News from Congress: On October 26, 2017, new whistleblower protection legislation was signed into law as Pub.L. 115-73. The statute makes several important changes to whistleblower reprisal protections for federal employees.
News from the Courts: On June 16, 2017, the U.S. Court of Appeals for the District of Columbia Circuit issued a precedential decision in Lee v. U.S. Agency for International Development et al., No. 16-5276. The D.C. Circuit addressed the issue of whether a federal employee has a civil remedy for alleged false statements by managers under 18 U.S.C. § 1001.
Developments at the MSPB: On May 23, 2017, the Merit Systems Protection Board (MSPB) issued its annual performance report for FY 2016. The report discussed the current status of the MSPB's caseload of furlough appeals, its overall case processing in FY 2016, and specific case statistics for whistleblower reprisal cases.
News from the Federal Circuit: On June 7, 2016, the U.S. Court of Appeals for the Federal Circuit issued its precedential decision in Rainey v. Merit Systems Protection Board, No. 2015-3234. The Federal Circuit limited the application of a whistleblower protection statute.
Developments at the MSPB: In a recent decision, Savage v. Department of the Army, 122 M.S.P.R. 612 (2015), the Merit Systems Protection Board (MSPB) revised how it analyzes discrimination claims in federal sector mixed cases.
News from the Courts: On August 24, 2015, the U.S. Court of Appeals for the 5th Circuit issued its decision in Aviles v. Merit Systems Protection Board, No. 14-60645. Although it ultimately found against the employee, the 5th Circuit rejected several points of Federal Circuit whistleblower reprisal caselaw in the process.
Developments at OPM: On June 5, 2015, the U.S. Office of Personnel Management (OPM) and the Office of the Director of National Intelligence (ODNI) jointly published a Final Rule in the Federal Register (80 Fed.Reg. 32,244-32,265). The Final Rule implemented updated regulations for agencies to designate positions as "national security positions"--and potentially excluding affected positions from Merit Systems Protection Board (MSPB) appeal rights. The Final Rule is effective July 6, 2015.
Developments at OPM: On June 3, 2015, the U.S. Office of Special Counsel (OSC), the U.S. Office of Personnel Management (OPM), the Equal Employment Opportunity Commission (EEOC) and the Merit Systems Protection Board (MSPB) jointly issued a new report, "Addressing Sexual Orientation and Gender Identity Discrimination in Federal Civilian Employment A Guide to Employment Rights, Protections and Responsibilities." This Guide summarizes the great extent to which the EEOC and OSC have expanded to cover sexual orientation and gender identity discrimination claims during the past 10 years.
News from Passman & Kaplan: Passman & Kaplan Founding Principal Joe Kaplan was a guest on November 13, 2014 on Federal News Radio 1500 AM in Wash., DC, on "The Federal Drive" with Tom Temin. The topic was nepotism in the federal workplace.
Developments at the OSC: The U.S. Office of Special Counsel (OSC) recently announced the results in two major cases involving protections for LGBT employees in the federal workforce. OSC's jurisdiction includes enforcing the rules against prohibited personnel practices (PPPs); one of the PPPs--codified at 5 U.S.C. § 2302(b)(10)--prohibits discrimination "on the basis of conduct which does not adversely affect the performance of the employee or applicant or the performance of others," which has been interpreted to include discrimination based on sexual orientation or gender identity.