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Merit Systems Protection Board: Rights and Remedies

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Robert G. Vaughn


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This authoritative volume guides you in practicing before the Merit Systems Protection Board and helps you understand the intricacies of the Civil Service Reform Act. It describes the organization and structure of the Board and sets out the rules of practice before it, including the recovery of attorney's fees and the enforcement of Board decisions. It also examines how substantive laws are applied by the Board, including: establishing standards and procedures for disciplining employees for unsatisfactory performance or for misconduct; overseeing reductions in force; and adjudicating retirement claims. Merit Systems Protection Board: Rights and Remedies analyzes the restrictions on agency personnel authority, including: protection of whistleblowers; anti-discrimination provisions; the First Amendment; and prohibited personnel practices, as well as relevant statutes and regulations. It explores the Board's review of employment practices; the powers of the Office of Special Counsel; and judicial review, particularly the role of the United States Court of Appeals for the Federal Circuit. This compact and readable volume can help experts as well as those seeking an introduction to the field.

Book #00589; looseleaf, one volume, 818 pages; revised edition published in 1995, updated as needed; no additional charge for updates during your subscription. Looseleaf print subscribers receive supplements. The online edition is updated automatically. ISBN: 978-1-58852-028-9


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  • Availability: Available
  • Brand: Law Journal Press
  • Product Type: Books
  • Edition: 0
  • Page Count: 818
  • ISBN: 978-1-58852-028-9
  • Pub#/SKU#: 589
  • Volume(s): 1

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  • Robert G. Vaughn

Robert Vaughn is a professor of law (A. Allen King Scholar) at the American University Washington College of Law. He has published on a variety of topics regarding public information law, public employment law, consumer law, and whistleblower protection. During his career at the Washington College of Law, Robert Vaughn has been Scholar-in-Residence with the law fac-ulty of Kings College of the University of London, a visiting academic with the faculty of law at Monash University in Mel-bourne, Australia, a visiting professor at the University of San Diego School of Law and a visiting professor at Ritsumeikan University School of Law in Kyoto, Japan. He has also served as a faculty member in summer programs in Santiago, Chile and Istanbul, Turkey. Among his consulting positions have been ones with the Treasury and Civil Service Committee of the House of Commons, the World Bank, and the Office of Legal Cooperation of the Organization of American States.


PART 1
THE UNITED STATES MERIT SYSTEMS PROTECTION BOARD


CHAPTER 1
Introduction to Materials and Sources

§ 1.01 The Judicial Character of the Merit Systems Protection Board
§ 1.02 Materials Useful in Practice Before the Board
§ 1.03 The Function of the Federal Personnel Manual

CHAPTER 2
The Development of the United States Merit Systems Protection Board

§ 2.01 The History of the Civil Service Commission
§ 2.02 The Civil Service Reform Act of 1978
§ 2.03 The Relationship of the Board to Other Agencies Created by Reorganization Plans Number 1 and Number 2

CHAPTER 3
Adjudicatory Structure and Organization of the Board

§ 3.01 The Role of Administrative Judges and Administrative Law Judges
§ 3.02 The Board's Review and Control

PART II
PROCEDURES IN APPEALS AND IN OTHER CASES


CHAPTER 4 Hearing Procedures
§ 4.01 The Petition for Appeal and Agency Answer
[1] Petition for Appeal
[2] Parties and Intervenors
[3] Agency Answer
[4] Settlements
§ 4.02 Hearing Rights
[1] Employee Right to a Hearing
[2] Agency Request for a Hearing
[3] Procedures
§ 4.03 Employee Right to Representation
§ 4.04 Conduct of the Pre-Hearing and Hearing
[1] Settlement Conferences
[2] Subpoena Power
[3] Discovery Practice
[4] Control of Witnesses and Evidence
[5] Res Judicata and Collateral Estoppel
[6] Ex Parte Communications
[7] Official Notice
[8] Closing of the Record and Decision of the Administrative Judge
[9] Disqualification of an Administrative Judge
§ 4.05 Conclusion
§ 4.06 Practice Pointers

CHAPTER 5
Review Procedures

§ 5.01 The Petition for Review
§ 5.02 The Standards for Review
[1] Conditions for Review
[2] Scope of Review
§ 5.03 The Role of Board Review
§ 5.04 Practice Pointers

CHAPTER 6
Attorney Fees

§ 6.01 Authority for the Award of Attorney Fees
[1] History of the Authority
[2] Scope of the Authority
§ 6.02 Procedures for the Award of Attorney Fees
§ 6.03 Standards for the Award of Attorney Fees
[1] Prevailing Party
[2] In the Interests of Justice
§ 6.04 Reasonable Attorney Fees
§ 6.05 Attorney Fees for Representation in Court
§ 6.06 Practice Pointers

CHAPTER 7
Enforcement

§ 7.01 Enforcement Authority of the Board
§ 7.02 Compliance Procedures
§ 7.03 Agency Implementation of Board Decisions
§ 7.04 Practice Pointers

CHAPTER 8
Cases Involving Allegations of Discrimination

§ 8.01 Introduction
§ 8.02 The Board's Authority to Resolve Allegations of Discrimination
§ 8.03 Board Procedures in Mixed Cases
§ 8.04 Relationship Between the Board and the EEOC
§ 8.05 Practice Pointers

CHAPTER 9
Cases Other Than Appeals

§ 9.01 The Authority of the Office of Special Counsel
[1] History
[2] Powers
§ 9.02 Stays of Personnel Actions
§ 9.03 Requests for Corrective Action
§ 9.04 Disciplinary Actions Against Agency Officials
[1] Commission of Prohibited Personnel Practices
[2] Other Disciplinary Actions
§ 9.05 Procedures of the Office of Special Counsel
§ 9.06 Actions Against Administrative Law Judges
§ 9.07 Individual Right of Action of Whistleblowers
§ 9.08 Review of OPM Regulations
§ 9.09 Practice Pointers

CHAPTER 10
Negotiated Grievance Procedures

§ 10.01 Negotiated Grievance Procedures
§ 10.02 Relationship Between Board Appeals and Negotiated Grievance Procedures
§ 10.03 Negotiated Grievance Procedures and Prohibited Personnel Practices
§ 10.04 Practice Pointers

PART III
APPEALS BEFORE THE BOARD


CHAPTER 11
Actions Under Chapter 43

§ 11.01 Introduction
§ 11.02 Coverage
§ 11.03 Agency Procedures
§ 11.04 Burden of Persuasion
§ 11.05 Relationship Between Chapter 43 and Chapter 75 Performance Based Actions
§ 11.06 Review of the Denial of In Grade Salary Increases
§ 11.07 Practice Pointers

CHAPTER 12
Actions Under Chapter 75

§ 12.01 Introduction
§ 12.02 Coverage
[1] Employees Covered
[2] Actions Covered
[3] Actions Used to Subvert Chapter 75
[4] Cause
[5] Other Limitations
§ 12.03 Agency Procedures
[1] Investigations
[2] Notice and Reply
[3] Other Rights
[4] Right to a Hearing
[5] The Agency Decision
[6] Other Agency Obligations
§ 12.04 Board Review
[1] Standard of Proof
[2] Reduction in Agency Imposed Penalties
§ 12.05 Off Duty Misconduct
§ 12.06 Relationship to Previous Civil Service Law
§ 12.07 Practice Pointers

CHAPTER 13
Other Appeals

§ 13.01 Introduction
§ 13.02 Reductions in Force
[1] Summary of Process
[2] Coverage
[3] Reduction in Force for Impermissible Purposes
[4] Procedural Requirements
§ 13.03 Retirement
[1] Disability Retirement
[2] Nondisability Retirement
§ 13.04 Other Appeals
[1] Appeals by Probationary Employees
[2] Loyalty, Security, and Suitability Appeals
[3] Restoration Appeals
[4] Appeals Regarding Employment Practices
[5] Claims Under the Uniformed Services Employment and Reemployment Rights Act (USERRA)
[6]  Claims Under the Veterans Employment Opportunities Act (VEOA)
§ 13.05 Practice Pointers

CHAPTER 14
Affirmative Defenses

§ 14.01 Introduction
§ 14.02 Harmful Procedural Error
§ 14.03 Not in Accordance with Law
§ 14.04 Prohibited Personnel Practice
§ 14.05 Prohibited Personnel Practices and the Office of Special Counsel
§ 14.06 Practice Pointers

CHAPTER 15
Prohibited Personnel Practices

§ 15.01 Introduction
§ 15.02 Prohibition Against Certain Types of Discrimination
[1] Incorporation of Existing Law
[2] Issues of Proof
[3] Alcoholism and Drug Abuse
[3A] AIDS
[4] Other Discrimination
§ 15.03 Reprisal Against Whistleblowers
[1] Disclosure to Whom
[2] Aiding a Whistleblower
[3] Reasonable Belief
[4] Types of Wrongdoing
[5] Unless Prohibited by Law
[6] Reprisal
§ 15.04 Retaliation for the Exercise of Appeal, Complaint, or Grievance Rights
§ 15.05 Actions Based on Criteria Unrelated to Performance
§ 15.06 Violation of Law, Rule, or Regulation Implementing or Directly Concerning a Merit System Principle
§ 15.07 Other Prohibited Personnel Practices
§ 15.08 Practice Pointers

CHAPTER 16
The First Amendment and the Right to Disobey

§ 16.01 Introduction
§ 16.02 First Amendment
[1] Supreme Court Interpretation
[2] Board and Federal Circuit Interpretation
§ 16.03 The Right to Disobey
[1] Judicial Interpretation
[2] Board Interpretation
[3] Statutory Protection
§ 16.04 Practice Pointers

PART IV
JUDICIAL REVIEW


CHAPTER 17
Judicial Review

§ 17.01 Introduction
§ 17.02 Judicial Review of Final Decisions of the Board
[1] History
[2] The Importance of the Federal Circuit
§ 17.03 Review of Board Decisions Involving Allegations of Discrimination
§ 17.04 Preliminary Judicial Relief
§ 17.05 Private Rights of Action
§ 17.06 Practice Pointers

INDEX