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NEWS AND CASE ALERT
August 19th, 2021 | Issue #13-07
TABLE OF CONTENTS
FEDERAL CIRCUIT DECIDES TWO VETERANS ADMINISTRATION TITLE 38 CASES; POSSIBLE IMPLICATIONS FOR TITLE 5 ADVERSE ACTIONS
SUGGESTED READING
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.
Read the full archive of over 100+ News and Case Alerts online at: deweypub.com/email.

By: Broida
Edition: 34th/2021
ISBN: 978-1-941825-86-0; 1-941825-86-9
Availability: IN-STOCK (released 6/2/2021)
The FLRA Guide is a complete research tool on unit determinations, negotiability and the collective bargaining process, unfair labor practices, and arbitration. The Guide includes discussion of cases, laws, and litigation practice before the FLRA and its reviewing courts. Major topics include jurisdiction, unit determinations and elections; labor organizations; procedures and substantive limitations on and specific applications of negotiability determinations; the Federal Service Impasses Panel; ULPs and remedies; review of arbitration awards; and administrative reconsideration and judicial review
FEDERAL CIRCUIT DECIDES TWO VETERANS ADMINISTRATION TITLE 38 CASES; POSSIBLE IMPLICATIONS FOR TITLE 5 ADVERSE ACTIONS
The legislative initiatives to facilitate dismissal or other adverse action against VA employees charged with misconduct or substandard performance are well known. The Federal Circuit considered structural challenges to the system, with significant impact on administration of (and ultimately, revision of) the statute to meet constitutional objections. Helman v. VA, 856 F.3d 920 (Fed. Cir. 2017). The court also decided that although the MSPB is statutorily precluded from mitigating a penalty under the VA scheme, the Board must consider whether the penalty chosen is too harsh—a roundabout approach to penalty determination. Sayers v. VA, 954 F.3d 1370 (Fed. Cir. 2020).
Days ago, the Federal Circuit decided MSPB must consider Douglas factors when determining whether VA’s penalty choice is arbitrary or an abuse of discretion. Rodriguez v. VA, ___F.3d___ (Fed. Cir. August 12, 2021).
Rodriguez considered another point and the result became positively interesting. Recall that under the VA statute, the Board affirms VA’s factual analysis in a disciplinary case if VA presents substantial evidence (a standard found in Chapter 43 performance cases). Implementing the statute, VA created internal personnel guidance instructing deciding officials that charges in a disciplinary action may be sustained if they are supported by substantial evidence. If so, what’s the Board to review? Substantial evidence of a substantial evidence determination? It must have seemed pretty tenuous to the court. Whereupon, the court decided in Rodriguez that the deciding official in an action under 38 USC 714 must determine the disputed facts—the official must decide whether to uphold charges in the proposal—based on preponderant rather than substantial evidence.
So what’s the deciding official to do?
Consider:
Q. Mr. Deciding Official, how did you evaluate the charges and the evidence in the proposal and evidence file?
A. Funny you should ask. I decided there was preponderant evidence to support the charges.
Q. And how did you go about that analysis?
A. Simple. I reviewed the charges, the reply, all the evidence supporting and detracting from the validity of the charges and then I sustained the charges based on the relevant evidence that I, as a reasonable person, considering the record as a whole, accepted as sufficient to find the facts set out in the charges were more likely to be true than untrue.
Q. Say again?
One can see where this leads. But the court could not have meant that particular phrasing, or something close to it, would be required. But if it did? What about Title 5 disciplinary cases? Must the deciding official state that she believed the charges were supported by preponderant evidence? (Has anyone ever actually said that in a hearing?)
Moving along, Connor v. VA, ___F.3d___ (Fed. Cir. August 12, 2021) (Judge Newman concurring in part and dissenting in part), determined that when they sustain actions, VA deciding officials must consider Douglas factors. If the VA fails to consider those factors or the chosen penalty is unreasonable, the Board must remand to the VA for a redetermination of the penalty.
Connor v. VA, ___F.3d___ (Fed. Cir. August 12, 2021):
This encyclopedic text features summaries of federal sector arbitration awards addressing significant issues and major arbitration principles from 1999 through 2020. Awards are arranged by topic. Principles includes a table cross-referencing arbitrators to the awards they have issued. Major topics include the nature of arbitration, the collective bargaining agreement, arbitrability, grievances, hearings, management rights, contract interpretation, common substantive arbitration topics, settlement, remedies, counsel fee and damages.

By: Broida & Davis
Edition: 12th/2021
This encyclopedic guide condenses MSPB and Federal Circuit decisions from 1999 through early 2021 into concise, usable summaries. Cases are arranged by subject matter areas of Board jurisprudence and further categorized alphabetically. Major topics include adverse and performance actions, arbitration/collective bargaining issues, attorney fees, Board procedure, jurisdiction and judicial review, defenses, discrimination, evidence, harmful error, hearings, mitigation, PPPs, retirement, reemployment, remedies, RIFs, settlements, substantive offenses, timeliness, USERRA and VEOA.
A Dewey bestseller, Compensatory Damages is the seminal text on how to support and defend against claims for compensatory damages and other remedial claims in federal sector employment discrimination cases. Includes case summaries through mid-2020 and a chart of significant awards. Major topics include equitable and compensatory damages, proving damages, mitigation and offset, back pay, collateral source rule, tax consequences, settlement, managing discovery, calculating damages, and attorney.
Using Board and Federal Circuit cases as examples, Charges & Penalties offers the most comprehensive analysis and authoritative advice on adverse actions, charge drafting, and penalty selection. Major topics include the basics of adverse actions and charges; causation; charge classification; specific, generic, and narrative charges; power charging; lesser-included offenses; charge interpretation; notice and due process; the conjunctive charge; indefinite suspensions and security-related charges; merging, selecting and drafting the charge; advice for proposing and deciding officials; the penalty; and charges and proof requirements.
Newly updated, this guide provides practice notes and examples of provisions that are grouped by settlement topics. Major settlement provision topics include access to and return of agency property and access to facilities, actions upon and consequences of breach, cancellation or rescission of action, conditions of ongoing employment, construction of agreement, disclosure and maintenance of information, enforcement, financial considerations for the appellant, future employment, introductory clauses, leave status, performance, promotion, substituted employment actions, termination of appeal, waiver of rights, and miscellaneous settlement terms.
A comprehensive examination of the arbitration process and advocacy. With discussion of strategies and practice tips, this how-to guide assists union and management advocates. Major topics include advocate selection, case investigation and evaluation, arbitrator selection, case preparation, prehearing practice, witness selection and preparation, hearing specifics: opening statements, creating a record, witness testimony, direction examination, cross-examination, exhibits, and closing arguments, and post-award practice.
SUGGESTED READING
Categories of Federal Civil Service Employment: A Snapshot (Congressional Research Service, March 26, 2019)
This comprehensive text digests notable Commission and federal court employment discrimination cases from 2003 through early 2021 and reviews EEO laws, regulations, guidance, and recent trends. Major topics include recent trends in the law; bases of discrimination; attorney fees; class actions; compensatory damages; appellate review; evidence; harassment; hearings; mixed cases; procedures; remedies; reprisal; settlement; and sexual harassment.
An authoritative examination of the FMLA, this book includes citations and analysis of governing statutes, regulations and case law. Major topics include a review of FMLA legislation, applicability of the FMLA in the federal government, coverage of employees and family members, eligibility, covered conditions, notice requirements, documentation, leave amount and scheduling, paid leave, maintenance of benefits, return to work, record-keeping, prohibited acts, enforcement and remedies, COVID-19, Families First Coronavirus Response Act, and Emergency Paid Sick Leave Act, and the interaction of FMLA with other laws.
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The EEO Guide offers the most comprehensive analysis of federal sector EEO decisions, litigation practice, statutes, regulations, policies, guidance, and practical advice available to practitioners.

The FLRA Guide is a complete research tool on unit determinations, negotiability and the collective bargaining process, unfair labor practices, and arbitration.

The MSPB Guide is a complete research tool for Board cases, laws, procedure, and litigation practice and is the seminal text on this complex area of the law.

This comprehensive text digests notable Commission and federal court employment discrimination cases from 2003 through early 2021 and reviews EEO laws, regulations, guidance, and recent trends.

Condenses MSPB and Federal Circuit decisions from 1999 through early 2021 into concise, usable summaries. Cases are arranged by subject matter areas of Board jurisprudence and further categorized alphabetically.

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