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.

Board Expands Discovery In Enforcement Cases

MSPB revised its regulations, 5 CFR 1201.183, to extend discovery to enforcement procedures-that is, to proceedings designed to secure compliance with an MSPB final order or with a settlement agreement accepted into the Board's record as a basis for disposition of an appeal. Ambiguity in application of discovery processes to enforcement actions was the subject of unfavorable comment by the Federal Circuit in Bernard v. Dept. of Agriculture, 788 F.3d 1365 (Fed. Cir. 2015). Prior to the regulatory change, most administrative judges permitted discovery in enforcement proceedings if there was some reasonable showing of necessity. The new rule, and a period for comment on the rule through December 29, is announced at 80 FR 66787 (Oct. 30, 2015).

MSPB Counsel Fees in Cases Involving Mitigated Penalties:

Adjustments Permitted for Limited Success

Under 5 USC 7701(g), counsel fees may be obtained if the employee is a prevailing party because a penalty is mitigated and if the "substantial innocence" test is met because the appellant successfully defends against the major charges in a case. Boo v. DHS, SF-0752-13-3302-A-1 (NP Oct. 29, 2015), balanced the equities, awarded fees, but reduced those fees by 15% from the requested amount to account for less than complete success in the appeal: removal was mitigated to a 30-day suspension; a major charge was not sustained. A mitigated fee award resulted, compensating for a mitigated penalty. Boo was unfortunately nonprecedential-as too often occurs with decisions that provide guidance to practitioners when existing analogous cases are few.

EEOC Counsel Fees Adjusted Downward for Peripatetic Counsel

An Internet search quickly reveals hundreds of lawyers from everywhere in the nation claiming expertise in MSPB and federal sector EEO cases-most of them stating their worldwide, or at least national, availability. What happens when a Metro DC lawyer attempting to recover Laffey Matrix maximum rates ($500/hour or more) travels to Kentucky for a case arising in North Carolina and then seeks fees from the Government at DC rates? Complainant v. Postmaster General, 0120133350 (Sept. 11, 2015), reduced the fees by 50% because qualified local counsel were available at lesser rates. How was that proved? That's right: the Internet. The Commission said:

[W]e find that the Agency has borne the burden of proving that qualified counsel was available to represent Complainant in the Louisville area, obviating the need for out-of-state counsel. The Agency has produced for the record several internet listings for attorneys in North Carolina offering representation in employment discrimination matters.

What the Internet giveth, the Internet taketh away.

Whistleblowing Reprisal Fifth Circuit Says Disclosures are Protected as to Only Governmental Interests

In one of the few cases reported outside of the Federal Circuit under the expanded WPEA judicial review provision, the Fifth Circuit weighed in with Aviles v. MSPB, 799 F.3d 457 (5th Cir. 2015), stating that a disclosure is protected, e.g., a disclosure of alleged gross waste, mismanagement, or violation of law, only if the disclosure implicates a federal government interest. A disclosure concerning what amounts to an internal disagreement over how the agency should handle a matter affecting a private sector regulated entity would not rise to the level of a protected disclosure without specific allegations of, for example, a conspiracy to violate federal law or regulation between government employees and the regulated entity.