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Dewey Publications Inc.
News and Case Alert
Issue #11-5
TABLE OF CONTENTS


FEDERAL CIRCUIT

AGENCY OFFICIALS' PROMISES TO TAKE ACTION IN MATTER OF CONGRESSIONAL INTEREST DID NOT DENY DUE PROCESS IN REMOVAL DECISION




FEDERAL CIRCUIT SIDESTEPS CONSTITUTIONALITY OF NO-MITIGATION RULE IN VA ADVERSE ACTIONS



FLRA

IF AN AGENCY HAS DISCRETIONARY PAY SETTING AUTHORITY, A GRIEVANCE MAY NOT CHALLENGE APPLICATION OF THAT AUTHORITY



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FEDERAL CIRCUIT

AGENCY OFFICIALS' PROMISES TO TAKE ACTION IN MATTER OF CONGRESSIONAL INTEREST DID NOT DENY DUE PROCESS IN REMOVAL DECISION

Patient scheduling problems at some facilities of the VA led to intense congressional scrutiny, hearings, testimony of VA officials, with promises of remedial action, but that did not constitute political pressure sufficient to set aside a removal decision by a VA official who was determined to have given fair consideration to a reply. The court also determined that the Board and VA properly determined that the appellant had a duty as a manager to more intensely monitor efforts by subordinates to control scheduling difficulties:

Mr. Robinson was a member of upper-level management responsible for ensuring that HAS personnel complied with the policies set forth in the Scheduling Directive. Instead, he took a hands-off approach to managing the scheduling problems at Phoenix VA despite knowing the severity of scheduling problems permeating the system. Accordingly, the Board did not err in sustaining the negligence charges against Mr. Robinson.

The court accepted the Board's analysis in Miller v. Dep't of Health & Human Servs., 8 MSPR 249 (1981), assessing a charge of supervisory negligence through a factor analysis of (1) the knowledge the supervisor had, or should have had, of the subordinate's misconduct; (2) the existence of policies or practices relevant to the misconduct; and (3) the extent to which the supervisor directed or acquiesced to the subordinate's misconduct.

Robinson v. VA, Fed. Cir. 2017-2143 (May 6, 2019)



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FEDERAL CIRCUIT SIDESTEPS CONSTITUTIONALITY OF NO-MITIGATION RULE IN VA ADVERSE ACTIONS

The first decision of consequence from the Federal Circuit reviewing adverse action under the VA Accountability and Whistleblower Protection Act of 2017, precluding the MSPB from mitigating penalties, found no infirmity in the Board's decision, noting that both VA and the Board implicitly considered factors pertinent to a penalty determination (a harmless error approach), while the court implied that unbending application of a no-mitigation policy might prove of constitutional concern, but postponing treatment of that concern to another day and appeal.

Mogil v. VA, Fed. Cir. 2018-1673 (May 1, 2019 nonprecedential)


FLRA

IF AN AGENCY HAS DISCRETIONARY PAY SETTING AUTHORITY, A GRIEVANCE MAY NOT CHALLENGE APPLICATION OF THAT AUTHORITY

If an agency has sole discretion to set pay under a statute, the Authority's past decisions have allowed grievance/arbitration to challenge application of the pay system set by the agency. That precedent, NTEU Chapter 302, 65 FLRA 746 (2011) (Member Beck dissenting), was overruled by Dept. of Energy, WAPA and AFGE Local 3824 (April 26, 2019) (Member DuBester dissenting), reaching the conclusion that if the agency has sole discretion to set pay, application of that discretion (a grievance concerning the prevailing rate for holiday premium pay) is not arbitrable. Dissenter DuBester argued that because a matter is nonnegotiable does not mean that a grievance over that matter cannot be adjudicated. He offered as an example a grievance concerning conditions of employment established by laws and government-wide regulation. The arbitrator was being asked to order the agency to establish compensation rates within the confines of the law.

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