Washington DC Employment Law Blog

This news from the Whitehouse: President Obama has proposed a sweeping reorganization of several executive branch agencies.    Under the President's proposal, the present Department of Commerce would be split up, with some former Commerce divisions moved to other agencies (for example, the National Oceanic and Atmospheric Administration (NOAA) moved to the Department of the Interior).  The remaining portions of the Commerce Department would then be merged with several other presently independent agencies and parts of the Executive Office of the President (Export-Import Bank, Overseas Private Investment Corporation, Office of the U.S. Trade Representative, the Small Business Administration (SBA) and the Trade and Development Authority) into a new cabinet-level agency.  As a precursor to this reorganization, the President elevated the SBA  to a Cabinet-level agency.  To implement this reorganization, President Obama proposed reinstatement of 'fast-track' authority for government reorganizations.  For much of the 20th century, Presidents had authority to propose large-scale reorganizations which were subject to limited debate and could only be voted up or down by Congress without further amendment (in a process with some similarities to 'fast track' authority sometimes granted for negotiating international trade agreements).  Congress stopped renewing this 'fast-track' authority for government reorganization during the Reagan administration, and the authority lapsed in 1984.

At this time, whether the Congerss will grant this authority is unknown. Also unknown, is how any reorganization will affect the rights of federal employees.

Developments at the MSPB:  The MSPB's recent decision, Kitt v. U.S. Navy, 2011 MSPB 82 (September 2, 2011), granting a petition to enforce a settlement agreement, expressly overruled a twenty-year-old decision which had made it difficult to enforce an arguably imprecise settlement agreement.  This decision represents a common-sense approach to the interpretation of settlement agreements. 

In Kitt, a pro se litigant fell victim to poor drafting in a  settlement agreement under which the Navy agreed to reduce its proposed Removal to a 30-day suspension and a clean record.  The actual wording  required the Agency to "change" the nature of Employee's Standard Form 50 . . . from Removal to a 30-days Suspension.  Ms. Kitt believed that by agreeing to this language Navy agreed to expunge her record of all references to the proposed removal.  She found out otherwise when the Agency turned her down for a security clearance a year later,  in part because her records still reflected the proposed removal.  Ms. Kit then filed a petition with the MSPB claiming the Navy breached the settlement.

The Administrative Judge who who heard Ms. Kitt's petition disagreed that there was a breach, holding that the settlement language requiring a "change" in her employment records was not specific enough to require the records be "expunged" of the removal, citing the case Cutrufello v. U.S. Postal Service, 56 M.S.P.R. 99 (1992).  On appeal, the full Board overruled Cutrufello.

Citing liberally to Webster's Dictionary for the meaning of "change," the Board concluded that when an agency agrees to "change" an action  from a removal to a suspension, the Agency was agreeing to remove any record of the appellant's removal.  The Board found the Navy in breach, and remanded Ms. Kitt's petition remanded so she can decide whether to enforce the agreement, or rescind the settlement and pursue her appeal on the merits.

Kitt is a good ruling for pro se litigants who may not have the sophistication to draft or agree to precisely-worded settlement agreements. This case is also a good example why able legal counsel helps employees avoid problems in pursuing MSPB appeals.   Competent employment counsel would likely have insisted that the settlement language specifically require an agency to "expunge" the proposed removal and on language mandating  that any and all references to the proposed removal be removed from the OPF. 

If you are a Federal employee facing a similar adverse employment action, or needing assistance drafting a settlement agreement, you might want to schedule an "initial consultation" with one of Passman & Kaplan's attorneys.

Developments at the OSC: On August 11, 2011, the U.S. Office of Special Counsel (OSC) announced another case where OSC intervention resulted in a stay of an adverse action against an employee.  OSC's action in the matter not only ultimately resulted in reversal of the adverse action for the employer, but further resulted in the employing agency--the U.S. Department of Energy (DOE)--changing its suspension policy across the board.

DOE employee Stephen Patrick worked as a nuclear materials courier.  Due to allegations of misuse of government vehicle infraction, Mr. Patrick received a 30 day suspension, which he then appealed to the Merit Systems Protection Board (MSPB).  A few months later, DOE managers revoked Mr. Patrick's certification to work with nuclear materials under DOE's Human Reliability Program (HRP).  Under DOE policy, loss of a HRP certification resulted in a mandatory indefinite suspension.  During this timeframe, Mr. Patrick contacted DOE's Office of Inspector General (IG) regarding his case.  Mr. Patrick appealed the HRP certification loss within DOE, resulting in the decision by a DOE Deputy Secretary to reinstate Mr. Patrick's HRP certification 13 months later.  However, lower-level DOE management implementing the Deputy Secretary's opinion decided that Mr. Patrick's HRP certification would not be automatically renewed, and instead required Mr. Patrick to reapply for HRP certification anew--resulting in Mr. Patrick yet again being placed on mandatory indefinite suspension.  Under the DOE policy, employees suspended for loss of HRP certification were placed on unpaid leave and not entitled to back pay if the HRP certification was later restored.

Mr. Patrick then filed a complaint with OSC, alleging that DOE's second suspension was retaliation for Mr. Patrick's MSPB appeal and for his contacts with the IG, which would be protected whistleblowing.  At the end of its investigation, OSC advised DOE Secretary Chu that DOE's mandatory suspension policy violated basic due process protections and recommended that Mr. Patrick be awarded back pay and that DOE revise its policies.  On August 2, 2011, DOE announced that it was rescinding its mandatory suspension policy, so that henceforth DOE employees losing HRP certification would be placed on paid administrative leave.  DOE further promised to revise its internal processes so that HRP certification appeals would be much faster than the 13-month delay that Mr. Patrick endured.

All employees should be free from a retaliatory work environment.   Federal employees who believe they have been retaliated against for contacting an IG or invoking their MSPB appeal rights, or who otherwise have suffered from other prohibited personnel practices, should consult with attorneys experienced in handling these cases.

Developments at OPM:  In a notice of proposed rulemaking published in the Federal Register on July 28, 2011, the Office of Personnel Management (OPM) proposed changes to existing regulations to extend an existing noncompetitive appointment authority for federal civil service positions to same-sex domestic partners.  The notice of proposed rulemaking proposed revisions to 5 C.F.R. § 315.608.   The present regulation provides a noncompetitive appointment benefit for federal employees and their immediate family members residing with them for cases where the federal employee had served 52 weeks or more at an overseas posting.  The present regulation only includes spouses and children under age 23 who accompanied the federal employee; OPM's proposal would add domestic partners to that eligibility list, and incorporating a definition of 'domestic partner' into the regulation.  In the background section of the notice, OPM explained that the proposed rulemaking was designed to implement two memoranda issued by President Obama aimed at extending benefits to qualifying same sex domestic partners that were previously reserved to married couples, within the bounds of present law.  Comments on this notice of proposed rulemaking must be received by September 26, 2011.

The Notice of Proposed Rulemaking was published at 76 Fed.Reg. 45,204.  For those individuals or groups who are interested in commenting, information for responding with comments are contained in the OPM notice.  Developments at OPM during the Obama administation certainly show the President's agenda being put into effect.

For an understandable guide to federal employees' legal rights, check out the Federal Employees Legal Survival Guide, 2d ed, authored by the attorneys of Passman & Kaplan, PC.