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NEWS AND CASE ALERT
March 14th, 2022 | Issue #14-03
TABLE OF CONTENTS
TWO MSPB MEMBERS ARE CONFIRMED
FROM THE FEDERAL CIRCUIT
NONAPPEALABILITY OF NONSELECTIONS
WHO IS A WHISTLEBLOWER?
SUGGESTED LISTENING
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
NEW RELEASE: HOT OFF THE PRESS

By: Fitch & Kuntz
Edition: 5th/2021
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 www.deweypub.com/sclp)
TWO MSPB MEMBERS ARE CONFIRMED
On March 1, the Senate confirmed to Board membership Tristan Leavitt, to serve through March 1, 2023, and Raymond Limon, to serve through March 1, 2025. Still pending confirmation is the nominee for Board chair, Cathy Harris. A quorum is now in place. They will likely soon confirm appointments of MSPB administrative judges, to avoid constitutional challenges under the Appointments Clause as to their authority to issue decisions. They will figure out how to deal with a backlog of 3,500 PFRs, with more coming in every month. They will start to entertain OSC stay applications. We wish the new Board members well.

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. (more details)

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. This authoritative text is a component of the American Civil Service Law Series.
FROM THE FEDERAL CIRCUIT
For the past five years and several months, we’ve been reporting decisions of interest of the Federal Circuit as the sole expositor of civil service law, save for a few whistleblower cases decided by a few other circuit courts of appeal. A couple cases this month affirm prior law, but they do so in a manner worthy of note.

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)
NONAPPEALABILITY OF NONSELECTIONS
Setting aside whistleblower, VEOA, or USERRA challenges, a disappointed competitor for a federal job does not have a direct MSPB appeal unless there is a challenge to an employment practice administered by OPM. There aren’t many employment practice cases, and the jurisdictional requirements are a little fuzzy.

What’s an employment practice?

OPM defines an employment practice at 5 CFR 300.101: the development and use of examinations, qualification standards, tests, and other measurement instruments.

Under 5 CFR 300.103:
Basic requirements.

(a) Job analysis. Each employment practice of the Federal Government generally, and of individual agencies, shall be based on a job analysis to identify:

(1) The basic duties and responsibilities;

(2) The knowledges, skills, and abilities required to perform the duties and responsibilities; and

(3) The factors that are important in evaluating candidates. The job analysis may cover a single position or group of positions, or an occupation or group of occupations, having common characteristics.

(b) Relevance.

(1) There shall be a rational relationship between performance in the position to be filled (or in the target position in the case of an entry position) and the employment practice used. The demonstration of rational relationship shall include a showing that the employment practice was professionally developed.

A minimum educational requirement may not be established except as authorized under section 3308 of title 5, United States Code.

(2) In the case of an entry position the required relevance may be based upon the target position when—

(i) The entry position is a training position or the first of a progressive series of established training and development positions leading to a target position at a higher level; and

(ii) New employees, within a reasonable period of time and in the great majority of cases, can expect to progress to a target position at a higher level.
Whose employment practices are subject to review?

5 CFR 300.104 says: A candidate who believes that an employment practice which was applied to him or her by the Office of Personnel Management violates a basic requirement in § 300.103 is entitled to appeal to the Merit Systems Protection Board under the provisions of its regulations.
What about people who think employment practices were improperly taken by agencies (other than OPM)?

Under Section 300.104, they may either complain through the EEO process or file a grievance under an administrative or labor contract grievance procedure:
(c) Complaints and grievances to an agency.

(1) A candidate may file a complaint with an agency when he or she believes that an employment practice that was applied to him or her and that is administered by the agency discriminates against him or her on the basis of race, color, religion, sex (including pregnancy and gender identity), national origin, age (as defined by the Age Discrimination in Employment Act of 1967, as amended), disability, genetic information (including family medical history), or retaliation for exercising rights with respect to the categories enumerated above, where retaliation rights are available. The complaint must be filed and processed in accordance with the agency EEO procedures, as appropriate.

(2) Except as provided in paragraph (c)(1) of this section, an employee may file a grievance with an agency when he or she believes that an employment practice which was applied to him or her and which is administered or required by the agency violates a basic requirement in § 300.103. The grievance shall be filed and processed under an agency grievance system, if applicable, or a negotiated grievance system as applicable.
And where does this lead to in our case discussion?

In Alford v. MSPB (Fed. Cir. 2021-2151 NP (March 11, 2022)) https://cafc.uscourts.gov/opinions-orders/21-2151.OPINION.3-11-2022_1920288.pdf, the appellant filed a Board appeal from nonselection for a GS-11 position with the agency. The Board appeal included an assertion that the appellant was raising an employment practices claim. The Board dismissed, the Court affirmed, noting the significance of OPM involvement in the challenged nonselection:
Ms. Alford argues that her non-selection for employment by OPM was the result of improper “employment practices.” We have held that “an unsuccessful candidate for a federal civil service position generally has no right to appeal his or her non-selection to the [B]oard.” Ricci v. Merit Sys. Prot. Bd., 953 F.3d 753, 757 (Fed. Cir. 2020). An exception to that rule exists when an applicant believes that OPM applied an improper “employment practice.” Prewitt v. Merit Sys. Prot. Bd., 133 F.3d 885, 887 (Fed. Cir. 1998); 5 C.F.R. § 300.104(a). An employment practice is defined by regulation as any practice that affects “the recruitment, measurement, ranking, and selection of individuals for initial appointment and competitive promotion in the competitive service.” 5 C.F.R. § 300.101. Although “‘employment practice’ is . . . construed broadly,” it does not encompass “an individual agency action or decision that is not made pursuant to a rule or practice,” such as an irregularity in the selection process. Prewitt, 133 F.3d at 887.

Here, Ms. Alford has not alleged any improper employment practice that OPM allegedly applied to her application. Although her appeal to the Board cited to basic requirements for federal employment practices, see 5 C.F.R. § 300.103, she failed to identify which of the basic requirements OPM allegedly violated by not selecting her for employment.

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.
WHO IS A WHISTLEBLOWER?
Moving on, the Federal Circuit hears a fair number of whistleblower cases coming up from MSPB. These cases are so complex, legally and factually, that the court may find error requiring a remand for reanalysis by the Board’s AJ. For a complex whistleblower case, close analysis will likely always find area where an AJ might have stated the law more clearly (assuming that can be done) or the factual description could have been more expansive. One recent decision, Keys v. DHUD (Fed. Cir. 2021-2072 NP (March 9, 2022)) https://cafc.uscourts.gov/opinions-orders/21-2072.OPINION.3-9-2022_1918994.pdf, is helpful because it reiterates what does not constitute a protected disclosure under the whistleblower laws, although the disclosure could constitute reprisal under another statute:
To prevail on the merits of his IRA appeal, Mr. Keys had to prove by a preponderance of the evidence that he made a protected disclosure under 5 U.S.C. § 2302(b)(8) or 2302(b)(9)(A)(I), (B), (C), or (D). . . . For purposes of an IRA appeal to the Board, while protected disclosures include the exercise of an appeal, complaint, or grievance right that itself relates to whistleblowing, 5 U.S.C. § 2302(b)(9)(A)(I), (b)(8), we have held that certain other non-whistleblowing complaints do not constitute protected disclosures. Young, 961 F.3d at 1329; see Hansen v. Merit Sys. Prot. Bd., 746 F. App’x 976, 981 n.6 (Fed. Cir. 2018) (reporting allegations of sexual harassment does not constitute a whistleblowing disclosure); Garvin v. Merit Sys. Prot. Bd., 737 F. App’x 999, 1004 (Fed. Cir. 2018) (filing union grievances and EEO complaint are not considered whistleblowing disclosures); Nuri v. Merit Sys. Prot. Bd., 695 F. App’x 550, 553 (Fed. Cir. 2017) (filing EEO complaint, unfair labor practice complaint, or grievance as to unfair performance evaluation is not within Board’s IRA jurisdiction because petitioner was not seeking to remedy an act of whistleblower reprisal). . . .

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)
SUGGESTED LISTENING
Readers: a break from our reading assignments to you.

Listen to song poking humor at judges, litigants, and (gasp) lawyers.

From The Bar and Grill Singers.



“Puff for My Class Action” https://www.youtube.com/watch?v=R4oIuJnSlKQ

Check out their website. A fascinating group of lawyer choristers.


The Dewey Publications Podcast
Monthly Peter Broida will discuss new decisions from the MSPB, FLRA, their reviewing courts, and occasionally EEOC.

FREE to subscribe via iTunes or RSS

View a detailed list of all past episodes at deweypub.com/podcast
View All of the American Civil Service Law Series online at: deweypub.com/acsls

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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