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Dewey Publications Inc.
News and Case Alert
Issue #7-1
TABLE OF CONTENTS

Supreme Court Decides a Point of Whistleblowing Law


A Few New Regulations From the MSPB


FLRA Adopts a Concept of Equitable Tolling for Exceptions to Arbitration Awards


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Supreme Court Decides a Point of Whistleblowing Law

5 USC 2302(b)(8) makes it a prohibited personnel practice-whistleblowing reprisal-to take an action against an employee who discloses a substantial and specific danger to public health and safety, unless the disclosure is specifically prohibited by law. The question in Department of Homeland Security v. MacLean, decided by the Supreme Court on January 21, 2015, was whether that provision also includes regulations issued under authority of statute. TSA had such a regulation, prohibiting disclosure of sensitive security information. Air Marshal MacLean was fired when it was learned he disclosed information that became public about an operational change that he believed threatened public safety. Did the regulation have the same effect as law? The Court found it did not. The analysis was straightforward. When Congress used, in the same statute, 5 USC 2302(b)(8)(A)(i), the language "law, rule, or regulation," to refer to another species of protected disclosure, the limited use of the word "law" in the prohibitory section precluded incorporation by reference "rule or regulation." The case was remanded so that the Federal Circuit and MSPB can figure out what next occurs in Mr. MacLean's removal appeal, if the case is not sooner settled.

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A Few New Regulations From the MSPB

After much study, a notice of proposed rulemaking, and many comments, on January 28, 2015, the Board issued new final regulations, further defining burdens of proof in IRA, VEOA, and USERRA appeals. Of significance, the Board provided a regulatory definition of "nonfrivolous allegation," important in IRA and constructive adverse action appeals. Of greater significance, the Board refused to place its definition into "plain English," preferring to couch it in terms of "more than conclusory," "plausible on its face," and "material to the legal issues," which no one, including Board personnel, would know the meaning of without resort to case law and the examples provided in cases. Said the Board, perhaps too heavily populated by lawyers to speak plainly: "The Board has found that attempting to clarify some concepts by restating them in plain English, or by providing illustrative examples of them, may create a misleading or incomplete definition of the concept." The Board's draftspeople would do well to look at the regulations of the FLRA, describing similarly complex subject matter, in plain English for literate people to understand. It is of little use to the Board's 60-70% pro se population of appellants to write a regulation defining how to word an appeal that does no more than tell them to go buy a book on the law. Take a look at the new regulations and commentary at 80 Fed. Reg. 4489 (Jan. 28, 2015).

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FLRA Adopts a Concept of Equitable Tolling for Exceptions to Arbitration Awards

Using some fancy statutory analysis, the FLRA decided that the time allowed for filing exceptions to arbitration awards is subject to equitable tolling. Although the statute speaks of an arbitration award becoming final if no exceptions are filed by the 30th day after service on an award, 5 USC 7122, applying a Supreme Court case or two, the Authority decided that the statute was more of a docket control than jurisdictional statute. The case, Veterans Administration Medical Center, Richmond and AFGE Local 2145, 68 FLRA No. 36 (Jan. 26, 2015), arose when the Government was on furlough, during the furlough the time ran out for filing an exception, and Agency counsel immediately filed the exception at the furlough's conclusion. The furlough, incidentally, had not spared the FLRA. The furlough was the basis for the equitable tolling. The Agency counsel acted more than promptly. Member Pizzella dissented, stating that the furlough put the Government on hold, tolled the clock for filing the exception, and there was no need for the Authority to become involved in equitable tolling. He may well have been right, and since the grievance leading to the award involved an overtime compensation claim, it would never have received judicial review. But Mr. Pizzella was outvoted, so a new doctrine emerged, courtesy of the Government shutdown.

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