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NEWS AND CASE ALERT
April 6th, 2022 | Issue #14-04
TABLE OF CONTENTS
The Board's Back
[Long Live the Board]
Probationary Termination
Whistleblowers: Carr Factors
The Appointments Clause Controversy
AN EVENT TO ATTEND
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: Fitch & Kuntz
Edition: 5th/2021
This guide 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. (deweypub.com/sclp)
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. (deweypub.com/dfsw)
THE BOARD’S BACK
[Long Live the Board]
Unless you’re living under a rock, you know the Board resumed its quorum on March 4, 2022, as a vice chair, Raymond Limon, and member, Tristan Leavitt, were sworn in. The nomination of Cathy Harris, to be the chair, is pending before the Senate.

Our friends have a few thousand backlogged cases to decide. And more PFRs come in each month. To date, the Board has issued a few dozen nonprecedential decisions and several precedential decisions. Many of the NP decisions accept settlements, dismiss cases withdrawn by appellants, and some of those decisions address matters of substance or summarize Board precedent. We touch on a few here.
By: Broida
Sku: 22MSPB
Edition: 39th/2022
Availability: April 2022
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. Major topics include MSPB regulatory revisions, Whistleblower Protection Enhancement Act, jurisdiction, appeals, discovery, hearings, evidence, PFRs, adverse actions and discipline, nexus and mitigation, substantive offenses, performance cases, RIFs, PPPs, retirement, attorney fees, settlement, remedies, and judicial review. (more details at deweypub.com/mspb)
By: Fowler & Vitaro
Availability: Coming Soon (Summer 2022)
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. (more details at deweypub,com/mscp)
Probationary Termination
Rossbach v. Dept. of Interior (NP March 30, 2022), determined that an agency did not quite fire a probationer on time, meaning the discharge was that of a tenured employee, and that the discharge was reversed for lack of constitutional and statutory due process. Mr. Rossbach had requested (and taken) some leave for medical reasons when a manager left a voicemail on the Appellant’s agency cell phone, on what seemed to be the day after probation concluded, telling him his termination would be processed at 4 p.m. on the day of the call unless he elected sooner to resign resign. Rossbach did not receive effective written notice of termination before probation concluded. His agency cellphone was switched off. The agency did not attempt to send a notice by Federal Express to ensure delivery before probation concluded, although the agency sent a letter via mail on the purported effective termination date. The agency did not text Rossbach, deliver a termination notice via messenger or delivery service to his home before the end of probation. or attempt to reach him at any medical facility where he may have been, even though his supervisor was aware of Appellant’s admission to a hospital. The efforts of the agency were not diligent or sufficiently reasonable to constitute timely constructive notice of the probationary termination.

By: Corum
Availability: Coming Soon (Summer 2022)
The First Four Weeks guides new managers on how to effectively transition into their new supervisory role and manage federal employees while still achieving their goals during the crucial first few weeks of tenure. Major topics include what motivates employees, mentally preparing for the supervisory role, negotiating with upper management, defining jobs, starting out right with your new employees, setting rules and performance expectations, and managing time. (more details at deweypub.com/ffw)
By: Broida & Davis
Availability: Coming Soon (Summer 2022)
Updated annually, this encyclopedic guide condenses MSPB and Federal Circuit decisions from 1999 through early 2022 into concise, usable summaries. Cases are arranged by subject matter areas of Board jurisprudence and further categorized alphabetically. The MSPB Reference Materials free download and an index and table of cases rounds out this research tool. 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. (more details at deweypub.com/mscs)
Whistleblowers: Carr Factors
In a case originating in a 2010 demotion, the Board determined the Appellant made protected disclosures and proved whistleblower in his adverse action appeal. The Board reviewed the customary Carr factors. Of interest here, first, the Board found of some weight that the deciding official lacked familiarity with the evidentiary record, and that failing undermined the strength of the evidence supporting the demotion. Second, Appellant’s disclosures were highly critical of the agency’s response to allegations of financial misconduct by a member of the agency’s SES, resulting in the proposing and deciding officials, both SES members, being aware of those disclosures and having a substantial motive to retaliate because of the disclosures, which reflected poorly on them and the agency in general. And, third, the Board said, “when the agency fails to present evidence showing that it has treated similar situated nonwhistleblowers in a similar manner, “the absence of such evidence may weigh against the agency.” Cited was Whitmore v. Department of Labor, 680 F.3d 1353, 1374-75 (Fed. Cir. 2012). Interestingly, Whitmore was not as direct on the comparator issue as was the Board (or that’s at least one take on the decision). The Circuit determined:
To be clear, Carr does not impose an affirmative burden on the agency to produce evidence with respect to each and every one of the three Carr factors to weigh them each individually in the agency's favor. The factors are merely appropriate and pertinent considerations for determining whether the agency carries its burden of proving by clear and convincing evidence that the same action would have been taken absent the whistleblowing. Carr, 185 F.3d at 1323; see Kalil v. U.S.D.A., 479 F.3d 821, 824 (Fed.Cir.2007) (noting that "the [b]oard in Geyer, identified several factors that may be considered, including [the Carr factors].") (emphasis added, internal citation omitted). Indeed, the absence of any evidence relating to Carr factor three can effectively remove that factor from the analysis. See, e.g., McCarthy v. Int'l Boundary and Water Comm.: U.S. & Mexico, 116 M.S.P.R. 594, 626 (2011) (finding no evidence of the agency taking similar actions against similarly situated nonwhistleblowers, and therefore concluding that "the third Carr factor is not a significant factor for the Board's analysis in the instant appeal"); Sutton v. Dep't of Justice, 94 M.S.P.R. 4, 13-14 (2003) (finding that whistleblower was lawfully removed based on the evidence under Carr factors one and two, where the record contained no evidence of action taken against similarly situated nonwhistleblowers).

To the extent such evidence exists, however, the agency is required to come forward with all reasonably pertinent evidence relating to Carr factor three. Failure to do so may be at the agency's peril. As a practical matter, the agency has far greater access to and control over evidence of prior disciplinary action taken against its employees than a whistleblower-employee typically does. The agency should liberally produce this evidence not only because any such evidence in its possession is plainly relevant and discoverable, but also to help the agency carry its overall burden to prove by clear and convincing evidence that the personnel action taken against the whistleblower would have been taken regardless of the whistleblowing. Stated differently, the absence of any evidence concerning Carr factor three may well cause the agency to fail to prove its case overall. See Chambers, 116 M.S.P.R. at 56 (finding that "we are simply not left with a `definite and firm conviction' that the agency would have taken any action based on the sustained charges in the absence of her protected disclosures" in large part because the agency "did not show that it took similar actions against similarly-situated non-whistleblowers"); Miller v. Dep't of Veterans Affairs, 92 M.S.P.R. 610, 621 (2002) ("[A]lthough the Board of Investigation report provided agency officials with evidence to support taking some disciplinary action against the appellants, this factor is far outweighed by the strong motive to retaliate by agency officials who were involved in these disciplinary actions and the lack of evidence showing that the agency took similar actions against otherwise similarly-situated nonwhistleblowers."); Russell v. Dep't of Justice, 76 M.S.P.R. 317, 327-328 (M.S.P.B.1997) ("Weighing the three factors..., we find that although the reporting officials had strong evidence to support their reports concerning the appellant, this factor is far outweighed by their strong motive to retaliate and the lack of any evidence showing that they treated non-whistleblower employees the same way they treated the appellant.").
Availability: Coming Soon (Summer 2022)
Designed for all who work on conduct and performance issues and those who litigate cases, this book serves as a quick reference to federal employment litigation questions. Answers are provided in an easy to read and thorough manner. Major topics include building the case, the hearing, and EEOC and MSPB litigation. (more details at deweypub.com/flfb)
By: Corum
Availability: Coming Soon (Summer 2022)
This newly updated comprehensive handbook on managing federal employees covers, from a supervisor's perspective, every important aspect of human resources management from hiring to firing. This book details the rules, strategies, and tactics that federal supervisors need including hiring the right people, structuring their jobs to best motivate them, managing their performance, maintaining discipline, and managing their time. Each chapter concludes with a summary and checklist for dealing with each issue. (more details at deweypub.com/fshr)
The Appointments Clause Controversy
Do MSPB AJs exercise policy-making authority without control indirectly through the President if they are not appointed directly by the presidentially-appointed MSPB members? The problem, noted in our past podcasts and Alerts, is nuanced—the result of Lucia v. Securities & Exchange Commission, 138 S. Ct. 2044 (2018), and kindred decisions from the Supreme Court and the federal appellate courts. The Board has not yet squarely ruled on the issue, though on March 4, 2022, the Board quorum issued two ratification orders squarely appointing, by the Board, AJs and contract ALJs who hear some Board cases. Decisions have determined so far that the Appointments Clause issue was mooted or not properly raised during proceedings before the assigned AJ. See, e.g., McClenning v. Dept. of Army, 2022 MSPB 3 (3/31/2022), a precedential decision. Stay tuned. One thinks that some of these challenges will be resolved someday by the Federal Circuit.
By: Bosland
Availability: Coming Soon (Summer 2022)
This handbook provides detailed, up-to-date information on the federal government’s legal response to the COVID-19 pandemic and how it relates to the federal workforce. Major topics include Executive Order, guidance, regulations, and statues; remote work; leave; vaccinations and testing requirements and exceptions; reopening and return to work; workplace safety requirements; labor relations; COVID-19’s relationship to other laws; and caselaw developments. (deweypub.com/clel)
By: Laws
Availability: Coming Soon (Summer 2022)
The new seventh edition offers the most comprehensive reporting and commentary on all aspects of workers’ compensation issues in the federal sector. Major topics include an overview of the FECA, OWCP procedure, hearings, reconsideration, ECAB appeals, fact of injury, performance, causation, emotional conditions, medical evidence, continuation of pay, schedule awards, rehabilitation and reemployment, wage loss compensation, survivors’ benefits, medical benefits, representation and attorney fees, overpayments, third party liability, relationship between FECA and other laws. (more details)
AN EVENT TO ATTEND
A video conference honoring the late Ernie Hadley convenes for three hours on April 20, 2022. A panel of those who knew Ernie well will speak of the man and his career, and discuss the importance of protections for the federal workforce. More information, and a registration form, are at https://www.gelawyer.com/gilbert-training-group/ Be there to honor the memory of this fine attorney, writer, public-spirited citizen, and friend.
Availability: May 2022
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. (more details at deweypub.com/flraguide)
By: Natania Davis and Founding Author Ernest C. Hadley
?Availability: June 2022
The EEO Guide, written by Natania Davis with Ernie Hadley, Founding Author, offers the most comprehensive analysis of federal sector EEO decisions, litigation practice, statutes, regulations, policies, guidance, and practical advice available to practitioners. (more details at deweypub.com/eeoguide)
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
Thank You
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