Federal Employees News Digest January 26, 2009

®

Ja n ua r y

2 6 ,

In this issue44

www.FederalDaily.com

2 0 0 9

•

Vo l .

5 8 ,

N o.

•

Insight By Mike Causey

1

•

Young Gravitate Toward Government Work 1

• DoD Addresses Post-Government Jobs

insight b y

m i k e

c a u s e y

Too Big to Fall

I

f you saw the late, great, brilliant Albert Einstein shoplifting at Wal-Mart, would you rat him out to store security? I mean, think about it. He was one of the smartest people who ever lived. And if he were alive today, we sure could use him. So how could you—a GS something or other, or me, a glorified typist—even think about hauling Al into court for swiping some DVDs? How stupid would that be? Because of his brains, his talent, his value to society, he should be handled differently. If you found out that former British Prime Minister Margaret Thatcher was smoking pot and selling small amounts to school children (by the way, she doesn’t and isn’t) would you drop a dime (or a few pence) on her? Would you tell Scotland Yard or the nearest constable about the shortcomings of one of the smartest, most successful, most powerful women of the 20th Century? How stupid would that be? How would you feel if your favorite movie star or music performer—one who had given you and yours much pleasure and inspired you—were charged with grand theft or binges with illegal drugs. Would you throw the book at him? Or continued on page 2

Report: Young Gravitate Toward Government Work

A

new report based on survey data finds that college students are increasingly inclined to consider a job in the federal government. But the report also indicates the trick will be whether federal agencies can hone their messaging to reel in plum recruits—and then create workplaces offering the right stuff to retain them. In one of its most surprising findings, the study found that “government/public service” is the No. 1 “industry choice” favored by those polled—out of 46 possibilities offered in the survey—and that 5 out of the 15 favorite employers were federal entities. The report, released by the non-profit Partnership for Public Service (PPS), draws on a huge survey of more than 32,000 college undergraduates conducted mainly in 2008. The report’s principal author, and a senior consultant to PPS, Sally Jagger, told FEND that by the time the survey was last year, a faltering economy likely pushed students to think about alternatives to a shrinking private sector. Now, she said, with the same students being squeezed harder by a more troubled economy that shed half a million jobs last month—and pulled toward government by the phenomenal interest in a young new president—the opportunity for agencies to attract the best graduates is only improving. When asked to characterize from the survey data how much of the leap in interest in government work derived from economic decline, and how much

2 6

3

•

Thompson Seeks Review of New TSA Uniforms 4

•

In Brief

4

•

Informed Investor

5

•

Rulings Roundup

6

•

You Be The Judge

7

from youth interest in Obama, Jagger demurred. “This report was done before the economy part—and when the Obama part was very early on, and not yet well developed,” she said. “The survey—­the Universum IDEAL Employer Survey—was actually done in December 2007 through March 2008,” Jagger added. “The data that’s here in the report reflects how people were thinking a year ago. We are eager to see what the new survey numbers—which will come out late spring and early summer—will be, because we think the general increased enthusiasm for public service and for government will be reflected in those numbers.” Jagger—who herself worked for almost 30 years for the Government Accountability Office, cited the notion explored in the book “Millenials Rising,” of a next “great generation” of Americans who are very dedicated to making a difference and to working for a cause. “That is something that shows up clearly in the preferences that students express, as reflected in the survey data we used in the report,” she said. “They’re a little more open about it—while the rest of us are a little more in the weeds about survival. “I think these results are a continuation of a trend we’ve been seeing—what continued on page 3

F o r m o r e n e w s . . . s e e F e d e r a l D a i l y a t w w w. F e d e r a l D a i l y. c o m

INSIGHT by Mike Causey continued from page 1

would you chalk it up to his brilliant, but quirky, Peter Pan lifestyle? Stars are different, right? They can fly tens of thousands of miles in private jets to lecture the rest of us about our carbon footprints. I mean, if the guy is so talented—and if that was the argument put forth by his Hollywood pals and many adoring fans—how could we remove him from society? How stupid would that be? I ask this because some years ago a very successful, had-it-all movie star was arrested (for the umpteenth time) for possession of some very serious drugs. The jails today are currently full of people who did even less than he was accused of doing. Anyhow, after much rehab (at a facility that would eat up your annual salary in two weeks) he went to court. Dozens of fellow actors argued that he “could not” be sent to jail. Not that he wasn’t guilty—that wasn’t an issue to them—but that he was such a brilliant actor that it would be criminal to make him do time. He got off, and appears to have cleaned up his act, and now has more than he had before, which was just about everything. I ask because it seems that many politicians—who look to Hollywood for guidance, glamour and $$$$$—are increasingly willing to forgive the dubious deeds of people who are really important, and “too smart be punished.” Case in point—one of the new cabinet nominees. Brilliant by all accounts. The best choice ever, according to both Republicans and Democrats. Except he messed up his tax returns (it happens, a lot!) for a couple of years. The errors, according to The Washington Post, “cost him nearly $45,000 in taxes” and penalties. As one Post columnist commented, “put another way, the guy is too big to fall!” Too big to fall. Would a GS 11 tax examiner who made that kind of an error ever become a GS 12? Or even stay on the job? Whenever one of their own gets into real or perceived trouble, his/her backers in the Washington establishment respond that it happens all the time. No big deal. It happens in every administration, whether the issue is over an illegal nanny, cheatVisit us on the Internet at www.FederalDaily.com

ing in high school or ducking military service. But sometimes those things are easier for the establishment to brush aside. Because they think we all have trouble getting a good nanny or au pair. Or that we all use influence to get our kid into an expensive school—with a long-established waiting list—that fits him or her. Once you’ve grown accustomed to having your own jet, helicopter or limo, and to visiting rich friends at the Cape or in St. Bart’s, it is easy (I guess) to lose touch. It happens a lot, to a lot of people in Washington. One former member of Congress— a Vietnam War hero—is doing time because he demanded and took lobbyist-supplied favors, money and expensive call girls, because he felt he was entitled. Maybe it is unfair of those of us who spend our lives in the peanut gallery, and not on center stage, to criticize or complain when these folks do things we can’t do (or wouldn’t even if we could) or maybe wish we could. Maybe certain people, because of their talent and/or brains, should be cut some slack. Maybe even a lot of it. Maybe they are entitled. But I don’t know that many people who have done it—or, having done it, could sit down and write out a check for $45,000 that would clear the bank. It may be true that this cabinet nominee is the best possible candidate (most Republican senators have endorsed him) for what could be the toughest job in government. At least, until something—like a national security event—replaces it as the lead issue. And maybe it’s true that if we demanded all our leaders be as clean as choir boys, we wouldn’t get much for our tax dollars. Maybe it’s just not practical to expect it. The Brits tried it with Oliver Cromwell, and look how that worked out. So, I guess the best thing to do when it comes to Congress or Hollywood is to accept the fact that they are different from the rest of us, and that they need different, and minimal, rules. And that we should be less puritanical and more forgiving, and just be grateful that they have agreed to be our servants. Meantime, I’ve got an appointment with Misters H & R Block.



Joseph Young (1918-2004) Maxine Lunn Phil Piemonte Nathan Abse Frank Klimko Mike Causey Edward Zurndorfer

Founder General Manager Managing Editor Staff Writer Contributing Writer Columnist Columnist

Published by 1105 Government Information Group, Anne Armstrong, President. 1105 Government Information Group is part of 1105 Media, Inc. Neal Vitale, CEO. Corporate Headquarters: 1105 Media, Inc. 9121 Oakdale Ave., Ste 101, Chatsworth, CA 91311 www.1105media.com Office: 610 Herndon Parkway, Suite 400 Herndon, VA 20170-5484 Phone: Editorial: (703) 707-1888 Subscriptions: (800) 989-3363 Fax: (703) 707-8474 Internet: www.FederalDaily.com Subscription Rates: Newsstand: $5.00 1 year—$97 2 years—$184 3 years—$262 For Electronic Delivery: Phone: (703) 707-1815 E-mail: [email protected] For single article reprints (in minimum quantities of 250-500), e-prints, plaques and posters contact: PARS International Phone: (212) 221-9595 E-mail: [email protected] www.magreprints.com/QuickQuote.asp The Comptroller General has ruled that federal agencies and departments may buy Federal Employees News Digest publications with government funds. This decision is No. B-185591. Federal Tax ID 20-4583700. FEDERAL EMPLOYEES NEWS DIGEST (ISSN 10650970) is published weekly except first week in January and last week in December by 1105 Media, Inc., 9121 Oakdale Avenue, Suite 101, Chatsworth, CA 91311. Periodicals postage paid at Chatsworth, CA and additional mailing offices. Annual subscription rates are: One year $97, 2 years $184, and 3 years $262 (U.S. funds). Subscription inquiries, back issue requests, and address changes: Mail to: Federal Employees News Digest, P.O. Box 3167, Carol Stream, IL 60132-3167, customer [email protected] or call (800) 989-3363, fax (703) 707-8474. POSTMASTER: Send address changes to Federal Employees News Digest, P.O. Box 3167, Carol Stream, IL 60132-3167. Canada Publications Mail Agreement No: 40612608. Return Undeliverable Canadian Addresses to Circulation Dept. or Bleuchip International, P.O. Box 25542, London, ON N6C 6B2. © Copyright 2009 by 1105 Media, Inc. All rights reserved. Printed in the U.S.A. Reproductions in whole or part prohibited except by written permission. Mail requests to “Permissions Editor,” c/o Federal Employees News Digest, 610 Herndon Parkway, Suite 400, Herndon, VA 20170-5484 or editor@ federaldaily.com. The information in this newsletter has not undergone any formal testing by 1105 Media, Inc. and is distributed without any warranty expressed or implied. Implementation or use of any information contained herein is the reader’s sole responsibility. While the information has been reviewed for accuracy, there is no guarantee that the same or similar results may be achieved in all environments. Technical inaccuracies may result from printing errors and/or new developments in the industry. This publication’s subscriber list, as well as other lists from 1105 Media, Inc., is available for rental. For more information, please contact Edith Roman Associates: Phone: 800-223-2194; E-mail: [email protected]; Web: www.edithroman.com

January 26, 2009

Vol. 58, No. 26

Don’t miss our discussion of weekly news topics at www.FederalSoup.com. Click on “Inside the News Forum.” Look for the soup bowl on featured stories.

continued from page 1

I would’ve called a call for service, but now a I’d say ‘call for responsibility’ and good government,” she said. “We find it very interesting that even amidst concern about government, that the overall desire to make a contribution, to make a difference, really motivates a lot of young people,” she added. “I think this is just the kind of news that we want and need at this point.” The report finds that 17 percent of students say government/public service is the most popular field they “would ideally want” to work within “when choosing their first employment after graduation.” Health care, with 13 percent, education, with 12 percent, and marketing, at 11 percent, were the next most popular areas. At the same time, the survey statistics show that “salary expectations are high” among students. They expect an average of $49,000 in their first year after graduation. Yet, “entry-level government starting salaries” for a person with an undergraduate education ranges from $30,000 to $38,000, depending on locality pay. That’s a wide gap between wish and reality. But Jagger had an answer to this seemingly singular problem: Sometimes salary isn’t everything. She pointed out that the survey asked students to comment on the relative importance of 10 factors of “remuneration and advancement” in their decision-making. Surprisingly, “competitive salary”—or pay—placed fourth in importance. There were in fact areas that students ranked above salary—with six factors closely clustered as highly important to between 35 and 39 percent of the students. Coming in slightly higher than salary in importance to the students was that an employer offered competitive benefits, a clear path for advancement and leadership opportunities. Just below salary in importance came good prospects for high future earnings. “The way we took it is that federal agencies have an opportunity to emphasize these other things that are important to young people,” Jagger told FEND. “That can help address the per-

ception of federal pay being low—or in some instances, the fact of federal pay being low.” Jagger pointed out that there are some incentives that federal agencies have at their disposal—for instance, student loan repayment—which she says can be “huge” in graduates’ decision-making. “If the agencies can put together a good story that shows students what they can really offer them,” she said, “and if the agency is a good place to work with the other things students are looking for—responsibility, opportunity to learn and make a contribution, not getting caught up in red tape—then [agencies] can put this package together [and] overcome the salary issue.” For more, go to www.pps.org/.

•••

DoD Addresses PostGovernment Jobs, Whistleblowers

D

oD this month took steps to change the way it deals with former DoD officials who work for contractors, and to offer new protections to contractor whistleblowers. On Jan. 15, DoD issued an interim rule requiring some senior DoD officials to get written approval from an agency ethics officer before taking a post-government job with a DoD contractor. The interim rule applies to those who “participated personally and substantially in a DoD acquisition exceeding $10 million or who held a key acquisition position,” according to the notice published in the Federal Register. Specifically, the rule applies to program managers, deputy program managers, procuring contracting officers, administrative contracting officers, source selection authorities, and to any member of the source selection evaluation board, or chief of a financial or technical evaluation team involved in a contract worth more than $10 million.

Officials who fall into these categories will have a two-year window in which they will need to get an ethics officer’s approval before taking a job from a contractor. Furthermore, the rule prohibits the contractor from providing any salary to the new employee until the post-employment ethics opinion is completed. Contractors who break the rule could lose existing contracts or be suspended or barred from government work, the rule said. Under current rules, former DoD acquisition officials are banned from working for defense contractors during a one-year post-government cooling-off period; top DoD employees are subject to a two-year curb. In addition to the interim acquisition rule, DoD also published a series of other proposed new rules. Most were generated in response to legislation passed by Congress in the Fiscal Year 2008 and 2009 defense authorization measures. Among those, DoD issued an interim rule to expand protections offered to DoD contractor whistleblowers. Under the interim rule, now contractors are prohibited from taking any action against an employee who reports waste, mismanagement or contract violations inside their company to federal officials. The rule expands of the types of information to which the protections apply and the categories of government officials to whom information may be disclosed without reprisal. It also establishes time periods within which the DoD Inspector General (IG) and the agency head must take action with regard to a complaint filed by a contractor employee; creates a de novo right of action in federal district court for contractor employees who have exhausted their administrative remedies, and requires contractors to inform employees in writing of their whistleblower rights and protections. Whistleblowers who suspect retaliation can file a complaint with the IG, who will determine if the complaint merits further inquiry. continued on page 4

Visit us on the Internet at www.FederalDaily.com



January 26, 2009

Vol. 58, No. 26

continued from page 3

Note: At press time the new administration directed agencies not to finalize any pending rules until it can review them. To see more, go to: http://edocket.access. gpo.gov/2009/E9-672.htm or http://edocket. access.gpo.gov/2009/E9-679.htm.

•••

Thompson Seeks Review of New TSA Uniforms

T

he chairman of the House Homeland Security Committee this month asked the Transportation Security Administration (TSA) to look into reports that new uniforms issued to Transportation Security Officers (TSOs) may be linked to a spate of health issues, including skin rashes and nausea. Rep. Bennie Thompson, D-Miss., said the TSO complaints could be the result of possible exposure to irritants in the uniforms. “Recent reports regarding TSOs experiencing negative side effects associated with the wearing of the new uniforms is very troublesome,” Thompson said. “Reports claim that TSOs have experienced skin rashes, watery eyes, nausea, lightheadedness and swollen lips as a result of possible exposure to formaldehyde and other irritants in the uniforms.” The new uniforms, along with new badges, are a TSA attempt to boost employee morale amid one of the highest turnover rates in government. In a Jan. 8 letter to TSA Administrator Kip Hawley, Thompson asked whether steps had been taken to adequately test the material used in the uniforms. Thompson noted the name of the uniform maker, but asked if the clothing was physically made and packaged in the United States. He also asked TSA to disclose the country of origin of the uniform fabric if it is not the United States. Thompson also asked for details on the 100-percent cotton shirt alternative that is to be offered to the TSOs. “Please verify that this option is produced and shipped free from formaldehyde and other possible harmful irritants,” he wrote.

Thrift Savings Plan Share Prices (As of FEND’s deadline)

G Fund 12.7567 12.7290

Year Ago

F Fund 12.5357 12.5635

12.1400

Funds

JAN. 21

Month Ago

12.3000

9.7210 10.2359

14.9600

S Fund 11.4497 11.8933

17.4700

I Fund 12.7273 13.8134

22.5400

C Fund

Lifecycle Funds L Income 12.5996 12.7139

13.2300

L 2010 13.5318

13.7218

14.9500

L 2020 12.2606 12.6666

15.6700

L 2030 11.9216 12.4004

16.1800

11.6933 12.2397

16.7700

L 2040

Thompson also sought an explanation of why TSA has been giving affected employees information on filing workers’ compensation claims. A more workplace-friendly alternative would have been to provide affected employees with administrative leave for medical appointments and possible treatment related to their exposure to contaminated uniforms, said National Treasury Employees Union (NTEU) President Colleen Kelley, who had raised the issue with the committee. “For those who are affected,” Kelley said, “this is, of course, an issue not of their own making, so the responsibility for seeing that all necessary and proper steps are taken is fully in the hands of the agency.” To see more, go to: www.nteu.org/ PressKits/PressRe lease/PressRelease.aspx?ID=1363 or the letter at http://dhsunion.org/DocumentsTSA Uniforms.pdf.

•••

In Brief Bush Commutes Sentences of Border Patrol Agents In a last minute reprieve, outgoing President Bush has commuted the prison sentences of two former Texas Border Patrol agents. Ignacio Ramos and Jose Compean were serving 11- and 12year sentences, respectively, after being convicted of a range of charges related

to the highly publicized Feb. 17, 2005, shooting of Osvaldo Aldrete-Davila, an unarmed suspect who was fleeing the agents just north of the border near El Paso. Numerous Republican lawmakers had been calling for the release of the two men, who claimed they shot at Osvaldo Aldrete Davila, an admitted drug smuggler, in self defense. The men, who already had served several years of their sentences, will have the remainder of their sentences lifted on March 20, but still will serve three years of supervised release. To see more, go to: www. usdoj.gov/opa/pr/2009/January/09opa-053.html. New Military Mental Health Center Opens DoD on Jan. 15 announced the opening of a 24-hour telephone/e-mail outreach center to counsel military servicemembers, veterans, their families and others with questions about psychological health and traumatic brain injury (TBI). The new center, operated by the Defense Centers of Excellence for Psychological Health and Traumatic Brain Injury (DCoE), can be contacted around the clock by phone at (866) 966-1020 or via e-mail at [email protected], DoD said. The center can address routine requests for information about psychological health and TBI, and answer questions about symptoms a caller is having, said Brig. Gen. Loree K. continued on page 8

Visit us on the Internet at www.FederalDaily.com



January 26, 2009

Vol. 58, No. 26

Informed Investor

How Are Investors Protected Through the SIPC?

T

on a legal notion called fraudulent conveyance. he demise of the Bear Stearns brokerage Fraudulent conveyance involves the illegal transfirm in early 2008—and the recent scanfer of property with the intent to commit fraud. dal at Bernard L. Madoff Investment Investors who may have lost some or all Securities LLC—has produced concern among of their investments through a Ponzi-type many individuals with respect to the safety of Edward A. Zurndorfer scheme and are not reimbursed through the their investments. The Jan. 12, 2009, “Informed is a Certified Financial SIPC may be able to get some financial relief Investor” column discussed the Federal Deposit Planner and Enrolled by claiming their losses on their income tax Insurance Corporation (FDIC) which insures Agent in Silver Spring, MD. He is also a regisreturns. Investors who lose their deposits or bank deposits up to $100,000 ($250,000 tered representative investments in insolvent financial institutions through Dec. 31, 2009). This week’s column with Multi-Financial such as banks generally have a nonbusiness bad discusses the Securities Investor Protection Securities Corporation debt. But individual investors who “lose” their Corporation (SIPC), which insures brokerage (Branch A9X), member NASD/SIPC, also located investments through fraud or the bankruptcy account investments. in Silver Spring, MD. of their brokerage company may elect to treat SIPC was created by Congress in 1970 and is the loss as a theft loss, which is treated more similar to FDIC, but smaller in scope and size. favorably with respect to taxes. For example, SIPC currently has available funds of approxi A theft loss is treated more favorably than a nonbusimately $1 billion, compared to nearly $50 billion available ness bad debt with respect to taxes because it is treated as to FDIC. If a brokerage firm were to fail, SIPC will satisfy an ordinary loss—and an ordinary loss can be deducted the claims of brokerage customers up to $500,000 per cusfrom other income to the extent the loss exceeds 10 pertomer. The $500,000 includes a maximum of $100,000 on cent of the individual’s adjusted gross income. A nonbusiclaims for cash. ness bad debt, on the other hand, is considered a capital SIPC protection applies when a brokerage firm closes loss and is limited each year to offsetting an investor’s due to bankruptcy or other business failure, or when cuscapital gains. tomer assets—for example, bond and stock certificates—are Investors who may have lost money as a result of theft missing. SIPC does not provide protection in the event of can deduct their theft losses in the taxable year in which the market downturns. For example, suppose an individual loss occurs. To obtain any possible tax benefits by claiminvested $10,000 on March 1, 2008, to purchase 100 shares ing a theft loss on their investment, Madoff Investment of XYZ stock at $100 per share, but the price of XYZ stock Securities investors would have to report the theft loss on declined to $50 per share as of Dec.1, 2008. The SIPC will their 2008 federal income taxes being filed in Spring 2009. not reimburse the investor for the $5,000 lost between the But there may be a potential problem claiming a theft time of purchase and the stock’s fair market value eight loss on one’s taxes. Under IRS rules, an investor canmonths later. As SIPC policy states, “neither SIPC protecnot deduct a theft loss if there is any possibility that the tion nor additional coverage will safeguard an investor from investor could get back some of the money invested. If a decline in the market value of the investor’s securities.” the Securities and Exchange Commission (SEC) is able to Individuals, institutions or companies who invested return some or all of the funds to an investor, then a theft with Bear Stearns did not “lose” their investments because loss cannot be claimed by the investor. For this reason, J.P. Morgan Co. took over all Bear Stearns accounts. The investors who lost money in Madoff Investment Securities situation with Bernard L. Madoff Investment Securities and who have an unrealistic chance of getting their money is somewhat different. It is unclear what will happen to back may do better financially by not pursuing reimburseMadoff investors, who in some cases may have lost millions ment and deducting the loss on their 2008 income taxes. of dollars. Madoff Investment Securities allegedly conduct Investors who wish to pursue reimbursement need to ed a Ponzi scheme in which one investor’s “profits” were in file a claim with the SEC. The SEC —if it is successful in fact another investor’s “principal.” In that sense, there was collecting any remaining “lost” assets—will most likely no “theft” of investment funds. make a pro rata distribution of assets to investors. But it There may also be some bad news for those investors who may take years for investors who lost investment dollars withdrew their money from Madoff. A bankruptcy court to obtain even a fraction of their lost investments after the ruled in another Ponzi scheme case that those investors who SEC is able to process all of the claims. withdrew their “profits” would have to return them based

Visit us on the Internet at www.FederalDaily.com



January 26, 2009

Vol. 58, No. 26

Rulings Roundup

NRC Engineer Loses Removal Appeal

M

onideep K. Dey, a Senior Reliability and Risk Engineer with the Nuclear Regulatory Commission (NRC), recently lost an appeal he had filed to reverse his removal from his job. Dey had been posted to the Office of Nuclear Regulatory Research, Division of Risk Assessment and Special Projects, Operating Experience and Risk Analysis Directorate, Fire Research Team. But in June 2005, the agency notified him in a document that his “performance was unacceptable,” according to official documents in the case. Managers issued Dey a Performance Improvement Requirements Memorandum, warning him that he “had to bring his performance regarding Critical Element 1 (technical task management) and Critical Element 3 (technical activities) up to at least the MS level by Aug. 19, 2005.” They also provided Dey with a Performance Improvement Plan (PIP) that gave him 73 days to raise his performance level—or face removal. Dey went on sick leave during a portion of the PIP period, and his managers provided him additional time to effect the PIP’s requirements. However, on Jan. 4, 2006, a proposing official determined that Dey had not met the standards of either Element 1 or Element 3, and he began the removal process. Dey replied to the removal proposal with oral and written appeals, presenting an argument that he had indeed lived up to the PIP’s requirements. But on Oct. 19, 2006, a deciding official—the deputy director for the Division of Reactor Projects for NRC Region 1—found that the removal proposal was “correct in light of the evidence.” The deputy director elected to remove Dey. Dey appealed his removal to the Merit Systems Protection Board (MSPB). He replied to the removal order, insisting that his performance was acceptable. Dey also charged that “NRC removed him in retaliation for whistleblowing,” according to official documents in the case. He asked for a hearing before MSPB. The board held a hearing on Oct. 2 and Oct. 3, 2007. An administrative judge (AJ) assigned to the case affirmed Dey’s removal on Dec. 17. The AJ said that, “despite Mr. Dey’s contrary factual allegations,” there was “substantial evidence” that pointed toward the need for removal. Furthermore, the AJ noted that the agency’s performance appraisal system has been approved by the Office of Personnel Management and that Dey had a “reasonable opportunity” to improve his work performance. Most important, the AJ determined, “even assuming that Mr. Dey had made protected whistleblowing disclosures that were a contributing factor in his removal,” the NRC had “met its burden” and had shown by clear and convincing evidence that the agency “would have removed him regardless of those disclosures.” Dey appealed to the full MSPB, but that appeal was denied in May 2008. Visit us on the Internet at www.FederalDaily.com



Dey took his case to the U.S. Court of Appeals for the Federal Circuit, again arguing that the agency and the AJ had ignored evidence that showed his performance was “satisfactory.” He insisted that “the board disregarded facts” that demonstrate that he did satisfy the PIP and—in a second line of defense—that “his supervisors had motive to retaliate against him” over the whistleblower disclosures he had made. But the appeals court finally concluded that “any possible retaliatory motive was clearly and convincingly outweighed” by “consistent, compelling and persuasive” evidence—and affirmed Dey’s removal. (Dey v. NRC, U.S. Court of Appeals for the Federal Circuit, Docket No. 2008-3299, 1/16/09)

Commerce Employee Denied Raise Appeal Renee Barry, an employee of the Department of Commerce, recently lost an appeal of a denial of a within-grade pay increase (WIGI) she had sought from her agency. Barry, a Patent Examiner at the Patent and Trademark Office (PTO) within the Department of Commerce, had earlier been removed and—in the course of a grievance procedure—came to a settlement agreement with the PTO that restored her to duty and rated her as “fully successful” for the year leading up to her removal (FY 2005). Also under the agreement, for a specific period of the following year—from January through August 2006—Barry was placed on leave without pay status (LWOP.) After that, she was fully restored. On Oct. 15, 2006, the Department of Commerce determined she was eligible for a WIGI. Next, the agency granted the WIGI. But a short time later the WIGI was withdrawn, and Barry was notified that her WIGI would be “delayed by the amount of time she had spent in LWOP status”. This would delay the WIGI until April 2007. Later still, the agency informed her that the WIGI had been “delayed” as well as “canceled.” Barry filed an informal grievance. Later she took her complaint to the Merit Systems Protection Board (MSPB). But the board denied her appeal, claiming it had no jurisdiction on two grounds—saying first MSPB is not the first venue to seek to “enforce a settlement agreement”, and second, that the agency had produced documents demonstrating that a union Collective Bargaining Agreement called for handling negative WIGI determinations by filing a formal grievance only. Barry appealed yet again, to the U.S. Court of Appeals for the Federal Circuit—but the panel, citing several precedent cases, upheld MSPB’s reasoning, and her appeal was denied. (Barry v. MSPB, U.S. Court of Appeals for the Federal Circuit, Docket No. 2008-3235, 1/15/09) January 26, 2009

Vol. 58, No. 26

You Be The Judge

Did Postal Job Applicant Incur Discrimination? “

I

served in the military during the Vietnam War,” said Vernon Farris,* who several years ago applied for a job as a Custodian with the Postal Service. “It was tough—I was in the Navy, and it was no picnic being part of combat operations. “So, several years ago—knowing that the government has laws giving veterans some advantages at hiring time— I went after the job at the Postal Service,” he said. “But I soon found out that in reality, these laws sometimes don’t mean much. “Why, it took the Postal Service three years of my knocking on their door to hire me,” he said. “I’m happy with the job, but I’ve brought a discrimination case against them that I’m going to pursue to the end—they should not be allowed to treat vets this way!” “Mr. Farris has misinterpreted what happened,” Katherine Kopp, a lawyer for the Postal Service, said. “It did take three years of effort on his part to get hired. But there was no discrimination involved, just the usual competition for a popular job slot. We will prove this—and have his case dismissed.” FACTS: Vernon Farris served in the U.S. Navy in active duty service from May 1970 to February 1972, during the U.S. involvement in the Vietnam War. He earned an honorable discharge at the end of his stint. Nearly 30 years later, in January 2002, Farris applied for the position of Custodian with the Postal Service, properly completing the application materials and placing himself on the agency employment register in line for the job. Since he qualified as a preference-eligible veteran, the agency reported in official documents in the case that it properly added five points to his examination score “to reflect his veterans’ preference.” According to the Postal Service, the added points boosted the appellant’s chances of being hired—as intended—and indeed Farris ultimately was hired by the agency. But Farris complained that he was not hired until Nov. 26, 2005—nearly three years after putting in for the job. Having investigated his options on what he alleged was an excessive hiring delay—and one indicative of discrimination—in February 2007 Farris filed a discrimination complaint with the Department of Labor (DOL). Specifically, Farris charged that “non-veterans were hired in Custodian positions ahead of him,” which added to a long wait he said was designed to encourage him to withdraw his application. Such discriminatory acts are illegal under the Veterans Employment Opportunities Act (VEOA) of 1998. Farris interpreted subsequent correspondence from DOL to mean that that agency would not pursue his

Visit us on the Internet at www.FederalDaily.com



complaint. The appellant next went to the Merit Systems Protection Board (MSPB). On Dec. 27, 2007, he filed a formal complaint with the panel. An administrative judge (AJ) with MSPB handling the case replied to the complaint by issuing a show cause order to the appellant—one that specified the minimum criteria that must be met in order for the board to have jurisdiction over the case. First among these conditions is that the appellant must show that he filed the VEOA complaint with DOL “within 60 days of the agency’s alleged violation of veterans’ preference rules.” Second, the appellant must provide evidence that he has exhausted his attempts at VEOA remedy through DOL. Finally, the appellant must show that if there was a delay past applicable deadlines, that the delay came in spite of the appellant’s due diligence and that it should be forgiven—a concept known as “equitable tolling.” Farris replied to the show cause order, but the AJ was not satisfied with that response. The AJ concluded that Farris had filed late and failed to qualify for relief under equitable tolling—that is, he did not qualify for VEOA relief since he took more than 60 days after the agency’s “alleged violation” of discrimination laws. But Farris appealed to the full MSPB. According to official documents, he reiterated that he should be excused for his lateness, and “equitable tolling should apply because, despite his inquiries, the agency failed to provide him with information regarding the status of his Custodian application or who was hired before him” [emphasis added]. Indeed there was some evidence to show he had made such inquiries, and that they were not answered with adequate information in good time.

Did Farris suffer discrimination—and did Postal Service foot-dragging lead to a late DOL complaint? DECISION: The full MSPB considered that the Postal Service’s slow production of documentation might have been a factor. But in the end the panel denied Farris’s appeal. “[F]ederal courts have typically extended equitable relief sparingly, including those situations where the claimant has actively pursued his judicial remedies by filing a defective pleading during the statutory period, or where the complainant has been induced or tricked by his adversary’s misconduct into allowing the filing deadline to pass,” MSPB wrote. In this case, however, the panel found that Farris had filed “what is at best a ‘garden variety’ claim of excusable neglect.” (MSPB, Docket No. CH-3443-08-0260-I-1, 1/8/09) * Names and dialogue are fictitious, but details are based on a real case.

January 26, 2009

Vol. 58, No. 26

continued from page 4

Sutton, director of DCoE. “Getting the best possible information and tools, hassle-free, will empower and strengthen warriors and their families to successfully manage what can be confusing and disturbing circumstances,” Sutton said. The DCoE outreach center is staffed by behavioral health consultants and nurses, most with master’s degrees. In addition to answering questions, staffers will be able to refer callers to other DoD contact centers, other federal agencies and outside organizations. To see more, go to: www.defenselink. mil/releases/release.aspx?releaseid=12443. White House Launches Revamped Web Site The new administration has debuted a revamped White House Web site that features a blog which promises to offer a direct connection for citizens who want to voice their opin-

ions to President Obama. The new site will “serve as a place for the president and his administration to connect with the rest of the nation and the world,” Macon Phillips, director of New Media for the White House, said in a Jan. 20 posting on the site. The Web site has a briefing room and a spot to sign up for an RSS feed, as well as e-mail updates. The site also will post all non-emergency legislation for five days, allowing the public to review and make comments on it before Obama signs it. The site also has a one-click link to a feedback form for those who want to e-mail their opinions. Phillips noted that the Web site will continue to grow. “Like the transition Web site and the campaign’s (Web site) before that, this online community will continue to be a work in progress as we develop new features and content,” Phillips said. To see more, go to: www.whitehouse.gov/blog/change_has_come_ to_whitehouse-gov.

Order your copy of the 2009 Federal Employees Almanac! Now in Our 56th Year — Easy-to-Read Size!

Just $19.95 for a single copy* Call 1-800-989-3363 (Mon.-Fri. 9:00 a.m. - 5:00 p.m., ET) Or visit www.FederalDaily.com/2009almanac.htm *Paperback. Add $3.00 per copy for spiral-bound edition. Prices do not include shipping/handling charges.

f e at u r e s f o r 2 0 0 9 i n c l u d e :

NEW!

• 2009 pay tables and leave charts • 2009 per diem rates • Latest developments in personnel rules including NSPS • Coverage on the benefits policies of FEHB, FEGLI, FLTCIP, vision and dental plans • Computation of CSRS and FERS benefits • A chapter on how taxes affect your income, benefits and annuities • And plenty more!

Mike Causey Unleashed January 26, 2009

Federal Employees News Digest P.O. Box 3167 Carol Stream, IL 60132-3167

Periodicals Postage Paid