge to the appellant).

For a lawyer to handle a Federal Circuit case is a time-consuming process. The appeal has to be docketed, several associated forms have to be filed, and then counsel is responsible for preparing a principal brief, a brief in reply to the government's responsive brief, and a compilation of documents pertinent to the case called an appendix. Lawyers must use a complex electronic filing system. Counsel has the option to argue the case to the Court or to have the case submitted on the briefs without oral argument. There are probably more cases submitted without argument, but if counsel is local to Washington, or has the funds to travel, the argument takes some preparation, although presentation of the argument itself is brief. If you are interested in listening to arguments presented to the Federal Circuit, the Court's website carries the recordings for public review. Lists of cases argued by month are found at cafc.uscourts.gov/argument/upcoming-oral-arguments, and those listings show which cases involve MSPB decisions. Recordings for the argued cases are located at cafc.uscourts.gov/oral-argument-recordings. From the argument list, type the name of the appellant whose case was argued into the recorded arguments search bar of the Federal Circuit, and the argument recording should appear as an mp3 file. Take a listen. You will hear the full argument on the case. Usually the nature of the case is apparent after the first couple minutes of argument.


What is the Cost of Legal Representation

Cases differ. Briefing styles differ. Levels of experience of lawyers and efficiency of preparation of the appellate paperwork differ, but if counsel is charging an hourly rate, a Federal Circuit appeal may readily cost $10,000-$30,000, in addition to the $500 filing fee (waived by the Court for impecunious appellants, on application through the Court's in forma pauperis application). The cost of the appeal depends on the hourly rate and the time invested by counsel in the case. The amount of time on the case will be higher if the lawyer employed to handle the circuit appeal is working on the case for the first time, versus the lawyer who mastered the details of the case and the controlling law while working on the case before the MSPB administrative judge or during the MSPB petition for review process. Or, the lawyer may appreciate that the client does not have continuing income and charge a flat rate to provide some income to the lawyer and avoid considerable financial burden to the client.


Is it Worth It

Given the relatively high cost of legal representation before the Court, and the statistics reflecting disposition of many MSPB cases in a manner unfavorable to appellants, careful consideration has to be given to whether, first, the case should even be at the Federal Circuit; second, whether the case should be handled by the appellant on his or her own behalf or by counsel. If an attorney is being asked to consider taking a case to the Circuit and has no prior litigation involvement in the case, a consultation should be arranged with counsel to review the case and provide an opinion as to its merits on appeal, for which there may be some charge. Based on that assessment, the appellant can better determine whether to spend the money for legal representation at the Circuit (or, perhaps, get a second opinion). However the appellant chooses to approach filing and litigating an appeal before the Circuit, the appeal with the Federal Circuit must be filed on time. Instructions on the time for filing with the Circuit will be included in the MSPB decision. A late appeal is not excused because the appellant cannot find or afford counsel. It is the appellant's responsibility to get the appeal filed on time. Counsel can be secured later. Or if counsel is earlier retained, it becomes counsel's responsibility to get the appeal filed on time. The Federal Circuit does not grant extensions of time to file appeals and it is unforgiving of late appeals.


Cases Submitted on Briefs or Argued

If an appellant is represented by counsel, the attorney will be asked by the Circuit if he or she wants oral argument following briefing. If the lawyer desires argument, the Circuit routinely grants the request. Or counsel may decide to have the case submitted on briefs. If the appellant is self-represented, oral argument is almost never granted; those cases are routinely decided based on the written submissions to the Court.

For Circuit appeals in which the appellant is represented by counsel, in a typical month, there might be two or three MSPB cases argued, and a like number submitted by counsel without argument. That's about 60 or so cases a year, more or less, that are "lawyered." Some lawyers appear with some frequency over the years, some but once. Some lawyers are employed by organizations designed to provide specialized legal services—for example, the general counsel offices of the national federal-sector labor unions.

When a case is argued by counsel, the argument is for the Court's benefit—it allows the judges, who have read the briefs and appendix of selected documents, to ask questions concerning the positions argued by the parties. To call the sessions arguments is to attach more ferocity than describes the occasion. Arguments are really discussions among the judges and counsel. And, when judges describe the argument process at bar conferences, it is clear that judges form their initial opinions from briefing, but the arguments may influence the result or the reasoning leading to the Court's decision.

Why would a lawyer not argue a case? It may be cost. Lawyers from all over the country file appeals in the Washington-based Federal Circuit, and clients may not be able to pay their travel costs. Or the lawyers may decide that their briefs adequately convey their clients' positions and argument does not aid the process. And some arguments do not advance the client's case, although they probably don't hurt it either.


Choice of Counsel

Choice of counsel is important. If a client has invested substantial resources in counsel who has handled the appeal before MSPB, that lawyer is a good choice for the Federal Circuit appeal, since the lawyer will not have to invest time in learning the facts and identifying issues presented to the Federal Circuit. Or, the appellant may have handled the case by himself before MSPB and decide that counsel might be a good idea at the Circuit. Or, the appellant may decide it is time for a change in counsel. If new counsel is to be chosen, have a consult so the lawyer can evaluate the case and the appellant can evaluate the lawyer and the likely cost of the appeal. Have that consult in plenty of time before the due date for filing the judicial review petition with the Federal Circuit.

Experience of counsel helps. But experienced counsel cannot win a bad case. Experienced counsel can better identify what is a good and a bad case, or a case that could be a tossup, than someone who is not experienced in civil service law or Federal Circuit practice.

There are lots of lawyers who have websites advertising their availability for MSPB work or related cases in courts. Look at their credentials. Consider:

1. How long has the lawyer been in practice?

2. How much of that practice is devoted to civil service law?

3. How many and what types of civil service cases has the lawyer appealed to the Federal Circuit?

4. Does the lawyer do any teaching or writing for publication on civil service law?

5. Check the MSPB website, mspb.gov and type in the lawyer's name in the search for precedential, mspb.gov/decisions/searchdec.htm, and nonprecedential decisions, mspb.gov/decisions/nonprecdecsearch.htm, and see what types of cases the lawyer has handled. If you can get access to one of the commercial legal databases, Westlaw, or Lexis, at a public library, run a search of the lawyer's name to see what types of cases the individual has handled. To get some idea of what cases the lawyer has handled at the Federal Circuit, if you don't have access to a commercial legal database, in your Internet browser type the lawyer's name or last name & "United States Court of Appeals for the Federal Circuit" and review the results. Don't reach an opinion on the number of cases won or lost. After a few cases, no one wins them or loses them all. What's significant is the type of cases the lawyer undertakes.

6. If you see a lawyer or lawyers who look promising, arrange for a consultation and let the lawyer review your case with you. See what the lawyer's opinion is, what the lawyer's level of interest is, and how much it is going to cost you. Determine how much of the work will be done by the lawyer you are speaking with and how much will be delegated to associates. You may want to determine the background and experience of the associates who may be working on the case. Shop around. If you cannot find counsel who you want to work with or who you can afford, remember the option of pursuing your case yourself with the Court. And if finances are a real problem, consider the Federal Circuit pro bono program. But, remember: you must file your case on time. Seeking counsel, pro bono or otherwise, will not excuse an untimely Circuit appeal.


Representation by Peter Broida

Placing this information into the public domain is not an entirely selfless effort. I enjoy working on Federal Circuit cases, and with the attorneys from the Department of Justice and MSPB who defend the appeals, and I've done so since the early 1980s, with the inception of the Federal Circuit.

My background is detailed on the websites www.civilservicelaw.com or www.peterbroida.com Civil service law is what I do and what I've done for decades. I write principal legal texts (used mainly by other lawyers) on the Merit Systems Protection Board and the Federal Labor Relations Authority. The Guide to Merit Systems Protection Board Law and Practice, published for more than 30 years, more than 5,000 pages in two volumes, covers MSPB decisions and decisions of the Federal Circuit that review MSPB and arbitrators' decisions. I write other books on federal sector labor arbitration, the Senior Executive Service, and practice guides on settlement. I've also prepared video courses on mediation, settlement, MSPB, federal sector labor law, and arbitration practice. From time to time I do some teaching at local or national conferences of lawyers or personnel specialists. Courses include MSPB law and practice, federal sector labor law, arbitration practice, litigation and settlement techniques. My publications are shown at: deweypub.com/broida

As to my litigation practice, most of my representation is of federal personnel, with some representation of unions and, on occasion, federal agencies that need specialized counsel. Occasionally I am retained as an expert witness.

If you want to listen to me talk about civil service law and practice, check the website of Dewey Publications, www.deweypub.com, which lists my podcasts on civil service law. A few of my teaching episodes have made their way onto YouTube. The Dewey website lists my books and audio or video courses, along with those of many other authors.

My consult fee is $200, and the cost of the Federal Circuit appeal is discussed during the consult process, from which a written retainer agreement is developed if you want to retain me and I want to be retained by you. The office number is 703-841-1112. The intake process leading to a consult is done by phone by one of the staff. I review the intake and decide whether to conduct a consult. If I decide not to do a consult, I will usually try to come up with names of a couple other lawyers to whom I can refer the caller. Please do not send me initial requests for representation by email. Call my office for a consult. If representation is undertaken, we will have email exchanges and documents will be requested from you. My way may be old-fashioned, but it works for me.

My comments here are not meant to convey legal advice. That's done during a consult or when I or another attorney is retained. If you seek counsel, have consults with two or three lawyers and then select the one with whom you are most comfortable. To learn more about the Federal Circuit, its rules, and practice before the Court, check its website, http://www.cafc.uscourts.gov/.