News from the Supreme Court: On January 21, 2015, the Supreme Court issued its decision in Dept. of Homeland Security v. MacLean, 574 U.S. ___, No. 13-894. The Court, 7-2, ruled in favor of whistleblower Robert MacLean, upholding the findings below that the Transportation Security Administration (TSA) engaged in whistleblower reprisal when it unlawfully fired Mr. MacLean.
News from the Whitehouse: On January 15, 2015, President Obama issued a new Presidential Memorandum, "Modernizing Federal Leave Policies for Childbirth, Adoption and Foster Care to Recruit and Retain Talent and Improve Productivity." The new Presidential Memorandum directs agencies to modify present leave regulations and policies in several respects to expand leave entitlements for pregnant women and for parents adopting children in the federal workforce.
News from the Federal Circuit: On January 14, 2015, a panel of the U.S. Court of Appeals for the Federal Circuit issued its decision in Higbie v. U.S., __F.3d__, No. 2014-5042. The panel, 2-1, rejected Higbie's claim that violations of the mediation confidentiality agreement from a federal-sector EEO complaint mediation should give rise to breach-of-contract remedies under the Tucker Act.
News from the Courts: On January 6, 2015, the U.S. Court of Appeals for the District of Columbia Circuit issued its decision in Howard, Megginson v. Pritzker, ___ F.3d ___, Nos. 12-5370, 12-5392. The Court rejected an attempt by the Department of Commerce (DOC) to impose a new statute of limitations on federal employees seeking to take their discrimination claims into federal district court.
Developments at the MSPB: On December 18, 2014, the Merit Systems Protection Board issued its decision in Southerland v. Dept. of Defense, 2014 MSPB 88, the third trip to the MSPB for this case. In rejecting Mr. Southerland's petition for attorneys' fees, the MSPB potentially raised a new dispute with the Equal Employment Opportunity Commission (EEOC) concerning mixed cases.
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: 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: 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: 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: 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.