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NEWS AND CASE ALERT

May 13th, 2024 | Issue #16-03

TABLE OF CONTENTS

D.C. CIRCUIT AFFIRMS PRECLUSION OF NONSTATUTORY REVIEW OF FLRA DECISIONS AND ABILITY OF FLRA TO VACATE ITS EARLIER DECISIONS ON EXCEPTIONS TO ARBITRATION AWARDS

FEDERAL CIRCUIT WEIGHS IN ON “SAME OR SIMILAR” DETERMINANTS OF DEFINITION OF “EMPLOYEE”

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NEW RELEASE

24FLRA image

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. 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)

D.C. CIRCUIT AFFIRMS PRECLUSION OF NONSTATUTORY REVIEW OF FLRA DECISIONS AND ABILITY OF FLRA TO VACATE ITS EARLIER DECISIONS ON EXCEPTIONS TO ARBITRATION AWARDS

Perhaps concluding many years of FLRA decisions and arbitration awards over a dispute involving eligibility for promotion consideration, and whether that dispute actually involved a nongrievable classification issue, the D.C. Circuit, reviewed a decision by a district court whose Administrative Procedure Act jurisdiction was invoked by the HUD Council Union to seek review of an otherwise nonreviewable FLRA decision that vacated some earlier FLRA decisions in the dispute. The court decided FLRA properly exercised its jurisdiction to vacate an earlier FLRA decision and arbitration award that had long since become final, and that nonstatutory review could not be used in district court to review the FLRA decision vacating its decision involving the earlier award.


As to the ability of FLRA to vacate its earlier decision:


That the FLRA may reconsider an arbitrator’s jurisdiction when hearing exceptions after deciding earlier exceptions in the same case seems fairly obvious. The union’s contrary claim—that Congress prohibited the FLRA from having second thoughts about the arbitrator’s jurisdiction—creates some tension with FLRA precedents and with the judicial principle that jurisdictional questions may be raised at any time, including by the court itself. See Capron v. Van Noorden, 6 U.S. (2 Cranch) 126, 127 (1804); Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94–95 (1998). True, the FLRA is not a court. But Congress “intended that in the area of arbitral awards the [FLRA] would play in federal labor relations the role assigned to district courts in private sector labor law.” Griffith, 842 F.2d at 491. So, like a court, the FLRA could have the prerogative to verify subject-matter jurisdiction at every stage of a proceeding.


And, as to nonstatutory review to avoid the statutory limits on judicial review of FLRA decisions reviewing arbitrators’ awards:


[T]he union contends that as a matter of statutory interpretation § 7123(a) prohibits only court of appeals direct review of FLRA arbitration decisions, not district court review of agency actions when the agency exceeds its statutory authority. On this theory, the union claimed that its suit in the district court circumvented the § 7123(a) bar against judicial review of arbitration decisions. . . .


. . .


. . . The APA does not apply when “(1) statutes preclude judicial review[] or (2) agency action is committed to agency discretion by law.” 5 U.S.C. § 701(a); see Abbott Labs., 387 U.S. at 140. When introduced, the bill that became the APA required for the first exception that “statutes expressly preclude judicial review.” S. 7, 79th Cong. § 10 (as introduced in Senate, Jan. 6, 1945) (italics added). The Senate Committee on the Judiciary deleted the word “expressly.” ATTORNEY GENERAL’S MANUAL ON THE ADMINISTRATIVE PROCEDURE ACT 94 n.4 (1947). Under the APA as enacted, a “statute may in terms preclude, or be interpreted as intended to preclude, judicial review altogether.” . . . 7123(a)(1) has been so interpreted by our court.


AFGE National Council of HUD Locals v. FLRA, D.C. Cir. 22-5308 (April 23, 2024)


www.cadc.uscourts.gov/internet/opinions.nsf/BEDEEA69DB0BDA9D85258B08004F4D2B/$file/22-5308-2050926.pdf


2024 DEWEY PUBLICATIONS PRODUCTS

24MSPB image

A Guide to Merit Systems Protection Board Law and Practice

In three volumes, updated annually, 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)

24MSCS image

MSPB Case Summaries

Updated annually, this encyclopedic guide condenses MSPB and Federal Circuit decisions from 1999 through early 2024 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)

24EEO image

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)

24MSCP image

MSPB Charges & Penalties: A Charging Manual

Annually-updated, a Dewey best seller. 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)

FEDERAL CIRCUIT WEIGHS IN ON “SAME OR SIMILAR” DETERMINANTS OF DEFINITION OF “EMPLOYEE”

For an individual to qualify for Board appeal rights under 5 USC 7511(a)(1)(B), he must have completed one year of current continuous service in the same or similar positions. Mr. Jones, an attorney, transferred to DOJ in 2019 from USDA. At USDA he advised his client on discrimination complaints and litigated them at EEOC. At DOJ, his primary responsibility was in employment law, with other responsibilities, including contract law. In late 2019, Mr. Jones resigned his job at DOJ, appealed the resignation to MSPB as constructively adverse, and the question was then whether his work at USDA and DOJ were sufficiently similar to confer Board jurisdiction over his appeal.


Are EEO and employment law really dissimilar in the federal sector? Given the commonality of EEO issues in both types of cases, and the necessity for providing advice to management in employment discrimination cases, Mr. Jones seemed to have the better argument based on a commonsense application of the statute, but the Board and the Circuit found to the contrary. The court emphasized that at DOJ, responsibilities of Mr. Jones were more focused on providing advice rather than, as at USDA, providing litigation assistance. The court concluded, affirming the Board’s determination of its lack of jurisdiction without a finding on the merits:


There is no dispute that Jones’s two positions were both Attorney–Advisor, GS-0905-14 positions with a general focus on employment law, but those two facts alone are not dispositive of the nature and character of the work Jones performed at each. Looking at the nature and character of the duties for each position does not mean taking a bird’s eye view. Any two positions, with enough distance, may mistakenly look similar. And likewise, too granular an approach may result in an equally incorrect outcome. Here, the record supports the finding that the two positions involved different duties and required different skills, fundamentally affecting the nature and character of the work. As the AJ found, even if the USDA position did involve some advising, Jones was “advising on different types of employment situations appealable in different forums, with different procedural requirements, burdens of proof, and relevant legal principles.”


Jones v. MSPB, Fed. Cir. 2022-1788 (April 19, 2024)


https://cafc.uscourts.gov/opinions-orders/22-1788.OPINION.4-19-2024_2304904.pdf

2024 DEWEY PUBLICATIONS PRODUCTS

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Representing Agencies and Complainants Before the EEOC

In its 4th edition, this Dewey classic provides comprehensive analysis of federal sector practice before the EEOC. Major topics include individual and class complaint processes, theories of discrimination, pre- and post-investigation case evaluations, discovery, settlement, hearing practice, class actions, remedies, and post-hearing procedures. (more details)

24UCS image

UnCivil Servant: Holding Government Employees Accountable for Performance and Conduct

Ideal for federal supervisors and managers, and anyone who advises them, this handbook is a practical guide on misconduct, performance and discipline. Major topics include the fundamental elements of disciplinary and performance actions, removal procedures, the defense of a penalty, special challenges to adverse actions, and nontraditional disciplinary techniques. (more details)

24CEUP image

Consolidated Federal Sector EEO Update 2004-2024

Updated annually, this comprehensive text digests notable Commission and federal court employment discrimination decisions from 2003 through early 2024 and reviews EEO laws, regulations, and guidance. Major topics include recent trends in the law; bases of discrimination; attorney fees; class actions; compensatory damages; appellate review; evidence; harassment; hearings; mixed cases; procedures; remedies; reprisal; settlement; and sexual harassment. (more details)

24FST image

Federal Sector Telework: Law and Cases

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24CDOR image

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-2024 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 fees. (more details)

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A Guide to the Whistleblower Protection Act and Whistleblower Protection Enhancement Act

With practice tips, this guide sorts the laws and procedures related to whistleblower reprisal. The guide includes in depth discussion of the Whistleblower Protection Act, the Whistleblower Protection Enhancement Act, noteworthy cases, and the Presidential Policy Directive (PPD-19). Major topics include legislative history and sources of law; OSC operations; corrective and disciplinary actions; IRAs and otherwise appealable actions; grievances and whistleblower reprisal claims; stays; burdens of proof; qualifying disclosures; prima facie cases and contributing factor analysis; clear and convincing evidence; remedies, damages and relief; administrative and judicial review; and intelligence community whistleblower protections. (more details)

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