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Federal Employees News Digest : Dec. 17, 2012
December 17, 2012 Vol. 62, No. 23 4 Visit us on the Internet at www.FederalDaily.com on how it's implemented, the number cut could amount to half of that total---or 18,000 jobs." Threlkeld said. "Furthermore, the cuts could be spread out relatively evenly over several years," Threlkeld said. "But because the DOD knows this is terrible policy, I wouldn't be surprised if they try to slow it down and its impact at first, and hope that the Congress comes to its senses, and repeals this foolish idea." Supreme Court clarifies appeals process for 'mixed' cases The Supreme Court this month ruled that federal employees with "mixed case" discrimination claims should seek review in federal district court rather than the U.S. Court of Appeals for the Federal Circuit. An appeal is considered a "mixed case" if an employee appeals a serious per- sonnel action, such as firing---and also claims that the agency engaged in dis- crimination in violation of federal law. Typically, federal employees may appeal agency decisions in such cases first to the Merit Systems Protection Board. When MSPB dismisses such cases, employees who wish to continue their appeals have been required to pur- sue cases dismissed on the merits in district court, and cases dismissed on procedural grounds in the U.S. Court of Appeals for the Federal Circuit. The Supreme Court has now ruled that all such cases should go to district court. The court's decision came in the case of former Labor Department employee Carolyn Kloeckner. When her appeal of an adverse personnel action, her firing, was dismissed by MSPB on procedur- al grounds, Kloeckner took the case--- which also alleged unlawful discrimina- tion--- to federal district court. But the district court dismissed her complaint, saying it lacked jurisdiction. The district court reasoned that because MSPB had dismissed Kloeckner's claims on procedural grounds, she should have appealed to the Federal Circuit. The rul- ing relied on an earlier decision by the U.S. Court of Appeals for the 8th Circuit. The Supreme Court this month reversed the 8th Circuit's decision, hold- ing that a federal employee who claims that an agency action appealable to the MSPB violates an antidiscrimina- tion statute instead should seek judicial review in district court---not the Federal Circuit, regardless whether MSPB decid- ed the case on procedural grounds or on the merits. Web of procedures The Civil Service Reform Act, as well as MSPB and the Equal Employment Opportunity Commission, lay out spe- cial procedures for mixed cases. Until last week, this had resulted in tangled collection of laws and regulations gov- erning mixed case appeals. As the court noted in its opinion in Kloeckner v. Solis, "... the intersec- tion of federal civil rights statutes and civil service law has produced a com- plicated, at times confusing, process for resolving claims of discrimination in the federal workplace. But even within the most intricate and complex systems, some things are plain. So it is in this case, where two sections of the CSRA, read naturally, direct employees like Kloeckner to district court." Justice Elena Kagan wrote the court's unanimous opinion. In that opinion, after reviewing the government's com- plicated argument in defense of the sta- tus quo, she noted: "If you need to take a deep breath after all that, you're not alone. It would be hard to dream up a more round-about way of bifurcating judicial review of the MSPB's rulings in mixed cases. If Congress had wanted to send merits decisions to district court and procedural dismissals to the Federal Circuit, it could just have said so. The Government has offered no reason for Congress to have constructed such an obscure path to such a simple result." See the opinion at: www.supremecourt. gov/opinions/12pdf/11-184_5ifl.pdf. ••• In Brief STocK Act provision postponed President Obama on Dec. 7 signed a bill that further delays the effective date of a provision in the STOCK (Stop Trading on Congressional Knowledge) Act that would require financial dis- closure forms of certain executive and legislative branch employees to be made publicly available on official websites. The bill, H.R. 6634, postpones the effective date of the requirement to April 15, 2013. The requirement already had been postponed to Dec. 8 to give lawmakers additional time to examine potential ill effects of the bill. The STOCK Act was devised primarily to keep lawmakers and their staffs from trading on inside information gleaned while performing official duties. The act, signed into law earlier this year, has been staunchly opposed by the Senior Executives Association and other groups who claim that public posting of the reports---which contain employees' names, signatures, addresses and other information---would make federal exec- utives targets of identity theft. SEA also maintains that publishing the reports online could provide foreign entities and terrorists with easy access to information that could be used to com- promise or endanger Foreign Service Officers, embassy personnel and other officials working outside the country. SEA argues that the data has always been publicly available, but under more con- trolled circumstances. The most recent postponement, like continued from page 3 continued on page 5
Dec. 10, 2012
Jan. 14, 2013