You may wish to consider appealing the decision of the Merit Systems Protection Board to the Court of Appeals for the Federal Circuit in Washington.

You do not have to be a lawyer to take your case to the Federal Circuit. Lots of cases taken there on appeal from the MSPB are handled by individual appellants who are not represented by attorneys. These are called pro se appellants, and the court has a simplified briefing system for pro se appellants that reduces the time that goes into preparing complex and rigorously formatted briefs that attorneys are required to prepare.

Is it worthwhile to handle a case by yourself in the Federal Circuit? The court ordinarily affirms the decision of the MSPB, meaning that it upholds the government and holds against the appellant. The statistics over the years show that the affirmation rate varies a bit from year to year, but the court probably affirms in about 95% of the MSPB cases, and that is a very high figure.

However, of those Federal Circuit decisions that either reverse the result of the MSPB or send the case back to the MSPB for further analysis, probably as many unrepresented appellants secure a favorable result as do the appellants represented by lawyers. In cases decided by the Federal Circuit involving appellants not represented by lawyers, the Federal Circuit issues a written analysis for virtually every case, explaining why it reaches the result that it does. For many cases handled by lawyers, the Federal Circuit only issues what is known as a summary affirmation, meaning a form of decision that simply states that the result under appeal has been affirmed.

When the Federal Circuit judges determine that the case of an unrepresented appellant has merit, the judges do the research that is necessary to resolve the issues, so that the appellant without legal skill who presents a substantial legal issue receives fair consideration from the court.

That is not to say that a lawyer is without value in the appellate system. First, a good lawyer will tell a client when he or she has a case that should or should not be appealed. Evaluation by an expert has some value. Second, a lawyer will do the research and assemble the documentation that is necessary to properly present the case to the court and avoid missing arguments.

But the lawyer comes at a cost, and that cost can be considerable. In a straightforward recent case, involving one issue, a simple set of facts, relatively straightforward research, and basic preparation of a principal brief, a reply brief, and presentation of oral argument to the court, along with a few conferences with a client, the cost ran $10,000, at an hourly rate of $350. Most cases are quite a bit more complex and a lot more expensive. If the case is won at the Federal Circuit, there is the possibility of recovery of counsel fees, but only the possibility. Some strong cases that have resulted in reversals or remand to the MSPB have also resulted in denial of counsel fees by the Federal Circuit.

As in other civil service litigation, if you are going to use a lawyer, try to find someone who has the time to spend on the case, who will treat you reasonably with respect to finances, and most important, has some experience in the field. Shop around. Check the Internet to see what types of cases the lawyer has handled. But also understand that in a court that affirms the MSPB at the rate of 95%, lawyers who take many cases to the Federal Circuit are not going to win them all. If you use a lawyer, make sure that you have an understanding with the lawyer that she or he will share with you drafts of briefs and discuss them with you to see if facts are properly stated or if points that you think should be argued are in the briefs, and if they are not there, why they are not there.

MSPB cases involving EEO issues present some complex issues of which court is appropriate for review. The Federal Circuit does not decide EEO cases. United States district court provide the proper judicial forum for those cases, although there are a few EEO issues that can creep indirectly into cases that are before the Federal Circuit. The matter is complex, and if that is your situation, an attorney should be consulted so that you end up in the right court.

More information about the Federal Circuit is found on their website by clicking here.