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NEWS AND CASE ALERT

January 17th, 2024 | Issue #16-01

TABLE OF CONTENTS

COUNSEL FEES AT MSPB GET A BOOST WITH DISCRIMINATION FINDINGS

COUNSEL RISK THE INABILITY TO COMPEL DISCOVERY WHEN THEY INFORMALLY AGREE TO EXTENSIONS

FEDERAL CIRCUIT REAFFIRMS THAT MATTERS RELATING TO EEO ISSUES CANNOT BE COVERED AS WHISTLEBLOWER DISCLOSURES

We offer 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 39 years.
Read the full archive of over 100+ News and Case Alerts online at: deweypub.com/email

DEWEY PUBLICATIONS NEW RELEASES

A Guide to Federal Sector Disability Discrimination Law and Practice

Written by the late Ernie Hadley and updated by Natania Davis, author of A Guide to Federal Sector Equal Employment Law and Practice, the Guide to Federal Sector Disability Discrimination Law and Practice is a seminal text on disability discrimination case law, statutes, and regulations interpreting and implementing the ADA, ADAAA, Rehabilitation Act, GINA, and Drug Abuse Act. (more details)

EEO Counselors' and Investigators' Manual

A comprehensive, easy to follow, and insightful guide to counseling and investigating EEO complaints, this manual explores the essentials of the EEO complaint process. (more details)

MSPB: The Movie

First produced in 2005–2006, this course was reviewed and revised in 2023 to add discussion of the Board’s e-filing system, mediation programs, and video hearings, and to delete references to some procedures no longer used by the Board. The basics of the course remain the same—covering the process from filing of the appeal through issuance of the initial decision. (more details)

Format: downloadable .zip containing .mp4 video and .pdf table of contents

A Guide to Merit Systems Protection Board Law and Practice, 2023

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 jurisdiction, appeals, discovery, hearings, evidence, PFRs, adverse actions and discipline, nexus and mitigation, substantive offenses, performance cases, RIFs, prohibited personnel practices, retirement, attorney fees, settlement, remedies, and judicial review.(more details)

COUNSEL FEES AT MSPB

GET A BOOST WITH DISCRIMINATION FINDINGS

MSPB conformed its law to that of EEOC by determining that when there are findings of discrimination, fee awards will be at counsel’s current billing rate rather than the rate when work was performed. The result fairly compensates counsel for the effects of inflation. The Board’s decision involved a 2014 adverse action, with litigation over the fee component of the case continuing a decade later. The decision also noted that the “interest of justice” standard under the Back Pay Act does not control when there’s a finding of discrimination under Title VII or the ADA. Under the fee-shifting provision of the civil rights statutes, fees are awarded in all but special circumstances. The decision reaffirmed and emphasized that an hourly rate set by retainer agreement is presumed to control a fee request; but the presumption is rebuttable if counsel demonstrates that the agreement’s rate was set below market rates to accommodate the client’s financial circumstances.


Kelly v. TVA, 2014 MSPB 1 (Jan. 5, 2024)


https://www.mspb.gov/decisions/precedential/Kelly_Kristopher_D_AT-0752-15-0064-A-1_Opinion_and_Order.pdf


MORE NEW RELEASES

A Guide to Federal Labor Relations Authority Law and Practice

In two volumes, Updated annually, the FLRA Guide is a complete research tool on unit determinations, negotiability and the collective bargaining process, unfair labor practices, and constraints on arbitration. The Guide includes discussion of cases, laws, and litigation practice before the FLRA and its reviewing courts. (more details)

Principles of Federal Sector Arbitration Law

This encyclopedic text features summaries of federal sector arbitration awards addressing significant issues and major arbitration principles from 1999 through 2022. Awards are arranged by topic. Principles includes a table cross-referencing arbitrators to the awards they have issued. (more details)

MSPB Charges & Penalties:

A Charging Manual

Using Board and Federal Circuit cases as examples, Charges & Penalties offers comprehensive analysis and authoritative advice on adverse actions, charge drafting, and penalty selection. (more details)

A Guide to Federal Sector Equal Employment Law and Practice

Updated annually, 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)

COUNSEL RISK THE INABILITY TO COMPEL DISCOVERY

WHEN THEY INFORMALLY AGREE TO EXTENSIONS

A discovery request is filed. The recipient asks for more time to respond. The requestor affably agrees. When discovery’s fruits are examined, they are found wanting and, after informal adjustment fails, a motion to compel is filed. Problem is: under MSPB regulations, the motion “must be filed with the judge within 10 days of the date of service of objections or, if no response is received, within 10 days after the time limit for response has expired.” Assessing an AJ’s denial of a motion to compel as untimely, MSPB affirmed the ruling:


The appellant does not dispute that she did not timely file her motion to compel, but instead asserts, as she did below, that she should not be penalized because she unilaterally granted the agency additional time to respond to her discovery requests, which she contends constituted good cause for a waiver of the motion to compel deadline. The administrative judge correctly found that the parties did not seek and obtain from him an extension of the discovery deadlines and had no authority to unilaterally alter the Board’s orders and regulations; he therefore found that the deadlines remained unchanged.


Bad result. MSPB should not penalize parties who attempt informally to adjust discovery differences with some delay in the process. The alternative is that each time the requestor desires to grant an extension, someone has to file with the AJ a motion for adjustment of deadlines. And then there’s the motion to compel. Creative AJs will provide in their acknowledgment orders that the parties may informally agree to discovery deadline adjustments, subject to the limitations imposed in a prehearing order setting dates for the close of discovery and prehearing submissions.


Wriglesworth v. Dept. of Army, DC-0752-15-0860-I-2 (NP 1/9/2024)


https://www.mspb.gov/decisions/nonprecedential/Wriglesworth_Sonia_I_DC-0752-15-0860-I-2_Final_Order.pdf


MORE NEW RELEASES

Federal Employment Litigation Field Book

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. (more details)

Compensatory Damages and Other Remedies:

In Federal Sector Employment Discrimination Cases

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-2023 and a chart of significant awards. (more details)

MSPB Case Summaries

Updated annually, this encyclopedic guide condenses MSPB and Federal Circuit decisions from 1999 through early 2023 into concise, usable summaries. Cases are arranged by subject matter areas and further categorized alphabetically. The MSPB Reference Materials free download and an index and table of cases rounds out this research tool. (more details)

Federal Sector Disability Discrimination Law Deskbook

Updated with cases through mid-2023, the Disability Deskbook is an extensive compilation of decisions interpreting the Rehabilitation Act, ADA, ADAAA, and other statutes and implementing regulations, and covers all disability related topics. (more details)

FEDERAL CIRCUIT REAFFIRMS THAT MATTERS RELATING TO EEO ISSUES CANNOT BE COVERED AS WHISTLEBLOWER DISCLOSURES

The Federal Circuit reaffirmed that EEO allegations do not equate to whistleblower disclosures covered by an Individual Right of Action appeal. Excluded from whistleblower coverage were: a statement to a district court that an agency attorney did not report Privacy Act violations when that statement was characterized by the circuit court as being part of the appellant’s discrimination case; an allegation that an agency attorney attempted to coerce a settlement agreement, that allegation having been made in an EEO complaint; the alleged failure of the agency to investigate misconduct allegations when the misconduct was sexual harassment, a form of employment discrimination. Jurisdictionally immaterial, said the court, was whether the allegations were made outside the context of the appellant’s Title VII complaint. There were other allegations discussed by the court; the bottom line was clear: if allegations in some fashion relate to EEO violations or to the EEO process, they are covered by the EEO complaint process, not by the whistleblower laws.


McLaughlin v. MSPB (Fed. Cir. No. 2023-1074 Dec. 29, 2023 NP)


https://cafc.uscourts.gov/opinions-orders/23-1074.OPINION.12-29-2023_2246126.pdf

MORE NEW RELEASES

Consolidated Federal Sector EEO Update 2004-2023

Updated annually, this comprehensive text digests notable Commission and federal court employment discrimination decisions from 2003 through early 2023 and reviews EEO laws, regulations, and guidance. (more details)

A Federal Sector Guide to the FMLA & Related Litigation

An authoritative examination of the FMLA, this book includes citations and analysis of governing statutes, regulations and case law. (more details)

Motions Practice before the MSPB and the EEOC

Prehearing and post-hearing motions, as well as rules of motion practice are studied in this newly updated practical and helpful guidebook. The authors examine motions presented to the Board and the Commission separately, paying special consideration to how to most effectively use motions for the desired result. (more details)

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