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NEWS AND CASE ALERT
June 6th, 2022 | Issue #14-06
TABLE OF CONTENTS
FEDERAL CIRCUIT SAYS IT CANNOT REVIEW ARBITRATOR’S DENIAL OF COUNSEL FEES TO UNION IN SUCCESSFUL CHALLENGE TO ADVERSE ACTION
MSPB SETTLEMENT RATES BY REGIONS
WHAT ABOUT COMPARATORS?
SUGGESTED READING
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.
Read the full archive of over 100+ News and Case Alerts online at: deweypub.com/email
Availability: IN-STOCK
The FLRA Guide is a complete research tool on unit determinations, negotiability and the collective bargaining process, unfair labor practices, and arbitration. The Guide includes discussion of cases, laws, and litigation practice before the FLRA and its reviewing courts. Major topics include jurisdiction, unit determinations and elections; labor organizations; procedures and substantive limitations on and specific applications of negotiability determinations; the Federal Service Impasses Panel; ULPs and remedies; review of arbitration awards; and administrative reconsideration and judicial review. (more details at deweypub.com/flraguide)
By: Natania Davis and Founding Author Ernest C. Hadley
Availability: June 2022
The EEO Guide, written by Natania Davis with Ernie Hadley, Founding Author, offers the most comprehensive analysis of federal sector EEO decisions, litigation practice, statutes, regulations, policies, guidance, and practical advice available to practitioners. (more details at deweypub.com/eeoguide)
FEDERAL CIRCUIT SAYS IT CANNOT REVIEW ARBITRATOR’S DENIAL OF COUNSEL FEES TO UNION IN SUCCESSFUL CHALLENGE TO ADVERSE ACTION
AFGE Local 3438 invoked arbitration and convinced an arbitrator to reverse the indefinite suspension of an employee within a SSA bargaining unit. But the arbitrator denied a counsel fee petition from the union under the Back Pay Act because the indefinite suspension was not "meritless" and a fee award was not warranted in the interest of justice.

That denial was appealed to the Federal Circuit under 5 USC 7703, providing for judicial review by an employee or applicant adversely affected or aggrieved by a final order or decision of the MSPB or, under 5 USC 7121(f), by an arbitrator’s award in a matter that could have been pursued to the MSPB.

The question was whether AFGE had standing to take the appeal to the Circuit. AFGE was a party to the contract adopting an arbitration procedure. AFGE pursued the matter on behalf of the grievant through arbitration. AFGE, not the grievant, paid counsel’s fees. All very straightforward in civil service practice.

The Court found there was no standing because the statutory language expressed the congressional intent narrowly to circumscribe the party who may initiate appellate review.

Reid v. Dept. of Commerce, 793 F.2d 277 (Fed. Cir. 1986), had determined that a union lacked associational standing to pursue appeals in court on behalf of its members in a consolidated RIF appeal. But then in AFGE Local 3599 v. EEOC, 920 F.3d 794 (Fed. Cir. 2019), the court reviewed an arbitrator's fee determination in adverse action case. Standing of the union to pursue the appeal was not considered in the decision. And in another case, not involving fees, the employee and the union were both be named as petitioners and the union’s standing as a party was not discussed by the Court. Fed. Educ. Ass'n, Karen Graviss, Petitioners v. DOD, 898 F.3d 1222 (Fed. Cir. 2018). NFFE Local 1442 v. Dept. of Army, 810 F.3d 1272 (Fed. Cir. 2015), decided a furlough appeal stemming from arbitrators’ decisions. AFGE 3599, FEA, and NFFE Local 1442 were not mentioned in the decision involving AFGE Local 3438.

Where does this leave us? That is, where does this leave unions that successfully pursue grievances challenging adverse actions and find themselves on the losing end of decisions concerning fees paid by those unions to their counsel? Is the arbitrator's decision denying those fees judicially unreviewable? The decision involving AFGE Local 3438 was nonprecedential. A different Circuit panel could reach a different result.

Expressing "additional views", Judge Reyna explained that the result reached by the Court was not likely the intent of the drafters of the Reform Act. In brief, he was of the view that the Court could either revisit the associational standing issue presented in Reid or that the solution would be through legislation permitting unions to invoke judicial review of arbitrators' awards.

By: Broida
Sku: 22MSPB
Edition: 39th/2022
Availability: IN-STOCK
The MSPB Guide is a complete research tool for Board cases, laws, procedure, and litigation practice and is the seminal text on this complex area of the law. Major topics include MSPB regulatory revisions, Whistleblower Protection Enhancement Act, jurisdiction, appeals, discovery, hearings, evidence, PFRs, adverse actions and discipline, nexus and mitigation, substantive offenses, performance cases, RIFs, PPPs, retirement, attorney fees, settlement, remedies, and judicial review. (more details at deweypub.com/mspb)
By: Fowler & Vitaro
Availability: JUNE 2022
Using Board and Federal Circuit cases as examples, Charges & Penalties offers the most comprehensive analysis and authoritative advice on adverse actions, charge drafting, and penalty selection. Major topics include the basics of adverse actions and charges; causation; charge classification; specific, generic, and narrative charges; power charging; lesser-included offenses; charge interpretation; notice and due process; the conjunctive charge; indefinite suspensions and security-related charges; merging, selecting and drafting the charge; advice for proposing and deciding officials; the penalty; and charges and proof requirements. (more details at deweypub,com/mscp)
MSPB SETTLEMENT RATES BY REGIONS
Looking over some figures FOIA'd from the Board, we find the following settlement rates for adverse actions through FY2020 and FY2021:

-VAAs ------| WESTERN | DC -|- NE- -| DALLAS | CENTRAL | ATLANTA
-NOT DISMD -| 327 --- | 287 | 143- -| 225 ---| 207 --- | 291
-SETTLED ---| 129 --- | 161 |- 79 --| 124 ---| 124 --- | 117
-PERCENT S.-|- 39.4 - |- 56 |- 55.2 |- 55 ---|- 60 --- |- 40.2

Interesting variations. There are other types of cases, to be sure, on the docket at the regions (and the field offices are not included). But adverse actions are a large component of the Board's caseload and probably furnish the greatest latitude for settlements, good and bad. The figures show some success at settlement when the parties, counsel, mediators, and administrative judges spend time on the process.

By: Corum
Availability: Coming Soon (Summer 2022)
The First Four Weeks guides new managers on how to effectively transition into their new supervisory role and manage federal employees while still achieving their goals during the crucial first few weeks of tenure. Major topics include what motivates employees, mentally preparing for the supervisory role, negotiating with upper management, defining jobs, starting out right with your new employees, setting rules and performance expectations, and managing time. (more details at deweypub.com/ffw)
By: Broida & Davis
Availability: Coming Soon (Summer 2022)
Updated annually, this encyclopedic guide condenses MSPB and Federal Circuit decisions from 1999 through early 2022 into concise, usable summaries. Cases are arranged by subject matter areas of Board jurisprudence and further categorized alphabetically. The MSPB Reference Materials free download and an index and table of cases rounds out this research tool. Major topics include adverse and performance actions, arbitration/collective bargaining issues, attorney fees, Board procedure, jurisdiction and judicial review, defenses, discrimination, evidence, harmful error, hearings, mitigation, PPPs, retirement, reemployment, remedies, RIFs, settlements, substantive offenses, timeliness, USERRA and VEOA. (more details at deweypub.com/mscs)
WHAT ABOUT COMPARATORS?
Unlike the factor-based decisions from back in the day,, e.g., Douglas (mitigation), Hillen (credibility), Borninkhof (hearsay), Allen (counsel fees), comparator analysis has been much discussed and inexactly delineated by the Board and the Federal Circuit. Any approach garners support from one decision or another. The Board tried to pare back the freewheeling approach in Singh v. USPS, ___MSPR___, 2022 MSPB 15 (2022). Among the revisions offered by Singh, comparability analysis is for the same types of offenses, not for different offenses of comparable severity; analysis is limited to those employees whose misconduct or other circumstances closely resemble those of the appellant; comparability analysis does not extend to nation-wide searches for comparators in agencies with employees throughout the country or elsewhere in the world; there must be a close connection between the misconduct or some other factor for an employee from another work unit or supervisory chain to be a proper comparator for disparate penalty purposes; and when one employee receives a more severe penalty than that imposed on a comparator who has committed the same or similar misconduct should be considered in favor of mitigating the penalty, mitigation is not always required. One looks at other Douglas factors, e.g., the nature and severity of the misconduct. The decision goes to much trouble to distinguish, explain, modify, or overrule precedent. It was issued without participation of Board Chair Harris, who was confirmed by the Senate a few days before Singh issued. Stay tuned. Comparability remains a developmental analysis.

By: Fitch & Kuntz
Edition: 5th/2021
This guide examines security clearance law and procedures, offering representatives a comprehensive analysis of case law, directives, adjudicative guidelines, regulations and statutes. There have been many changes in the security clearance arena including realignment of the NBIB into the DCSA; DOD’s memo streamlining security clearance practices; DOHA decisions addressing CBD; the Trusted Workforce 2.0 Initiative; SEAD-6 addressing continuous evaluation procedures; SEAD-2 governing polygraph use; and SEAD-8 addressing temporary or interim eligibility for a clearance; and the addition of MSPB, EEOC, and Department of Energy decisions pertaining to security clearances. Major topics include the history of security clearances, administrative procedures, hearing and personal appearances procedure, criminal procedure, the polygraph, appeals, cases analyses, and noteworthy court cases. (deweypub.com/sclp)
This new guide is a succinct analysis of decisions from AJs and MSPB or the Federal Circuit awarding damages in whistleblower cases. The guide includes an explanation of the Board’s authority to award damages in whistleblower cases. Each case analysis includes a description of controlling facts including the type of harm such as, pecuniary, emotional, distress, medical expenses, or losses in investments, and the amount awarded. (deweypub.com/dfsw)
SUGGESTED READING
Availability: Coming Soon (Summer 2022)
Designed for all who work on conduct and performance issues and those who litigate cases, this book serves as a quick reference to federal employment litigation questions. Answers are provided in an easy to read and thorough manner. Major topics include building the case, the hearing, and EEOC and MSPB litigation. (more details at deweypub.com/flfb)
By: Corum
Availability: Coming Soon (Summer 2022)
This newly updated comprehensive handbook on managing federal employees covers, from a supervisor's perspective, every important aspect of human resources management from hiring to firing. This book details the rules, strategies, and tactics that federal supervisors need including hiring the right people, structuring their jobs to best motivate them, managing their performance, maintaining discipline, and managing their time. Each chapter concludes with a summary and checklist for dealing with each issue. (more details at deweypub.com/fshr)
By: Bosland
Availability: Coming Soon (Summer 2022)
This handbook provides detailed, up-to-date information on the federal government’s legal response to the COVID-19 pandemic and how it relates to the federal workforce. Major topics include Executive Order, guidance, regulations, and statues; remote work; leave; vaccinations and testing requirements and exceptions; reopening and return to work; workplace safety requirements; labor relations; COVID-19’s relationship to other laws; and caselaw developments. (deweypub.com/clel)
By: Laws
Availability: Coming Soon (Summer 2022)
The new seventh edition offers the most comprehensive reporting and commentary on all aspects of workers’ compensation issues in the federal sector. Major topics include an overview of the FECA, OWCP procedure, hearings, reconsideration, ECAB appeals, fact of injury, performance, causation, emotional conditions, medical evidence, continuation of pay, schedule awards, rehabilitation and reemployment, wage loss compensation, survivors’ benefits, medical benefits, representation and attorney fees, overpayments, third party liability, relationship between FECA and other laws. (more details)
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