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Dewey Publications Inc.
News and Case Alert
Issue #3-8
In this issue...
Recommended Reading
Changing, Expunging, Canceling, Rescinding Agency Actions
The Fate of the Mixed-Motive of Analysis Before the MSPB
Amicus Briefs Sought Relating to Indefinite Suspensions
Fourth Edition


There have been lots of changes in the world of workers' compensation since the last edition of this guide. The discussion below is taken from the preface of the book and identifies some of these developments.

Since the last update of this book, a mere three years ago, there have been extremely important changes in the world of Federal Sector Workers' Compensation. Most significantly, a new benefit was added for employees who die in certain war-related contingency operations. The FECA Death Gratuity, established by the 2008 Defense Authorization Act, authorizes up to $100,000 to the survivors of "an employee who dies of injuries incurred in connection with the employee's service with an Armed Force in a contingency operation." 5 USC § 8102a. An interim Final Rule implementing the statutory provision was implemented on August 18, 2009. The Death Gratuity is discussed in Chapter 15.

In addition, both the Office of Workers' Compensation Programs (OWCP) and the Employees' Compensation Appeals Board (ECAB), have updated their regulations. The OWCP regulatory changes are effective August 29, 2011. Most significantly, the OWCP regulatory changes reflect some amendments to the FECA, provide for greater use of technology in claims processing, and they add the skin as a schedule organ. The specific changes are discussed throughout the book.

The ECAB updated its regulations as well, effective November 19, 2008. The changes represent the first major update to the ECAB regulations in 46 years. As with the OWCP changes, many of the ECAB changes reflect enhanced use of technology and updated caselaw.

The OWCP has also undergone some changes, including abolishment of the Employment Standards Administration (ESA), which once had oversight over the FECA. Pursuant to the Secretary of Labor's Order 10-2009, 74 Fed. Reg. 58834 (2009), effective November 8, 2009, the ESA was dissolved into four component parts under OWCP, discussed below. The Order "cancelled or modified all prior orders and directives referencing ESA, devolved certain authorities and responsibilities of ESA to OWCP, and delegated authority to the Director, OWCP, to administer the programs now assigned directly to OWCP." There is no longer an Assistant Secretary of Labor for Employment Standards or an ESA.


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    "Changing", "Expunging", "Canceling", "Rescinding" Agency Actions
    Kitt v. Dept. of Navy, 2011 MSPB 82 (Sept. 2, 2011)

    Kitt entered into a last chance settlement agreement wherein the agency agreed "[t]o change the nature of Employee's Standard Form [SF] 50 bearing effective date 11 August 2007 from Removal to a 30-days Suspension." The agency subsequently denied Kitt's security clearance, in part, because her command "issued [her] a Notice of Removal from federal service" and because her "employment records" reflected that she received a 30-day suspension. Kitt appealed, arguing that the agency breached the LCA by failing to expunge documentation of her removal. The agency countered that the LCA did not require such action.

    The Board disagreed with the agency. Relying on Conant v. Office of Personnel Management, 255 F.3d 1371 (Fed. Cir. 2001), in which the Court of Appeals for the Federal Circuit held that the word "rescind" meant to destroy or erase, the Board held:

    In the appellant's case, the agreement stated that the agency would "change the nature" of the employee's SF-50 and place the employee in a leave without pay status. The agreement did not explicitly promise to expunge all mention of the removal action from the OPF, and it made no mention of other recordkeeping systems. However, the word "change" means "to replace with another." See Webster's Ninth New Collegiate Dictionary 225 (9th ed. 1985). In the context of this appeal and in light of the Federal Circuit's holding in Conant, we hold that when the agency agreed to "change" the nature of action on the SF-50 from a removal to a suspension, and provided no express language permitting other disclosures of the removal, it was agreeing to remove any record of the appellant's removal. But see Allen, 112 M.S.P.R. 659, ¶ 19 (holding that if an agreement includes "express language" permitting the disclosure of removal-related information to third parties, the carved out exception will be recognized).

    In so finding, the Board expressly overruled Cutrufello v. U.S. Postal Service, 56 MSPR 99 (1992), where it declined to attribute the same meaning to the words "cancel" and "expunge."

    For more discussion on settlement agreements, including last chance settlements, see Crafting Durable Settlement Agreements by Tuck and Settlement Forms for the MSPB and EEOC by Broida.

    The Fate of the Mixed-Motive of Analysis Before the MSPB
    Southerland v. Dept. of Defense, ___MSPR___¶¶ 29-38, 2011 MSPB 78 (2011)

    The Board recently rejected the use of a mixed-motive analysis in ADA cases under the ADAAA. Southerland v. Dept. of Defense, ___MSPR___¶¶ 29-38, 2011 MSPB 78 (2011). Looking first to the statutory language of the ADAAA to determine the applicability of a mixed-motive analysis, the Board found that the plain language of the statute did not resolve the question. The Board then turned to the legislative history of the statute, again finding no indication of Congressional intent to retain the mixed-motive analysis.

    In the ADA Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553, 3557, Congress changed the anti-discrimination language in the ADA from "[n]o covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual" in certain employment decisions to "[n]o covered entity shall discriminate against a qualified individual on the basis of disability" in certain employment decisions. 42 U.S.C. § 12112(a) (2008) (emphasis supplied); 42 U.S.C. § 12112(a) (2009) (emphasis supplied).
    ...
    [W]e have considered whether the phrase "on the basis of" in the ADAAA has a different meaning than "because of" in the ADA so as to suggest that in enacting the amendments, Congress intended to incorporate a mixed-motive approach to disability discrimination claims arising under the ADAAA. As a threshold matter, we note that the ADAAA does not define the term "on the basis of." Moreover, unlike in the ADEA, for example, the phrases "because of" and "on the basis of" in the relevant provisions of the ADA and ADAAA appear to modify the same terms and serve the same functions within their respective provisions. Nor is there any evidence in the legislative history to indicate that Congress intended a different meaning to apply to the phrase "on the basis of" in the ADAAA than to "because of" in the ADA, at least with regard to the question of mixed-motive analysis. After an exhaustive review of the language, structure, and history of the ADAAA, we conclude that the phrase "on the basis of" in that statute means the same thing as "because of" in the analogous ADA provision.
    ...
    Additionally, we note that the Supreme Court has repeatedly expressed the view that, at least in other statutory contexts, the terms "because of" and "on the basis of" have the same meaning.
    ...
    [T]he ADAAA did not change the language in 42 U.S.C. § 12117(a), and there is no stand-alone provision that would otherwise make the Title VII mixed-motive analysis applicable to cases under the ADAAA. Nor is there any provision that cross-references the Title VII mixed-motive provision at 42 U.S.C. § 2000e-2(m). For these reasons, we find that in enacting the ADAAA, Congress did not intend to authorize a mixed-motive analysis to disability discrimination claims arising thereunder and the appellant must prove by preponderant evidence that the agency took an action "on the basis" of his disability.

    The language, structure, and legislative history of the ADAAA lead us to conclude that the phrase "on the basis of" in the ADAAA means the same thing as "because of" in the ADA and, therefore, requires application of the same "but for" test applied in Gross and Serwatka to disability discrimination claims arising under the ADAAA. The burden of persuasion does not shift to the agency to show that it would have taken the action regardless of disability, even if the appellant produces some evidence on remand that disability was one motivating factor in the adverse employment action. See, e.g., Gross, 129 S.Ct. at 2352; Brott, 116 M.S.P.R. 410, ¶ 14. Thus, on remand, the administrative judge shall analyze the appellant's disability discrimination claim without relying on a mixed-motive framework. See Brott, 116 M.S.P.R. 410, ¶ 14.

    Also making this case worth a read, the Board provided some analysis as to the distinction between a disability and a transitory condition not rising to the level of a disability and the need for medical evidence to establish the extent and duration of a condition that is alleged to be a disability.

    For more discussion on the intersection of MSPB and EEO law, see A Guide to Merit Systems Protection Board Law and Practice by Broida, A Guide to Federal Sector Equal Opportunity Law and Practice by Hadley and MSPB Case Summaries by Broida and Davis.

    Amicus Briefs Sought Relating to Indefinite Suspensions

    Several cases pending before the Board involve employees who were required to maintain security clearances but were indefinitely suspended pending decisions as to whether their clearances should be revoked. The issues posed by the Board are:
    1. Should the Board apply the balancing test set forth in Homar, 520 U.S. 924 [see * below], in determining whether an agency violates an employee's constitutional right to due process in indefinitely suspending him or her pending a security clearance determination;
    2. If so, does that right include the right to have a deciding official who has the authority to change the outcome of the proposed indefinite suspension;
    3. If the Board finds that an agency did not violate an employee's constitutional right to due process in this regard, how should the Board analyze whether the agency committed harmful procedural error in light of the restrictions set forth in Egan, 484 U.S. 518, on the Board authority to analyze the merits of an agency's security clearance determination.
    Briefs are due by October 19.

    * "In Gilbert v. Homar, 520 U.S. 924, 932-33, 117 S. Ct. 1807, 138 L. Ed. 2d 120 (1997), the Court held that prior notice and an opportunity to respond were not constitutionally required before a police officer was suspended without pay for having been arrested and charged with a felony, and that a post-suspension opportunity to respond was sufficient to satisfy his constitutional right to minimum due process. The Court explained that 'due process is flexible and calls for such procedural protections as the particular situation demands,' id. at 930, 117 S. Ct. 1807 (citing Morrissey v. Brewer, 408 U.S. 471, 481, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972)), and distinguished Loudermill on the basis that the employee there faced termination, rather than a temporary suspension without pay, id. at 932, 117 S. Ct. 1807." Broida, A Guide to Merit Systems Protection Board Law and Practice (2011).

    For more discussion related to security clearances and indefinite suspensions, see Elizabeth Newman's Security Clearance Law and Practice, MSPB Charges and Penalties and Adverse Actions and Performance Based Actions by Fowler and Vitaro.
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