The Dewey Publications Podcast

This week Peter Broida discusses four cases: Arnold v. MSPB, 2014-3073 (Fed. Cir. July 24, 2014 NP): timing of petitions to enforce settlements: use of notice of compliance to set a definite time limit for the petition. -- Gajdos v. Dept. of Army, 2014 MSPB 55 (July 22, 2014): furloughs: agency policy limitations on the exercise of discretion by agency deciding officials in furlough cases do not violate constitutional due process if the policies enforced and the discretion exercised is fair and serves financial goals to be achieved by the furlough. -- Weathers v. Dept. of Navy, 2014 MSPB 57 (July 24, 2014): furloughs: distinctions in the treatment of furloughed employees can be justified by legitimate organizational and geographical distinctions. -- Kelly v. Dept. of Army, 2014 MSPB 58 (July 24, 2014): furloughs: agencies may decide to furlough some employees and schedules others for overtime if the management decision was a resolution approach to its financial restrictions and if the agency applies its determination as to which employees to furlough in a fair and even manner.

This week Peter Broida discusses five cases from the MSPB: Gallegos v. Dept. of Air Force, 2014 MSPB 53 (Precedential July 17, 2014) - The Board defines the conditions under which employees can be removed when they do not accept reassignments based on mobility agreements constituting conditions of employment. Stockton v. Dept. of Interior, SF-0752-13-0434-I-1 (NP July 18, 2014): some considerations about practitioners' informal adjustment of deadlines for discovery responses. Richard v. USPS, DE-0752-12-0398-I-1 (NP July 14, 2014): the Board applies a novel application of past discipline. Gomez v. Dept. of Agriculture, DE-1221-13-0021-W-1 (NP July 14, 2014): a personnel action, for purposes of whistleblower jurisdiction in an IRA case, does not include negative statements about an appellant without some impact on the appellant's continuing employment or employability. Erickson v. USPS, ___F.3d___ (Fed. Cir. 2014 Precedential): on review of an application for counsel fees, the court decides that the Back Pay Act does not apply to Postal Service employees, with implications on Postal Service employees' appeals that will have to be decided in the future by the MSPB.

This week Peter Broida discusses five cases: Prato-Easterling v. OPM, AT-844E-13-0352-I-1 (Nonprecedential July 7, 2014): settlements implying retirement eligibility do not control if medical evidence does not demonstrate the required degree of disability. Garay v. Dept. of Air Force, DA-0351-13-0043-I-1 (Nonprecedential July 11, 2014): a substantive error in the application of RIF procedures will result in reversal of the RIF; the harmful error rule is inapplicable. Archerda v. Dept. of Defense, 2014 MSPB 49 (Precedential July 11, 2014): describes the ability of an agency to require an employee to provide medical information pertaining to his fitness to occupy a position with medical standards. DHS, ICE and AFGE Council 118, 67 FLRA 501 (2014): considers, in the context of review of an arbitrator's award, the degree of bargaining discretion as to agency IT determinations made under the Federal Information Security Management Act. Dept. of Air Force, Sheppard AFB and AFGE Local 779, 67 FLRA 509 (2014): evaluating the proper and improper procedures for effecting a post-complaint settlement of a ULP case.

This week Peter Broida discusses three cases: Donahoe v. Postmaster General, EEOC 0720130009 (May 14, 2014): nonselection for management position: effect of retirement on back pay, limitations on use of front pay; compensatory damages. Brooks-Hughes v. Dept. of Justice, MSPB DC-0752-12-0803-I-1 (Nonprecedential July 2, 2014): removal: nexus–application of agency rule establishing prohibited relationships. Clegar v. USPS, MSPB DA-0752-12-0107-A-1 (Nonprecedential July 2, 2014): timeliness of PFR: problem with delay between Board receipt of PFR and date of metered mail; degree of specificity of description required to establish timely mailing.

This week Peter Broida discusses several cases from the MSPB and EEOC: MSPB Mann v. Dept. of Navy, SF-0752-11-0736-C-1 (June 24, 2014): need for evidence, not just representatives' statements, to form the basis for initial decisions in compliance cases reviewing allegations of violations of settlement agreements. Abbott v. US Postal Service, 2014 MSPB 47 (June 23, 2014): the Board establishes a clear statement of what constitutes enforced leave as an adverse action indisputably within the Board's jurisdiction, distinguished from constructive suspensions, where proof jurisdiction must be established by the appellant's preponderant evidence. EEOC Complainant v. Hagel, 0120084008 (June 6, 2014): EEOC makes clear that agency representatives are not be involved in or interfere, intentionally or otherwise, in the development of evidence by an investigator prior to the case going to a hearing. Sanctions were imposed based on the conduct of counsel.

This week Peter Broida discusses several cases from the MSPB and FLRA: Buelna v. DHS, 2014 MSPB 45 (June 19, 2014): constitutional due process: indefinite suspensions based on suspension of security clearance.; Flores v. Dept. of Defense, 2014 MSPB 46 (June 19, 2014): extent of Board review as to removals based on loss of the ability to hold a sensitive position.; Modeste v. VA, 2014 MSPB 44 (June 19, 2014): scope of competition under VEOA; contractual limitations; meaning of "vacant" position King v. VA, CH-0752-12-0039-C-1 (June 16, 2014): electronic filing–untimely filing of PFR by waiting to start until before the deadline and then completing the PFR 81 minutes after the filing deadline.; Dept. Of Justice, Bureau of Prisons, MCC New York and AFGE Local 3148, 67 FLRA 442 (June 19, 2014): ULP/contract election of remedies and dissent within the Authority.

Three cases are discussed: Morales v. Gotbaum, U.S. District Court, District of Columbia, #10-0221 (May 19, 2014), Complainant v. Holder, EEOC 0720120032 (May 1, 2014), Complainant v. McHugh, EEOC 0720130033 (April 24, 2014)

Two cases are discussed: Brown v. Dept. of Interior, 2014 MSPB 40 (2014) and Dept. of Homeland Security v. FLRA, No. 12-1457 (D.C.Cir. June 3, 2014)

Four cases are discussed: Caban v. Dept. of Justice, AT-0752-13-0002-I-1; Chavez v. SBA, ___MSPR___¶ 17, 2014 MSPB 37; FDIC and NTEU, 67 FLRA 430; and AFGE Local 1945 and Dept. of Army, Anniston Army Depot, 67 FLRA 436

Five cases are discussed:Ray v. SBA, DC-0752-13-0424-I-1; Walker v. VA, DC-0731-13-0698-I-1; Woodworth v. VA, NY-1221-13-0037-W-1; Wyrick v. Dept. of Transp., SF-0752-12-0524-I-3; and Davis v. Corp. for National and Community Service, DA-1221-13-0040-W-1