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NEWS AND CASE ALERT
September 11th, 2023 | Issue #15-06
TABLE OF CONTENTS
15 SUGGESTIONS FOR AGENCY COUNSEL
SUGGESTED READING
We offer legal reference books and audiovisual training on federal civil service, equal employment, and labor law, for attorneys, unions, arbitrators, managers, and agency personnel offices. A small business for over 39 years.
Read the full archive of over 100+ News and Case Alerts online at: deweypub.com/email
NEW RELEASES
First produced in 2005–2006, this course was reviewed and revised in 2023 to add discussion of the Board’s e-filing system, mediation programs, and video hearings, and to delete references to some procedures no longer used by the Board. The basics of the course remain the same—covering the process from filing of the appeal through issuance of the initial decision. (more details)
Format: downloadable .zip containing .mp4 video and .pdf table of contents
The MSPB Guide is a complete research tool for Board cases, laws, procedure, and litigation practice and is the seminal text on this complex area of the law. Major topics include jurisdiction, appeals, discovery, hearings, evidence, PFRs, adverse actions and discipline, nexus and mitigation, substantive offenses, performance cases, RIFs, prohibited personnel practices, retirement, attorney fees, settlement, remedies, and judicial review.(more details)
Using Board and Federal Circuit cases as examples, Charges & Penalties offers comprehensive analysis and authoritative advice on adverse actions, charge drafting, and penalty selection. (more details)
Updated annually, the EEO Guide, written by Natania Davis with Ernie Hadley, Founding Author, offers the most comprehensive analysis of federal sector EEO decisions, litigation practice, statutes, regulations, policies, guidance, and practical advice available to practitioners. (more details)
In two volumes, Updated annually, the FLRA Guide is a complete research tool on unit determinations, negotiability and the collective bargaining process, unfair labor practices, and constraints on arbitration. The Guide includes discussion of cases, laws, and litigation practice before the FLRA and its reviewing courts. (more details)
This encyclopedic text features summaries of federal sector arbitration awards addressing significant issues and major arbitration principles from 1999 through 2022. Awards are arranged by topic. Principles includes a table cross-referencing arbitrators to the awards they have issued. (more details)
15 SUGGESTIONS FOR AGENCY COUNSEL
1. Read (really, read) the regulations of the agency that will adjudicate your case.

2. Speak with (yes, actually speak with) opposing counsel early in the case to form a more perfect, civil working relationship.

3. Proofread (as in line-by-line) every filing you make. (You are judged by your work product.)

4. Cite check (as in going to the original source) every case or statute you reference in a filing.

5. Promptly (as in a day) respond to (at least acknowledge) email and phone messages.

6. Keep your management chain (lawyers and executives) copied on emails and case filings so they know the progress of a case (if they don't read the material, that's their problem) [and label the emails as privileged.]

7. Immediately (same day, so you remember the content) summarize for the management chain conference calls with a judge.

8. Convey (immediately) any settlement offer to the management chain, along with your analysis and recommendations (remember to label them confidential and privileged).

9. Have present (as in: in the conference room or on a video platform) a manager with authority to settle at ADR.

10. Keep a file (tabbed and indexed), of all settlement exchanges of substance (email or documented) along with your own notes to explain how settlement discussions advanced from one stage to another.

11. Avoid (as in always) verbal settlements.

12. Ensure (every time) that any settlement carries the signature of a manager, not just your own as counsel.

13. Print significant litigation documents and assemble them in a tabbed binder (so that someone can figure out what the case is about if your work needs to be reviewed or you disappear to Ibiza).

14. Keep up to date in the law (if this is your career, invest some personal time): read the weekly MSPB Case Reports by subscribing to the Listserv: https://www.mspb.gov/decisions/casereports.htm; check the FLRA case quarterly digest (periodically): https://www.flra.gov/decisions/quarterly-digest-authority-decisions; and for EEOC, check their quarterly-or-so case digests for the federal sector: https://www.eeoc.gov/federal-sector/digest/digest-equal-employment-opportunity-law-81.

15. Browse MSPB, FLRA, and EEOC websites for their training courses, check out their legal digests and litigation handbooks (a great way to start researching, particularly FLRA law). (If only they provided CLE credit to those in need.)

16. When you've got an ethics concern, talk to the person in OGC who is designated to address ethics problems; speak with someone at your State Bar (they all have confidential means for speaking with Bar ethics lawyers). Don't ignore the issue. Address it.

17. Don't say in email what you wouldn't want read back before a jury of 12. Use your personal email for private conversations. Don't use government email for personal stuff.

18. Treat pro se litigants with courtesy; encourage them to seek counsel; don't give them substantive advice (even if they are your acquaintances).

[OK. So, that's more than 15 suggestions. It's a bonus.]
MORE NEW RELEASES
Updated annually, this comprehensive text digests notable Commission and federal court employment discrimination decisions from 2003 through early 2023 and reviews EEO laws, regulations, and guidance. (more details)
An authoritative examination of the FMLA, this book includes citations and analysis of governing statutes, regulations and case law. (more details)
Prehearing and post-hearing motions, as well as rules of motion practice are studied in this newly updated practical and helpful guidebook. The authors examine motions presented to the Board and the Commission separately, paying special consideration to how to most effectively use motions for the desired result. (more details)
The Dewey Publications Podcast
Monthly Peter Broida will discuss new decisions from the MSPB, FLRA, their reviewing courts, and occasionally EEOC.

FREE to subscribe via iTunes or RSS

View a detailed list of all past episodes at deweypub.com/podcast
COMING SOON
Designed for all who work on conduct and performance issues and those who litigate cases, this book serves as a quick reference to federal employment litigation questions. Answers are provided in an easy to read and thorough manner. (more details)
A comprehensive, easy to follow, and insightful guide to counseling and investigating EEO complaints, this manual explores the essentials of the EEO complaint process. (more details)
A Dewey bestseller, Compensatory Damages is the seminal text on how to support and defend against claims for compensatory damages and other remedial claims in federal sector employment discrimination cases. Includes case summaries through mid-2023 and a chart of significant awards. (more details)
Written by the late Ernie Hadley and updated by Natania Davis, author of A Guide to Federal Sector Equal Employment Law and Practice, the Guide to Federal Sector Disability Discrimination Law and Practice is a seminal text on disability discrimination case law, statutes, and regulations interpreting and implementing the ADA, ADAAA, Rehabilitation Act, GINA, and Drug Abuse Act. (more details)
Updated annually, this encyclopedic guide condenses MSPB and Federal Circuit decisions from 1999 through early 2023 into concise, usable summaries. Cases are arranged by subject matter areas and further categorized alphabetically. The MSPB Reference Materials free download and an index and table of cases rounds out this research tool. (more details)
Updated with cases through mid-2023, the Disability Deskbook is an extensive compilation of decisions interpreting the Rehabilitation Act, ADA, ADAAA, and other statutes and implementing regulations, and covers all disability related topics. (more details)
SUGGESTED READING
ABA Formal Opinion 508: “The Ethics of Witness Preparation” [August 5, 2023]