Protecting Workers’ Rights

Focusing on the Rights of Federal Employees

February 2015 Archives

News from the Federal Circuit: Untimely Appeal Filing Excused

News from the Federal Circuit:  On February 18, 2015, a panel of the U.S. Court of Appeals for the Federal Circuit issued a precedential split decision in Herring v. Merit Systems Protection Board, ___  F.3d ___, No. 2013-3170.  The majority found 'good cause' to excuse Ms. Herring's untimely filing of her Merit Systems Protection Board (MSPB) appeal, based on delays by Ms. Herring's law firm.


In its January 28, 2015, decision in Complainant v. Department of the Air Force, EEOC Appeal No. 0120142407, the EEOC's Office of Federal Operations (OFO) overturned the Air Force's dismissal of an EEO complaint, remanding it for investigation. The Complainant was a contract employee, but based on Passman & Kaplan's argument, OFO found that the Complainant was a 'joint employee' of the Air Force entitled to file complaints in the federal-sector EEO complaints process. OFO also found that Complainant had properly stated claims for harassment, reassignments and constructive discharge. OFO also rejected the Air Force's claim that Complainant's EEO complaint was untimely, relying on written documentation issued by the Air Force's EEO office which showed the EEO office improperly turning the Complainant away 3 years earlier when the Complainant attempted to initiate an EEO complaint at that time. OFO ordered the Air Force to accept the complaint and promptly conduct an investigation. The Complainant was represented by P&K Founding Principal Joseph V. Kaplan and P&K Senior Associate Andrew J. Perlmutter. 

Developments at the EEOC: EEOC Overturns Dismissal in Passman & Kaplan Case

Developments at the EEOC: On January 28, 2015, the EEOC's Office of Federal Operations (OFO) issued its decision in Complainant v. Dept. of the Air Force, EEOC Appeal No. 0120142407. OFO found that the Complainant, a federal contractor, was able to press a discrimination complaint against the Air Force (Agency) through the federal-sector EEO process.

Developments at the EEOC: EEOC Considers Revising Federal Complaints Process

Developments at the EEOC:  On February 6, 2015, the Equal Employment Opportunity Commission (EEOC) published an Advance Notice of Proposed Rulemaking (ANPRM) in the Federal Register (80 Fed.Reg. 6,669-6,671).  In the ANPRM, the EEOC requests public comment on all aspects of its federal-sector EEO complaints adjudication process, potentially contemplating a future revision of that process. 

Developments at the MSPB: MSPB FY 2014 Annual Performance Report

Developments at the MSPB: On February 2, 2015, the Merit Systems Protection Board (MSPB) issued its annual performance report  for FY 2014, combined with its performance plan for FY 2015-2016. The report discussed the current status of the MSPB's caseload of furlough appeals, its overall case processing in FY 2014, and specific case statistics for whistleblower reprisal cases.


Passman & Kaplan Senior Associate Andrew J. Perlmutter will moderate an upcoming panel discussion with staff from the Merit Systems Protection Board, scheduled to occur on March 5, 2015. The discussion, "Latest Developments at the Merit Systems Protection Board CY2014 Year in Review", is sponsored by the ABA Section on Administrative Law and Regulatory Practice, Government Personnel Committee. For more information or to register, please contact Alisha Dixon at the ABA at [email protected] or call 202-662-1528. 


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