Dewey's FREE MONTHLY "News and Case Alert" keeps you up-to-date with the latest federal sector employment and labor laws, cases and news.

FEDERAL CIRCUIT NIXES MANDAMUS TO REQUIRE PROCESSING OF APPEALS BLOCKED BY AGENCY CONCERNS ABOUT MSPB JUDGES' STATUS

Readers recall from the News and Case Alert last month that the Federal Circuit's decision in Arthrex, Inc. v. Smith & Nephew, Inc. (2018-2140 Oct. 31, 2019), addressed the validity of the appointment or removal scheme for administrative patent judges. Some agencies are challenging the authority of MSPB AJs, questioning whether their appointments are constitutionally valid. Some AJs are placing appeals into DWOP status until MSPB can decide the issue. To the extent there's been no quorum at MSPB for three years and counting, there is no MSPB to decide the appointments question. The result is for those cases that are DWOP'd there's no discovery (unless the parties agree otherwise), no motions, no hearings-the appeals are moribund. Seeking to get his IRA appeal moving (filed with MSPB in May 2019), one appellant sought mandamus from the Federal Circuit. The court declined to enter mandamus on February 28, 2020, in the writ styled "In re: Ajit Jadhav, No. 2020-109. The court noted that the petitioner did not seek a ruling on the authority of AJs to issue decisions, but wanted an order directing discovery and a hearing. The court said that it would not issue mandamus based on delay, but it "will not rule out the possibility that the delay here could become egregious in the future, which could merit a reconsideration of the issue."

FLRA VACATES AWARD OF COUNSEL FEES BASED ON GROSS PROCEDURAL ERROR

Continuing with its redefinition of counsel fee award standards, FLRA vacated the award of counsel fees by an arbitrator who determined that the agency committed gross procedural error by exceeding the time limits set by the labor agreement for investigating misconduct and issuing a suspension. Missing from the award, said FLRA, was consideration of the "central concepts of prejudice and burden to the grievant." FLRA relied on MSPB decisions tying gross procedural error to severe prejudice to the appellant. Member DuBester, dissenting, noted that the arbitrator considered the delay prejudicial because it caused the grievant needlessly to endure almost two years of uncertainty. DHS C&BP and AFGE Local 1929, Border Patrol Council, 71 FLRA 597 (Feb. 26, 2020).

REASONABLE TIME FOR CONTINUATION OF SETTLEMENT TERMS

If a settlement states that an employee will be reassigned, or given a telework assignment, does that condition of employment last indefinitely if there's no time limit expressed in the agreement? The Federal Circuit, considering all the circumstances of a settlement of a reprisal case, determined that a compressed work schedule, to include pay for travel time to a different location, could be changed after sixteen years following the settlement when the agency demonstrated working conditions and the employer's needs had changed sufficiently to warrant departure from the settlement terms. Said the court, "where a contract is silent on the time limit of its term, it is established that the term is ordinarily effective for a reasonable time" under the circumstances. The court determined that the employee had not met his burden of proof to show that the claimed animosity persisted at his prior location 16 years after the settlement. Sanchez v. VA, Fed. Cir. 2018-2171 (Feb. 10, 2020).