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Dewey Publications Inc.
News and Case Alert
Issue #8-1
TABLE OF CONTENTS

MSPB Solicits Amicus Briefs on Whistleblower Issue


Federal Circuit Reverses Arbitrator's Procedural Ruling


Federal Circuit Applies the Rule of Law to MSPB Decisions Denying Reopening Petitions


OWBPA Waivers and Revocation Clauses
A Good Idea?


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MSPB Solicits Amicus Briefs on Whistleblower Issue

Check your Federal Register (it has to be somewhere on your desk) for January 19, 2016, and you will see the Board's request for amicus briefs on the principal issue of whether a federal contractor employee has IRA rights under the WPA or WPEA. The notice talks about Board law, but does not explain the facts of the case, Abernathy v. Dept. of Army, DC-1221-14-0364-W-1. Facts help to inform legal discussion, so, gentle readers, here's a summary of the facts from the judge's initial decision:

As noted previously, the agency argued that the Board lacks jurisdiction over the appellant's appeal, in part, because the personnel action at issue (the agency's failed to refer him for selection for a GS-12 Health Systems Specialist position (Vacancy Announcement EUHM1203697739652) is not a covered personnel action. However, contrary to the agency's argument, I find that the agency's alleged failure to refer him for the GS-12 Health Systems Specialist position was in essence an allegation that the agency failed to appoint him for the position, as described at 5 C.F.R. § 1209.4(a)(1), and I find that it is a covered personnel action under 5 U.S.C. § 2302(b)(8).

The agency correctly argues, however, that the appellant's disclosure in August of 2012 was not a protected disclosure, because he was not an employee, former employee, or applicant for employment, at the time he made his disclosure, but rather, he was a Federal contractor. The appellant clearly stated in his February 18, 2014 response to the jurisdictional issue that he made his disclosure to the ERMC-IG (MEDCOM) in August 2012, and the agency submitted evidence which shows that the open period for applying for the Health Systems Specialist position at issue was from September 4-14, 2012. . . . The appellant also did not dispute the agency's argument made in its December 9, 2010 Response to Order to Show Cause, that because he was not an employee, former employee, or applicant for employment, at the time he made his disclosure.

Under 5 USC 1221:

. . . an employee, former employee, or applicant for employment may, with respect to any personnel action taken, or proposed to be taken, against such employee, former employee, or applicant for employment, as a result of a prohibited personnel practice described in section 2302(b)(8) or section 2302(b)(9)(A)(i), (B), (C), or (D), seek corrective action from the Merit Systems Protection Board.

And under 5 USC 2302:

(b) Any employee who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority-

. . .

(8) take or fail to take, or threaten to take or fail to take, a personnel action with respect to any employee or applicant for employment because of-

(A) any disclosure of information by an employee or applicant which the employee or applicant reasonably believes evidences-

(i) any violation of any law, rule, or regulation, or

(ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety,

Does an applicant for a job state an IRA case for reprisal based on a disclosure before he or she was an applicant (or federal employee)? You be the judge.

Send your comments to the Board (which asked for comments on a few other, somewhat related, matters) by February 9, 2016, and check the Register notice at mspb.gov.

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Federal Circuit Reverses Arbitrator's Procedural Ruling

Muller v. GPO, Fed. Cir. 2015-3032 (Jan. 15, 2016), reversed an arbitrator whose award declined to reach the merits of the demotion grievance because of a provision in the labor contract requiring the arbitration hearing to be held within four months from the request for arbitration. Viewing the contract provision as a housekeeping matter rather than a true limitation period beyond which the arbitrator lost authority to decide the controversy, the Court engaged in discussion of the relationship between law governing the MSPB and arbitrators in adverse actions and of the ability of the Circuit to review the labor agreement as a contract, de novo, with little deference to the interpretation of the arbitrator, absent evidence of past practice. The decision, which is precedential, is worth reviewing for the legal summary it provides.

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Federal Circuit Applies the Rule of Law to MSPB Decisions Denying Reopening Petitions

An unusual facet of Board practice, not publicized or openly regulated by the Board, is the ability of the Board's Clerk to reject submissions for reasons stated in pro forma letters to the parties or counsel. One such missive can follow a request to the Board to reopen a case. Instead of a Board decision, one might get a letter from the Clerk stating that the Board does not reopen cases based on the request presented. Is the Clerk's letter a Board decision subject to judicial review. The Federal Circuit-and the result was no surprise-said that agency decisions are presumed to be subject to judicial review and that the Clerk's issuance, though beyond the decisional scheme outlined at 5 CFR Part 1201, presents no exception. The Court went on to review the IRA case that the petitioner sought to reopen. McCarthy v. Merit Systems Protection Board, Fed. Cir. 2015-3072 (Jan. 14, 2016).

And readers are reminded that they can listen to Federal Circuit arguments, some of which get interesting, even animated, on the Circuit's website. Go to the website, clear the argument date block, type in the name of the party, and listen to the .wav file:

http://www.cafc.uscourts.gov/oral-argument-recordings; http://www.cafc.uscourts.gov/argument/upcoming-oral-arguments

The McCarthy case is a good argument. Check it out.

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OWBPA Waivers and Revocation Clauses

A Good Idea?

Agency counsel often put into settlement agreements an OWPBA release and 7-day revocation clause, even if the employee is 16 years old. A good idea? Maybe not. Consider Jackson v. Dept. of Army, 2016 MSPB 4 (Jan. 19, 2016), where the appellant signed a settlement with a revocation clause and then invoked it, a day or so after the initial decision issued dismissing the appeal as settled. The result, predictably, was that the appeal was reinstated even though an ADEA claim had not been made in the appeal. The Board did not concern itself with the agency's protestations that the OWBPA release was not necessary. The Board said if it was in the agreement, it would be enforced, necessary or not.

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