Dewey's FREE MONTHLY "News and Case Alert" keeps you up-to-date with the latest federal sector employment and labor laws, cases and news.

Federal Circuit Says National Security Trumps Due Process In Clearance-Based Indefinite Suspensions

If a security clearance is suspended, its holder is likely indefinitely suspended pending the outcome of the clearance review process. That can be many months of non-pay status, with the continuing restrictions of federal employment (e.g., bars on outside employment, conflict of interest restrictions), and no likelihood of getting backpay if the clearance is restored and the employee is returned to the job. Ryan v. DHS, ___F.3d___ (Fed. Cir. 7/13/2015), determined that the Board lacks authority to review an agency decision not to use an alternative to indefinite suspension, e.g., continuation of administrative leave or assignment to duties not requiring a clearance-unless there is an agency regulation requiring the use of a reassignment (and there are precious few of those). The court decided there is no maximum length that an indefinite suspension can endure before the MSPB has authority to require the agency to convert the suspension to pay status. And the court concluded that it matters not that the bases for the clearance suspension change over time. There's no requirement that the agency provide another opportunity for notice and reply to the continuation of the suspension. What's important is the temporary loss of the clearance, not the reasons for the clearance loss.

EEOC Decides That Sexual Orientation Discrimination is Covered by Title VII of the Civil Rights Act

Complainant v. Foxx, Secretary, Department of Transportation, 0120133080 (July 15, 2015), revised existing law to state that sexual orientation discrimination will be treated as a violation of the sex discrimination provisions of the 1964 Civil Rights Act. Previously, in MD-110, the Commission directed agencies to process sexual orientation discrimination complaints through processes separate from the customary complaint procedures under 29 CFR Part 1614.

MSPB Barely Survives Computer Server Wipeout

It has been a bad year or two for the MSPB. Thousands and thousands of furlough appeals, and this month, a computer server wipeout without proper backup left many files stored on the network of the Board's server lost and gone, meaning much redoing of work by MSPB staff at the central and regional offices. The server crisis blocked regular use of e-filing for over a week, a result that will doubtless lead to a generation of cases deciding whether good cause was shown for belated appeals or PFRs. The server problems have been abated and there does not appear to be a loss of materials on the Board's repository of pleadings or documents earlier filed through the e-filing system.

Peter Broida & Dewey Publications are Pleased to Announce the Arrival of Darshan Sheth, Esq.

Earlier in July, Darshan Sheth, previously a managing attorney at the Office of Special Counsel, joined Peter Broida in his law practice to assist in all manner of civil service, whistleblower, EEO, and labor law cases, to provide some specialized instructional materials for Dewey Publications, and to provide training for federal personnel specialists and lawyers, particularly in the management and litigation of whistleblower reprisal cases.