A Month in Merit Protection: Recapping Civil Service News for September 2014

A Month in Merit Protection is a running feature on MSPB Watch, recapping news, developments, and notable cases at the U.S. Merit Systems Protection Board and the U.S. Office of Special Counsel. Send tips and items for editorial consideration to dpardo [at] mspbwatch [dot] org.

U.S. Capitol Dome | By Architect of the Capitol, Wikimedia Commons

U.S. Capitol Dome | By Architect of the Capitol, Wikimedia Commons

Notable Decisions and Rulings

  • In a non-precedential decision, MSPB Chair Grundmann and Member Robbins exchanged non-binding and opposing views concerning the scope of the First Amendment in a claim of non-whistleblower retaliation brought by the Office of Special Counsel. Special Counsel ex rel. Cefalu v. Dep’t of JusticeCB-1214-13-0187-T-1 (Sept. 8, 2014) (coverage)
  • A Special Panel convened to resolve disagreements between the MSPB and EEOC held oral arguments (video) to determine whether time and attendance are “essential functions” of a job position for the purposes of a reasonable accommodation under disability law. The Panel’s decision affirmed the EEOC’s interpretation, finding that time and attendance requirements must yield to the employee’s disability. Alvara v. Dep’t of Homeland Security, 2014 MSPB 77 (Special Panel; Sept. 29, 2014)

Reports, Studies, and Newsletters

OSC Filings and Disclosures

Other Items of Note

  • The House Oversight and Government Reform Committee held a hearing titled “Examining the Administration’s Treatment of Whistleblowers.” Special Counsel Lerner and MSPB Chairman Grundmann testified. (Sept. 9, 2014)
  • The MSPB held a Sunshine Act meeting to discuss research topics for its special studies function. (Sept. 16, 2014)
  • Following publicized calls by the White House to increase OSC’s budget to deal with fallout from the Department of Veterans Affairs backlog scandal, Congress appropriated OSC $22.9 million for Fiscal Year 2015. (Sept. 19, 2014)
  • The President signed the All Circuit Review Extension Act of 2014, extending the Whistleblower Protection Enhancement Act’s all-circuit review pilot program by an additional three years. Now, appellants with Individual Right of Action cases may appeal final decisions by the Board to any applicable federal appellate court, not merely the Federal Circuit, until December 27, 2017. (Sept. 26, 2014)