As an update to this post from June regarding an appeal of the MSPB’s policy of referring requests for docket pleadings to the agencies where they originated, I’m happy to report that I received copies of the requested OSC complaints directly from the Board. For whatever reason, the Board decided not to pursue its referral policy in this case. A question left for another day is whether a future request will encounter the same or modified referral policy.
Here is the appeal grant letter: MSPB-OCB-2014-00151
Where’s the complaint, though? In truth, I’m not publishing it at this time. I have to confess an error in judgment: I believed that dockets at the Board were like PACER.gov, where anyone with an account could see and download the back-and-forth pleadings of federal litigation. But the Board’s dockets aren’t like this, accessible generally only through FOIA. For reasons that don’t make complete logical sense to me, but seem to be rooted in custom or habit, litigation at the Board is more private than in the federal judiciary – more user-friendly to pro se litigants, but also containing sensitive information that might affect ongoing employment relations. In other words, if one were to design an independent forum where employment disputes could be resolved by disinterested experts and relations with employers could be normalized, the MSPB seems to fit that bill, more or less. Normalization of relations requires a measure of privacy, I would think. This seems to be the model that the EEOC uses, although if all else fails, litigation at the federal district courts (open PACER dockets and all) is an option there, something that isn’t available here.
Another reason for not making the complaints available: unlike PACER, I would have to obtain the respondents’ briefs explaining their side of the story, out of respect for their due process rights. Not having done so, it doesn’t seem fair to single out OSC’s allegations and to leave it at that. That said, anyone interested in these complaints can replicate my FOIA request.
A note about this website and its future: no, it’s not going anywhere. But it will be changing in ways that I can’t currently predict. My private practice before the Board is showing early signs of success, and I would like this to continue. It seems to be a good match – accessible legal services for appellants in need; practice that is rewarding to me; and presentation of cases to the Board’s adjudicators in the manner that they’re accustomed to (I hope). If I have to choose between being an effective advocate for current and future clients versus being an independent, adversarial muckracker, for now I choose the former. I don’t think that means relinquishing my First Amendment rights, but it does require being considerate of ongoing human relationships in the courtroom. If there’s abuse of discretion in one of my clients’ cases, I will appeal. If the issue is one of public interest, I may publicize. This is the standard that every ordinary attorney follows and that is the standard I will follow.
And to add even more complexity to the equation, it may very well be that my own retaliation complaint will soon end up before the Board. If so, I don’t intend to publicize every move, but I think the model above is the right one.