The Dewey Publications Podcast

Several items of interest are discussed this week by Peter Broida:Cahill v. MSPB (2015-3152 Fed. Cir. May 10, 2016) (IRA disclosures; specific notice of deficiencies required from MSPB or agencies in preliminary jurisdictional challenges);Lal v. MSPB & DHHS (2015-3140 Fed. Cir. May 11, 2016) (MSPB jurisdiction over appeals by employees appointed under specialized agency statutory authority permitting hiring without regard to civil service laws);Zygmunt v. Dept. of Navy (NP PH-0752-0292I-1) (5/13/2016) (knowledge of whistleblower disclosures gained by deciding official during an adverse action reply);O'Lague v. VA, 2016 MSPB 20 (May 11, 2016) (elements of material gain in a falsification charge; elements of a charge of lack of candor);Fargnoli v. Dept. of Commerce, 2016 MSPB 19 (May 6, 2016) (elements of a charge of lack of candor);Dept. of Defense, Scott AFB and ACT Chap 111, 69 FLRA 345 (May 3, 2016) (management rights defense to a grievance protesting failure of agency to follow its internal regulations

Several items of interest are discussed this week by Peter Broida:Bautz v. Dept. of Treasury (NP AT-1221-15-0577-W-1) (April 18, 2016)) (enforcement of a settlement release in an EEO case in a subsequent IRA appeal);Doe v. Dept. of Navy (AT-0752-15-0206-I-1) (April 21, 2106) (due process: incorporation by reference into a proposal of materials from an evidence file);Scarlet M., et al. V. Mabus, Secretary, Dept. of Navy, OFO 0120150940 (April 13, 2016) (lack of due care defense in a hostile environment case for harm already suffered by the complainants).

Several items of interest are discussed this week by Peter Broida:Miller v. FDIC (2014-3137 Fed. Cir. April 8, 2016) (VEOA: cancelation of vacancy announcement);Miller v. FDIC (2014-3146 Fed. Cir. April 8, 2916) (VEOA: consideration of applicant's education, skill, and experience);McCauley v. VA (NP CH-1221-14-0721-W-1) (Feb. 18, 2016) (whistleblower protection under 2302(b)(9): assisting others with complaints);DHUD and AFGE Council of HUD Locals 222, 69 FLRA 213 (Feb. 25, 2016) (dissent by Member Pizzella concerning lengthy arbitration and review processes)

Several items of interest are discussed this week by Peter Broida:Pirkkala v. Dept. of Justice, 2016 MSPB 16 (March 31, 2016) (election of remedies: untimely union contract grievance vs. timely Board appeal)Jenna P. v, Kerry, Secretary of State, 0120152941 (Jan. 28, 2016) (election of remedies: EEO complaint v. union contract grievance)Littlefield v. Dept. of Navy (NP AT-0752-15-0408-I-1) (Feb. 17, 2016) (settlement agreement zipper clauses; statements made during mediation)Batara v. Dept. of Navy, 2016 MSPB 15 (March 7, 2016) (marijuana use; mitigating factors)SSA v. Boini (CB-7521-13-0192-T-1) (March 22, 2016) (ALJ disciplinary complaint; general discussion of application of adverse action principles to ALJ cases)

Several items of interest are discussed this week by Peter Broida:Diaz v. Dept. of Treasury, (NP AT-0752-15-0471-I-1) (March 11, 2016) (spoliation of evidence; adverse inference)Big Crow v. DHHS, (NP -0752-15-0368-I-1) (March 10, 2016) (due process; ex parte communications; advice from HR specialists, counsel)Pauli v. DHS, (NP DC-0752-13-6815-I-1) (March 10, 2016) (due process: reliance on documents in the evidence file not referenced in the proposal; consideration of alternate provisions of a penalty table)Special Counsel ex rel. Rector v. NCUA, (NP CB-1208-16-0012-U-2) (March 7, 2016) (clarification of OSC stay requests; changes in an employee's during a stay)

Several items of interest are discussed this week by Peter Broida:Montgomery v. DHHS, 2016 MSPB 8 (Feb. 5, 2016) (VEOA right to compete: transfers);SSA and IFPTE, Ass'n. ALJs, 69 FLRA 208 (Feb. 4, 2016) (contract provisions governing timeliness of arbitrators' awards)Zenia M. V. DHHS, EEOC 0120121845 (Dec. 18, 2015) (reprisal liability for improper disclosure by agency EEO officials of materials in the complainant's ROI)

Several items of interest are discussed this week by Peter Broida:Runstrom v. VA, 2016 MSPB 3 (Jan 14, 2016) (agency burden of proof in defending an IRA claim) Jackson v. Dept. of Army, 2016 MSPB 4 (Jan. 19, 2016) (need for care in deciding when to use an OWBPA revocation clause in a settlement agreement)Brown v. DHS (NP SF-0752-14-0816-I-1) (Jan. 19, 2016) (care needed in presentation of testimony from a deciding official as to whether a penalty would be the same when not all specifications of a charge are sustained)McCarthy v. MSPB (2015-3072 Fed. Cir. Jan 14, 2016) (treatment as judicially review decision a pro forma letter from the MSPB Clerk rejecting a petition to reopen a Board decision)Muller v. GPO (2015-3032 Fed. Cir. Jan. 15, 2016) (effect of housekeeping provision concerning timeliness of an arbitration hearing on arbitrability of the grievance; Federal Circuit approach to interpretation of labor contracts)MSPB Rulemaking notice seeking amicus briefs on whether disclosures by contractors secure pr

Several items of interest are discussed this week by Peter Broida:Congressional testimony of MSPB's Susan Grundmann and OSC's Carolyn Lerner concerning legislative changes desired as components of reauthorization legislation;Mosley v. Dept. of Transp., AT-0752-14-0666-I-1 (NP 12/3/2015) (prospective nature of reasonable accommodation requirements);Layton v. Dept. of Air Force, SF-121-14-0805-W-1 (NP 12/9/2015) (necessity for judge's approval of informal discovery deadline adjustments; interpretation of 5 USC 2302(b)(9))

Several items of interest are discussed this week by Peter Broida:Summit 6, LLC v. Samsung Electronics (Fed. Cir. Sept. 21, 2015) (expert opinion under the Federal Rules of Evidence and the Daubert case);King v. Dept. of Army (11th Cir. 2014) (standards for review outside the Federal Circuit of an IRA whistleblowing case under the 2012 WPEA);DHS, ICE and AFGE Local 1917, 69 FLRA 72 (Nov. 13, 2015) (ULP involving refusal to arbitrate local grievances until similar national grievances were resolved);Practice tip: Federal Circuit arguments

Several items of interest are discussed this week by Peter Broida:Boo v. DHS, SF-0752-13-3302-A-1 (NP 10/29/2015) (counsel fees: a mitigated penalty warrants a reduced fee)Complainant v. Postmaster General, EEOC 0120133350 (9/11/2015) (counsel fees: the availability of counsel in the geographical area of the employment dispute results in reduction of the hourly rate of out-of-town counsel)Aviles v. MSPB, 799 F.3d 457 (5th Cir. 8/24/2015) (protected disclosures do not include matters that do not directly impact governmental interests)MSPB Rulemaking Notice (new rules for discovery in enforcement proceedings) (10/30/2015)

Several items of interest are discussed this week by Peter Broida:EEOC Announces Use "Randomly Generated Names" to identify casesEinboden v. Dept. of Navy, ___F.3d___ (Fed. Cir. 10/1/2015) (furloughs: deference to agency financial decisions)Independent Union of Pension Employees and PBGC, 68 FLRA No. 155 (9/29/2015) (contract grievance and arbitration procedures survive expiration of negotiated agreement)Rebstock Consol. And DHS, 2015 MSPB 53 (9/29/2015) (threshold of a "threat" for purposes of IRA analysis)DHS, C&BP and NTEU, 68 FLRA No. 156 (9/29/2015) (Dissent of Member Pizzella concerning collateral estoppel effect of arbitration awards)

Several items of interest are discussed this week by Peter Broida:Savage v. Dept. of Army, 2015 MSPB 51 (9/3/2015) (IRA hostile environment claims; demise of summary judgment for Title VII EEO affirmative defenses)Washington v. Dept. of Army, AT-0432-15-0138-I-1 (NP 9/21/2015) (falsification charge: required element of personal gain)Sherman v. DHS, 2015 MSPB 52 (9/11/2015) (IRA/grievance election of remedy)Wilkes v. VA, DA-0432-11-0466-C-1 (NP 9/22/2015) (compliance: TSP complexities)Dept. Of Justice, Bureau of Prisons and AFGE Local 4052, 68 FLRA No. 150 (9/21/2015) (sovereign immunity bars equitable remedy in the form of monetary payments)Dept. Of Commerce, NOAA and NWSEO, 68 FLRA No. 152 (9/24/2015) (reliance on opinion of Comptroller General to overturn arbitrator's monetary award for a prohibited purpose)Complainant v. Postal Service, EEOC 0120122166 (7/30/2015) (a finding by OWCP that a job is suitable for an employee does not relieve an agency from the responsibility for providing reasonable accommodat

Several items of interest are discussed this week by Peter Broida:FLRA Guidance on Meetings (9/1/2015) (what you need to know about formal discussions and investigatory interviews);VAMC Pershing and AFGE Local 2338, 68 FLRA No. 137 (8/27/2015) (arbitrator's flexibility in interpreting contract provisions involving the time for filing grievances);NTEU and DHS, C&BP, 68 FLRA No. 141 (8/31/2015) (overtime pay: comments by Member Pizzella in his concurring opinion concerning the efficiency of the federal LR program);Shapiro v. SSA, ___F.3d___ (Fed. Cir. 9/1/2015) (removals of administrative law judges based on productivity or case management concerns);Cobert v. Miller & MSPB, ___F.3d___ (Fed. Cir. 9/2/2015) (restoring the Ketterer burden shifting approach to appeals involving removals for failure to accept geographical reassignments)

Several items of interest are discussed this week by Peter Broida:Alarid v. Dept. of Army, 2015 MSPB 50 (8/21/2015) (prohibited personnel practice protections for individuals who file or participate or testify in appeals or grievances)Rose v. Dept. of Defense, AT-0752-12-0063-B-2 (NP 8/10/2015) (military bar orders; AWOL and due process considerations of alternatives to removal penalties)Barnes v. MSPB (Fed. Cir. NP 2015-3018 (8/19/2015)) (excused delay in filing PFR; MSPB e-filing problems)

Several items of interest are discussed this week by Peter Broida:Rainey v. Dept. of State, 2015 MSPB 49 (Aug. 6, 2015) (prohibited personnel practice: personnel action taken because an individual refuses an order requiring violation of a law)Wilson v. Dept. of Navy, 2015 MSPB 48 (Aug. 5, 2015) (USERRA violation cannot be asserted an affirmative defense to a clearance-based removal)EEOC MD-110 Revisions (August 2015) (clarification on conflicts of interest for agency counsel, agency heads, and EEO directors; conduct of legal sufficiency reviews; firewalls between agency litigation counsel and EEO officials responsible for counseling, acceptance of complaints, and investigations of complaints)

Several items of interest are discussed this week by Peter Broida:Ryan v. DHS, ___F.3d___ (Fed. Cir. 7/13/2015) (clearance-based indefinite suspensions; due process implications; choices of alternatives to suspension);Dept. of Labor and AFGE Local 12, 68 FLRA 779 (7/23/2015) (arbitration: reasonable accommodation through structuring of interaction between an employee and a supervisor);Complainant v. Dept. of Transp., EEOC 0120133080 (7/15/2015) (discrimination on the basis of sexual orientation to be adjudicated through Title VII procedures);Nichols v. MSPB (Fed. Cir. NP 7/13/2015) (importance of compliance with MSPB regulation calling for agencies to file complete administrative records, including EEO ROI, with the Board)

Two items of interest are discussed this week by Peter Broida:Appleberry v. DHS, ___F.3d___ ( Fed. Cir. 7/8/2015) (arbitrator's application of contract limitations upon review of a Chapter 43 case)Dept. of Interior, Geological Survey and AFGE Local 723, 68 FLRA 734 (6/30/2015) (limitations of the Back Pay Act as to reimbursement of per diem-type payments)

Several items of interest are discussed this week by Peter Broida:Melton v. Dept. of Army, CH-0752-09-0448-C-1 (NP 6/18/2015) (broad scope settlement agreements)AFGE Local 1336 and SSA, 68 FLRA 704 (6/17/2015) (Privacy Act implications for misconduct investigations; application of the "discourtesy" provision of statutory adverse action provision)Complainant v. Postmaster General, EEOC OFO 0120133300 (5/12/2015) (violations based on public disclosure of a complainant's EEO activity)Complainant v. Air Force, EEOC OFO 0720090009 (6/5/2015) (permissive strict application of sanctions for untimely agency filing of ROI; inappropriate imposition of punitive damages)

Several items of interest are discussed this week by Peter Broida:Report: Addressing Sexual Orientation and Gender Identity Discrimination in Federal Civilian Employment (OPM, EEOC, OSC & MSPB)Report: Administrative Leave Usage (OPM)Report: Adherence to Federal Laws Regarding Marijuana Use (OPM and the Director of National Intelligence)SSA and AFGE Local 1395, 68 FLRA 693 (6/15/2015) (past practice)DHS, C&BP v. FLRA, ___F.3d___ (D.C. Cir. 5/5/2015) (judicial review of FLRA decisions resolving exceptions to arbitration awards; sovereign immunity arguments)Bernard v. Dept. of Agric., ___F.3d___ (Fed. Cir. 6/11/2015) (use of discovery in MSPB enforcement proceedings)

Several items of interest are discussed this week by Peter Broida:Knuckles v. Dept. or Army, CB7121140025V1 (NP 5/27/2015) (whether a 3rd level grievance decision constitutes a final grievance determination for purposes of Board review);Grant v. Dept. of Treasury, DC0752140237I1 (NP 5/27/2015) (use of unofficially-prepared hearing transcripts on petitions for review);Dept. of Army, Corps of Engineers and AFGE, 68 FLRA No. 104 (5/27/2015) (the impact of agency factual misstatements to employees during a union election campaign);Fraternal Order of Police, Lodge 12 and Dept. of Navy, 68 FLRA No. 98 (5/19/2015) (review of physical agility testing program for civilian police and guards under the Rehabilitation Act);Strickland v. Dept. of Navy, AT0752137164I1 (NP 5/20/2015) (due process in the availability of reply rights to an adverse action proposal);DHUD and AFGE Local 222, 68 FLRA No. 100 (5/22/2015) (comments in dissent by Member Pizzella concerning FLRA practice of remanding cases to the same arbitrators whos