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Dewey Publications Inc.
News and Case Alert
Issue #2-11
In this issue...
Discovery Bundle
The Essential Federal Sector EEO, Labor Relations, and MSPB Research
2010 & 2011 American Civil Service Law Series
EEO Bundle
Supervisors Bundle
VEOA and the FCIP
Withdrawals of Appeals and Oral Settlements
Comments on Sick Leave and Flu Season with Resources

Discovery just got easier with Dewey's essential discovery materials.

The bundle includes:
Discovery Practice $40
MSPB Discovery Forms $100
EEO Discovery Forms $100
Regular Price: $240
50% off: -$120
Bundled Price: $120

Discovery Practice before the MSPB by Sarah Tuck: Agencies and appellants learn how to get the most from discovery with techniques on how to solicit the information necessary to be fully prepared to litigate before the Board. Discovery forms, pertinent MSPB regulations, MSPB guidance issued to its judges, case law citations, relevant Federal Rules of Civil Procedure, an extensive glossary of terms, and samples of discovery requests and related motions, all make it the process easier.

MSPB Discovery Forms by Peter Broida: Sample interrogatories, document requests, instructions, and definitions, all topically classified by the principal types of cases within the jurisdiction of the MSPB and patterned after actual cases. With the CD-ROM, materials can be copied for use in drafting discovery requests in pending litigation.

EEO Discovery Forms by Ernest Hadley and Renn Fowler: Companion discovery book to the MSPB Discovery Forms, EEO Discovery Forms provides sample interrogatories, document requests, instructions, and definitions, all topically classified by the principal types of cases within the jurisdiction of the EEOC and patterned after actual cases.


Dewey is pleased to announce a new CD package, "The Essential Federal Sector EEO, Labor Relations, and MSPB Research Library." Labor law? MSPB law? EEO law? Damages? This is all you need folks!

The 40% off bundle of CDs includes

MSPB Law and Practice is written by Peter Broida, a long time practitioner before the MSPB, and is the essential guide to all things MSPB-related.

FLRA Law and Practice, also written by Peter Broida, analyzes the case law of the Federal Labor Relations Authority (established in 1978) and its reviewing courts, as well as the procedures and practice of the Authority. Lots happening at the Authority. Stay updated with this seminal guide.

EEO Law and Practice is written by Ernest Hadley, a long time practioner before the EEOC, and is the most important EEO resource for your desk.

MSPB Case Summaries, written by Peter Broida and Natania Davis, provides succinct summaries of MSPB and Federal Circuit law from 1999 to the present covering all MSPB topics.

Principles of Arbitration by Peter Broida and Natania Davis digests federal sector arbitration awards by topic. Entries are keyed to arbitrators, and the book includes a table cross-referencing arbitrators to the awards they have issued.

Compensatory Damages by Gary Gilbert teaches all advocates to better understand how to support and defend against claims for compensatory damages and other remedial claims.

EEO Update Consolidated 2005-2009 and EEO Update (2010), written by Samuel Vitaro, Jeffrey Goodfriend and Gary Gilbert, is an indispensible resource designed to catch you up on the latest trends and developments in federal sector EEO law.

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A Guide to MSPB Law and Practice
By: Broida
Price: $525
Sku: 10MSPB
Edition: 27th/2010

A Guide to FLRA Law and Practice
By: Broida
Price: $430.00
Sku: 10FLRA
Edition: 23rd/2010

A Guide to EEO Law and Practice
By: Hadley
Price: $525
Sku: 10EEO
Edition: 23rd/2010

(ships spring 2011)

A Guide to MSPB Law and Practice
By: Broida
Price: $530.00
Sku: 11MSPB
Edition: 28th/2011
Expected Availability: April 2011

A Guide to FLRA Law and Practice
By: Broida
Price: $430.00
Sku: 11EEO
Edition: 24th/2011
Expected Availability: May 2011

A Guide to EEO Law and Practice
By: Hadley
Price: $530.00
Sku: 11EEO
Edition: 24th/2011
Expected Availability: June 2011

Dewey Publications Inc.
THE Source For All Your Civil Service Law Needs!

VEOA and the FCIP
Dean v. OPM, ___MSPR___, 2010 MSPB 213 (2010)
by Natania Davis

The Federal Career Intern Program and its impact upon the intent of the VEOA to open competition to veterans was the subject of extensive analysis in Dean v. OPM, ___MSPR___, 2010 MSPB 213 (2010), finding that the FCIP, as constituted at the time of the Dean decision, was not in accordance with VEOA because the appointments it authorized (leading to entry into the competitive service) were not properly exempted from the competitive service examining system. The Board reasoned:

FCIP is inconsistent with the Civil Service Rules that govern placement of positions in the excepted service under 5 U.S.C. § 3302(1).

¶23 OPM's rules for the FCIP, implementing Executive Order No. 13,162, appear at 5 C.F.R. § 213.3202(o). There is nothing in those rules to prohibit an agency from deciding whether to fill a particular position with a competitive-service appointment or an excepted-service Schedule B appointment under FCIP on an ad hoc basis, after applications are received. The Evans case is illustrative. DVA advertised for multiple VSR vacancies under an open competitive announcement and an FCIP announcement (among other authorities), assessed the candidates and prepared certificates corresponding to the different announcements, and then decided to fill the positions using excepted-service appointments under FCIP.9 Civil Service Rule 6.1(b), which provides that "OPM shall decide whether the duties of any particular position are such that it may be filled as an excepted position under the appropriate schedule," clearly contemplates that a position must be classified as competitive-service or excepted-service even before a vacancy announcement is issued. This reading of the rule is supported by Civil Service Rule 6.2, which provides that Schedule B of the excepted service is reserved for "[p]ositions other than those of a confidential or policy-determining character for which it is not practicable to hold a competitive examination."


¶25 We hold that FCIP is inconsistent with the Civil Service Rules that govern placement of positions in the excepted service under 5 U.S.C. § 3302(1)-a law relating to veterans' preference--because it allows an agency to invoke an appointing authority reserved for "positions...for which it is not practicable to hold a competitive examination" after the agency holds a competitive examination that yields highly-qualified preference-eligible candidates.

FCIP violates the rights of preference-eligible veterans under 5 U.S.C. § 3302(1) because it does not require agencies to justify placement of positions in the excepted service as required by section 3302(1).

¶26 Again, 5 U.S.C. § 3302(1) provides that the President "may prescribe rules governing the competitive service," and that "[t]he rules shall provide, as nearly as conditions of good administration warrant, for--(1) necessary exceptions from the competitive service." OPM, and by extension, agencies acting under a delegation of authority from OPM, do not have unfettered discretion to place positions in the excepted service under section 3302(1). National Treasury Employees Union v. Horner, 854 F.2d at 495. Rather, section 3302(1) establishes that exceptions from the competitive service must be justified as "necessary" for "conditions of good administration." Id. We acknowledge that the issue before the court in National Treasury Employees Union v. Horner, 854 F.2d at 498, was whether OPM's placement of certain positions in the excepted service was "arbitrary and capricious" under the Administrative Procedures Act, 5 U.S.C. § 706(2)(A), whereas the issue in these cases is whether the appellants' rights under a "statute...relating to veterans' preference" have been violated, 5 U.S.C. §§ 3330a(a), (d). We have already found that 5 U.S.C. § 3302(1) is a statute relating to veterans' preference, however, so the court's decision is instructive insofar as the court held that section 3302(1) establishes a substantive standard that must be satisfied for a position to be placed properly in the excepted service.

¶27 Executive Order No. 13,162, which created the FCIP, does not except any particular position from the competitive service. Similarly, OPM's regulations implementing Executive Order No. 13,162 do not except any particular position from the competitive service. See 5 C.F.R. § 213.3202(o). Instead, OPM's regulations governing the FCIP leave it to individual agencies to determine which positions will be filled under FCIP. 5 C.F.R. § 213.3202(o)(10). Those regulations, the relevant portion of which is reproduced in full as a footnote below, do not themselves find that excepting FCIP positions from the competitive service is "necessary" for "conditions of good administration," nor do they require individual agencies to make such findings. As a result, the regulations violate 5 U.S.C. § 3302(1).

Appellant Dean has been injured by this violation because as a preference eligible veteran he has a right to compete, under merit promotion procedures, for vacancies for which an agency is accepting applications from outside its workforce. See 5 U.S.C. § 3304(f)(1); 5 C.F.R. § 335.106; Brandt v. Department of the Air Force, 103 M.S.P.R. 671, ¶ 12 (2006). He also has a right to file an application for any position to be filled via competitive examination under an all-sources vacancy announcement. The requirement that agencies notify OPM of vacancies for which they will consider applicants from outside their workforces, and the related requirement that OPM make available to the public a list of vacancies for which agencies will consider applicants from outside their workforces, by their own terms apply only to the competitive service. 5 U.S.C. §§ 3327(b), 3330(b)-(d). Appellant Dean is thus being deprived of the right to apply for positions when agencies fill the positions under FCIP without public notice, since he cannot apply for a job about which he has no knowledge.

The Board ordered corrective action for Mr. Dean and the other appellant with whom Dean's case was joined. This is a significant case under VEOA in that it results in the limitation of this one type of excepted service appointment. Until regulations are changed, at least, this limitation will have the effect of avoiding the competitive service selection process to the disadvantage of those whose veterans' preference would otherwise place them at a comparative advantage in the competitive hiring process.

The Board was also careful to note that the FCIP does not violate the merit system principles because it allows hiring without "fair and open competition."

For more discussion on the VEOA, see A Guide to MSPB Law and Practice by Peter Broida, and MSPB Case Summaries by Peter Broida and Natania Davis.

Withdrawals of Appeals and Oral Settlements
Futrell-Rawls v. VA, ___MSPR___, 2010 MSPB 238 (2010)
by Natania Davis

A more exacting approach towards oral settlements and appeal withdrawals is now required by the Board as evidenced in the appeal of Futrell-Rawls v. VA, ___MSPR___, 2010 MSPB 238 (2010). Appellant's removal appeal was to have been resolved through a verbal settlement recorded during a March 3 "close of record" telephone conference. The agency representative recited the terms of the settlement during the conference, and the judge then asked the appellant if she had questions and whether she accepted the offer. The appellant said she had no questions and accepted the offer. At the conclusion of the conference, the judge stated that she would place the recording into the file, that the case would be regarded as settled based on the stated terms, and that she would issue a short decision indicating that the case was dismissed as settled. The judge's March 4 decision stated that the agreement was lawful on its face, and freely reached by the parties, who understood its terms. By that decision, the appeal was dismissed as settled. When the agency sent a written settlement for signature to the appellant, the appellant advised the judge she would not sign the agreement because there was no provision for compensatory damages and requested that her appeal be reopened. On PFR, the agency argued that the appellant was attempting to repudiate an enforceable oral agreement. The Board decided that the case should be reopened because the judge did not secure approval of the appellant to withdraw the appeal:

...Oral settlement agreements are valid before the Board, and the same requirements apply to oral settlements as well as written settlements. Parks v. U.S. Postal Service, 113 M.S.P.R. 60, ¶ 11 (2010). Absent a formal withdrawal of an appeal, however, and until the parties have agreed on the specific terms of the settlement agreement, the act of finality constituting a settlement has not occurred. Lee, 83 M.S.P.R. 236, ¶ 3; Smith v. Department of the Navy, 37 M.S.P.R. 132, 136 (1988).

Here, as noted, after asking the agency representative to recite the terms of the agency's settlement offer, the administrative judge asked the appellant if she had any questions and whether she understood and accepted the agency's offer. Although the appellant answered that she accepted the agency's offer and had no questions, she never stated that she was withdrawing her Board appeal. Id.

Moreover, the appellant took actions shortly thereafter which suggest that she did not understand the oral agreement and its implications. As noted, in her March 6, 2010 letter, the appellant stated that, after reviewing the settlement agreement prepared by the agency, she had decided not to sign it and was moving forward with reopening/pursuing her Board appeal. Contrary to the agency representative's statements in her affidavit, the written agreement she sent to the appellant for her signature did not memorialize the terms of the agreement set forth during the telephone conference. Rather, the 6-page document imposed additional requirements upon the appellant, including that she withdraw discrimination complaints, grievances, and all other causes of action against the agency, and that she dismiss, release, forfeit and forever discharge the agency from any and all actions, before the MSPB, regarding any claim that was or could have been raised. Further, the written agreement stated that it superseded all prior written or oral and all contemporaneous oral agreements and understandings relating to the subject matter of the appeal.

In view of the above, we find that the administrative judge dismissed the appeal with insufficient evidence of the parties' intent to enter into a settlement agreement. The oral agreement did not contain a provision stating that the appellant would withdraw her appeal, and it does not appear that she believed she had done so or that she otherwise understood the terms of the agreement. Nor did the oral agreement, as described by the agency representative during the telephone conference, indicate that the parties wished for it to be included in the record for enforcement purposes, even though the administrative judge stated in the initial decision that the agreement was enforceable by the Board. In sum, although an oral agreement is valid in Board proceedings, Parks v. U.S. Postal Service, 113 M.S.P.R. 60, ¶ 11, in light of the record evidence in this case, we find that there is insufficient evidence to find that a settlement of any type was reached between these parties.

The Board really reached out in this case to invalidate the settlement. The legal point made, though in passing and not really emphasized, is that the judge failed to confirm with the appellant that she was withdrawing her appeal on the basis of the settlement--a result that would ordinarily seem obvious. It seems such a withdrawal must be plainly stated from here on out.

For more discussion on settlements and appeal withdrawals, see Crafting Durable Settlement Agreements by Sarah Tuck, Settling Disputes by Michael Corum, Guide to MSPB Law and Practice by Peter Broida, and Guide to EEO Law and Practice by Ernest Hadley.

Comments on Sick Leave and Flu Season with Resources
by Natania Davis

With flu season upon us, Dewey thought it appropriate to report OPM's release of final regulations on the use of sick and advanced sick leave and to renew our yearly reminder of the EEOC's guidance on discrimination as it relates to the H1N1 Flu Virus.

On December 3, 2010, the Office of Personnel Management issued final regulations on the use of sick and advanced sick leave for serious communicable diseases, which may include pandemic influenza. The regulations note:

During a pandemic influenza or other emergency situation, Federal agencies will be expected to achieve two equally important goals: (1) Protect the Federal workforce, and (2) ensure the continuity of operations. OPM's web site contains significant guidance, developed in consultation with the Centers for Disease Control and Prevention (CDC), on keeping the Federal workforce healthy during a pandemic influenza by employing social distancing interventions (as warranted by the severity of the pandemic) such as telework, alternative work schedules, evacuation, and various leave flexibilities. In particular, supervisors should encourage telework and alternative work schedules to help prevent the spread of flu in their workplace during a severe pandemic. This will allow employees to continue to work or function while limiting contact with others, help maintain continuity of operations, and help employees manage their health and their family's needs. Before approving a particular leave option, federal supervisors should review applicable policies set forth in collective bargaining agreements and agency-specific human resource guidance. See These final regulations provide another tool for agencies to use for social distancing purposes that will help protect the Federal workforce. The current sick leave regulations allow an employee to use sick leave if health authorities or a health care provider determine that the employee's presence on the job would jeopardize the health of others because of exposure to a communicable disease. The final regulations allow an employee to use sick leave to care for a family member who has been similarly exposed.

74 Fed. Reg. 75363-75373 (December 3, 2010). The regulations also discuss the definition of a communicable disease, determinations of communicable diseases, medical documentation requirements and the employee's return to work, among other topics. The EEOC's guidance, "Pandemic Preparedness in the Workplace and the Americans with Disabilities Act", answers questions such as:

  • How much information may an employer request from an employee who calls in sick, in order to protect the rest of its workforce when an influenza pandemic appears imminent?

  • When may an ADA-covered employer take the body temperature of employees during a pandemic?

  • Does the ADA allow employers to require employees to stay home if they have symptoms of the pandemic influenza virus?

  • When employees return to work, does the ADA allow employers to require doctors' notes certifying their fitness for duty?

For related titles, see Administration of Leave and Medical Documentation Requests by Laws, EEO and the Federal Supervisor by Corum, and A Federal Sector Guide to the FMLA Act & Related Litigation, + 2009 Supplement to the 2nd Edition by Bosland.