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News and Case Alert
Issue #3-1
In this issue...
Get Updated with Principles of Arbitration
Conyers is Decided
MSPB Declares USERRA Does Not Allow for Disparate Impact Claims
Board Finds Whistleblower Reprisal in Six Year Old Case
President Obama Abolishes the Federal Career Intern Pro
President Obama Signs Telework Act

Get Updated with Principles of Arbitration


The second edition of Dewey's popular Principles of Federal Sector Arbitration Law is available covering awards from 1999 to October of 2010.

Principles of Federal Sector Arbitration Law by Broida and 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. Whether you are selecting an arbitrator and need to know the experience level of the individual you are considering, or whether you are presenting a case to an arbitrator and need to rely upon awards of that arbitrator or other arbitrators in presenting your opening statement or closing brief, Principles of Federal Sector Arbitration Law will aid your research efforts.

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Conyers is Decided.
Conyers v. Dept. of Defense,
2010 MSPB 247 (December 22, 2010)
by Natania Davis

Big news from the Board - in terms of the Board's authority to review the substantive basis for agency adverse actions taken against employees who are determined to be ineligible to occupy a sensitive position, sensitive positions are not the same as those requiring security clearances or access to classified information, and the limitation announced in Egan on the Board's scope of review is only applicable when an agency has made a determination regarding an employee's access to classified information.

Conyers involved an appeal, an interlocutory appeal on the central issue, from an indefinite suspension of a DFAS accounting technician because of WHS/CAF's decision to deny her "eligibility for access to sensitive or classified information." The agency argued that Conyers' position had been designated non-critical sensitive, that her position required her to access "sensitive or classified information," and that, under Egan, the Board was precluded from a merits review of the agency's actions. The parties stipulated that Conyers was not required to have a security clearance and had no need for access to any classified information. DFAS did not contest Conyers' claim that DFAS has designated 100% of its positions as sensitive.

The Board's decision is both carefully drafted and lengthy. We attempt to summarize the most salient portions of the decision here, but there is no substitute for reading the opinion in its entirety.
  • "In appeals such as this, when the charge involves an agency's withdrawal of its certification or approval of an employee's fitness or other qualification for the position, the Board has consistently recognized that its adjudicatory authority extends to a review of the merits of that withdrawal. The instant appeal falls squarely within our statutory jurisdiction."
  • The Board simply noted that the issue before the Egan Court, as narrowly framed by the Court, was "whether the [Board] has authority by statute to review the substance of an underlying decision to deny or revoke a security clearance"; nothing in the Egan opinion suggested that the Court meant for the term "security clearance" to include anything other than eligibility for access to, or access to, classified information; the term "security clearance" is not synonymous with eligibility to occupy a sensitive position; the parties in Conyers stipulated that a security clearance was not at issue in this case; and accordingly, Egan did not apply. "[T]he appellant is not required to have a security clearance and she is not required to have access to classified information. Therefore, we conclude that Egan does not limit the Board's statutory authority to review the appellant's indefinite suspension appeal. We further conclude that Egan limits the Board's review of an otherwise appealable adverse action only if that action is based upon a denial, revocation or suspension of a "security clearance," i.e., involves a denial of access to classified information or eligibility for such access...."
  • "We thus conclude that Egan limits the Board's statutory review of an appealable adverse action only when such review would require the Board to review the substance of the 'sensitive and inherently discretionary judgment call...committed by law to the...Executive Branch' when an agency has made a determination regarding an employee's access to classified information, i.e., a decision to deny, revoke or suspend access, or eligibility for access to classified information. Egan, 484 U.S. at 527. Our use of the term 'security clearance' in this Opinion and Order includes this specific understanding."
  • The Board rejected the agency's position that, though Conyers' position did not require a security clearance, "the Board is nevertheless precluded under Egan from reviewing whether she was improperly suspended based upon the agency's determination that she was ineligible to occupy a national security position," the Board noted OPM's admission that its own regulations are silent as to the Board's scope of review on this issue and "[t]hus, OPM has not interpreted its own regulations as precluding the Board's usual scope of review in these appeals."
  • In considering ODNI's argument that "the President has given DNI 'oversight authority over eligibility determinations, whether they entail access to classified information or eligibility to occupy a sensitive position, regardless of sensitivity level," the Board concluded that simply because an executive order refers to both eligibility for access to classified information and eligibility to occupy a sensitive position or because both determinations are made through the same WHS/CAF process, does not mean that the same Board review authority must be applied in both circumstances.
  • The Board further noted that if an agency believes that the appeal of an action would involve matters of national security, it could exercise its authority to take such action under 5 USC 7532 (allowing an agency head to suspend or remove an employee in the interests of national security).
  • The Board was careful to note, "[w]e are not finding that the Board has the authority to determine whether the agency has properly designated the appellant's position as NCS. We are simply finding that the agency's decision to designate a position as a 'national security' position or as a 'sensitive' one, standing alone, does not limit the Board's statutory review authority over an appealable adverse action."

The Board returned the appeal to the AJ with instructions to "conduct a hearing consistent with the Board's statutory duty to determine whether the appellant's indefinite suspension is supported by a preponderance of the evidences, promotes the efficiency of the service and constitutes a reasonable penalty."

Though, in the interest of brevity, we do not review Member Rose's dissent here, that is not to suggest that her comments are without import. Again, read the opinion, all 35 pages - it is unlikely that this is the end of the matter. The agency will, no doubt, appeal to the Federal Circuit. This case could very well receive Supreme Court attention.

For a more detailed review and commentary on Conyers place your order now for the newest edition of Dewey bestsellers MSPB Charges and Penalties by Renn Fowler and Sam Vitaro, expected availability February 2011, and A Guide to MSPB Law and Practice by Peter Broida, expected availability April 2011.

Other relevant Dewey titles include Security Clearance Law and Procedure by Elizabeth Newman, Uncivil Servant by Bill Wiley and Adverse Actions by Michael Corum.

MSPB Declares USERRA Does Not Allow for Disparate Impact Claims
Harellson v. USPS, ___MSPR___¶¶ 3-21, 2011 MSPB 3 (2010)
by Natania Davis

After taking and passing the examination for Custodians, Harellson, a 10-point preference eligible veteran, applied for numerous Custodian positions within the agency, but was not selected. Upon learning that the agency waived the examination for internal agency candidates and that the positions were filled internally by reassignments, Harellson appealed to the Board alleging USERRA violations under a disparate impact theory based on the expansion of the applicant pool which had the result that outside applicants with veterans preference competed against a more numerous applicant pool.

The Board framed the issue as "[w]hether USERRA allows an individual to maintain a claim for disparate impact" and further noted that in order to make such a determination, "we must decide whether intent is a required element of proof to establish a violation under USERRA." The Board considered the USERRA's language, case law and legislative history and other anti-discrimination laws to determine "whether they provide persuasive analysis for reaching a conclusion regarding the applicability of a disparate impact in a claim brought under USERRA."

In concluding that USERRA does not provide for a claim under a disparate impact theory, the Board found:
  • "USERRA focuses on the employee's motivation in taking the action, stating that an action may not be taken or withheld 'on the basis of' the individual's membership in the protected class. Further, the statute provides that an employer will be found to have violated USERRA if the individual's protected status is a 'motivating factor' in the employer's action. ...a successful claim of discrimination under USERRA requires a showing that the contested agency action was based on improper motive."
  • If Congress intended, under USERRA, to include a disparate impact cause of action to establish discrimination, it would have clearly indicated as much in the statute and in the legislative history. Instead, Congress "retained the motive requirement in the statute."
  • Unlike Title VII, USERRA was not enacted to remedy a long history of discrimination, but to "directly address the potential effects of military service on a individuals civilian job."
  • The Board limited its finding by noting that "[d]enying an appellant's ability to pursue a claim under a disparate impact theory does not preclude an appellant from using evidence of a disparate impact of an agency's policies or practices as circumstantial evidence of intentional discrimination."
For more discussion on USERRA and disparate impact theories, see A Guide to USERRA and VEOA by Joyce Kitchens, A Guide to EEO Law and Practice by Ernest Hadley and A Guide to MSPB Law and Practice by Peter Broida.

Board Finds Whistleblower Reprisal
in Six Year Old Case
Chambers v. Dept. of Interior,
___MSPR___, 2011 MSPB 7 (2011)
by Natania Davis

Six years after her removal as Chief of the Park Police, the MSPB recently ordered the reinstatement (with back pay) of Teresa Chambers, finding that Chambers engaged in protected whistleblowing activity and "the undisputed record plainly establishes that the agency could not have removed [Chambers] in the absence of her protected whistleblowing disclosures." The facts, extensively reiterated in the 2011 decision, showed that Chambers made disclosures, some of which were found protected and others not, noting her concerns of dangers to public safety and about her organization's need for additional resources and staff, and those disclosures were a contributing factor in the agency's adverse action. There was some evidence of misconduct, but the misconduct, according to the Board, was not established by evidence sufficiently compelling as to meet the "clear and convincing" evidentiary standard necessary to sustain the removal despite the protected disclosures and the causal connection between the disclosures and the action taken against Chambers.

Perhaps the most interesting part of the opinion is Board Member Rose's concurring opinion, noting that Chambers was a tenured civil servant entitled to the protections of the Reform Act and the Whistleblower Protection Act. Her point was that the agency could have designated her position as confidential or policymaking, and thereby placed her in a position of either accepting policy decisions without disagreement or, if she expressed external disagreement, being subject to removal from her position without substantial whistleblower protections.

CONCURRING OPINION OF BOARD MEMBER MARY M. ROSE

I write separately to address the anomaly at the heart of this case. Again, the appellant was the Chief of the United States Park Police. Ordinarily an agency head serves at the pleasure of the President or a cabinet Secretary, and is expected to carry out the Administration's policies faithfully.[1] Here, among other things, the appellant publicly disagreed with the Administration's budgetary priorities and its plan to redirect some Park Police resources toward securing the National Capital Region from terrorist attacks. Instead of working to further the Administration's lawful and carefully-considered program for the Park Police,[2] the appellant chose to be an obstacle and to state her opposition publicly. For an agency head to behave in this way is extraordinary and, in all similar instances of which I know, is not tolerated.

An employee whose position has been excepted from the competitive service because it is "of a confidential, policy-determining, policy-making, or policy-advocating character" is excluded from statutory tenure and appeal-rights coverage. 5 U.S.C. § 7511(b)(2). The decision to except a position from the competitive service on one of these grounds may be made by the President, the Office of Personnel Management, or the head of an agency, id., and once made is the kind of "discretionary judgment call" that is not reviewable by the Board, Stanley v. Department of Justice, 423 F.3d 1271, 1273 (Fed. Cir. 2005). For the section 7511(b)(8) exclusion to be effective as to a particular individual, the appropriate official must designate the position in question as confidential, policy-determining, policy-making, or policy-advocating before the individual is appointed. Thompson v. Department of Justice, 61 M.S.P.R. 364, 369 (1994).

What makes the present case unique is that, despite the appellant's status as head of an agency, she was a tenured employee in the competitive service with the right to appeal her removal to the Board. The agency has never argued that the position of Park Police Chief was designated as confidential, policy-determining, policy-making, or policy-advocating before the appellant was appointed to it, and the record indicates that in fact such a designation was never made. In other words, the appellant had the same rights vis-à-vis her employment as Chief of the Park Police -- including the right to appeal her removal and to claim protection from whistleblower retaliation, see 5 U.S.C. §§ 7513(d), 7701(c)(2)(B) -- that rank and file civil servants have with respect to their employment. The "discretionary judgment call" to give her these rights was made by others, not by the Board.

For titles discussing whistleblower reprisal, see MSPB Case Summaries by Peter Broida and Natania Davis and A Guide to MSPB Law and Practice by Peter Broida.

President Obama Abolishes the Federal Career Intern Program
by Natania Davis

On December 27, 2010, by Executive Order, President Obama abolished the Federal Career Intern Program. The FCIP, which was designed to help agencies recruit and attract exceptional individuals into a variety of occupations, was created under Executive Order 13162. Effective March 1, 2011, that Order is revoked and superseded by the President's new EO, Executive Order 13562, entitled "Recruiting and Hiring Students and Recent Graduates."

Over the years, the Board has resolved conflicts involving the FCIP, most recently in Dean v. OPM, 115 MSPR 157 (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) and Weed v. SSA, 112 MSPR 323 (2009) (allowing appellant to bring a USERRA or VEOA action even though he did not apply for the job in question where the agency allegedly used the FCIP in order to circumvent public notice requirements for certain vacancies thereby ensuring that appellant never learned of the vacancies). Dewey's News and Case Alert reported Dean in issue #2-11 and Weed in issue #1-6.

For more discussion on methods and strategies for hiring within the federal government, see Hiring for Success by Michael Corum and Victoria Loufakis and Senior Executive Service Legal Guide by Peter Broida and Natania Davis.

President Obama Signs Telework Act
by Natania Davis

Early in December 2010, President Obama signed into law the 2010 Telework Enhancement Act (HR 1722). Under the Act (H.R. 1722), within 180 days of its enactment (December 9, 2010), the head of each executive agency must establish a telework policy, determine the eligibility of all employees to participate in telework, and notify each employee of his/her eligibility for same. Development of those policies will be in consultation with the Office of Personnel Management.

For more on this Act, see Dewey's News and Case Alert #2-7 and #2-9. For discussion on similar topics, see Managing Employee's Time and Supervising Federal Employees by Michael Corum.
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