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Dewey Publications Inc.
News and Case Alert
Issue #4-5
In this issue...
Supreme Court Finds in Favor of MSPB Exclusive Jurisdiction
Notable EEO Decisions
MSPB Proposes An Overhaul Of Its Adjudicatory Regulations
The Board Has a New Member


A Guide to Federal Sector Equal Employment Law and Practice (2012)
By: Hadley
Price: $550.00
Sku: 12EEO
Edition: 25th/2012
ISBN: 1-934651-60-5

Updated annually, the EEO Guide offers the most comprehensive analysis of federal sector EEO decisions, litigation practice, statutes, regulations, policies, guidance, and practical advice available to practitioners. Major topics include jurisdiction, pre- and formal complaint processes, investigation and settlement of complaints, hearings, final agency actions, appeals, official time, theories and bases of discrimination, disabilities and GINA, reprisal, personnel actions, class actions, remedies, EEO alternatives, and attorney fees. This indispensable text is a component of the American Civil Service Law Series.(more details)

A Guide to Federal Labor Relations Authority Law and Practice (2012)
By: Broida
Price: $450.00
Sku: 12FLRA
Edition: 29th/2012
ISBN: 1-93465159-1

Updated annually, the FLRA Guide is a complete research tool on unit determinations, negotiability and the collective bargaining process, unfair labor practices, and arbitration. The Guide includes discussion of cases, laws, and litigation practice before the FLRA and its reviewing courts. Major topics include jurisdiction, unit determinations and elections; labor organizations; procedures and substantive limitations on and specific applications of negotiability determinations; the Federal Service Impasses Panel; ULPs and remedies; review of arbitration awards; and administrative reconsideration and judicial review. This authoritative text is a component of the American Civil Service Law Series. (more details)

A Guide to Merit Systems Protection Board Law and Practice (2012)
By: Broida
Price: $550.00
Sku: 12MSPB
Edition: 29th/2012
ISBN: 1-934651-58-3

New! Includes hundreds of nonprecedential MSPB decisions issued starting in late 2010.

In two volumes, updated annually, this encyclopedic guide to Board cases, laws, procedure, and litigation practice is the seminal text on this complex area of the law. Major topics include jurisdiction, appeals, discovery, hearings, evidence, PFRs, adverse actions and discipline, nexus and mitigation, substantive offenses, performance cases, RIFs, PPPs, retirement, attorney fees, settlement, remedies, and judicial review. (more details)

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The Basics


Consolidated Federal
Sector EEO Update

By: Vitaro, Goodfriend & Gilbert
Price: $190.00
Sku: 12CEUP
Edition: 8th/2012
Availability: Released 6/19/12
Format: Book, CD, or eBook

Updated annually, this comprehensive text digests notable Commission and federal court employment discrimination cases from 2003 through 2011 and reviews EEO laws, regulations, guidance, and recent trends, arranged by subject matter areas of employment discrimination jurisprudence and further categorized alphabetically for ease of use. Major topics include recent trends in the law, age, disability, national origin, race, religious and sex discrimination, attorney fees, class actions, compensatory damages, appellate review, evidence, harassment, hearings, mixed cases, procedures, remedies, reprisal, settlement, and sexual harassment. (more details)


MSPB Case Summaries (2012)
By: Broida & Davis
Price: $200.00
Sku: 12CEUP
Edition: 3rd/2012
Availability: Summer 2012
Format: Book, CD, or eBook

Updated annually, this encyclopedic guide condenses MSPB and Federal Circuit decisions from 1999 through early 2012 into concise, useable summaries. Cases are arranged by subject matter areas of Board jurisprudence and further categorized alphabetically for ease of use. Major topics include adverse and performance actions, arbitration/collective bargaining issues, attorney fees, Board procedure, jurisdiction and judicial review, defenses, discrimination, evidence, harmful error, hearings, PPPs, retirement, reemployment, remedies, RIFs, settlements, substantive offenses, timeliness, USERRA and VEOA. (more details)


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Supreme Court Finds in Favor of MSPB Exclusive Jurisdiction

Elgin v. Dep't of the Treasury (No. 11-45) (June 11, 2012)

by Natania Davis

Recently, the Supreme Court affirmed the First Circuit's holding that under the Civil Service Reform Act, the MSPB, with judicial review vested in the Federal Circuit, has exclusive jurisdiction over a qualifying federal employee's challenge to an adverse action even where the employee argues that a federal statute is unconstitutional.

Elgin was removed from federal service because he failed to register with the Selective Service in violation of the Military Selective Service Act. Title 5 USC 3328 bars Executive agencies from employing anyone who knowingly and willfully fails to register, and Elgin was removed pursuant to that statute. Elgin initially appealed his removal to the MSPB, arguing that section 3328 was an unconstitutional bill of attainder and unconstitutional in that it discriminates against men. The MSPB referred Elgin's appeal to an ALJ, who dismissed the appeal for lack of jurisdiction finding that the agency's action was based on an absolute statutory bar to employment. Elgin joined the other petitioners in district court. The district court agreed with the ALJ finding that the MSPB had no authority to determine the constitutionality of a federal statute and denied Elgin's constitutional claims on the merits. The First Circuit vacated the district court's decision, remanding with instructions to dismiss for lack of jurisdiction. The Supreme Court affirmed reasoning:

1) "[T]he CSRA does not foreclose all judicial review of petitioners' constitutional claims, but merely directs that judicial review shall occur in the Federal Circuit. Moreover, as we explain below, the Federal Circuit is fully capable of providing meaningful review of petitioners' claims. See infra, at 12-17. Accordingly, the appropriate inquiry is whether it is 'fairly discernible' from the CSRA that Congress intended covered employees appealing covered agency actions to proceed exclusively through the statutory review scheme, even in cases in which the employees raise constitutional challenges to federal statutes."

2) Examining the CSRA's "text, structure and purpose" and noting its exhaustive detail of the protections and remedies applicable to adverse personnel actions against federal employees, the Court found it "fairly discernable" that "Congress intended to deny such employees an additional avenue of review in district court."

Just as the CSRA's "elaborate" framework, 484 U. S., at 443, demonstrates Congress' intent to entirely foreclose judicial review to employees to whom the CSRA denies statutory review, it similarly indicates that extrastatutory review is not available to those employees to whom the CSRA grants administrative and judicial review. ... Nothing in the CSRA's text suggests that its exclusive review scheme is inapplicable simply because a covered employee challenges a covered action on the ground that the statute authorizing that action is unconstitutional.

The Court then noted that where Congress intends to carve out exceptions to a statute, it does so.

3) Turning to the purpose of CSRA, namely, to create "an integrated scheme of review," the Court concluded that this objective,

would be seriously undermined if, as petitioners would have it, a covered employee could challenge a covered employment action first in a district court, and then again in one of the courts of appeals, simply by alleging that the statutory authorization for such action is unconstitutional. Such suits would reintroduce the very potential for inconsistent decision making and duplicative judicial review that the CSRA was designed to avoid.

Declining to comment on whether the MSPB lacks the authority to declare a federal statute un-constitutional, the Court noted that such constitutional questions could be "'meaningfully addressed in the Court of Appeals' that Congress had authorized to conduct judicial review." The Court further rejected argument that "even if the Federal Circuit could consider their claims in the first instance, resolution of the claims requires a factual record that neither the MSPB (because it lacks authority to decide the legal question) nor the Federal Circuit (because it is an appellate court) can create." Appellate courts, the Court noted, may take judicial notice of any facts relevant to the constitutional challenge, and, to the extent necessary, the MSPB may develop any facts necessary beyond those judicially noticed on behalf of the Federal Circuit. Appellants must still, of course, raise the constitutional issue with the MSPB in order to preserve the argument for an appeal to the Federal Circuit.

For more discussion on the jurisdictional issues facing federal administrative bodies, see A Guide to MSPB Law and Practice and A Guide to Federal Labor Relations Law and Practice by Peter Broida, and A Guide to Federal Sector Employment Law and Practice by Ernest Hadley.

Notable EEO Decisions

by Natania Davis

A few notable EEO decisions
from the Office of Federal Operations:

Piccola v. Dep't of Transp., FAA, Appeal No. 0120111477 (EEOC OFO 05/15/12): Facts: After being interviewed in connection with an investigation involving a coworker's allegations of sexual harassment at the hands of another coworker ("CW"), in 2008, complainant filed an EEO complaint alleging that CW had also subjected her to years of sexual harassment (beginning in 2005) consisting of "unwelcome comments, look and touching of a sexual nature which occurred on a consistent and frequent basis." CW, the alleged harasser, had two previous complaints lodged against him and, as a result of one of those complaints, the agency had reassigned him to his position working with complainant. Holding: OFO affirmed the AJ's findings that complainant established that she was subjected to a hostile work environment in the form of sexual harassment, but that the agency took prompt and effective corrective action after complainant reported the harassment. Complainant contended that her lengthy delay in reporting the harassment was because she "feared CW and his capacity to retaliate." Rejecting complainant's contention, OFO noted the agency's harassment policy which provided alternate means of reporting sexual harassment, including a hotline, and found significant that complainant served in Union leadership along with CW and voluntarily engaged in sex talk with CW. Once complainant made the sexual harassment know, the agency "immediately took action by removing CW from the tower, placing CW on administrative leave and transferring him to an offsite work location." Faulting complainant, OFO affirmed the AJ's determination that "Complainant unreasonably failed to take advantage of any preventive or corrective opportunities to avoid harm." Practice note: Agencies may be held liable for coworker to coworker sexual harassment where the circumstances are such that the employer reasonably should have known of the harassment. As noted above, CW had two previous complaints lodged against him before being transferred to complainant's tower. While "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person", such evidence is admissible to demonstrate that the employer had knowledge of past sexual harassment complaints and/or failed to take prompt and effective corrective action.

Minor v. U.S. Postal Service, Appeal No. 0120103711 (EEOC OFO 05/17/12): Facts: In an previous appeal, the agency was found to have retaliated against complainant when "Complainant's supervisor rescheduled Complainant's appointment with an EEO Counselor without asking Complainant, did not have any information for Complainant regarding when the new appointment would be, and told Complainant that he 'would just have to miss [his] EEO appointment.'" In compliance with the EEOC's order to undertake a supplemental investigation to determine complainant's entitlement to compensatory damages, the agency concluded that compensatory damages were not warranted. Holding: On appeal from that agency final decision, OFO awarded $1,500 in nonpecuniary damages for this one time incident and noted that "[t]his amount takes into consideration the nature of the discriminatory acts, the severity of the physical and emotional harm suffered, the time that Complainant suffered the harm, and is consistent with prior Commission precedent."

For more discussion of EEO related topics, see A Guide to Federal Sector EEO Law and Practice by Ernest Hadley, Federal Sector Sexual Harassment Law by Ernest Hadley and Eleanor Laws and Compensatory Damages and Other Remedies by Gary Gilbert.

MSPB Proposes An Overhaul Of Its Adjudicatory Regulations

by Natania Davis

The MSPB recently issued notice in the Federal Register of its intent to amend certain of its regulations governing practices and procedures. 77 Fed. Reg. 33663. The Board notes that "[t]he unprecedented review marks the first significant reconsideration of MSPB's regulations since the agency's establishment in 1979." MSPB Press Release, MSPB Revising It's Adjudicatory Regulations (June 7, 2012). Changes of particular interest include:

IRAs and Notice Requirements -1209.2/1201.2

With its proposed amendment to 5 CFR 1209.2, the Board seeks to nullify long standing precedent holding that "an individual who claims that an otherwise appealable action was taken against him in retaliation for making whistleblowing disclosures, and who seeks corrective action from the Special Counsel before filing an appeal with the Board, retains all the rights associated with an otherwise appealable action in the Board appeal." Massimino v. Department of Veterans Affairs, 58 M.S.P.R. 318 (1993) and its progeny. The Board notes that shortly after its holding in Massimino, Congress amended 5 U.S.C. 7121 (dealing with grievance procedures) to add paragraph (g), which provides that an employee affected by a prohibited personnel practice "may elect not more than one'' of three remedies: a) direct appeal to the MSPB; b) grievance; or c) request to OSC for corrective action. According to the Board:

A plain reading of 5 U.S.C. 7121(g) indicates that, contrary to Massimino, an individual who has been subjected to an otherwise appealable action, but who seeks corrective action from OSC before filing an appeal with the Board, has elected an IRA appeal, and is limited to the rights associated with such an appeal, i.e., the only issue before the Board is whether the agency took one or more covered personnel actions against the appellant in retaliation for making protected whistleblowing disclosures; the agency need not prove the elements of its case, and the appellant may not raise other affirmative defenses.

The proposed rule would adopt this "plain reading" and require that under 5 CFR 1201.2, when taking an otherwise appealable action, "agencies advise employees of their options under 5 U.S.C. 7121(g) and the consequences of such an election, including the fact that the employee would be foregoing important rights if he or she seeks corrective action from OSC before filing with the Board."

Transcripts - 1201.53

The Board proposes that 5 CFR 1201.53 be amended to allow for a judge or the Board to order an agency to purchase a hearing transcript upon a determination "that a transcript would significantly assist in the preparation of a clear, complete, and timely decision."

Initial Disclosures; Simplified Third Party Discovery - 1201.73

The Board proposes to eliminate subsection (a) of 5 CFR 1201.73 requiring the parties to make initial disclosures and notes that the agency file required under 5 CFR 1201.25 must already contain "'all documents contained in the agency record of the action' being appealed."

The proposed regulations would also eliminate the distinction in procedure between discovery from a party and that of a nonparty and increase the time period to initiate discovery from 25 to 30 days from the date of the acknowledgment order.

More Complex PFRs - 1201.114

"The MSPB proposes to institute page limitations for pleadings on petition for review, allow for replies to responses to petitions for review, and define petitions for review and cross petitions for review."

Review of Arbitrator Decisions -1201.155

The Board proposes to resurrect the rule that the Board may only review discrimination claims that were raised before the arbitrator.

The revised regulations would also allow the Board "the option of ordering the parties to supplement the record or forwarding the matter to an administrative judge to gather additional evidence and/or conduct a hearing and make factual findings."

The notice and comment period began last week and written comments are due by July 23, 2012. The Board expects to issue its final rules by Fall 2012.

For more discussion on MSPB procedures, see The Art of Advocacy by Fowler and Vitaro, Litigating Federal Sector Employment and Labor Law Disputes by Fowler and Kaplan and Guide to MSPB Law and Practice by Peter Broida.

The Board Has a New Member

by Natania Davis

Congratulations to Mark Robbins, who is the newest member to the Merit Systems Protection Board. Mr. Robbins previously served as General Counsel for OPM during the Bush administration and most recently, as General Counsel of the U.S. Election Assistance Commission.