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Dewey Publications Inc.
News and Case Alert
Issue #6-12
TABLE OF CONTENTS

Retroactivity of Provisions of the Whistleblower Protection Enhancement Act Amendments Relating to Disclosures Through Grievances


The Federal Circuit Finds That an Agency Had Good Cause to Furlough Administrative Law Judges for 5 1/2 Days


USERRA and VEOA Confused?
MSPB to the Rescue in a New Report



The Dewey Publications Podcast

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Retroactivity of Provisions of the Whistleblower Protection Enhancement Act Amendments Relating to Disclosures Through Grievances

Although the Whistleblower Protection Enhancement Act Amendments of 2012 place into the penumbra of protected activity protected disclosures made through administrative grievances (or presumably contractual grievances as well) under 5 USC 2302(9)(A), Miller v. FDIC, 2014 MSPB 83 (Nov. 6, 2014), determined that the statutory amendment, effective December 27, 2012, was not retroactive. The amendment would increase the government's liability for past conduct as compared to pre-WPEA liability, contrary to the application of principles of statutory construction concerning retroactivity explained in Landsgraf v. USI Film Products, 511 US 244 (1994).

For more on Whistleblower see A Guide to the Whistleblower Protection Act and Whistleblower Protection Enhancement Act of 2012 by Fowler & Vitaro

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The Federal Circuit Finds That an Agency Had Good Cause to Furlough Administrative Law Judges for 5 ½ Days

For those of you still laboring on the prosecution or defense of furlough cases, a case meriting your attention is Berlin, et al. v. Dept. of Labor, ___F3d___ (Fed. Cir. 2014-3031 Nov. 20, 2014). The decision provides an extensive summary of the legislative and administrative background of the sequestration order requiring reductions in spending for federal agencies in fiscal year 2013. After reviewing the statutory definition of "good cause" required for actions against ALJs under the Administrative Procedure Act, the court arrived at the point that attracted significant interest in the case from unions that had filed amicus briefs: the issue of the degree of discretion that an agency has to establish different lengths of furloughs for employees in different major organizations of an agency. Examining the budget process of the Labor Department, the court concluded that a valid business reason existed to differentiate the duration of furloughs of employees in separate organizational components depending upon the mix of discretionary and nondiscretionary expenditures required within those components. The result is that an agency can justify a longer furlough within an organization that has higher discretionary costs for personnel than might be the case for another component with higher nondiscretionary spending. From the perspective of the agency, cost reduction must be obtained, and the agency enjoys reasonable discretion in determining how to distribute the burdens of those reductions while maintaining reasonable levels of government services.

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USERRA and VEOA Confused?

MSPB to the Rescue in a New Report

Trying to determine the metes and bounds of the protections and liabilities established by USERRA and VEOA is a daunting task, undertaken by few, and then only through the compulsion of litigation or responsibility for writing textbooks on the law. To its considerable credit, the Board's Office of Policy and Evaluation issued in November "Veterans Employment Redress Laws in the Federal Civil Service," prefaced with a description of the article's scope:

This report discusses the two main types of claims an individual may assert before MSPB when seeking such redress. The first is the Veterans Employment Opportunities Act of 1998 (VEOA) (codified at 5 U.S.C. § 3330a), which provides a remedy if a Federal agency has improperly denied a veterans' right to preference or consideration for a vacancy under a law granting such consideration. The second is the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) (codified as amended at 38 U.S.C. §§ 4301 4335), which provides a remedy when an agency has discriminated on the basis of military service or refused to allow an individual to return to his or her position following such service.

For those who count, there are more than 200 footnotes in this Report,[*] which should be read, albeit along with an ample supply of coffee, by every civil service practitioner. Take it from one who attempts to synthesize hundreds of VEOA and USERRA cases from the Board and the Federal Circuit, this is complex stuff. This Report, although not making the subject matter simpler, provides excellent, well-structured analysis of the procedural and substantive components of the two statutes, with generous citation to case law, statutes, and regulations.

[*] Who says footnotes are a distraction? - take a look at recent FLRA decisions.

For more on USERRA/VEOA see USERRA/VEOA Deskbook by Kitchens

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Can't Fall Asleep?
Night Time Listening

If you have trouble drifting off after an exciting day of civil service law, tune in or (for insomniacs) subscribe to more-or-less weekly audio podcasts of Peter Broida summarizing cases and events of interest to federal sector employment practitioners. Humor Peter. Share in his hobby. Be better informed without much work.

The Dewey Publications Podcast
Subscribe via iTunes or RSS. View a detailed list of all past episodes here.


December 2nd, 2014
Several items of interest are discussed this week.
left click to listen/right click save to download

  • Chief Executive Officer v. Dept. of Labor, EEOC 0120141656 (Oct. 16, 2014) (contractor's employees as legitimate complainant as to discrimination or reprisal from a government employee responsible for oversight of the contract)
  • Talton v. VA, MSPB AT-0707-15-0094-J-1 (Nov. 19, 2014) (Initial Decision) (an example of a case involving removal of a VA SES member under the expedited procedures statutorily established in 2014 and applied only to the VA)
  • Berlin, et al. v. Dept. of Labor, ___F.3d___ (Fed. Cir. Nov. 20, 2014) (upholding ALJ furlough: discussion of the statutory and regulatory basis for the furloughs; affirmation of agency discretion on furlough-induced financial adjustments among major operating components)
  • Ramos v. DHS, AT-0752-13-0637-I-1 (NP Nov. 21, 2014) (dissent by Vice Chairman Wagner) (disagreement between majority and dissenting opinions concerning burdens of proof relative to comparators offered to demonstrate disparity in treatment of individuals charged with similar offenses)

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