Summary: This week Peter Broida discusses four cases: Gingery v. Dept. of Defense, 2014 MSPB 59 (7/28/2014): VEOA reconstructed positions—the agency is within its rights, if after it reconstructs a selection process first run some years ago, and when it then makes a tentative job offer to the employee, to require the employee to qualify for a security clearance on the same (present, not past) terms of any current employee. Benton-Flores v. Dept. of Defense, 2014 MSPB 60 (July 31, 2014): whistleblowing in the normal course of duties—the Board recognized that disclosures are now protected under WPEA, but the Board held that the statutory provision, 5 USC 2302(b )(8), prohibits as to those disclosures "reprisal for the disclosure," rather than reprisal "because of" disclosures made in circumstances other than the normal course of duties. The Board implies but did not explain that there must be established unlawful motivation. Tanner v. Dept. of Defense, DC-0752-12-0209-A-1 (Nonprecedential 8/1/2014): considering an approving structured counsel fee agreements setting one rate for the client and permitting recovery at a higher rate from the agency when the appellant prevails. Thompson v. Dept. of Navy, DC-0752-10-0110-X-1 (Nonprecedential July 29, 2014): noting the consequences of a clean paper agreement precluding any agency employee from providing unfavorable information about the appellant. SSA and AFGE Local 1923, 67 FLRA 129 (July 30, 2014): determining that under the particularized need test, agencies may reject without themselves narrowing overbroad information requests.
