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NEWS AND CASE ALERT
November 18th, 2020 | Issue #12-08
TABLE OF CONTENTS
FLRA EXCLUDING ADMINISTRATIVE JUDGES FROM UNIT RECOGNITION
FEDERAL CIRCUIT ADMONISHES AGAINST SUMMARY ADJUDICATION OF MSPB WHISTLEBLOWER APPEALS
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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.
FLRA EXCLUDING ADMINISTRATIVE JUDGES FROM UNIT RECOGNITION
There are a lot of adjudicators in the Executive Branch. Some of them even concern themselves with federal personnel matters. At the grass-roots level, there are AJs at EEOC and MSPB, ALJs at FLRA. Some time ago, FLRA decided that it did not need to recognize its union because of a statutory exclusion covering FLRA employees. MSPB AJs have a union (MSPB Professional Association, affiliated with IFPTE), and EEOC AJs have a professional association, but it does not seem to be a recognized union. FLRA has in the past honored the recognition status of the MSPB PA. But in DOJ, Executive Office for Immigration Review and Nat'l. Assn. of Immigration Judges, 71 FLRA 1046 (Nov. 2, 2020) (Member DuBester dissenting), FLRA reversed precedent and decided that Immigration Judges are management officials because their work influenced rather than only implemented agency policy. Their decisions influenced policy by interpreting immigration laws they applied to the facts of the cases before them. Said FLRA: "Arguing that IJs' decisions do not influence Agency policy while Board Member decisions do is akin to arguing that district court decisions do not shape the law while appellate court decisions do. Such a distinction, based on what appears to be solely the reviewability of decisions, is nonsensical." What then of MSPB AJs, and how about the thousands of SSA ALJs and ALJs in most other government agencies? Their fortunes as unit members do not look good, unless FLRA changes course, comes up with some interesting doctrinal distinctions, or the unions find ways of challenging FLRA in court or through legislation revising the definition of a "manager."

DOJ, Executive Office for Immigration Review and Nat’l. Assn. of Immigration Judges, 71 FLRA 1046 (Nov. 2, 2020)

Provides instruction on how to resolve employee grievances, appeals, and complaints. Major topics include discussion of EEO settlements, defining settlement interests, creating settlement options, and finalizing the agreement.
With practice tips, this guide sorts the laws and procedures related to whistleblower reprisal. The guide includes in depth discussion of the Whistleblower Protection Act, the Whistleblower Protection Enhancement Act, noteworthy cases, and the Presidential Policy Directive (PPD-19).
FEDERAL CIRCUIT ADMONISHES AGAINST SUMMARY ADJUDICATION OF MSPB WHISTLEBLOWER APPEALS
Practitioners recognize (and either welcome or abhor) the route: the appellant files an IRA whistleblower appeal; the MSPB AJ issues a jurisdictional order demanding that as a precondition to proceeding to hearing the appellant demonstrate by evidence and argument that the appeal establishes a prima facie case of whistleblowing; the appellant submits evidence and argument; the agency submits responsive evidence and argument; the AJ tosses the case because the appellant's evidence is inadequate to prove, or the agency's evidence disproves, reprisal. Summary judgment? Pretty close. The appellant may try to get the AJ to approve discovery prior to the close of the record on jurisdiction, and that may assist the appellant in surviving the preliminary jurisdictional challenge.

The Federal Circuit's approach to the Board's jurisdictional analysis varies. It depends on the facts and the particular Circuit panel of judges, the strength of the briefing and the supporting record. At times the Circuit seems to have approved of summary disposition by MSPB of the IRA appeal; at times the Circuit sends the case back to proceed to MSPB hearing.

In Hessami v. MSPB (Fed. Cir. 2019-2291 (Nov. 9, 2020)), the Circuit tried to set matters straight in the appeal of a VA supervisory pharmacist whose IRA appeal to the Board, dismissed for lack of jurisdiction, alleged reprisal after she disclosed financial and clinical practice problems resulting from alleged mis-prescription of costly medication. Surveying its sometimes inconsistent decisions, the court rejected an approach akin to summary judgment—denigrating as it does the statutory right to a Board hearing. Instead, the proper approach was summarized in Hessami:
We thus clarify and hold that when evaluating the Board's jurisdiction over a whistleblower action, the question of whether the appellant has non-frivolously alleged protected disclosures that contributed to a personnel action must be determined based on whether the employee alleged sufficient factual matter, accepted as true, to state a claim that is plausible on its face. The Board may not deny jurisdiction by crediting the agency's interpretation of the evidence as to whether the alleged disclosures fell within the protected categories or whether the disclosures were a contributing factor to an adverse personnel action.

The Circuit's analysis, when followed by the Board, should result in jurisdictional orders that no longer tell appellants that they must supply evidence, as well as factual allegations, to proceed to hearing. Reasonably detailed (rather than wholly conclusory) allegations should now be all that is required by the MSPB AJ or in response to an agency's motion to dismiss the appeal for lack of jurisdiction.

Hessami v. MSPB (Fed. Cir. 2019-2291 (Nov. 9, 2020))


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