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Dewey Publications Inc.
News and Case Alert
Issue #11-4
TABLE OF CONTENTS


FEDERAL CIRCUIT HEDGES ON LAFFEY RATE; AFFIRMS MODEST COMPENSATORY DAMAGES AWARD FROM MSPB



SECURITY CLEARANCE SUSPENSIONS INDEFINITE SUSPENSIONS AND DUE PROCESS



FROM ONE FLRA MEMBER
BAD LANGUAGE SHOULD ENJOY LITTLE PROTECTION IN THE WORKPLACE


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FEDERAL CIRCUIT HEDGES ON LAFFEY RATE; AFFIRMS MODEST COMPENSATORY DAMAGES AWARD FROM MSPB

In Hickey v. DHS (Fed. Cir. 2018-1650 nonprecedential), the court considered a counsel fee petition appealed from the MSPB, decided that the administrative judge had imposed an unwarranted constraint on the permissible hourly rate, and discussed the Laffey Matrix rates, often cited, always sought, and sometimes granted, but the court did not state that the MSPB could, or could not, use the Matrix as a determinant for fees. In the same decision, the court declined to set aside (and remand to increase) a compensatory damages award by the Board of $10,000 to the appellant in a successful whistleblower reprisal case. The evidence before the Board, the court concluded, did not establish that the emotional harm alleged was actually caused by harm resulting from the retaliatory activities.

The lesson is that appellants are going to be required by the Board (and arbitrators who follow Board decisions) to demonstrate a fair degree of certainty in establishing a causal relationship between what occurred on the job and resulting emotional distress or medical problems. Doctors reports would seem highly probative. Agencies have the option of requesting a medical examination under Hasler v. Dept. of Air Force, 79 MSPR 415 (1998).

For those who are curious, the Laffey Matrix is found at justice.gov/usao-dc/file/796471/download.

And for those who are really curious, oral argument in the Federal Circuit can be heard from audio recordings. The court hears a variety of cases. The MSPB cases or cases involving appeals of arbitrators' awards are usually easily identified by a title of a person's name versus a federal agency or the MSPB, e.g., Peter v. Department of Labor. Sign up for email alerts to oral arguments at cafc.uscourts.gov/email-subscriptions.



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SECURITY CLEARANCE SUSPENSIONS INDEFINITE SUSPENSIONS AND DUE PROCESS

Declining to follow or endorse a somewhat opaque MSPB decision in McGriff v. Dept. of Navy (MSPB 2012), suggesting that due process requires that a deciding official have available alternatives to indefinite suspension when an employee's clearance is suspended pending investigation ("the reply opportunity may not be an empty formality, and the reply or deciding official should have authority to take or recommend agency action based upon the reply"), Hornseth v. Dept. of Navy (Fed. Cir. 2018-2019), ruled that if there's no place for an appellant to be sent, because his work can only be done at a facility at which everyone has to have a clearance, the deciding official need not be vested with discretion to determine some other means of preserving the appellant's livelihood rather than affirming an indefinite suspension.


FROM ONE FLRA MEMBER

BAD LANGUAGE SHOULD ENJOY LITTLE PROTECTION IN THE WORKPLACE

A dissent by FLRA Member James Abbott to an expedited (abbreviated) decision denying agency exceptions to an arbitrator's award in VA Medical Center Orlando and AFGE Local 2779, 71 FLRA 13 (Feb. 8, 2019), argued against the ongoing validity of a "flagrant misconduct" rule providing broad protection to union officials who allegedly engage in discourteous, provocative, or clearly uncivil behavior towards managers in the workplace. Mr. Abbott posited: "Can we all agree with this simple proposition? There is no place for boorish, insulting, and demeaning language in the modern workplace." Not everyone agrees with the premise or result. The agency's exceptions were denied.


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