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Dewey Publications Inc.
News and Case Alert
Issue #4-1
The year in review...

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

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)

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As we enter a new year, we here at Dewey take this opportunity to thank our readership and to wish all a Happy New Year.

Dewey's Year In Review

Dewey Costumers:

This year has marked some major developments at the Merit Systems Protection Board, the Equal Employment Opportunity Commission, the Federal Labor Relations Authority and beyond. Below are some highlights.


In Conyers v. Dept. of Defense, 115 MSPR 572 (2010), the Board stepped out, issuing its first opinion to limit past interpretation of Department of Navy v. Egan, 484 U.S. 518 (1988), holding 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 ... access to classified information or eligibility for such cases." Conyers, et al., did not involve the denial of a security clearance, but rather, the appellants were found ineligible to occupy noncritical sensitive national security positions. Sensitive positions are not the same as those requiring security clearances or access to classified information, according to the Board. As a result, the Board has the authority to review the merits of the agency's actions. With that, the Board remanded the cases, directing their adjudication as adverse actions.

Though the cases were remanded, in August 2011, the Federal Circuit granted OPM's petition for review of the Board's decision. Berry v. Conyers, 435 Fed. Appx. 943, 943-45 (Fed. Cir. 2011 nonprecedential). That decision is pending. Stay tuned in 2012. This case could very well receive Supreme Court attention.

The scope of Egan was further called into question in Rattigan v. Holder, 643 F.3d 975 (D.C. Cir. 2011), wherein the court took a restrictive view of Egan, concluding that Egan shields from review only those security decisions made by [agency security divisions], not the actions of agency officials who refer matters to those security divisions. In September 2011, Rattigan was vacated and the parties were asked for further briefing on issues pertaining to the scope of Egan. Rattigan v. Holder, No. 10-5014 (Sept. 13, 2011). Oral arguments were scheduled for December 7, 2011, and the case is still pending.

For a more detailed review and commentary on Egan and determinations related to eligibility to occupy certain positions and security clearance issues place your order for the newest edition of Dewey bestsellers MSPB Charges and Penalties (2011) by Renn Fowler and Sam Vitaro, available now, and A Guide to MSPB Law and Practice (29th Ed., 2012) by Peter Broida, expected availability April 2012. Other relevant Dewey titles include Security Clearance Law and Procedure by Elizabeth Newman, Uncivil Servant by William Wiley and Adverse Actions by Michael Corum.

In Aguzie v. OPM, 116 MSPR 64 (2011), following remand, Aguzie v. OPM, 112 MSPR 276 (2009), the Board determined that, as to "tenured employees" (defined as individuals who satisfy the definition of "employee" at 5 U.S.C. § 7511(a)(1)), OPM-directed suitability-based removals constitutes adverse actions, with commensurate Board appeal rights, accompanied by a burden of proof on OPM to demonstrate that the action meets service efficiency standards and subjected to Douglas mitigation standards and EEO claims analysis. For more on suitability determinations, see MSPB Case Summaries by Broida and Davis.

RESEARCH TIP: When researching Board law this year, don't forget to consult the Board's nonprecedential decisions. They are citable and many contain useful guidance. The Board has only made public those decisions from the end of October 2011 to the present, but Peter Broida has reviewed all of the Board's nonprecedential decisions and selected for review and analysis the most salient decisions since the beginning of this practice. They are reported in Broida's A Guide to MSPB Law and Practice.


Not to be outdone by the Board in 2011, the Commission finally published its long awaited implementing regulations for the ADAAA. On March 24, 2011, the EEOC announced via press release the "Final Bipartisan Regulations for the ADA Amendments Act." The primary objective of the law and implementing regulations is to simplify the definition of disability favoring broader coverage of individuals under the ADA and making it easier for employees to establish that they have a disability within the meaning of the ADA.

The EEOC noted the following highlights of the regulations:

  • An impairment need not prevent or severely or significantly restrict performance of a major life activity to be considered a disability.
  • Whether an impairment is a disability should be construed broadly
  • With one exception (ordinary eyeglasses or contact lenses), "mitigating measures," such as medication and assistive devices like hearing aids, must not be considered when determining whether someone has a disability.
  • Impairments that are episodic (such as epilepsy) or in remission (such as cancer) are disabilities if they would be substantially limiting when active.
  • The term "major life activities" includes "major bodily functions," such as functions of the immune system, normal cell growth, and brain, neurological, and endocrine functions.
  • It is now easier for individuals to establish coverage under the "regarded as" part of the definition of "disability." Establishing such coverage used to pose significant hurdles, but under the new law, the focus is on how the person was treated rather than on what an employer believes about the nature of the person's impairment.  

For more on the ADA, Rehabilitation Act, the ADAAA and its implementing regulations, place your order for Consolidated Federal Sector EEO Update 2004-2011 by Vitaro, Goodfriend and Gilbert, A Guide to EEO Law and Practice, and A Guide to Federal Sector Disability Discrimination Law and Practice by Hadley, and Federal Sector Disability Discrimination Law Deskbook by Gilbert.


Speaking of long awaited decisions, this year the Office of Special Counsel finally welcomed its first permanent Special Counsel since 2008, Carolyn Lerner.


In Staub v. Proctor Hospital, 131 S.Ct. 1186 (2011), the Supreme Court specifically rejected the argument that an employer cannot be held liable for discrimination unless the "de facto" decisionmaker in an adverse employment action is motivated by such animus. In other words, employers may be held liable for decisions, influenced by managers or supervisors who had unlawful motives, but made by individuals with no such discriminatory intent.


In NTEU and Dept. of Treasury, Bureau of Public Debt, 65 FLRA 509 (2011), the Authority revised its thinking with regard to negotiability law when it altered course and determined that it would apply the "abrogation" rather than "excessive interference" test in reviewing an agency head's disapproval of a provision based on a management rights objection.

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