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Dewey Publications Inc.
News and Case Alert
Issue #3-10
In this issue...
ON SALE! Collective Bargaining Law for the Federal Sector
Dewey Instructional Audio now available for download! (.mp3)
Federal Circuit Declines to Exercise Jurisdiction Over EEO Reprisal Claims
Frequency of Suitability Determinations
Legislation Tracking: Whistleblower Protection Enhancement Act of 2011

Collective Bargaining Law for the Federal Sector
By: Ferris
Price: $135.00 $55.00
Sku: 09CBL
Edition: 1st/2009
ISBN: 1-934651-27-3
Availability: IN-STOCK
Format: Book, CD, or eBook

Relied on by union and employee negotiators and the attorneys who advise them, this book details labor relations and breaks down the collective bargaining process. Major topics include the change proposal, the demand, obligation and information to bargain, the duty of good faith bargaining, negotiability, impasse assistance, post-agreement obligations and remedies.(more details)

Dewey Instructional Audio now available for .mp3 download!

by Thomas Angelo

Relied on by management and union representatives, this instructional audio CD provides advice and analysis on the arbitration process. Major topics include selection of arbitrators, evaluation of cases, case presentation, settlement, evaluation of evidence, post-hearing briefs, and issues pertaining to arbitrators' billings.

1 hour 56 minutes long
mp3 download or 2 Audio CDs
Click for more information

by Feil and Kaufman

Relied on by management, employees, and representatives, this instructional audio CD examines the mediation process. Major topics include how to select cases ripe for mediation, the advocate's role in mediation, selecting a mediator, settlement, the format and structure of mediation, the relationship among the parties, representatives and the mediator and confidentiality.

1 hour 53 minutes long
mp3 download or 2 Audio CDs
Click for more information

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Now taking 2012 orders

A Guide to Merit Systems Protection Board Law and Practice (2012)
By: Broida
Price: $550.00
Edition: 29th/2012
Availability: Spring 2012

A Guide to Federal Labor Relations Authority Law and Practice (2012)
By: Broida
Price: $450.00
Edition: 25th/2012
Availability: Spring 2012

A Guide to Federal Sector Equal Employment Law and Practice (2012)
By: Hadley
Price: $550.00
Edition: 25th/2012
Availability: Spring 2012
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Federal Circuit Declines to
Exercise Jurisdiction Over EEO Reprisal Claims
by Natania Davis

The Federal Circuit recently considered whether an affirmative defense of reprisal for prior EEO activity constitutes a "mixed case" precluding its exercise of subject matter jurisdiction over an otherwise appealable petition for review.

Diggs appealed her removal to the Board alleging the removal was in retaliation for her prior EEO activity. The AJ affirmed Diggs' removal. On appeal, the full Board found no error in the initial decision, and Diggs appealed that decision to the Federal Circuit.

Noting the limits on its jurisdictional purview via 5 U.S.C. 7702, those involving actions appealable to the Board, but also containing affirmative defenses of discrimination, the Federal Circuit turned its analysis to whether a claim of retaliation for EEO activity is an assertion of discrimination under Title VII and within the meaning of section 7702. The answer to that, according to the court, turned on "whether Title VII's federal-sector provision, 5 U.S.C. 717, incorporating 42 U.S.C. 2000e-16, gives rise to a private right of action when the government engages in such retaliation." Citing to cases from the 1st, 4th, 5th and 9th Circuits and one Supreme Court case, the court answered in the affirmative.

[O]ur sister circuits and the Supreme Court have found that, when Congress broadly drafts provisions provisions prohibiting "any discrimination" by the federal government, it intends to bar the government from engaging in, among other practices applicable to private employers, retaliation against an employee who complains of illegal discrimination. We agree.... Accordingly, because we find that Ms. Digg's retaliation claim - premised as it was on her prior EEO activity - is a discrimination claim prohibited by "717 of the Civil Rights Act of 1964," we find that her claims present a mixed case which falls outside our jurisdictional reach.

In order to bring such claims under Federal Circuit purview, claimants must drop any allegations of discrimination and/or reprisal from their petitions and have the adverse action reviewed solely based on the action itself.

For more on Board and Federal Circuit jurisdiction, see Peter Broida's MSPB: The Movie and A Guide to Merit Systems Protection Board Law and Practice and MSPB Case Summaries by Peter Broida and Natania Davis.

For more on adverse actions, see Drafting Disciplinary Charges by Fowler, Ashner and Wiley, Adverse Actions and Performance Based Actions and MSPB Charge and Penalties by Fowler and Vitaro.

For more on affirmative defenses before the MSPB, see How to Defend a Federal Employee by Wiley, MSPB Basics by Broida, A Guide to Whistleblower Protection Act and Related Litigation by L'Heureux and Fowler, and A Guide to USERRA and VEOA by Kitchens.

Frequency of Suitability Determinations
by Natania Davis

Individuals holding public trust positions are now required to undergo a "reinvestigation" to ensure continuing suitability for employment. Reinvestigations will be conducted once every 5 years.

Last week, OPM published its regulations implementing the requirements of Executive Order 13488 regarding suitability determinations. E.O. 13488 (2009) requires individuals to be "investigated with a frequency determined by the Director of OPM to ensure suitability for continued employment." Every five years, according to OPM, satisfies the E.O. requirement. OPM, in its Federal Register comments, reasoned:

The E.O. requires a meaningful determination of continuing suitability for employment. To be meaningful, a determination cannot reasonably be made with outdated information. ...

OPM chose the 5-year timeframe because it is consistent with the coverage period that has long been established as the minimum coverage period for suitability investigations. The National Agency Check with Written Inquiries (NACI) is the minimum required level of initial investigation and is required for low-risk positions. The coverage period for the NACI is 5 years and has historically been 5 years. Considering that a public trust position's potential adverse impact on the efficiency or integrity of the service is greater than that of low-risk positions, we believe 5 years is a reasonable timeframe for public trust reinvestigations. Further, if the scope of coverage for the original suitability investigation is 5 years, it follows that the reinvestigations should be completed within the same timeframe, at a minimum. Therefore, a less-frequent timeframe for reinvestigations has not been adopted.

Other regulatory changes and comments include:

  • Section 731.106(d)(2) now provides that an investigation for eligibility for access to classified information or to occupy a sensitive national security position may be sufficient to meet the requirements for a public trust reinvestigation.
  • "A commenter stated that clarification may be needed to ensure agencies understand the reinvestigation requirement is based on the completion date of the prior investigation. We agree and will provide clarification in the implementing guidance."
  • Pursuant to section 731.106(d)(2), "Agencies must notify all employees covered by this section of the reinvestigation requirements...."

  • To read the Federal Register Notice visit:

    Legislation Tracking:
    Whistleblower Protection Enhancement
    Act of 2011
    (H.R. 3289) Passes House Committee
    by Natania Davis

    On November 3, the House Oversight and Government Reform Committee unanimously passed a bill that would strengthen the Whistleblower Protection Act to ensure additional protections to federal whistleblowers. The Senate Homeland Security and Governmental Affairs Committee approved a similar companion bill last month.

    The House bill seeks to:
  • close judicially-created loopholes in existing whistleblower protection law;
  • extend whistleblower protection rights to some 40,000 airport baggage screeners;
  • increase avenues for intelligence community whistleblowers to safely and legally expose waste, fraud and abuse at intelligence agencies;
  • create specific protection in the law for scientific freedom;
  • ensure a permanent anti-gag statute to neutralize classifications like "classifiable," "sensitive but unclassified," "sensitive security information," and other poorly defined security labels;
  • establish consistency with other remedial employment laws;
  • strengthen the Office of Special Counsel's ability to seek disciplinary accountability against those who retaliate, and provides the OSC with authority to file friend of the court briefs in support of whistleblower rights cases appealed from the administrative level;
  • create a pilot program to extend whistleblower protection to non-defense contractors.


    For more on Whistleblower Rights, see How to Defend a Federal Employee by Wiley, Best of the Board by Broida and A Guide to the Whistleblower Protection Act by L'Heureux & Fowler.


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