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Dewey Publications Inc.
News and Case Alert
Issue #5-3
TABLE OF CONTENTS
NEW RELEASE!
A Guide to the Whistleblower Protection Act & Whistleblower Protection Enhancement Act of 2012
Whistleblowers:
Start Your Engines?
MSPB-Related Decisions of Note
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NEW RELEASE!

 

 

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



By: Fowler & Vitaro
Price: $190.00
Sku: 13WPA
Edition: 1st/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.

 

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).

 

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

  

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



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



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



By: Hadley
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Availability: June 2013
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Dewey's FREE MONTHLY "News and Case Alert" Email keeps you up-to-date with the latest federal sector employment and labor laws, cases and news. Also included are new book announcements, notification of sales, special coupon codes, and book recommendations based on the issue's articles. We will never spam or give out your email address, and you can unsubscribe at any time.

 

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Whistleblowers: Start Your Engines?

by Natania Davis

 

Interlocutory Appeal of Day v. DHS and the Board's Plans to Dismiss Without Prejudice Certain Whistleblower Cases During the Pendency of the Board's Decision in Day

 

The MSPB recently sought amicus briefs in the matter of Day v. DHS, SF-1221-12-0528-W-1, which is currently pending before the Board on interlocutory appeal. To be decided is the retroactive effect, if any, of the Whistleblower Protection Enhancement Act of 2012 to whistleblower cases pending before the Board when the WPEA was enacted. "Of particular relevance in Day is the question of the retroactive effect of section 101(b)(2)(B) of the WPEA, which provides in relevant part that a disclosure made to an alleged wrongdoer or during an employee's normal course of duties is not excluded from protection against reprisal under 5 U.S.C. 2302(b)(8)." 78 Fed. Reg. 9431 (Feb. 8 2013).

 

While the Day interlocutory appeal awaits decision, appellants and agencies are wondering which version of the Whistleblower Protection laws should be applied to whistleblower cases currently pending before the Board. In response to a FOIA request, MSPB Chairman Grundmann released a December 18, 2012, internal e-mail sent by Michael Bogdanow (Legal Liaison, Office of Regional Operations) to the regional offices of the MPSB, directing that "until the Board provides some finality on the retroactivity question, we believe that most cases should be DWOP'd."

 

For the full text of the FOIA request and appeal click here

 

The Office of Special Counsel; the Government Accountability Project and Representatives Elijah Cummings and Jackie Speier (members of the US House of Representatives Committee on Oversight and Government Reform), among others; the Veterans Administration; and the National Employment Lawyers Association were among the amici filing briefs on this issue. We take a moment here to briefly review some of the more salient arguments.

 

OSC notes that "[t]he Senate Report explicitly states: '(T)he Act's provisions shall be applied in OSC, MSPB, and judicial proceedings initiated by or on behalf of a whistleblower and pending on or after that effective date (of enactment).'" S. Rep. No. 112-155. OSC further notes the statement of intent of the principal authors of the WPEA:

 

The Committee expects and intends that the Act's provisions shall be applied in OSC, MSPB and judicial proceedings initiated by or on behalf of a whistleblower and pending on or after that effective date. Such applications is expected and appropriate because the legislation generally corrects erroneous decisions by the MSPB and the courts; removes and compensates for burdens that were wrongfully imposed on individual whistleblowers exercising their rights in the public interest; and improves the rules of administrative and judicial procedure and jurisdiction applicable to the vindication of whistleblowers' rights.

 

For the full text of the OSC brief click here

 

 

GAP, Two Members of Congress, and others note that the WPEA merely clarifies Congress' original intent in enacting the CSRA, the WPA of 1989, and the 1994 WPA amendments. "Clarification of an existing law does not require retroactive analysis of its potential ramifications and applies immediately upon enactment....[The WPEA] does not add new, materially significant substantive rights, liabilities or burdens to plaintiffs or defendants that were unanticipated or upset settled expectations."

 

For the full text of the GAP brief click here

 

 

NELA also argues that the "clarifying" nature of the WPEA. "Relying on Landgraf v. USI Film Products, 511 U.S. 244 (1994) and Scott v. Dept. of Justice and OPM, 69 M.S.P.R. 211 (1995), we argue that the MSPB has historically given retroactive effect to provisions like Section 101 of the WPEA which do not create new rights or remedial procedures, but instead clarify Congress' intent in how the preexisting statutory definition of protected whistleblowing is to be applied and construed."

 

For the full text of the NELA brief click here

 

 

VA, in its brief, is careful to note that "[w]hile the VA takes no position on this appellant's current appeal, it does offer this amicus brief in hopes that the matters discussed herein will help the Board in its determination." In arguing against retroactivity, the VA cautions:

 

To the extent legislative history provides any insight, congressional statements concerning the WPEA do not provide clear guidance either in favor of or against retroactive enforcement of the Act. While making a law retroactive may pose significant political challenges, the words Congress must use to create a retroactive statute are easy to draft. Since those words are missing from the current law, the Board cannot ignore Congress' chosen language and omission of the words that would signal retroactivity. Finally, the VA concludes its amicus brief with a discussion of potential fiscal problems and unintended consequences if the WPEA is enforced retroactively.

 

VA also raised the routine objection on matters such as this, namely that if Congress wanted the WPEA to have retroactive effect it knows how to and could have written such a provision into the Act.

 

For the full text of the VA's brief click here

 


 

Interlocutory Appeal of King v. Dept. of Air Force

 

 

Yesterday, the MSPB issued a Notice of Opportunity to File Amicus Briefs in the matter of King v. Dept. of Air Force, currently pending before the Board on interlocutory appeal. The issue before the Board is the retroactive effect, if any, of the WPEA provision making compensatory damages available in whistleblower cases.

 

Briefs are due by April 12, 2013.

 

For the full text of the federal register notice click here.

 

 

For more on Whistleblower Protection Enhancement Act of 2013, get your copy of Dewey's newest publication A Guide to Whistleblower Protection Act and Whistleblower Protection Enhancement Act of 2012 by Fowler and Vitaro and A Guide to MSPB Law and Practice by Broida, coming soon.

 


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MSPB-Related Decisions of Note

by Natania Davis

 

The Board discussed the effect of Kloeckner v. Solis, 133 S. Ct. 596 (2012), in Cunningham v. Dept. of Army, 2013 MSPB 7 ¶ 7 (Jan. 28, 2013): "In light of Kloeckner, we shall now provide notice of mixed-case appeal rights in all cases in which the appellant was affected by an action that he or she may appeal to the Board and alleges prohibited discrimination, regardless of whether we decide the claim of discrimination. In providing such notice of the option to file a civil action in district court, we would make no representation whether the district court will determine that the appellant has met the administrative exhaustion requirements for filing a civil action before that court. In the present case, we provide notice of non-mixed appeal rights. Although the appellant alleges that the agency's decision to terminate her appointment during her probationary period was based on disability discrimination, as fully explained above she does not have the right to appeal her probationary termination to the Board."

 

For more on mixed case procedures, see MSPB Case Summaries by Broida and Davis, A Guide to Federal Sector Equal Employment Law and Practice by Hadley, and Consolidated Federal Sector EEO Update by Vitaro, Goodfriend, and Gilbert.

 

On January 24, 2013, the Federal Circuit, in a per curiam order, vacated its decision in Berry v. Conyers, 692 F.3d 1223 (Fed. Cir. 2012), wherein the court reversed the MSPB's decision in Conyers v. Dept. of Defense, 115 MSPR 572 (2010), and held 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. Reinstating the appeals and granting petitions for rehearing by the MSPB, Conyers and Northover, the court will hear, en banc, arguments on the following issues:

 

a. Does the Supreme Court's ruling in Department of the Navy v. Egan, 484 U.S. 518 (1988), foreclose MSPB review of the merits of determinations that an employee is ineligible for a "sensitive" position, or is the ruling confined to determinations that an employee is ineligible to hold a security clearance?

 

b. To what extent, if any, has Congressional action pre or post-Egan demonstrated that Congress intended to preserve MSPB review of adverse actions with respect to employees holding "sensitive" positions that do not involve intelligence agencies or security clearances?

 

c. What are the differences between the relevant processes and criteria associated with obtaining security clearances, and those involved in determining whether an individual is deemed eligible to hold a "non-critical sensitive" or "critical sensitive" position that does not require a security clearance?

 

d. What problems, if any, would the MSPB encounter in determining adverse action appeals for employees holding "sensitive" positions not requiring a security clearance; to what extent should the MSPB defer to the agency's judgment on issues of national security in resolving such adverse action appeals?

 

Amicus briefs are also welcome by the Court.

 

For more discussion of security clearances, adverse actions and Board jurisdiction, see MSPB Charges & Penalties by Fowler and Vitaro, Security Clearance Law and Procedure by Newman, and Best of the Board by Broida.

 

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