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

Federal Circuit Reverses the MSPB for Failure of the Board to Adhere to Judicial Precedent


The Rise and Demise of Summary Judgment in Board Cases


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Federal Circuit Reverses the MSPB for Failure of the Board to Adhere to Judicial Precedent

In the much-litigated appeal of Miller v. Dept. of Interior, 120 MSPR 426 (2013) (on OPM reconsideration petition), the Board revised the long-standing burden-shifting analysis developed in Ketterer v. Department of Agriculture, 2 M.S.P.R. 294 (1980), to determine if an agency properly terminates an employee who refuses to accept a directed geographical reassignment. Under Ketterer, the agency must come forward with evidence showing a legitimate management reason for the reassignment. That, together with evidence that the employee had adequate notice of the decision to transfer and that he refused to accept the reassignment, would ordinarily be sufficient to establish a prima facie case that removal promoted service efficiency. The employee could challenge the necessity for or legitimacy of the reassignment, leaving the agency to come forward with further evidence showing the reassignment furthered service efficiency. Miller departed from Ketterer by establishing a single test: whether the agency action promotes service efficiency, following consideration of all factors favoring or detracting from the directed reassignment. On OPM's petition for review, the Federal Circuit reminded the Board that the Circuit's decisions bind the Board and that one of those decisions, Frey v. Dep't. of Labor, 359 F.3d 1355, 1360 (Fed. Cir. 2004), adopted Ketterer as the law of the Circuit. When it considered the Ketterer rule during the OPM reconsideration process in Miller, the Board recognized the Court's holding in Frey, but decided that it could alter its analytical approach because the Court relied upon the Board's reasoning in Ketterer in deciding Frey. In other words, what the Board grants, the Board can taketh away. But the Federal Circuit had the last word (unless the case is hear en banc, an unlikely result) in Cobert v. Miller (Fed. Cir. 2014-3101 Sept. 2. 2015).



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The Rise and Demise of Summary Judgment in Board Cases

Summary judgement, commonplace in EEO cases, was blessed as a means of challenging EEO affirmative defenses in adverse action appeals when the Board issued Redd v. U.S. Postal Service, 101 M.S.P.R. 182 (2006), essentially deciding that since Title VII law governs EEO issues in Board cases, summary judgment, as a common tool in Title VII litigation, should be available at the Board. How often summary judgment was used in Board appeals is unknown. What is known is that in Savage v. Dept. of Army, 2015 MSPB 51 (Sept. 3, 2015), the Board reassessed the statutory basis for adjudicating Title VII issues in Board appeals and decided the true basis for Board authority is the Reform Act, not Title VII. With that revelation, the Board retreated to the pre-Redd position that summary judgment is not available in Board appeals-a result that will remain until Board regulations are amended, statutory authorization is provided for summary judgment, or a majority of the Board changes its collective opinion on the subject.



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FLRA Guidance Just Published on Formal Meetings

Those who are privileged to address federal sector labor law issues know that complexities abound over when, during the course of its interaction with an employee or employees, an agency is required to provide the union advance notice of, and an opportunity to attend, meetings between an employee, or employees, and managers or supervisors. Added to formal discussions involving representation rights are investigative inquiries that employees reasonably believe could lead to discipline against them. FLRA, by far the leader among the personnel agencies in providing legal guidance to its stakeholders, published Guidance on Meetings on September 1, 2015. The Guidance consists of a 40-page compendium of caselaw on the labor relations complexities of meetings and investigative interviews. Keep buying the Guide to Federal Labor Relations Authority Law and Practice, but keep the Guidance as an addendum.



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