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Washington DC Employment Law Blog

News from the Federal Circuit: MSPB Unsuitability Removal Jurisdiction Affirmed

News from the Federal Circuit:  In Archuleta v. Hopper, ___ F.3d ___, Fed. Cir. No. 2013-3177 (December 8, 2014), a unanimous three-judge panel of the U.S. Court of Appeals for the Federal Circuit upheld the holding of the Merit Systems Protection Board (MSPB) that a removal of a non-probationary employee for unsuitability is an appealable adverse action indistinguishable for all other removals.  In doing so, the Federal Circuit upheld the MSPB's holding in the Aguzie/Barnes line of cases, previously analyzed by Passman & Kaplan in the Federal Legal Corner.

Developments at the EEOC: EEOC Ramps Up LGBT Enforcement Efforts

Developments at the EEOC:  The Equal Employment Opportunity Commission (EEOC) recently released a new report, "What You Should Know about EEOC and the Enforcement Protections for LGBT Workers", to emphasize its expanding enforcement efforts regarding sexual orientation and gender identity discrimination issues. 

News from Passman & Kaplan: Joseph V. Kaplan Federal News Radio Interview

News from Passman & Kaplan:  Passman & Kaplan Founding Principal Joe Kaplan was a guest on November 13, 2014 on Federal News Radio 1500 AM in Wash., DC, on "The Federal Drive" with Tom Temin. The topic was nepotism in the federal workplace.

Developments at the OSC: Two Recent LGBT Cases Against the Army

Developments at the OSC:  The U.S. Office of Special Counsel (OSC) recently announced the results in two major cases involving protections for LGBT employees in the federal workforce.  OSC's jurisdiction includes enforcing the rules against prohibited personnel practices (PPPs); one of the PPPs--codified at 5 U.S.C. § 2302(b)(10)--prohibits discrimination "on the basis of conduct which does not adversely affect the performance of the employee or applicant or the performance of others," which has been interpreted to include discrimination based on sexual orientation or gender identity.

Developments at the MSPB: Final Rule on DVA SES Adverse Actions

Developments at the MSPB:  On October 22, 2014, the Merit Systems Protection Board (MSPB) issued a Final Rule implementing procedures for handling adverse actions against Senior Executive Service (SES) employees at the Department of Veterans Affairs (DVA) (79 Fed.Reg. 63,031-63,032).  The Final Rule finalized the August 19, 2014, Interim Final Rule (79 Fed.Reg. 48,941-48, 946, as corrected 79 Fed.Reg. 49,423); this Interim Final Rule was previously analyzed in this blog.  The MSPB rushed to draft these regulations in order to meet a 14-day deadline specified in Section 707 of Pub.L. 113-146--the statute creating this new adverse action procedure--which was also previously analyzed in this blog.

News from the Supreme Court: Court to Hear Federal Whistleblower Case

News from the Supreme Court:  On November 4, 2014, the Supreme Court will hear oral argument in the matter of Dept. of Homeland Security v. MacLean, No. 13-894.  This represents the latest stage in the long-running MacLean case, which was previously analyzed by Passman & Kaplan, P.C. in the Federal Legal Corner, and in this blog.

Developments at the MSPB: Special Panel Rebuffs MSPB and Finds For Employee

Developments at the MSPB:  On September 29, 2014, a split Special Panel issued its decision in Alvara v. Dept. of Homeland Security, 2014 MSPB 77.  As previously analyzed in this blog, the Alvara case involved a dispute between the Merit Systems Protection Board (MSPB) and the Equal Employment Opportunity Commission (EEOC) over whether Mr. Alvara's removal for medical inability to perform should be overturned due to the agency's failure to reasonably accommodate Mr. Alvara with a modified schedule.  The Special Panel found in favor of the EEOC, with the case remanded to an administrative judge to order Mr. Alvara's reinstatement and to award compensatory damages and other relief.

News from the Whitehouse: WPEA All-Circuit Review Extended

News from the Whitehouse:  On September 26, 2014, President Obama signed Pub.L. 113-170, the "All Circuit Review Extension Act". The new law extends a current pilot program for judicial review of the MSPB decisions in whistleblower reprisal cases by three years.

Developments at the EEOC: EEOC Report on Erroneous Claim Dismissals

Developments at the EEOC:  On September 15, 2014, the Equal Employment Opportunity Commission (EEOC) Office of Federal Operations (OFO) published a report entitled Preserving Access to the Legal System: Common Errors by Federal Agencies in Dismissing Complaints of Discrimination on Procedural Grounds. The report's findings revealed an alarming rate of erroneously dismissed EEO complaints by federal agencies.

Developments at the MSPB: DVA SES Adverse Action Interim Final Rule

Developments at the MSPB:  On August 19, 2014, the Merit Systems Protection Board (MSPB) issued an Interim Final Rule implementing procedures for handling adverse actions against Senior Executive Service (SES) employees at the Department of Veterans Affairs (79 Fed.Reg. 48,941-48, 946, as corrected 79 Fed.Reg. 49,423).  The MSPB had to rush to draft these regulations in order to meet a 14-day deadline specified in Section 707 of Pub.L. 113-146--the statute creating this new adverse action procedure--which was previously analyzed in this blog.   As an interim final rule, the regulations came into immediate effect, but the MSPB will be accepting comments on the regulations through September 18, 2014.

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