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News and Case Alert
Issue #10-1

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"Bureaucratic Rigidity to a Dysfunctional Level" and the Unusual Case of
Delgado v. MSPB
Seventh Circuit
(16-1313 Jan. 29, 2018)

With words candid and sharp, the Seventh Circuit reversed a Board jurisdictional decision tossing the whistleblower reprisal IRA case of BATF Special Agent Adam Delgado, sending the case back to the (quorumless) Board to re-adjudicate.

The detailed opinion should be read for the factual description, but the short of it is that SA Delgado reported within management what he perceived as misconduct by another agent during a 2012 drug bust and was punished through denial of promotion, removal from desired duties, among other acts of retribution by agency management. Delgado lodged a reprisal complaint with OSC through their website (although he was unable later to print a copy of that complaint), and, on OSC's closeout, took his case to the MSPB, which entered a jurisdictional dismissal on the basis that Delgado did not demonstrate to the Board's satisfaction the level of detail of his complaint to OSC or provide sufficient information to identify the nature of his disclosures.

The Seventh Circuit disagreed, determining that SA Delgado provided plenty of information to both OSC and MSPB about his disclosures. The court focused on what it perceived as the Board's ruling that Delgado's case could not proceed with the MSPB without a copy of the complaint to OSC. Review of the initial and final Board decisions does not show that the Board made the precise ruling, but the Board seemingly failed properly to analyze the detailed descriptions by Delgado, provided to the Board, as to what his disclosure were, and how he provided information to OSC.

The Seventh Circuit made the alarmingly candid observation that if the Board wanted a copy of the OSC complaint, the Board could have requested it from OSC. Can you imagine the Board reaching out for that information without being told by a court that it could and should do so? The court went on to comment about the Board's handling of the appeal, in particular the court's belief that the Board insisted on a copy of the OSC complaint that, once entered into the OSC e-filing system, could not then be printed out:

While saving a copy of the form before submission is listed as a "best practice" elsewhere on the site (and perhaps is an obvious step for a lawyer), the agency did not even warn pro se whistleblowers that failure to do so would risk dismissal of any appeal.

Under the Board's approach, however, a whistleblower who failed to anticipate this need (or who overlooked the lukewarm suggestion added later to the website) would be in practice unable to appeal an adverse OSC decision. . . .

. . . Instructing a whistleblower to file a complaint via a simple webform and then dismissing a later appeal because he failed to print and retain a copy sets an arbitrary trap for unwary federal employees. And even if we assume the complaint itself is essential, we cannot understand why the OSC does not or could not simply forward a copy to the Board from OSC records.

We are not aware of other situations in federal administrative law where the contents of the record before an agency (here, the OSC) are determined by what the appealing party submits to the reviewing body rather than by simply obtaining a copy of the agency record from the agency itself.

. . . the Board was unwilling to accept Delgado's sworn assertion that he presented the same substantive allegations to the OSC, since he cannot prove independently that the document contained precisely the same details he submitted to the OSC. And because on appeal Delgado states candidly that he made slight corrections and updates to the original document before submitting it to the Board, the Board insists, "he has effectively conceded that he failed to meet his burden of proof regarding exhaustion."

With respect, we believe this reasoning takes bureaucratic rigidity to a dysfunctional level. Under 5 U.S.C. § 1214(a)(3), Delgado had to prove only that he "sought corrective action," not that he gave the OSC every scrap of information he possessed.

Delgado v. MSPB, No. 16-1313 (7th Cir. 2018)

And Then There's a Commonsense Judicial Approach to the FLRA's "Covered By" Doctrine
Dept. of Justice, Bureau of Prisons, FCC Coleman v. FLRA
D.C. Cir (16-1301 Nov. 17, 2017)

And then there's the long-running controversy of when an employment condition is "covered by" an existing contract and, as a result, not negotiable through implementation and impact bargaining. The FLRA looks for an intent to foreclose future bargaining and close correspondence between the language of a contract article and the precise proposals offered for impact bargaining before applying the preclusive effect of the covered by doctrine.

The D.C. Circuit, in an opinion written for the court by Senior Judge Edwards, disagreed with the Authority's approach.

The dispute involved whether a national agreement's provisions concerning "relief rosters" precluded local impact bargaining over those rosters. The court said that whether the bargaining partners intended to foreclose future bargaining over unknown future circumstances was immaterial as long as the subject matter of the national agreement provision encompassed the subject matter of the local bargaining demand:

Application of the covered-by doctrine does not rise or fall with reference to precise scenarios that the parties may or may not have envisioned when they executed their Master Agreement. Such an approach would rest on a simplistic and naïve view of collective bargaining and of the purposes of the Statute. The Statute not only fosters good-faith bargaining between parties, it also seeks to ensure repose and stability in bargaining relationships. . . . If the obligation to bargain could be imposed whenever a party insisted upon reopening bargaining because it did not understand the full reach of the parties' agreement when it was executed, this would wreak havoc in bargaining relationships. "The [complaining party] would almost invariably prevail in duty to bargain cases, because it almost always could find some ambiguity in the relevant contractual language. The result would be an endless duty to bargain on the part of the [parties], with a resultant evisceration of the [Statute's] policies of contractual stability and repose."

The Authority's decision says that "the [Agency] has failed to establish that the parties, at either the national or local level, intended to foreclose bargaining over inter-institutional assignments." This seems to suggest that the crucial question is whether a party contemplated every scenario that might arise under the terms of the Master Agreement. This makes no sense because it would effectively eviscerate the covered-by doctrine. What matters is whether a reasonable construction of the agreement indicates that the disputed subject is within the compass of the agreement. "For a subject to be deemed covered, there need not be an 'exact congruence' between the matter in dispute and a provision of the agreement, so long as the agreement expressly or implicitly indicates the parties reached a negotiated agreement on the subject."

DOJ, Bureau of Prisons, FCC Coleman v. FLRA, No. 16-1301 (D.C. Cir. 2017)

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