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NEWS AND CASE ALERT
May 4th, 2022 | Issue #14-05
TABLE OF CONTENTS
CARR FACTOR THREE EXPLORED—AGAIN
MSPB DISCLAIMS JURISDICTION TO ORDER DISCIPLINE OF SUPERVISOR IN WHISTLEBLOWER REPRISAL CASE
MSPB DISREGARDS STATUTORY INTERIM RELIEF REQUIREMENTS
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
Sku: 22MSPB
Edition: 39th/2022
Availability: IN-STOCK
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: JUNE 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)
CARR FACTOR THREE EXPLORED—AGAIN
Much judicial attention has been and is being paid to the several factors identified by Carr v. SSA, 185 F.3d 1318 (Fed. Cir. 1999), in whistleblower cases. Factor analysis is popular in civil service law—consider the Douglas factors, writ large since the first days of the Board and still followed. And then there are the Hillen factors that guide analysis of credibility; Borninkhof factors for the evaluation of hearsay; Allen factors guiding counsel fee analysis. Which brings us back to Carr, the Federal Circuit explaining that several factors would guide analysis of the shifting burdens of proof for a whistleblower IRA case or affirmative defense: the strength of the agency’s evidence supporting its action; the existence and strength of any motive to retaliate by agency officials involved in the personnel decision; and evidence that the agency takes similar actions against employees who are similarly situated to the appellant but who are not whistleblowers.

Of the Carr factors, the third—comparators—generates the most judicial commentary over the past few years. By whom should comparator evidence be produced—by the appellant, by the agency? When should it be produced—first during the reply process when whistleblowing reprisal is raised at an issue, or during the MSPB hearing, following discovery, or by order from the AJ to the agency? And what happens if there is no comparator evidence, or if there is no evidence produced at the Board hearing?

In a removal case, the appellant argued to the Federal Circuit that it should establish a rule requiring an agency to produce some evidence in support of the third Carr factor to meet the “clear and convincing” evidentiary test when one or more of the decisionmakers has some motive to retaliate. The Circuit declined to adopt that rule. Carr does not impose an affirmative burden on the agency to produce evidence on each of factor. Not each factor must weigh in the agency’s favor for the agency to carry its burden of proof. The absence of evidence as to the third Carr factor can remove it from the case analysis. Then the record as a whole must be considered and the other Carr factors weighed to determine if the agency clearly and convincingly proves it would have taken the action under appeal independent of or absent the appellant’s protected disclosures. If evidence weights against the agency, absence of evidence concerning Carr factor three may cause the agency to fail in its case overall.

Rickel v. Dept. of Navy, Fed. Cir. 2020-2147 (Fed. Cir. 4/18/22)
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)
MSPB DISCLAIMS JURISDICTION TO ORDER DISCIPLINE OF SUPERVISOR IN WHISTLEBLOWER REPRISAL CASE
In a decision (unfortunately) classified as nonprecedential, the Board considered an argument that as part of its IRA corrective action authority, it may direct an agency to take disciplinary action against a manager or supervisor under 5 USC 1221 or 38 USC 731(a)(1), which requires the Secretary of Veterans Affairs to carry out adverse actions against supervisory employees who the Board determined committed defined prohibited personnel practices. Under its IRA authority, as to managers or others, the Board’s authority is limited to referring the matter to the Office of Special Counsel to investigate and take appropriate action. The Board could take action based on a disciplinary complaint by OSC, which would then be defended by the manager, but the Board cannot directly order discipline without the OSC complaint, and the Board has no statutory role in imposing discipline in cases involving VA employees.

Stern v. VA, NY-1221-19-0193-C-1 (NP 4/20/22)

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)
MSPB DISREGARDS STATUTORY INTERIM RELIEF REQUIREMENTS
Some decisions are just wrong. Take the case of a federal manager removed for unbecoming conduct. The facts are complex and there’s much dispute over whether the findings of the AJ, who found in favor of the appellant, should have been overturned by the Board. But indisputably, the appellant prevailed before the AJ, who ordered him reinstated. Unfortunately, the initial decision from that AJ did not address interim relief. The judge did not order it; the judge did not deny it. The agency filed a PFR, and the case went into limbo years until the Board regained its quorum. Meanwhile, the agency did not provide interim relief. And here we are talking about a fair amount of money. The AJ’s initial decision was issued in July 2016; the Board decision, granting the agency PFR, reversing the result reached by the AJ, and sustaining the removal, was issued in April 2022. Do the math.

Appellant’s counsel argued in his response to the agency PFR that his client was denied interim relief to which he was entitled. The interim relief statute, 5 USC 7701(b)(2) states that the employee shall receive interim relief as a prevailing party—subject to the exception of a finding by the “deciding official” (i.e., AJ), that interim relief is not appropriate. Bottom line: availability of interim relief need not be ordered by the AJ for a prevailing appellant, that is, the entitlement is statutory. The AJ needs to enter an order denying the statutory right.

Here’s what the Board said as to the failure of the appellant’s failure to obtain interim relief: “the appellant’s arguments regarding interim relief are now moot because interim relief is in effect only pending the disposition of a petition for review.” Really? How is entitlement to interim relief of hundreds of thousands of dollars “moot” when the AJ’s decision favoring the appellant is set aside on an agency PFR? It’s not like the appellant has to refund interim relief when an agency PFR is successful. The Board’s decision is not one of its best efforts.

Hornsby v. Federal Housing Finance Agency, DC-0752-15-0576-I-2 (NP 4/28/22)
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)
SUGGESTED READING
Louis J. Virelli III, Recusal in Administrative Adjudication, 64 Ariz. L. Rev. 135 (2022)
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)
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)
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