News from the Federal Circuit: On April 26, 2013, the U.S. Court of Appeals for the Federal Circuit issued a precedential decision in MacLean v. Department of Homeland Security, Case No. 2011-3231. This decision is the latest in the long-running MacLean case, which was previously analyzed by Passman & Kaplan, P.C. in the Federal Legal Corner.
News from the Federal Circuit: On April 18, 2013, a panel of the U.S. Court of Appeals for the Federal Circuit issued a precedential decision in Conforto v. Merit Systems Protection Board, Case No. 2012-3119. Conforto is one of the first Federal Circuit decisions applying the Supreme Court's unanimous decision in Kloeckner v. Solis (previously analyzed in detail in this blog). Kloeckner had directed that all mixed cases appealed from the Merit Systems Protection Board (MSPB) were to be filed solely in a federal district court and not with the Federal Circuit appellate court. In an apparent rejection of the Supreme Court's Kloeckner framework, the Federal Circuit panel excluded a category of mixed cases from the Kloeckner framework -- those where the Board finds it has no jurisdiction -- and declared that appeals from MSPB in those cases should be filed in the Federal Circuit.
News on Security Clearances: On April 5, 2013, Director of National Intelligence (DNI) James Clapper issued new guidance concerning the disclosure of mental health treatment in security clearances applications. The interim guidance, issued as part of a press release and later to be added to the text of Standard Form 86 (SF-86) in an upcoming revision, authorizes victims of sexual assault to not disclose that they sought treatment for the psychological effects of the sexual assault.
Developments at the MSPB: On April 3, 2013, the Merit Systems Protection Board (MSPB) issued a precedential decision which completely rewrites the caselaw for deciding removals based on failure to accept a management directed reassignment. In Miller v. Dept. of the Interior, 2013 MSPB 27, the MSPB reversed the removal of Ms. Miller and reinstated her to duty.
Developments at the MSPB: On March 20, 2013, the Merit Systems Protection Board (MSPB) published a notice in the Federal Register announcing an opportunity for interested parties to file amicus briefs in King v. Dept. of the Air Force. In King, the MSPB will decide whether the compensatory damages provisions of Whistleblower Protection Enhancement Act of 2012 (WPEA) apply retroactively.
Developments at the EEOC: On March 13, 2013, the Equal Employment Opportunity Commission (EEOC) issued a report from its African American Working Group, discussing the findings of the African American Working Group concerning continuing obstacles facing African-American federal employees. The report was prepared at the request of the EEOC Office of Federal Operations, and summarized the observations of various stakeholder groups which were polled by the African American Working Group.
News from the Federal Circuit: on March 14, 2013, the U.S. Office of Special Counsel (OSC) filed an amicus curiae ('friend of the court') brief in Berry, Director, Office of Personnel Management v. Conyers, Northover and Merit Systems Protection Board, Case No. 2011-3207, a case pending before the U.S. Court of Appeals for the Federal Circuit. Passman & Kaplan previously analyzed Conyers/Northover, which currently awaits rehearing before the entire Federal Circuit, in this blog and in its Federal Legal Corner.
News on Security Clearances: As recently reported in the Washington Post, in preparation for possible civilian furloughs in connection with the present federal budget, elements of both the Department of the Navy and the Department of the Air Force have issued guidance to affected employees on how to avoid problems with their security clearances from the financial effects of furloughs.
Developments at the MSPB: On February 28, 2013, the National Employment Lawyers Association (NELA) filed an amicus brief urging the Merit Systems Protection Board (MSPB) to give retroactive effect to provisions of the Whistleblower Protection Enhancement Act (WPEA) in Day v. Dept. of Homeland Security, MSPB Docket No. DC-1221-12-0528-W-1. The Day case was previously discussed in this blog here.
Developments at OPM: In a final regulation published in the Federal Register on February 22, 2013, the Office of Personnel Management (OPM) finalized changes to existing regulations to simplify the paperwork for qualified disabled applicants to apply for federal jobs under "Schedule A Hiring Authority". The final rule appears at 78 Fed.Reg. 12,219.