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.