MSPB: A Year in Review, the Short Version|
By Natania Davis
Throughout 2009 and early 2010, we here at Dewey have noted some interesting and important Board activity and cases. Susan Tsui Grundmann and Anne M. Wagner were sworn in as MSPB Chairman and Vice Chairman on November 12, 2009, joining Member Mary M. Rose. Shortly after their swearing in, Chairman Grundmann and Vice Chairman Wagner reopened, sua sponte, the McPhie Board decision in Crumpler v. Dept. of Defense, 2009 MSPB 224 (11/2/09), wherein the Board held that if an employee is determined by the agency, with due process protections, to be unable to fill a "sensitive" position even though a security clearance is not required, the agency's decision to fire the employee for that reason will not be reviewed by the Board. The new Board members vacated the McPhie decision and sent it back for reconsideration, 2009 MSPB 233 (12/18/09), because of the importance of the issues presented and the departure from precedent represented by the decision. The Board called for amicus briefs on the jurisdictional issue, but the case settled. See Dewey's News and Case Alert, #2-1 for more on Crumpler.
Speaking of amicus briefs, see the article in this edition of the News Alert detailing another important 2009 case Aguzie v. OPM, 112 MSPR 276 (2009). Other cases of interest from the MSPB and its reviewing court include, Ryan v. Dept. of Air Force, 2009 MSPB 235 (2009) (imposing greater scrutiny of discovery rulings in IRA cases; see Dewey's News and Case Alert, #2-1 for more on Ryan); Weed v. SSA, 2010 MSPB 23 (2010) (discussing standing, PPPs, and agency official's knowledge of protected disclosures in the context of IRAs; see Dewey's News and Case Alert, #2-3 for more on Weed); Silva v. DHS, 2009 MSPB 189 (2009) (discussing standing under USSERA; see Dewey's News and Case Alert, #1-8 for more on Silva); and Marshall v. DHHS, 587 F.3d 1310 (Fed. Cir. 2009) (VEOA case wherein the Federal Circuit expanded the Board's interpretation of reconstruction remedies under 5 USC 3330c; see Dewey's News and Case Alert, #2-1 for more on Marshall).
These are just a small sampling of the 2009 and early 2010 cases and happenings impacting MSPB case law. Looking into the future, Peter Broida notes in the Preface of the Guide, "For those extensively engaged in the analysis of federal civil service, labor relations, and EEO decisions, the next few years should be interesting as the law resonates to changes in the composition of the MSPB, FLRA, and EEOC."
All the above referenced cases and much more are detailed in Peter Broida's A Guide to MSPB Law and Practice and MSPB Case Summaries by Broida and Davis. To stay up-to-date on all things MSPB, get your copy. Both are available now and offer comprehensive reportings of MSPB and Federal Circuit cases. The Guide is unmatched in its commentary and extensive review of current MSPB case law, regulations and statutes. For each topic, it also provides a critical historical review that lends great perspective and understanding to the reader.
Case Summaries also reports cases from the MSPB and reviewing courts impacting Board law. Cases are reported in summary form making MSPB research and brief writing a simpler and more streamlined process. Alone, the Case Summaries compilation serves as a great point of reference for attorneys and researchers who understand the basic structure of Board caselaw and is a useful adjunct to A Guide to Merit Systems Protection Board Law and Practice by Broida.
Broida's A Guide to MSPB
Law and Practice
is now available.
Order your copy today!
In its 27th edition, the Guide needs little introduction. This popular and encyclopedic book detailing MSPB related litigation, laws, procedure, and practice is the seminal text on this complex area of the law wherein author Peter Broida, a veteran practitioner before the Board, offers his thorough knowledge, seasoned experience, and nuanced understanding of the MSPB.
The Supplement to
MSPB Case Summaries
is now available!
MSPB research and brief writing just got easier with Dewey's first supplement to MSPB Case Summaries by Broida and Davis. Get updated on MSPB law written in summary form with the 2010 supplement to MSPB Case Summaries. If you don't have the main text, you need it. If you have the main text, you need the supplement. This book is a must have for all representatives and researchers!
MSPB Case Summaries compiles brief descriptions of the salient and most useable Board and Federal Circuit decisions from 1999 through the end of 2008 arranged by subject matter areas of Board jurisprudence and further categorized alphabetically for ease of use. Quickly locate relevant decisions, use the hyperlinks to access the full text and cut and paste the summaries directly into your motions and briefs. Reported and indexed in the same easy to use fashion, the Supplement updates readers on MSPB case law from early 2009 to early 2010.
About the authors: Peter Broida is a well respected and longtime practitioner of federal sector employment law and authors various comprehensive books on the subject. Ms. Davis' experience in federal sector employment law began in 2002 as an associate attorney with Broida and Associate, where she represented clients in proceedings before the EEOC, MSPB and in ADR settings. Broida and Davis have also co-author the Senior Executive Service Legal Guide and A Guide to Principles of Federal Sector Arbitration.
"We at Dewey, with the benefit of a quarter century and more of reporting events and changes in these agencies' [MSPB, FLRA, and EEOC] behaviors and decisions, remain your faithful and cheerful reporter of developments. Stay with us, gentle readers."|
"Bad, Bad Practice List"
for Agency Attorneys
Note from the editor to practitioners: For the majority of our readers, Peter Broida needs no introduction. His representation of clients before the MSPB began before the MSPB was formed...or so it seems. Over the years, he has come to deal with many great agency attorneys and others that left something to be desired. Take these pearls of wisdom and "what not to dos" with you into your next MSPB case.
Bad, Bad Written Product: In litigation before the MSPB, as in other forums, you are judged by your written work product in addition to your advocacy skills. Proofread your material. Take out the invective and sarcasm. Be gracious in your remarks when possible. Try to avoid openly disparaging the appellant, his counsel, or, when possible, the judge.
Bad, Bad Relationship with Opposing Counsel: If you do not know the opposing counsel from the case, call him or her up and introduce yourself. Avoid antagonism. Do not hang up the phone. Avoid attributing personality disorders or questions of parentage to your opposing counsel.
Bad, Bad Relationship with the Judge: Meet your deadlines. Do not be disrespectful to the judge.
Bad, Bad or Nonexistent Research: Do your research. Board law can be complex.
Bad, Bad Organization: Poor organization guarantees poor representation. Keep a master litigation file containing all pleadings, a correspondence file for correspondence, memos to the file, significant e-mails and research memos and a research file to keep track of significant cases, statutes and regulations.
Bad, Bad Attitude: Do not be overzealous or become the de facto antagonist to the employee. Keep your cool. Don't let your mood impair your representation.
Bad, Bad Planning: Plan ahead; avoid the need for extensions, but understand how to get them. A continuance is unlikely. A suspension is possible. A dismissal without prejudice to refile the appeal is always desirable (although, technically it is the appellant's motion). Remember to try to get the appellant's consent in advance of the motion.
Bad, Bad Response to Appeal: Use a narrative response to the appeal. Be persuasive, but be accurate. Explain the nature of the case and any procedural wrinkles. Provide a narrative of the facts of the case, cross referenced to materials in the record that you are filing. Provide citation to nonobvious points of law.
Bad, Bad Discovery: Start your discovery on time. Informal extensions between counsel count for nothing when you need to file a motion to compel and it is typically too late to do so. Take the appellant's deposition unless there is a darned good reason not to. Confer with opposing counsel in some fashion before filing a motion to compel discovery.
Bad, Bad Settlement Tactics: Know when to say no and understand the consequences. No verbal settlement agreements-never, ever. Keep a settlement binder, and keep track of what is going on as the process evolves. Someday you may have to be a witness in compliance proceedings.
Bad, Bad Settlements: Do not create and do not allow ambiguities. If you are going to create backpay entitlements, spell them out so everyone is sure what is going to be paid, how it is going to be paid, when it is going to be paid, to whom it is going to be paid, and what accounting will be provided. Also, specify if there are to be payments of interest and whether it is contemplated that there will also be adjustments in retirement or other benefits. As to the timing of payments, don't make promises you can't keep, e.g., DFAS.
Lump sum payment? State that appellant is responsible for his or her taxes. Use an integration or zipper clause. Do not be the only signatory, as counsel for the agency. Have a manager sign the agreement.
Bad, Bad Settlement Clauses: Certain settlement clauses are constant sources of enforcement litigation. Be particularly careful and very precise in drafting "clean paper" settlements, reference provisions, non-disparagement clauses, and agency obligations to pay appellant's counsel fees. For confidentiality agreements, be realistic: recognize there will be communications between the appellant and some other people concerning settlement and that management may need to disclose information during the course of background or other investigations.
For more on MSPB practice tips, see Broida's Guide to the Merit Systems Protection Board Law and Practice. MSPB procedural law is also detailed in MSPB Case Summaries by Broida and Davis.
The FLRA emphasized, over the dissent of Member Beck, that arbitrators can award attorney fees and expenses for an attorney's travel time and that unions can employ out of town counsel without regard to the availability of local counsel. In what seemed to be a fairly straightforward case in which the arbitrator found that "the agency violated the parties' agreement by failing to grant the grievant four hours of excused absence," the arbitrator also granted (under the Back Pay Act) the union's attorney fee request for hours worked including travel time for a North Carolina based attorney to and from the hearing in Baltimore and hotel expenses. The agency filed exceptions to the decision asserting that the fee award was contrary to the parties' agreement and 5 U.S.C. § 7701(g)(1) and the travel fees were unreasonable and unnecessarily incurred.
The agency argued that the fee petition was contrary to Article 25, § 5(E) of the parties' agreement, which provided, in relevant part, that the "[U]nion will pay all costs for its representatives . . . at . . . arbitration." Rejecting this argument, the arbitrator found:
...this provision did not constitute a waiver by the Union of its statutory right to attorney fees and costs." In support of this conclusion, the Arbitrator credited the affidavit of a Union negotiator, who stated that attorney fees and costs were not addressed during bargaining over Article 25, § 5(E). The Arbitrator found that it was unreasonable to believe that the Union would have waived statutory rights [under the Back Pay Act] without bilateral discussions resulting in an express waiver. The Arbitrator further concluded that, under this provision, the term "representative" does not include union counsel and that attorney travel time is not a "cost."
In response to the Agency's argument that the travel time was unreasonable because it was not necessary to involve a North Carolina attorney in a Maryland arbitration, the Arbitrator found that the parties' agreement was silent regarding the Union's right to assign counsel in grievance-arbitration disputes.
Before the Authority, the agency failed to demonstrate that the arbitrator's interpretation was "implausible, unfounded, irrational, or in manifest disregard of the agreement. Accordingly, we find that the award does not fail to draw its essence from the parties' agreement and, therefore, deny the exception."
The Authority further rejected the agency's argument that the travel fees were unreasonable and "unnecessarily incurred" because the union's Baltimore staff attorneys could have handled the legal issues of the arbitration.
Although the Agency frames its argument in terms of reasonableness, it is, essentially, a challenge to the Union's assignment of an out-of-town attorney to the case. We note that the Agency does not directly challenge the Arbitrator's finding that the Union's assignment of attorneys was protected by the [Back Pay Act].
However, Authority precedent is clear that the Union is not required to justify its decision under the Back Pay Act. In this regard, in U.S. Dep't of the Army, Corpus Christi Army Depot, Corpus Christi, Tex., 58 FLRA 87, 90-91 (2002) (Corpus Christi) (citing Martinez v. U.S. Postal Serv., 89 M.S.P.R. 152, 161 (2001)), the Authority made clear that failure to obtain local counsel is not a valid basis for reducing attorney fees.
MSPB Accepting Amicus
Briefs or Comments
on Aguzie v. OPM, 112 MSPR 276 (2009)
Dewey's News and Case Alert, #1-8, reported the Board's 2009 case, Aguzie v. OPM, 112 MSPR 276 (2009). In Aguzie, the Board addressed the question of whether an appellant, who occupied a competitive service position and completed his or her 1-year probationary period, is entitled to appeal a removal to the Board as a Chapter 75 adverse action where the removal is effectuated by the agency but is pursuant to an OPM directive finding appellant unsuitable for federal employment (5 CFR 731.304). The Board's discussion on the topic is worth noting here:
The distinction is not merely academic. Our jurisdiction over adverse actions under 5 U.S.C. chapter 75, subchapter II includes the authority to mitigate penalties. In addition, the respondent in an adverse action appeal would not be OPM, but rather USCCR, as it was the latter agency that effected the removal action, even if it did so at OPM's direction. We note that under OPM's current regulations governing suitability determinations and actions, a removal action may not be taken under both 5 C.F.R. part 731 and part 752. An action under 5 U.S.C. chapter 75, subchapter II, is ipso facto an action under 5 C.F.R. part 752, which incorporates that subchapter in its entirety. Thus, if the appellant's removal was an action under 5 U.S.C. chapter 75, subchapter II, OPM's own regulations preclude it from being construed as a suitability action under 5 C.F.R. part 731, even though USCCR acted in compliance with an OPM directive issued under the purported authority of 5 C.F.R. § 731.304. To the extent § 731.204(f) may purport to carve out an exception to the Board's statutory jurisdiction under 5 U.S.C. § 7513(d), the validity of the regulation is in doubt.
With that, the Board remanded the case for the parties to brief the issue presented. Apparently neither parties' brief saved the day because the MSPB is now soliciting amicus briefs and comments on this question (75 FR 20007):
When the Office of Personnel Management (OPM) directs an agency to separate a tenured employee for suitability reasons, must the Board consider a subsequent appeal under 5 CFR part 731 as contemplated therein, or should the Board instead consider the appeal under 5 U.S.C. Chapter 75, given that the scope of a Chapter 75 appeal is broader than a part 731 appeal and that OPM generally lacks authority to issue regulations limiting statutory rights?