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Dewey Publications Inc.
News and Case Alert
Issue #5-2
A YEAR IN REVIEW
MSPB Revised Regulations
Survey of MSPB Practitioners
Enhancements on the Whistleblower Front
MSPB Case Law
EEOC Case Law
EEOC Revised Regulations
FLRA Revised Regulations
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COMING SOON!

 

A Guide to Merit Systems Protection Board Law and Practice (2013)



By: Broida
Price: $595.00
Sku: 13MSPB
Edition: 30th/2013
Availability: April 2013
Format: Book or eBook on CD-ROM


A Guide to Federal Labor Relations Authority Law and Practice (2013)



By: Broida
Price: $495.00
Sku: 13FLRA
Edition: 26th/2013
Availability: May 2013
Format: Book or eBook on CD-ROM


A Guide to Federal Sector Equal Employment Law and Practice (2013)



By: Hadley
Price: $595.00
Sku: 13EEO
Edition: 26th/2013
Availability: June 2013
Format: Book or eBook on CD-ROM

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A Guide to the Whistleblower Protection Act & Whistleblower Protection Enhancement Act of 2012



By: Fowler & Vitaro
Price: $190.00
Sku: 13WPA
Edition: 1st/2013
Availability: Early 2013
Format: Book, CD, or eBook

With insight and practice tips, this comprehensive and practical guide sorts the laws and procedures related to whistleblower reprisal. The guide includes in depth discussion of the Whistleblower Protection Act, the Whistleblower Protection Enhancement Act of 2012 signed by President Obama on November 27, 2012, OSC and MSPB regulations (updated as of November 13, 2012, the effective date of the MSPB's recent regulatory revisions), noteworthy cases, and the Presidential Policy Directive (PPD-19) issued October 10, 2012. Major topics include legislative history and sources of law; MSPB basics; OSC operations; corrective and disciplinary actions; IRAs and otherwise appealable actions; grievances and whistleblower reprisal claims; stays; burdens of proof; qualifying disclosures; prima facie case and contributing factor; and remedies, damages and relief.

 

In an effort to incorporate all the changes to Whistleblower law effecting federal employees, publication of this book will be slightly delayed. The authors are adding new text to address the Whistleblower Protection and Enhancement Act, the Presidential Policy Directive Protecting Employees With Access to Classified Information (PPD-19) and the MSPB's revisions to its procedural and whistleblower regulations (i.e., 5 CFR Part 1201, 1209.2-MSPB Jurisdiction Over IRAs and Otherwise Appealable Actions; 1209.4-redefining "whistleblowing"; and 1209.5-Time of Filing). Dewey expects to have the book available for delivery in early 2013.

 

 More details at: deweypub.com/store/13WPA.html

  

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

 

Dewey's Year in Review for 2012

 

Dewey customers:

 

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. We review some of the highlights below.

 

 

 

MSPB REVISED REGULATIONS:

 

In October of 2012, the MSPB issued a final rule revising its adjudicatory regulations. Just a few of the most significant changes involve appellate jurisdiction (5 CFR 1201.3), the burden and degree of proof for establishing Board jurisdiction (1201.56), criteria for granting petitions or petitions for review (1201.115), requests for review of arbitrators' decisions (1201.155), changes to the content and procedures for petitions for review (1201.114) and appeals (1201.24), and abolishment of the initial disclosure requirement (1201.73).

 

 

SURVEY OF MSPB PRACTITIONERS:

 

Peter Broida, author of A Guide to MSPB Law and Practice, recently conducted an electronic survey of MSPB practitioners, both agency and employee representatives, concerning the Board's settlement programs, electronic filing and adjudication practices. Result highlights included practitioners' preference for the Mediation Appeals Program over the settlement judge program; agreement that, with the exception of clean paper settlements and resignations in lieu of removal, settlement efforts in cases of removal are difficult; desire for an improved system for uploading large documents for e-filers; and suggestions on improving the adjudication process. To review a full summary of the survey results, click here.

 

 

ENHANCEMENTS ON THE WHISTLEBLOWER FRONT:

 

In addition to the MSPB regulatory revisions discussed above, the new language to 5 CFR 1209.2 overrules a significant body of Board law, including Massimino v. VA, 58 MSPR 318 (1993), concerning the Board's scope of review over otherwise appealable actions raised first with OSC. "[T]he MSPB is convinced that a plain reading of 5 U.S.C. 7121(g) indicates that 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." 77 Fed. Reg. 62350, 62362 (Oct. 12, 2012).

 

On November 27, 2012, President Obama signed into law the Whistleblower Protection Enhancement Act of 2012. Key reforms include broader IRA jurisdiction to include protection not only against reprisal for the usual forms of disclosures covered by 5 USC 2302(b)(8), but also against further reprisal if a reprisal case under a (b)(8) type of disclosure is first made in a complaint, grievance, or appeal described in 2302(b)(9); restoration of OSC's ability to seek disciplinary actions against supervisors who retaliate; inclusion as a covered disclosure communications to the wrongdoer, disclosures made within the normal course of employment, and disclosures concerning policy decisions if the communication reveals matters encompassed by 5 USC 2302(b)(8); elimination of the de minimus test and inversion of proof, requiring full evidentiary development of appellant's case before assessing agency defense; elimination of presumptions concerning the timing of disclosure and reprisals and those favoring agency officials; and inclusion of compensatory damages for whistleblowing reprisal. The MSPB recently published a helpful resource of the US Code provisions revised by the Whistleblower Protection Enhancement Act of 2012. Click here for the text.

 

Mid-2012 brought the Board's decision in Farrington v. Dept. of Transp., 118 MSPR 331 (2012), in which the Board further defined what constitutes 'normal channels of reporting' for IRA cases. "[W]e believe that the term "normal channels" should be given its commonly understood meaning, i.e., the employee conveyed duty-related information to a recipient, who in the course of his or her duties, customarily receives the same type of information from the employee and from other employees at the same or similar level in the organization as the employee." Id. at ¶ 6.

 

PPD-19, the Presidential Policy Directive Protecting Employees With Access to Classified Information, was signed by President Obama on October 10, 2012, expanding the scope of whistleblower protections to intelligence agency employees.

 

Just in time for to help our readers navigate the new whistleblower laws and regulations, Dewey is pleased to announce publications of A Guide to the Whistleblower Protection Act and Whistleblower Protection Enhancement Act of 2012 by Fowler and Vitaro. Expected availability mid-March.

 

 

MSPB CASE LAW

 

Kloeckner v. Solis, No. 11-184, slip op. (U.S. Dec. 10, 2012): The U.S. Supreme Court held that the proper venue for appeals from mixed case MSPB determinations is the district court, not the Federal Circuit, regardless of whether the MSPB decided the mixed case on procedural grounds or on the merits.

 

Elgin v. Dept. of Treasury, 132 S.Ct. 2126 (2012): The U.S. Supreme Court held 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.

 

Berry v. Conyers, 692 F.3d 1223 (Fed. Cir. 2012): The Federal Circuit reversed the MSPB's decision in Conyers v. Dept. of Defense, 115 MSPR 572 (2010), holding that Dept. of Navy v. Egan, 484 US 518 (1988), prohibits Board review of agency determinations relating to an employee's eligibility to occupy a "sensitive" position. This is true, according to the court, regardless of whether the position requires access to classified information.

 

Henderson v. OPM, 117 MSPR 313 (2012): The Board overruled Bynum v. Office of Personnel Management, 89 MSPR 1 (2001) and "its progeny to the extent that they state that the Board's decision in Mullins-Howard reflects an 'exception' to a 'general rule' that medical evidence [in disability retirement cases] must unambiguously and without contradiction show how the medical condition affects specific job duties or indicate that the appellant cannot meet the requirements of her position." The Board reasoned that the Mullins-Howard decision did not create such an exception to the general rule for disability retirement determinations or suggest that medical evidence had to be unambiguous and without contradiction.

 

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

 

Other MSPB-related books include MSPB Case Summaries by Broida and Davis, MSPB Charges and Penalties by Fowler and Vitaro, and USERRA/VEOA Deskbook by Kitchens.

 

 

EEOC CASE LAW

 

Vance v. Ball State University, 11-1160 (US): On November 26, 2012, the US Supreme Court entertained oral arguments in Vance v. Ball State to elucidate who qualifies as a supervisor for purposes of employer liability in a hostile work environment case. The question presented is whether the Faragher and Ellerth "supervisor" liability rule (i) applies to harassment by those whom the employer vests with authority to direct and oversee their victim's daily work, or (ii) is limited to those harassers who have the power to "hire, fire, demote, transfer, or discipline" their victim. Watch early this year for the Court's decision. Meanwhile, read a transcript of the oral arguments here.

 

Macy v. DOJ, Appeal No. 0120120821 (April 20, 2012): The Commission held that a complaint of discrimination based on gender identity, change of sex, and/or transgender status is cognizable under Title VII and, regardless of how they are characterized, such complaints should be processed through the EEOC's federal sector complaints process.

 

 

EEOC REVISED REGULATIONS

 

On July 25, 2012, the EEOC published its final rule revising the federal sector complaint process. Key reforms allow the EEOC to issue notices to agencies for non-compliance and allow agencies to conduct pilot projects for processing complaints; require agencies to issue a notice of rights to complainants when the agency's investigation will not be completed in the 180 day time limit; and clarify that complaints alleging discrimination relative to proposals to take personnel actions should be dismissed unless the complaint alleges that the proposal is retaliatory. 77 Fed. Reg. 43498 (July 25, 2012).

 

For more EEO related information, see A Guide to Federal Sector Equal Employment Opportunity Law and Practice and A Guide to Federal Sector Disability Discrimination Law and Practice by Ernie Hadley and EEO summary-style books, great for quick reference, Consolidated Federal Sector EEO Update 2004-2013 by Vitaro, Goodfriend and Gilbert and Federal Sector Disability Discrimination Law Deskbook by Gilbert.

 

 

FLRA REVISED REGULATIONS

 

Not to be outdone by the MSPB and EEOC, the FLRA also made lots of regulatory revisions in 2012. A few of the most significant changes involve representation proceedings (5 CFR Part 2422), unfair labor practice proceedings (2423), arbitration review (2425), and enhanced procedures for electronic filing (2471 and 2472). 

 

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