FOR APRIL 2020: FEDERAL COURT, MSPB, AND EEOC PROCEDURES DURING COVID 19

I appreciate your questions by email and telephone (and the referrals). It means a lot to me. I also did my first Zoom legal call (nothing sensitive discussed). I am asked about administrative and judicial processes during this pandemic. Here, I summarize a few procedures and web sites for cases before the Federal Courts, Merit Systems Protection Board and federal employee cases at the Equal Employment Opportunity Commission.

The U.S. DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA guidance as of April 10, 2020 follows. All civil and criminal in-person proceedings in the U.S. District Court for the Eastern District of Virginia, including court appearances, trials, hearings, and settlement conferences, scheduled to occur through June 10, 2020, with the exception of critical or emergency proceedings, are POSTPONED, subject to the conditions set forth in this General Order. The instant General Order does not postpone any remote proceedings scheduled by a presiding judge in any civil or criminal case. Consistent with the Courts prior General Order authorizing video teleconferencing (2020-09), the Court adopts a temporary policy for remote proceedings and public access to such remote proceedings, which will be accomplished through toll-free telephone access.

The U.S. DISTRICT COURT FOR THE DISTRICT OF COLUMBIA, the same as Virginia’s Federal Courts, normally uses electronic filings. In addition, here are points of contact COVID-19 instructions for the United States District Court for the District of Columbia (All documents must be submitted in PDF format)

Emergency (District Court) Emergency_Judge@dcd.uscourts.gov New cases requiring emergency action such as TRO/PI or any question regarding Court Operations.

Emergency (Bankruptcy Court) Emergency_Judge@dcb.uscourts.gov Any emergency requiring immediate action in an existing Bankruptcy case or any question regarding Court Operations.

Civil Filings Only DCD_CMECF@dcd.uscourts.gov All civil filing including sealed pleading in an existing civil case (except Pro-Se Filings).

I do not give information on Criminal Filings.

The MERIT SYSTEMS PROTECTION BOARD (MSPB) site for electronic filings is https://www.mspb.gov/appeals/appeals.htm For a recent MSPB case, I filed electronically and participated in telephonic Administrative Judge conferences. The Judge said she did not have resources or guidance (yet) for a hearing by videoconferencing. Below are MSPB instructions for paper filings.

Coronavirus Disease 2019 (COVID-19). Notice Regarding Returned Overnight Deliveries or U.S. Mail and Unreceived Faxes If you submitted a new appeal or pleading to MSPB and it was returned to you by the delivery service, you must save the submission, including its original envelope showing the postmark date or date of delivery to the commercial delivery service. After MSPB employees return to their offices, please resubmit them both in a new envelope. If you submitted a fax on or after March 13, 2020 that was not received by MSPB, you must resubmit the fax after MSPB employees return to their offices. Your resubmission must show the failure of any attempted transmission. You will be contacted by MSPB after our employees have returned to their offices.

Notice Regarding U.S. Mail If you plan to file a new appeal by paper, you should know in advance that we may not be able to docket and adjudicate your appeal if it is filed on paper. Because paper submissions may not be received by MSPB for the foreseeable future, we strongly encourage the use of e-Appeal Online for both new and pending cases, and by all parties.

The April 6, 2020-dated UNITED STATES EMPLOYMENT OPPORTUNITY COMMISSION (EEOC) federal employee instructions are found at https://www.eeoc.gov/coronavirus/federal_eeo_processing.cfm and provide, in part:

Agencies will continue all counseling, investigations and other complaint processing set forth in 29 CFR Part 1614, except in circumstances meeting the criteria described below.

To the extent practicable, regulatory timeframes concerning the processing of federal sector EEO complaints will continue to be met, wherever feasible. For this purpose, practicable means where the agency and complainant have access to needed witnesses, documents and representation, and where such processing will not interfere with the mission- critical operations of the agency.

The regulatory timeframes set forth in 29 C.F.R. Part 1614 will be subject to the equitable tolling provisions set forth in 29 C.F.R. §1614.604(c). Absent mutual agreement, agencies and complainants will be required to document in the record the reason(s) why tolling any of the time limits set forth in 29 CFR Part 1614 is necessary. Such justification will fully be considered by the Commission in any appeal raised in the matter.

Agencies and complainants are encouraged to seek mutual agreement with respect to the extension of any timeframes. Where such agreements are reached, they should be reduced to writing and made part of the record. OFO will honor such agreements on appeal, unless they are clearly onerous to one party or otherwise violate the standards for equitable tolling, waiver or estoppel.

EEOC Administrative Judges will continue to manage the hearings program. Administrative Judges will continue to hold conferences, manage discovery, refer cases to ADR and settlement, issue summary judgment decisions and, where appropriate, hold hearings and issue decisions. In light of the National Emergency, either party can seek an extension or other relief from any deadline for good cause shown.

The EEOC is deeply concerned about protecting (and committed to ensuring every federal employee continues to have) all their rights during this time of National Emergency. To that end, EEOC asks agency EEO offices to continue counseling employees, accepting their discrimination complaints, and investigating these complaints to the fullest extent possible without undermining mission-critical functions. We ask agencies not to issue final actions on any EEO complaint, unless the investigation is complete and the Complainant has requested that the final action be issued.

EEOC will continue to prepare appellate decisions but will not mail those decisions. A Complainant who provides an e-mail address and waives first class mailing may request the decision via e-mail to ofo.eeoc@eeoc.gov.
The Commission is extremely cognizant of preserving a party’s right to file a civil action in U.S. District Court. Given the current National Emergency, the Commission is suspending issuance of all appellate decisions via the U. S. mail until further notice in order to best preserve those rights.

Until further notice, OFO does not have access to U.S. Mail; rather, we ask that all submissions and communications from both agencies and complainants be digital, via the Public Portal/FEDSEP. We ask those who submitted items via U.S. Mail on or after March 6, 2020 to resubmit them via the Public Portal/FEDSEP.

The Commission supports and encourages the use of digital documents and electronic signatures. A digital document used by a person, agency, or other entity shall have the same force and effect as those documents not produced by electronic means. “Electronic signature” means any digital symbol, sound, or process attached to or logically associated with a digital record and executed or adopted by a person with the intent to sign the record.

Each agency subject to the regulations at 29 CFR Part 1614 is directed to forward a copy of this notice, using the most effective available method, to each Complainant with a pending EEO matter and to each person who hereafter contacts an agency EEO counselor or otherwise enters into the agency’s EEO process.

End excerpts from EEOC guidance. Notice that decisions are not being mailed but also that agencies are processing EEO complaints. Be timely!

Please remember that this blog is meant for general guidance. If you have questions on a particular case please call me. Stay safe. Nothing else follows for now.

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