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Dewey Publications Inc.
News and Case Alert
Issue #5-4
TABLE OF CONTENTS
NEW RELEASES!
A Guide to MSPB, 2013
A Guide to Whistleblower Protection Act
The First Four Weeks
The Federal Circuit's Exception to
Kloeckner v. Solis
Changing the Analysis on Charges for Failure to Accept a Management Directed Reassignment
MSPB on Douglas?
Further Amendment to MSPB Regulations
For Your Calendar...Don't forget
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NEW RELEASES!
 
 
A Guide to Merit Systems Protection Board Law and Practice (2013)



By: Broida
Price: $595.00
Sku: 13MSPB
Edition: 30th/2013
Format: Book or .pdf on CD-ROM
More details at:
deweypub.com/store/13MSPB.html
 
 

 
 
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
More details at:
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The First Four Weeks (2013)



By: Corum
Price: $65.00
Sku: 13FFW
Edition: 2nd/2013
Format: Book, CD, or eBook
More details at:
deweypub.com/store/13FFW.html

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COMING SOON!

 

 

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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NEW RELEASES!

 

 

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



By: Broida
Price: $595.00
Sku: 13MSPB
Edition: 30th/2013
Format: Book or .pdf on CD-ROM
More details at:
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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
Format: Book, CD, or eBook
More details at:
deweypub.com/store/13WPA.html

 

 


 

 

The First Four Weeks (2013)



By: Corum
Price: $65.00
Sku: 13FFW
Edition: 2nd/2013
Format: Book, CD, or eBook
More details at:
deweypub.com/store/13FFW.html

Early 2013 and 2012, brought about lots of changes in the world of MSPB Law and Practice, including an overhaul of MSPB adjudicatory regulations, passing of the Whistleblower Protection Enhancement Act, and new case law affecting mixed case procedures, matters of Board and Federal Circuit jurisdiction, disability retirement cases, stays, performance cases, notice and reply procedures, analysis of due process and harmful error violations, and much much more.

 

Happily, for many of our readers, Peter Broida recently released his newest edition of A Guide to MSPB Law and Practice, a comprehensive reference on the MSPB and its reviewing court, the Federal Circuit. Some people refer to it as "the MSPB Bible." We, here at Dewey, just call it "the Guide." Get your copy today.

 

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The Federal Circuit's Exception to
Kloeckner v. Solis

Conforto v. Merit Systems Protection Board,
Case No. 2012-3119

by Natania Davis

 

Last year, in Kloeckner v. Solis, 133 S. Ct. 596 (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. The Federal Circuit recently applied that decision in Conforto v. Merit Systems Protection Board, Case No. 2012-3119, which involved an alleged forced retirement that appellant claimed was motivated by discrimination and in retaliation for prior EEO activity. On appeal to the Board, the AJ dismissed Conforto's appeal for lack of jurisdiction. Conforto appealed to the Federal Circuit.

 

Despite the Supreme Court's seemingly straightforward holding in Kloeckner, the Federal Circuit managed to carve out its own exception, concluding that it still retains jurisdiction over mixed case appeals in cases where the Board decides that it does not have jurisdiction over an appeal because the challenged agency action is not within the Board's statutory power to review. Citing statutory support, the Federal Circuit explained:

 

The statutory point is simple but compelling. Section 7703(b)(1) of Title 5 states that, except for one relevant exception provided in section 7703(b)(2), review of a final order of the Merit Systems Protection Board will be in the Federal Circuit. Section 7703(b)(2) states that "cases of discrimination subject to the provisions of section 7702" shall be filed in the district court. Therefore, appeals of Board decisions must be brought in the Federal Circuit unless they are subject to section 7702. Section 7702, in turn, applies to cases in which an employee "(A) has been affected by an action which the employee . . . may appeal to the Merit Systems Protection Board" and "(B) alleges . . . discrimination." 5 U.S.C. § 7702(a)(1). These are the mixed case appeals. Because an employee "may appeal to the Merit Systems Protection Board" only if the employee's claim is within the Board's appellate jurisdiction, the plain import of this statutory language is that a purported mixed case appeal is reviewed by a district court only if the Board has jurisdiction to decide the appeal from the adverse action in issue.

 

It therefore follows that sections 7703(b)(1) and 7702(a)(1)(A) give this court jurisdiction to review a Board determination that an employee's case is not appealable to the Board, regardless of whether the employee has sought to raise claims of agency discrimination. Thus, for example, if an employee sought Board review of a minor disciplinary action, such as suspension for fewer than 15 days, the appeal would plainly be outside the Board's jurisdiction, and review of the Board's decision would be in this court, not in the district court, even if the employee contended that the action was taken because of discriminatory animus. The statute, moreover, requires that the Board actually have jurisdiction over the employee's claim, not merely that the employee allege Board jurisdiction. As we held in our en banc decision in Cruz, "mere assertion does not provide a basis for Board jurisdiction in [a] voluntary resignation case." Cruz, 934 F.2d 1240, 1245.

 

Judge Dyk, in his dissenting opinion, wrote that there is no meaningful difference between cases in which the Board lacks jurisdiction (as in the Conforto case) and those that are dismissed on other procedural grounds (as in the Kloeckner case). Dyk noted, "Sections 7702 and 7703(b)(2) do not draw any textual distinction between different types of Board decisions, and there is no other basis for distinguishing between jurisdictional and procedural dismissals."

 

For a better understanding of Board jurisdictional issues, judicial review and mixed case procedures, purchase a your copy of the 2013 edition of Peter Broida's A Guide to MSPB Law and Practice by Broida. Other titles on the subject include MSPB Case Summaries by Broida and Davis and A Guide to Federal Sector Equal Employment Law and Practice by Hadley

 

 

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Changing the Analysis on Charges
for Failure to Accept a Management
Directed Reassignment

Miller v. Dept. of Interior, 2013 MSPB 27 (2013)

by Natania Davis

 

Miller v. Dept. of Interior, involved appellant's removal for "failure to accept a management directed reassignment." Applying the three part test set forth in Ketterer v. Dept. of Agric., 2 MSPR 294 (1980), and Umshler v. Dept. of Interior, 44 MSPR 628 (1990), the AJ sustained the removal finding that the agency proved by preponderant evidence that its decision to reassign appellant was based on legitimate management reasons, that appellant received adequate notice of the reassignment and appellant refused the reassignment.

 

Announcing a departure from the Ketterer and Umshler framework, the Board instead adopted a simpler burden shifting analysis: "a single efficiency of the service criterion for evaluating adverse actions based on a refusal to accept a directed reassignment."

 

[I]n adverse action cases based on a refusal to accept a directed reassignment, the Board shall weigh all of the evidence and make a finding on the ultimate issue of whether the action promotes the efficiency of the service. The agency must do more than merely establish a "rational basis" for the reassignment. Else v. Department of Justice, 3 M.S.P.R. 397, 399 (1980). The agency must establish by a preponderance of the evidence that the reassignment was properly ordered due to bona fide management considerations in the interest of promoting the efficiency of the service and in accordance with agency discretion under 5 C.F.R. part 335. Ketterer, 2 M.S.P.R. at 298 & n.8; see also McClelland v. Andrus, 606 F.2d 1278, 1290-91 (D.C. Cir. 1979) ("An action supportable on 'any rational basis' is not necessarily one that will promote the efficiency of the service."). Although we are discarding the three-step framework that includes a prima facie case in favor of single efficiency of the service criterion, we are not changing existing case law in any other way, and the factors relevant to the former three-step framework remain relevant to evaluating the case as a whole.

 

Applying this new standard, the Board found the agency's action did not promote service efficiency and reversed Miller's removal. The Board based its service efficiency analysis on the fact that agency did not abolish appellant's position and testimony that appellant was well thought of and successful in her position.

 

For a better understanding of agency charges and burdens of proof and how to effect sustainable disciplinary actions:

 

Representatives and Personnel Specialists, see Charges and Penalties by Fowler and Vitaro and Adverse Actions and Performance-Based Actions by Fowler and Vitaro.

 

Supervisors, Managers and Personnel Specialists, see Adverse Actions: A Guide for Federal Managers and Personnel Specialists by Corum, Uncivil Servant by Wiley, and Disciplining Federal Employees by Corum.

 

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MSPB on Douglas?

Portner v. Justice, 2013 MSPB 28 (2013)

by Natania Davis

 

Lots of appellant friendly decisions at the MSPB since Chairman Grundmann came along, including, but not limited to, changes to case law affecting disability retirement, reporting channels for whistleblowers, suitability determinations, comparable discipline, management directed reassignments (p above) and attempts to limit Egan. None so confusing, though, as the Board's recent decision in Portner v. Justice, 2013 MSPB 28 (2013). Now, I love a juicy penalty analysis as much as anyone, but the majority opinion in Portner seemed to throw the "thou shall give due deference to the agency's discretion" rule out the window.

 

Portner, a Supervisory Investigator with the DEA, was removed for unautorized use of an official government vehicle (OGV) and false statements. Portner did not dispute the following facts: 1) He parked his OGV in the parking lot of an Outback Steakhouse, 2) walked to Hooters where he drank two beers and ate dinner, 3) upon leaving Hooters he discovered that his OGV had been damaged in the Outback Steakhouse parking lot, 4) he drove the OGV a few hundred yards to the Comfort Suites where he was staying, 5) in the morning, he reported to several agency employees and police that his OGV had been damaged overnight while in the hotel parking lot, and 6) when the police informed Portner that he was going to review hotel security camera, Portner confessed what really happened. The AJ upheld the removal, but the Board mitigated the penalty to a 45-day suspension finding that the deciding official failed to properly weigh the Douglas factors, and the agency's penalty was not entitled to deference.

 

This case is worth a full read (the Majority Opinion and Member Robbins dissent), so we briefly note some of the more confusing portions of the Board's analysis here:

 

  • It's the Number of Apologies, Not the Sincerity Behind Them That Count: The deciding official acknowledged appellant's apologies, but concluded his expression of remorse did not indicate potential for rehabilitation noting appellant's demeanor with OPR investigators following the incident and appellant's insistence that he made a "mistake" instead of a "false statement." The Board, however, disagreed (and by the way, "disagreeing" is not the standard here). According to the Board, the deciding official failed to "conscientiously" consider the Douglas factors and did not give enough weight to the number of times Portner apologized. Hmmm.
  • Driving a Government Vehicle After Two Beers Is Not Cause For Removal: "We also recognize that the unauthorized use of an OGV is generally a serious act of misconduct, although the facts here, driving an OGV less than a quarter of a mile after consuming two beers with dinner over an hour and a half period, fall on the lower end of such unauthorized use." So, two beers is okay. What about three?
  • Same or Similar Offenses Plus One: The Board noted comparator employees who, like Portner, were charged with misuse of a government vehicle "plus" one or two other offenses. Unlike Portner, however, those "other" offenses included things like "failure to follow instructions" and "conduct unbecoming". Portner's "plus one" charge was "making false statements." For better or worse, none of those charges can be considered "same or similar" and the Board's "plus one" approach seems tenuous.

 

Again, read the opinion and Member Robbins' dissent.

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Further Amendment to MSPB Regulations

by Natania Davis

 

On April 11, 2013, the MSPB issued an interim final rule amending "its rules of practice and procedure to allow federal agencies, when issuing a decision notice to an employee on a matter that is appealable to MSPB, to satisfy the obligation to provide a copy of the MSPB appeal form (MSPB Form 185) to an employee by providing the employee with access to a copy of the appeal form, i.e., in paper or electronic form."

 

In late 2012, the MSPB also issued final rules significantly revising its adjudicatory guidelines. Just a few of the most significant changes involved 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).

 

The 2013 edition of A Guide to MSPB Law and Practice, now available, provides a comprehensive reporting and analysis of the revised regulations. Get your copy today online by visiting deweypub.com or call us to place your order at 703-524-1355.

 

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For Your Calendar

 

Don't forget that the Court of Appeals for the Federal Circuit sitting en banc will hear oral arguments in the matter of Berry v. Conyers, 2011-3207, on Friday, May 24, 2013, 10:00 A.M. Courtroom 201.

 

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