Supervisory Roles in Excepted Service Do Not Tack under 5 U.S.C. § 3321 to Satisfy Supervisory Probationary Period in Competitive Service
Case Law Update Michael J. Sgarlat Case Law Update Michael J. Sgarlat

Supervisory Roles in Excepted Service Do Not Tack under 5 U.S.C. § 3321 to Satisfy Supervisory Probationary Period in Competitive Service

Deborah Mouton-Miller worked for the United States Postal Service (USPS) as an Audit Manager until April 2017, when she transferred to the Department of Homeland Security’s (DHS) Office of Inspector General for a promotion as Supervisory Auditor. Mouton-Miller’s position with USPS was classified as GG-0511-14, step 8, and her position with DHS was classified as GS-0511-14, step 8.

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Third Circuit: Federal Civilian Dual Status Technicians Not Covered under the Uniformed Services Exception to Reduced Social Security Benefits
Case Law Update Michael J. Sgarlat Case Law Update Michael J. Sgarlat

Third Circuit: Federal Civilian Dual Status Technicians Not Covered under the Uniformed Services Exception to Reduced Social Security Benefits

Floyd Douglas Newton worked as a National Guard dual status technician from 1980 until 2013. A dual status military technician is a federal civilian position supporting the Selected Reserve or armed forces. Though civilians, dual status technicians are required to maintain National Guard membership, hold a particular military grade, and wear appropriate military uniform, among other requirements.

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Federal Circuit: Deciding Official on a Proposed Adverse Action Stemming from a Security Clearance Determination Is Not Required to Have an Alternative, Available Penalty
Case Law Update Michael J. Sgarlat Case Law Update Michael J. Sgarlat

Federal Circuit: Deciding Official on a Proposed Adverse Action Stemming from a Security Clearance Determination Is Not Required to Have an Alternative, Available Penalty

The U.S. Court of Appeals for the Federal Circuit recently held that a deciding official has no obligation under 5 U.S.C. § 7513 to have available an alternative penalty when deciding on a proposed adverse action that is based on a security clearance determination.

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FLRA Reconsidering Its Use of the Allen Factors to Award Attorney’s Fees
Case Law Update Michael J. Sgarlat Case Law Update Michael J. Sgarlat

FLRA Reconsidering Its Use of the Allen Factors to Award Attorney’s Fees

On March 1, 2019, the Federal Labor Relations Authority issued a press release stating that it was inviting amici curiae briefs on an issue in U.S. Department of Veterans’ Affairs, Michael E. DeBakey Medical Center, Houston, Texas, and American Federation of Government Employees (AFGE), Local 1633, Case No. 0-AR-5354. The issue involves whether the Federal Labor Relations Authority should reconsider relying on the factors in Allen v. U.S. Postal Service, 2 M.S.P.R. 420 (1980), when considering awards of attorney’s fees.

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Federal Circuit: 38 U.S.C. § 7402(f) Compels VA to Remove Title 38 Employees That Lose Medical Licenses for Cause
Case Law Update Michael J. Sgarlat Case Law Update Michael J. Sgarlat

Federal Circuit: 38 U.S.C. § 7402(f) Compels VA to Remove Title 38 Employees That Lose Medical Licenses for Cause

Recently, the Federal Circuit examined the interaction between statutory language under 38 U.S.C. § 7402(f) that compels the Department of Veterans Affairs to terminate Title 38 employees who lose their medical licensure for cause, and the due process rights available to those employees.

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Federal Circuit: EPA Made “Baseless” Claim of Attorney-Client Privilege to Protect Draft Notices of Proposed Disciplinary Actions
Case Law Update Michael J. Sgarlat Case Law Update Michael J. Sgarlat

Federal Circuit: EPA Made “Baseless” Claim of Attorney-Client Privilege to Protect Draft Notices of Proposed Disciplinary Actions

Recently, the Court of Appeals for the Federal Circuit reversed a decision of an Merit System Protection Board Administrative Judge, and found that the EPA made no evidentiary showing to prove its claim of the attorney-client privilege to prevent the discovery of draft proposed disciplinary actions.  

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