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April 2013 Archives

News from the Federal Circuit: Mixed Case Procedure Muddied!

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: Mental Health & Security Clearances

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: Refused Reassignment Removal Reversed

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.

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