by clicking on the page. A slider will appear, allowing you to adjust your zoom level. Return to the original size by clicking on the page again.
the page around when zoomed in by dragging it.
the zoom using the slider on the top right.
by clicking on the zoomed-in page.
by entering text in the search field and click on "In This Issue" or "All Issues" to search the current issue or the archive of back issues respectively.
by clicking on thumbnails to select pages, and then press the print button.
this publication and page.
displays a table of sections with thumbnails and descriptions.
displays thumbnails of every page in the issue. Click on a page to jump.
allows you to browse through every available issue.
Federal Employees News Digest : April 1, 2013
April 1, 2013 Vol. 62, No. 35 5 Visit us on the internet at www.FederalDaily.com FAA employee wins appeal in removal case Quincy D. Hall, an Air Traffic Control Specialist with the Federal Aviation Administration, won his most recent appeal in his claim that he was improperly removed by agency officials over an alleged failure to successfully complete a training course. The agency, according to official documents in the case, removed Hall from his job for "failure to successfully complete" the National Air Traffic Technical Training Program---contrary to the requirements of continued employment as a career air traffic controller. Hall, for his part, appealed to the Merit Systems Protection Board, contesting the claim that he had legitimately failed the course, arguing instead that the FAA was retaliating against him for his prior equal employment opportunity complaint activ- ity. He further argued that in acting to remove him, the agency was violating provisions of its collective bargaining agreement and---even if one allowed that performance was not adequate in the training course---it had also possibly committed "harmful procedural error" in failing to reassign him to a less demanding, lower-level facility. Finally, he claimed the agency had violated his due process rights in the case. Hall made no request for a hearing, according to the documents, and an administrative judge with the MSPB decided the case based on the written filings. The AJ found for the agency on the three key matters in dispute: that the FAA had proven the charge of failure to successfully complete the training course, that there was a connec- tion between that failure and potential impact on agency efficiency, and that the penalty of removal was reasonable. Hall appealed again, to the full MSPB. He reiterated his claims that he was improperly removed---and specifically that those in the agency who decided to remove him did so illegally, to punish him for other activities. The full MSPB took up this thread. The board noted that under numerous precedents---including Wynn v. U.S. Postal Service (2010)---an AJ deciding an appeal must identify an appellant's affirmative defenses and "must address those defenses." On this point, the full board found several such detailed defenses claimed by Hall---that the deciding official "improperly considered" an alleged prior misconduct and an alleged training failure in Puerto Rico, that the removal proposal lacked detailed reasons, and that the agency wrongly denied a request for more time to respond to the charges. Yet, according to the full board, "nowhere in the record ... does the [AJ] discuss the appellant's affirmative defenses." The agency also didn't put Hall "on notice" or give him adequate information on what he would need to prove his case. Indeed, the full MSPB found the AJ "incorrectly stated ... that the appellant raised no affirmative defenses." The full board noted in its decision that the AJ made other errors beyond failing to consider Hall's affirmative defenses. As outlined by precedent (Spithaler v. Office of Personnel Management, 1980), in making an initial decision, an AJ is obligated to identify all material issues of fact and law, summarize the evidence, resolve credibility issues, and state the AJ's conclusions of law and legal reasoning. Because not all of these requirements were met in this case, according to the board, the case is remanded for readjudica- tion---with attention to be paid to Hall's affirmative defenses. (Hall v. Department of Transportation, MSPB Docket No. DA-0752-12-0006-I-1, 2/4/13) Air Force employee wins second chance at proving harm James Schnedar, a GS-13 Information Technology employee with the Air Force, won his most recent appeal of removal due to loss of security clearance. The Air Force notified Schnedar he faced removal as a direct consequence of losing his clearance. Schnedar appealed to the Merit Systems Protection Board, arguing the removal improperly caused him harm and noting that he had an appeal on file with the Personnel Security Appeals Board, the appropriate civilian mili- tary panel that handles appeals in clearance matters---and that the agency should give him time for the matter to be adjudicated. But the agency and the MSPB administrative judge would only mitigate the penalty, reducing it from removal to indefinite suspension. Schnedar appealed to the full MSPB. He argued that the agen- cy in fact violated its own regulations by taking action against him "prior to the PSAB's decision on his appeal." In a filing to the AJ and to the full MSPB, he offered a written quote from a DOD regulation backing his argument. The full MSPB noted that Schnedar had complicated his own case by offering only an abbreviated portion of the relevant regulation (DOD 5200.2-R)---leaving out important material. The board noted that normally it does not reconsider new mate- rial on appeal unless it is something that belatedly becomes available---after the original case. But MSPB also noted that "the appellant's interpretation [of the regulation] may be correct," and that in such instances as a neglected, violated regulation, the board has found it appropriate to reconsider some cases. "If on remand it is determined that DOD regulation 5200.2-R prohibits taking administrative action against an employee prior to the PSAB's decision," the board concluded, it would recon- sider the case. MSPB sent the case back for readjudication. (Schnedar v. Department of the Air Force, MSPB Docket No. DE-0752-11-0343-I-1, 2/22/13)
March 25, 2013
April 8, 2013