NOTICE: Due to covid-19 we are
shipping orders Tuesdays & Thursdays
All eBook orders are available immediately after checkout.
2009: #01-1 | #01-2 | #01-3 | #01-4 | #01-5 | #01-6 | #01-7 | #01-8 | #01-9 | #01-10 |
2010: #02-1 | #02-2 | #02-3 | #02-4 | #02-5 | #02-6 | #02-7 | #02-8 | #02-9 | #02-10 | #02-11 | #02-12
2011: #03-1 | #03-2 | #03-3 | #03-4 | #03-5 | #03-6 | #03-7 | #03-8 | #03-9 | #03-10
2012: #04-1 | #04-2 | #04-3 | #04-4 | #04-5 | #04-6 | #04-7 | #04-8 | #04-9 | #04-10 | #04-11 | #04-12
2013: #05-1 | #05-2 | #05-3 | #05-4 | #05-5 | #05-6 | #05-7 | #05-8 | #05-9 | #05-10 | #05-11 | #05-12 | #05-13
2014: #06-1 | #06-2 | #06-3 | #06-4 | #06-5 | #06-6 | #06-7 | #06-8 | #06-9 | #06-10 | #06-11 | #06-12 | #06-13
2015: #07-1 | #07-2 | #07-3 | #07-4 | #07-5 | #07-6 | #07-7 | #07-8 | #07-9 |
2016: #08-1 | #08-2 | #08-3 | #08-4 | #08-5 | #08-6 | #08-7 | #08-8 |
2017: #09-1 | #09-2 | #09-3 | #09-4 | #09-5 | #09-6 | #09-7 | #09-8 | #09-9 |
2018: #10-1 | #10-2 | #10-3 | #10-4 | #10-5 | #10-6 | #10-7 |
2019: #11-1 | #11-2 | #11-3 | #11-4 | #11-5 | #11-6 | #11-7 | #11-8 | #11-9 | #11-10 |
2020: #12-1 | #12-2 | #12-3 | #12-4 | #12-5 | #12-6 | #12-7 | #12-8 | #12-9 |
2021: #13-1 | #13-2 | #13-3 | #13-4 | #13-5 | #13-6 | #13-7 | #13-8 | #13-9 | #13-10 | #13-11 |
2022: #14-1 | #14-2 | #14-3 | #14-4 | #14-5 | #14-6 | #14-7 | #14-8 | #14-9 | #14-10 | #14-11 |
2023: #15-1 | #15-2 | #15-3 | #15-4 | #15-5 | #15-6 | #15-7 | #15-8 |
2024: #16-1 | #16-2 | #16-3 | #16-4 | #16-5 |
The "News and Case Alert email" is FREE, signup!
Sign up now to start receiving issues on time. Expect 10-14 issues a year.
We will never spam or give out your address.

My e-mail address is:  

January 20th, 2022 | Issue #14-01
OF JANUARY 4, 2022
87 FED. REG. 200

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:

By: Fitch & Kuntz
Edition: 5th/2021
ISBN: 978-1-941825-96-9; 1-941825-96-6
Availability: IN-STOCK
This guide closely examines security clearance law and procedures, offering representatives a comprehensive analysis of case law, directives, adjudicative guidelines, regulations and statutes. There have been many changes in the security clearance arena including realignment of the NBIB into the DCSA; DOD’s memo streamlining security clearance practices; DOHA decisions addressing CBD; the Trusted Workforce 2.0 Initiative; SEAD-6 addressing continuous evaluation procedures; SEAD-2 governing polygraph use; and SEAD-8 addressing temporary or interim eligibility for a clearance; and the addition of MSPB, EEOC, and Department of Energy decisions pertaining to security clearances. Major topics include the history of security clearances, administrative procedures, hearing and personal appearances procedure, criminal procedure, the polygraph, appeals, cases analyses, and noteworthy court cases. (more details at

This new guide is a succinct analysis of decisions from AJs and MSPB or the Federal Circuit awarding damages in whistleblower cases. The guide includes an explanation of the Board’s authority to award damages in whistleblower cases. Each case analysis includes a description of controlling facts including the type of harm such as, pecuniary, emotional, distress, medical expenses, or losses in investments, and the amount awarded.

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.
OF JANUARY 4, 2022
87 FED. REG. 200


RIN 3206-A023
OPM seeks to overrule a statute by regulation.

The PIP proves an effective tool for removing or demoting substandard performers if the agency takes the time and effort to meet the statutory prerequisites of an approved appraisal system, provide appropriate performance standards, and offer adequate supervisory assistance during the PIP. The PIP is effective because, properly employed, the agency prevails by the lowest quantum of proof—substantial evidence—and the MSPB is stripped of mitigation authority. A properly-structured performance case is tough to beat.

Before the PIP (or opportunity period) may be imposed and the employee be subjected to what amounts to a brief probationary period, there’s another statutory requirement: that the PIP be imposed only after continuing poor performance by the employee. This requirement provides some safeguard against PIPs hastily imposed or imposed by new supervisors. Yes, without that requirement, bad faith may be a defense to a Chapter 43 action. But bad faith is difficult to prove, given the discretion accorded agencies by MSPB in the design and subjective interpretation and application of performance standards.

The statutory requirement of proof of substandard performance leading to the PIP is expressed in 5 USC 4302:
(c) Under regulations which the Office of Personnel Management shall prescribe, each performance appraisal system shall provide for—
(1) establishing performance standards which will, to the maximum extent feasible, permit the accurate evaluation of job performance on the basis of objective criteria (which may include the extent of courtesy demonstrated to the public) related to the job in question for each employee or position under the system;
. . .
(6) reassigning, reducing in grade, or removing employees who continue to have unacceptable performance but only after an opportunity to demonstrate acceptable performance.
The quoted language is unchanged (but renumbered in the US Code) from its inception in Pub.L. 95-454, 92 Stat. 1132-33, the 1978 Reform Act.

Had the statutory framers sought to avoid examination of pre-PIP performance, omission of two words would have sufficed. Inclusion of the language demonstrates the opposite intent.
The earliest MSPB decision that considered whether examination of pre-PIP performance is required is Wilson v. Dept. of Navy, 24 MSPR 583 (1984).

Wilson was incorrectly decided because Wilson misquoted or misread the statute.

The error is readily identified. In Wilson, MSPB stated:
5 U.S.C. § 4302(b)(6) provides that employees may be removed or demoted due to unacceptable performance, but only after an opportunity to demonstrate acceptable performance.
. . .
The presiding official agreed that appellant did make "errors" during this period. I.D. at 6. However, the presiding official apparently determined that the agency had to establish, by substantial evidence, that appellant was performing unsatisfactorily prior to the issuance of the letter of requirement in order to sustain the demotion.
We can find no statutory or regulatory basis to support the presiding official's conclusion concerning such a showing. In the instant case, the agency issued appellant a letter notifying him of the need to improve his performance, and afforded appellant ample opportunity and assistance to make such improvement.
The reason the Board found no statutory basis to support the presiding official’s decision was because the Board improperly synopsized the statute by leaving out those two words—“continue to”—have unacceptable performance but only after an opportunity to demonstrate acceptable performance.

The error multiplied upon its kind:
Stewart v. Dept. of Air Force, 35 MSPR 622, 625 (1987) (relying on Wilson);
Brown v. VA, 44 MSPR 635, 640 (1990) (relying on Wilson);
Clifford v. USDA, 50 MSPR 232, 234 n.1 (1991) (relying on Wilson and Brown);
Wright v. Dept. of Labor, 82 MSPR 186, 191–92 ¶ 12 (1999) (relying on Brown and Clifford);
Thompson v. Dept. of Navy, 89 MSPR 188, 196 ¶ 19 (2001) (relying on Wilson).
Long and short: Wilson erred; the error repeated.

Until Santos.

Fernando Santas was fired by NASA from his job as a mechanical engineer after a PIP. Unsuccessfully, Santos sought protection through an appeal to the MSPB’s Atlanta office. Based on Wright, supra, the AJ rejected the contention that the agency was required to demonstrate unacceptable performance before imposing a PIP. Santos v. NASA (MSPB ID AT-0432-19-0074-I-1 [May 21, 2019]).

Undeterred, Mr. Santos sought respite at the Federal Circuit.

And the higher authority accepted his argument that the Chapter 43 action failed for lack of demonstration of unacceptable pre-PIP performance, Santos v. NASA, 990 F.3d 1355, 1361- (Fed. Cir. 2021):
. . . Section 4302(c) contains six subsections that detail what must comprise an agency's performance appraisal system. Subsections (c)(5) and (c)(6) advise how an agency's performance appraisal system should handle "unacceptable performance." An agency's performance appraisal system should provide for "assisting employees in improving unacceptable performance," 5 U.S.C. § 4302(c)(5), as well as "reassigning, reducing in grade, or removing employees who continue to have unacceptable performance but only after an opportunity to demonstrate acceptable performance," 5 U.S.C. § 4302(c)(6) (emphasis added). Agencies usually provide employees "an opportunity to demonstrate acceptable performance" by placing them on a PIP. See Harris , 972 F.3d at 1311.
Thus, Section 4302(c)(6) makes clear that an agency is only allowed to "reassign[ ], reduc[e] in grade, or remov[e] employees who continue to have unacceptable performance" during a PIP. 5 U.S.C. § 4302(c)(6) (emphasis added). To "continue to have unacceptable performance" during the PIP, as the statutory text requires, an employee must have displayed unacceptable performance prior to the PIP. Under the plain meaning of the statute, then, an agency must defend a challenged removal by establishing that the employee had unacceptable performance before the PIP and "continue[d] to" do so during the PIP.
The Court noted supportive OPM regulatory commentary from 2020, explaining that:
OPM's statement accords with our understanding that Section 4302(c)(6) requires agencies to justify a challenged post-PIP-based removal by establishing the propriety of the PIP in the first instance.
What controls is the Circuit’s recognition of the plain language of the statute. That OPM’s construction accords is not controlling, and a current expression of discord by OPM does not vary the statute’s requirements. That it took years for the Board’s original error in statutory construction to be corrected does not make it any less an error.

There’s no ambiguity. MSPB error does not statutory ambiguity create. The language of a statutory provision must be regarded as conclusive unless there is a clearly expressed legislative intent to the contrary. CPSC v. GTE Sylvania, 447 U.S. 102 (1980). “If the statutory language is plain and unambiguous, then it controls” the inquiry. Info. Tech. & Applications Corp. v. United States, 316 F.3d 1312, 1320 (Fed. Cir. 2003) (citing Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984)).

Unless and until OPM, by reconsideration petition or otherwise, secures a contrary precedential decision from the Federal Circuit (or, whenever it is reconstituted, MSPB), OPM is bound by the Circuit’s interpretation of the Reform Act. Or, OPM may seek legislative revision.

OPM, to conform with the law, and to avoid a likely successful challenge to a contrary regulation, must incorporate the requirement of a demonstration of pre-PIP unsuccessful performance into its revisions of 5 CFR 432.104-105.
We add that the requirement is not onerous. A PIP will likely be imposed only after an employee receives an unsatisfactory rating or a negative ALOC determination, after well-documented comments about substandard performance in email exchanges with a supervisor, or through a supervisor’s markup of work product. And so it should be. The rigor and stress of a PIP should not be first imposed on an employee whose performance is sustained over a substantial period of time at an acceptable level.

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.

Newly updated this valuable text provides comprehensive coverage of harassment law based on sex, race and color, religion, disability, national origin, age and reprisal. The history of harassment law is rooted in sexual harassment law and cases. Each chapter begins with that history and then explains what the law is today and how/if it differs for the various bases. (more details)

Updated with cases through mid-2021, the Disability Deskbook is an extensive compilation of cases interpreting the Rehabilitation Act, ADA, ADAAA, and other statutes and implementing regulations and covers all disability related topics. Major topics include who is covered under the ADA, specific impairments, major life activities, "regarded as having a disability," "qualified individual with a disability," reasonable accommodation, undue hardship, direct threat defense, and disability related inquiries. (more details)

Written for federal supervisors and managers, a Guide to Ethics, Rules, and Responsibilities details and explains the primary rules governing ethics. Major topics include sources of ethics rules; gifts; financial conflicts; impartiality; seeking employment; misuse of position, property, time, vehicles, information; outside activities; reporting wrongdoing; social media postings; post-employment; supervisory liability; and enforcement. (more details)
Suggested Reading
Six Steps for Excessive Absences

Allison Marvasti and Kathryn Poling

2020 Army Law. 85

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.
The Dewey Publications Podcast
Free to subscribe via iTunes or RSS
Hosted By Peter Broida

View a detailed list of all past episodes at
View All of the American Civil Service Law Series online at:

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.


Thank You
Readers, Dewey thanks you for your support during the pandemic. Your continuing commitment to our products pays the rent, pays the staff, and keeps this small enterprise afloat. Our authors remain committed to producing quality texts year after year. We welcome your suggestions for improvements, or comments you may wish to pass along to

Legal reference books and audiovisual training on
federal civil service, equal employment, and labor law,
for attorneys, unions, arbitrators, managers,
and agency personnel offices.

A small business for over 35 years.