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Dewey Publications Inc.
News and Case Alert
Issue #1-9
In this issue...
Featured Book!
National Defense Authorization Act...
Non-Critical Sensitive Positions:...
FLRA Revises Regulations...
MSPB Gets New Chair and Vice Chairman

In addition to the amendments to the FMLA brought about by the National Defense Authorization Act, the FMLA was extensively modified in 2008. This area of the law is ever-changing and complicated. Dewey readers navigate through the provisions and case law of the FMLA with the assistance of A Federal Sector Guide to the FMLA & Related Litigation by Carl Bosland. The 2009 supplement to the second edition of this book covers the 2008 amendments and more. Topics covered include qualifying exigency leave, military caregiver leave, who is a covered military member, what constitutes a "serious illness or injury" and the amount of leave available under the Act.

All representatives and those involved in FMLA administration or enforcement should have this book and the supplement on their shelves.

About the author: Carl Bosland is one of America's foremost authorities on the federal Family Medical Leave Act. He is an attorney and arbitrator with over 17 years of labor and employment law experience. Mr. Bosland provides training, counseling and representation services to individuals, unions, and agencies on the FMLA as well as other federal sector employment issues.
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Dear William,

Welcome to the ninth edition of Dewey's News and Case Alert. As always, Dewey aims to cover the topics you want to read about, and our objective is to tailor the information contained herein to our customers needs. E-mail your topic or case suggestions and comments.

-Dewey Publications Inc.

National Defense Authorization Act
Expands Military Family Leave
Entitlements Under the FMLA

On October 28, 2009, President Obama signed the National Defense Authorization Act of 2010, which includes provisions amending the Family Medical Leave Act and expanding military family leave entitlements. Of particular significance the legislation:

1) Extends military caregiver leave to veterans. The new law extends military caregiver leave to eligible family members of veterans who were members of any branch of the military at any point within 5 years of having received the medical treatment that serves as the trigger for the need for caregiver leave. The old provision only permits persons to take leave to care for current members of the Armed Forces, Guard or Reserves.

2) Expands the definition of a "serious injury or illness." For purposes of determining eligibility for military caregiver leave, the term now includes the aggravation of existing or pre-existing injuries of an active duty service member of the Armed Forces where the existing or pre-existing injury was suffered while in active duty. Currently, the aggravation of existing injuries is not covered by the FMLA.

3) Extends "qualifying exigency" leave. "Qualifying exigency leave" is extended to cover members of the Armed Forces who are deployed to a foreign country.

Readers are encouraged to read the full text of the amendments and to review agency policies to ensure adherence with this new legislation.

For more information on this topic, see our featured book, A Federal Sector Guide to the FMLA Act & Related Litigation, 2009 Supplement to the Second Edition by Carl Bosland.
Non-Critical Sensitive Positions:
A New Way To Circumvent Meaningful Review of Agency Actions?
Crumpler v. Dept. of Defense, 2009 MSPB 224 (2009)

And all this time we thought that Dept. of Navy v. Egan, 484 U.S. 518 (1988), only extended to actions effecting employees who occupy positions requiring a security clearance. Not so, says the Board. According to the Board in Crumpler v. Dept. of Defense, 2009 MSPB 224 (2009), if a job is deemed sensitive by the agency (whether by position description or classification cover sheet), any agency determination regarding the employee's eligibility to hold such a position is essentially unreviewable by the Board. This is true even if the position does not require a security clearance.

Crumpler, whose position as a Store Associate, GS-4, was designated non-critical sensitive, but did not require a security clearance, was removed when the agency's Washington Headquarters Services denied her eligibility for access to classified information and/or occupancy of a sensitive position. On appeal, the AJ analogized Crumpler's ineligibility to occupy a sensitive position to a removal upon denial or revocation of a security clearance. Applying Egan to the analysis, the AJ limited review of the issues accordingly and sustained Crumpler's removal.

On petition for review, Crumpler argued that the agency's actions were an attempt to avoid Board review of adverse actions that employees could previously appeal and to create unreviewable suitability determinations. The Board framed the issue as "whether the Egan rule limiting the scope of Board review of a removal based on the revocation of a security clearance also applies to a removal from a 'non-critical sensitive' position based on the employee having been denied eligibility 'to access classified information and/or occupy a sensitive position.'"

Finding no meaningful distinction, at least in this case, between determinations affecting an employee's eligibility to occupy a sensitive position and the revocation or denial of a security clearance, the Board noted:

The Board's judgment as to whether the position involves access to classified information or otherwise implicates national security is irrelevant. ... It is also irrelevant that the appellant's position did not require a security clearance. As the foregoing discussion shows, Egan is not limited to security clearances, per se. Its reasoning applies to any access eligibility standard that an agency, in its discretion, chooses to impose on candidates for a position that the agency has designated as sensitive because, in its judgment, the occupant of the position could materially, adversely affect national security. Moreover, the term "security clearance" should not be viewed as a term of art, but merely as a semantic device to describe - in the Supreme Court's words - any "background investigation" an employee must undergo and pass before being placed in a position deemed a national security risk.

In a small note of hope to federal employees, the Board did comment that "a reasonable argument could be made that there should be some limitation upon or review of an agency's discretion to designate positions under 5 C.F.R. § 732.201(a)."

For more information on security clearance determinations, see Elizabeth Newman's Security Clearance Law and Procedure. Peter Broida's A Guide to MSPB Law and Practice also discusses the issues presented in this case.
FLRA Revises Regulations

The Authority has revised certain of its regulations in an effort to simplify and streamline its FOIA process and those for the filing and serving of documents in proceedings before the FLRA.

Perhaps the most significant revisions were made to 5 C.F.R. part 2429 dealing with the filing and service of documents. Changes to that regulation include: 1) filing and service of documents by commercial delivery will be treated in the same way as filing or service by U.S. Mail with the intended result being to cut down on confusion regarding deadlines and, ultimately, untimely filings; 2) a reduction in the number of copies, from 5 to 4, that must be filed in a proceeding before the FLRA; and 3) a table of contents must now accompany all filings exceeding ten double-spaced pages.

The FOIA revisions seek to clarify and simplify the requesting process for the public. Other changes include technical revisions to the following regulations: 5 C.F.R.: 2415 (employee responsibilities and conduct); 2416 (enforcement of nondiscrimination based on disability in providing access to FLRA programs); and 2424 (negotiability proceedings).

To review the full text of the revisions, visit the Authority's website at www.flra.gov/regulations.

For more on FLRA procedures, see A Guide to FLRA Law and Practice by Peter Broida.
MSPB Gets New Chair and Vice Chairman

On October 29, 2009, members, staff and guests of the MSPB bid farewell to Chairman Neil A.G. McPhie. On November 5, 2009, the Senate confirmed President Obama's nominees Susan Grundmann and Anne Wagner for MSPB Chair and Vice Chairman, respectively. Both are former union lawyers. Ms. Grundmann's term is set to expire March 1, 2016. Ms. Wagner's term expires on March 1, 2014.
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