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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.

Passman & Kaplan Founding Principal Joseph Kaplan to be Presenter at the Society of Federal Labor & Employee Relations Professionals (SFLERP), Hampton Roads Chapter, Training Event on the June 7, 2013

Passman & Kaplan founding principal Joe Kaplan will be a workshop presenter at Society of Federal Labor & Employee Labor Relations Professionals (SFLERP), Hampton Roads Chapter, Training event on June 7, 2013. Mr. Kaplan's workshop on the Whistleblower Protection Act will be a part of a one-day training session on selected topics within the Federal Labor-Management and Employee Relations arenas. The training session, which will be held in Norfolk, Virginia, is open to members and non-members. For inquiries about the training, email: [email protected] 

Passman & Kaplan Founding Principal Joseph Kaplan to be Presenter at the 40th Anniversary Symposium of the Society of Federal Labor & Employee Relations Professionals (SFLERP), April 19, 2013

Passman & Kaplan founding principal Joe Kaplan will be a workshop presenter at the 40th Anniversary Symposium of the Society of Federal Labor & Employee Labor Relations Professionals, on April 19, 2013. Mr. Kaplan's workshop "Recent Developments in Whistleblower Protections" will be part of the 2-day Symposium held by SFLERP on April 18-19 in Crystal City. 

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.

Passman & Kaplan Achieves $585,000 Settlement in Privacy Act Lawsuit

Passman & Kaplan successfully settled Brunotte v. Tangherlini, Acting Administrator, General Services Administration, Civil Action No. 08-0587. In this case, which had been pending in U.S. District Court for the District of Columbia, P&K alleged that employees of the General Services Administration and its Office of Inspector General committed violations of the Privacy Act in an apparent attempt to interfere with Ms. Brunotte starting a new job at the Government Printing Office. After successfully defeating GSA's motion for summary judgment on two counts of Privacy Act, the GSA, acting though an Assistant U.S. Attorney, agreed to mediate the claims through the court's mediation program. Under the settlement agreement, the government will pay $400,000 to Brunotte, plus an additional $185,000 in attorneys' fees and costs.

Passman & Kaplan Senior Associate Moderates Panel for MSPB 2012 Year in Review

Passman & Kaplan Senior Associate Andrew J. Perlmutter moderated a panel discussion with staff from the Merit Systems Protection Board on March 28, 2012. The discussion, "Latest Developments at the Merit Systems Protection Board, CY2012 Year in Review", was sponsored by the American Bar Association Section on Administrative Law and Regulatory Practice, Government Personnel Committee. 

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.

Passman & Kaplan Senior Associate Adria S. Zeldin To Be A Presenter at the NELA Convention, June 28, 2013, Denver

Passman & Kaplan Senior Associate Adria S. Zeldin will be a presenter at the annual convention of the National Employment Lawyers Association (NELA) to be held in Denver, CO, on June 26-29, 2013. Ms. Zeldin will participate in a panel entitled "Maximizing Compensatory Damage Awards In Federal Sector Cases." The NELA convention is the largest gathering of plaintiffs' employment lawyers nationally. 

Passman & Kaplan Wins Reinstatement of Removed Federal Employee

In Miller v. Dept. of the Interior, 2013 MSPB 27, Passman & Kaplan defeated the Department of the Interior (Agency) at the Merit Systems Protection Board (Board). The unanimous Board overturned the administrative judge's decision, reversing the Agency's removal of Ms. Miller. The Agency had removed Ms. Miller after her refusal to accept a management directed reassignment from Sitka, AK to a new position in Anchorage, AK. Ms. Miller had no performance issued in her Sitka post, and the Sitka position was not being abolished; the agency then had to advertise and fill both the Sitka and Anchorage slots after removing Ms. Miller. In reversing the AJ's decision, the unanimous Board used the opportunity to overturn its prior caselaw, as a result simplifying the pleading standards and legal analysis used in cases involving removals for failure to accept a management directed reassignment. The Agency was ordered to retroactively reinstate Ms. Miller to her position in Sitka with back pay and possible attorneys' fees and costs. Ms. Miller was represented by Passman & Kaplan Founding Principal Edward H. Passman. 

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