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NEWS AND CASE ALERT
August 18th, 2022 | Issue #14-08
TABLE OF CONTENTS
INTERIM RELIEF STATUS DOES NOT PRECLUDE INTERVENING SECOND TERMINATION
COUNSEL FEES FOR DUE PROCESS ERROR?
WHAT’S A PERSONNEL ACTION WITHIN MSPB IRA JURISDICTION?
SUGGESTED READING
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NEW RELEASES
By: Broida & Davis
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 and further categorized alphabetically. (more details at deweypub.com/mscs)
This newly updated handbook on managing federal employees covers, from a supervisor's perspective, every important aspect of human resources management from hiring to firing. (more details at deweypub.com/fshr)
This comprehensive text digests notable Commission and federal court employment discrimination decisions from 2003 through early 2022 and reviews EEO laws, regulations, and guidance. (more details at deweypub.com/ceup)
INTERIM RELIEF STATUS DOES NOT PRECLUDE INTERVENING SECOND TERMINATION
The employee is terminated, appeals, prevails on a due process issue, the AJ orders interim relief, the agency complies and files a PFR. But while the PFR is pending, the agency runs the action again, the employee appeals again, there’s no due process issue, the termination is affirmed while the first case is still awaiting a decision on the PFR. The cases are the same, minus the due process issue the second time around. The employee argues that the interim relief status insulates him against the second removal pending disposition of the PFR from the first removal.

Enter the Federal Circuit on the appeal from the second removal. Much analysis of the interim relief statute, and the result? Said the court:
The interim relief statute does not preclude a second removal action while a first removal action is still pending when the second action cures a procedural deficiency in the first action.
Coy v. Dept. of Treasury, Fed. Cir. 2021-2098 (8/9/2022)
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. (more details at deweypub.com/mspb)
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. (more details at deweypub,com/mscp)
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. (more details at deweypub.com/flraguide)
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)
COUNSEL FEES FOR DUE PROCESS ERROR?
The employee’s demotion was reversed for a due process error—ex parte consideration by the deciding official of the proposing official’s penalty analysis that referenced aggravating factors not mentioned in the proposal when the analysis was not shared with the appellant. A fee petition followed.

MSPB announced that it would not automatically find gross procedural error whenever an appellant obtains a reversal based on a procedural due process error. To be weighed are the nature of, excuse for, and prejudice or burden caused by the error. As to the ex parte communication, "there is no indication that the conclusion that the agency violated the appellant’s due process rights was not debatable among reasonable people."

The analysis of the Board seemed a tad deficient. Due process errors are usually susceptible to debate among reasonable people. The burden on the employee—being subjected to an adverse action that was constitutionally deficient, does seem somewhat burdensome (think of the basis for the decision: counsel fees incurred in defending against the proposal). But that’s the result: a rather rough distinction between procedural error and gross procedural error.

Braxton v. VA, DC-0752-14-0997-A-1 (8/12/2022) (Nonprecedential)

Availability: Coming Soon
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. (more details at deweypub.com/clel)
Availability: Coming Soon
The new seventh edition offers the most comprehensive reporting and commentary on all aspects of workers’ compensation issues in the federal sector. (more details at deweypub.com/fswc)
WHAT’S A PERSONNEL ACTION WITHIN MSPB IRA JURISDICTION?
5 USC 2302(b)(8) includes several personnel actions: appointments, promotions, adverse action, and so on, along with "any other significant change in duties, responsibilities, or working conditions." That leaves for definition what changes are significant.

The agency’s investigation of the appellant led to a letter concluding that the employee lacked candor but stating that the agency would take no action against the employee and that no disciplinary file existed. The Board decided that the admonishment concerning candor did not qualify for IRA protection. There was no discipline, no threat of discipline; the underlying investigation, in itself, was not a personnel action under the whistleblower scheme since the investigation did not result in a significant changes in duties or result in an otherwise covered personnel action: "The appellant offered no allegations or evidence concerning any practical or significant effects that the investigation had on the overall nature and quality of her working conditions, duties, or responsibilities."

Spivey v. Dept. of Justice, 2022 MSPB 24 (7/29/2022)

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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. (more details at deweypub.com/ffw)
Availability: Coming Soon
Compensatory Damages is the seminal text on how to support and defend against claims for compensatory damages and other remedial claims in federal sector employment discrimination cases. (more details at deweypub.com/cdor)
SUGGESTED READING
Mayer, Matt A., The Use of Mediation in Employment Discrimination Cases, 1999 Journal of Dispute Resolution, Issue 2
Availability: Coming Soon
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. (more details at deweypub.com/flfb)
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