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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 Al-
bert Einstein shop-
lifting at Wal-Mart,
would you rat him
out to store secu-
rity? 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 some-
thing or other, or me, a glorified typ-
ist—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 smart-
est, most successful, most powerful
women of the 20th Century? How
stupid would that be?
How would you feel if your favor-
ite movie star or music perform-
er—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
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
Ja n ua r y 2 6 ,
In this issue44
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/pub-
lic service” is the No. 1 “industry choice”
favored by those polled—out of 46 pos-
sibilities offered in the survey—and that
5 out of the 15 favorite employers were
federal entities.
The report, released by the non-prof-
it Partnership for Public Service (PPS),
draws on a huge survey of more than
32,000 college undergraduates conduct-
ed 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 alterna-
tives to a shrinking private sector.
Now, she said, with the same stu-
dents being squeezed harder by a more
troubled economy that shed half a mil-
lion jobs last month—and pulled toward
government by the phenomenal interest
in a young new president—the oppor-
tunity 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 0 0 9 • Vo l . 5 8 , N o. 2 6
• Insight By Mike Causey 1
• Young Gravitate Toward Government Work 1
• DoD Addresses Post-Government Jobs 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 pub-
lic 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 dif-
ference 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 continua-
tion of a trend we’ve been seeing—what
continued on page 3
 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 politi-
cians—who look to Hollywood for guid-
ance, glamour and $$$$$—are increas-
ingly willing to forgive the dubious deeds
of people who are really important, and
“too smart be punished.”
Case in point—one of the new cabi-
net 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 penal-
ties. 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, cheat-
Visit 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 lobby-
ist-supplied favors, money and expen-
sive 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 criti-
cize 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 candi-
date (most Republican senators have
endorsed him) for what could be the
toughest job in government. At least,
until something—like a national secu-
rity 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.
 January 26, 2009
Joseph Young (1918-2004) Founder
Maxine Lunn General Manager
Phil Piemonte Managing Editor
Nathan Abse Staff Writer
Frank Klimko Contributing Writer
Mike Causey Columnist
Edward Zurndorfer Columnist
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 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 contribu-
tion, to make a difference, really moti-
vates 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, edu-
cation, with 12 percent, and market-
ing, at 11 percent, were the next most
popular areas.
At the same time, the survey statis-
tics show that “salary expectations are
high” among students. They expect an
average of $49,000 in their first year
after graduation. Yet, “entry-level gov-
ernment starting salaries” for a person
with an undergraduate education rang-
es 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 “remunera-
tion and advancement” in their deci-
sion-making. Surprisingly, “competi-
tive 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 ben-
efits, a clear path for advancement and
leadership opportunities. Just below sal-
ary in importance came good prospects
for high future earnings.
“The way we took it is that fed-
eral agencies have an opportunity to
emphasize these other things that are
important to young people,” Jagger told
FEND. “That can help address the per-
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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.
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’ deci-
sion-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, opportu-
nity 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 Post-
Government 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 offi-
cials 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 sub-
stantially in a DoD acquisition exceed-
ing $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, admin-
istrative contracting officers, source
selection authorities, and to any mem-
ber of the source selection evaluation
board, or chief of a financial or techni-
cal evaluation team involved in a con-
tract worth more than $10 million.
 January 26, 2009
Officials who fall into these catego-
ries 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 pro-
viding 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 dur-
ing a one-year post-government cool-
ing-off period; top DoD employees
are subject to a two-year curb.
In addition to the interim acquisi-
tion rule, DoD also published a series
of other proposed new rules. Most
were generated in response to legisla-
tion passed by Congress in the Fiscal
Year 2008 and 2009 defense authoriza-
tion measures.
Among those, DoD issued an
interim rule to expand protections
offered to DoD contractor whistle-
blowers. Under the interim rule, now
contractors are prohibited from tak-
ing 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 govern-
ment 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 retali-
ation can file a complaint with the IG,
who will determine if the complaint
merits further inquiry.
continued on page 4
Vol. 58, No. 26
 continued from page 3
Note: At press time the new administra-
tion 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 re-
ports 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 ex-
periencing negative side effects associ-
ated with the wearing of the new uni-
forms 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 em-
ployee morale amid one of the high-
est 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 uni-
form fabric if it is not the United States.
Thompson also asked for details on
the 100-percent cotton shirt alterna-
tive that is to be offered to the TSOs.
“Please verify that this option is pro-
duced and shipped free from form-
aldehyde and other possible harmful
irritants,” he wrote.
Visit us on the Internet at www.FederalDaily.com
Thrift Savings Plan
Share Prices (As of FEND’s deadline)
Funds JAN. 21 Month Ago
G Fund
12.7567 12.7290
12.5357
F Fund 12.5635
C Fund 9.7210
10.2359
11.4497
S Fund 11.8933
12.7273
I Fund 13.8134
Lifecycle Funds
12.5996 12.7139
L Income
13.5318
L 2010 13.7218
12.2606
L 2020
11.9216
L 2030
12.6666
12.4004
L 2040 11.6933
12.2397
Thompson also sought an expla-
nation of why TSA has been giving
affected employees information on fil-
ing workers’ compensation claims. the agents just north of the border
A more workplace-friendly alterna-
tive would have been to provide affect-
ed 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/PressRe-
lease.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 pris-
on sentences of two former Texas Border
Patrol agents. Ignacio Ramos and Jose
Compean were serving 11- and 12-
year sentences, respectively, after being
convicted of a range of charges related
 January 26, 2009
Year Ago
12.3000
12.1400
14.9600
17.4700
22.5400
13.2300
14.9500
15.6700
16.1800
16.7700
to the highly publicized Feb. 17, 2005,
shooting of Osvaldo Aldrete-Davila,
an unarmed suspect who was fleeing
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 sen-
tences 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/09-
opa-053.html.
New Military Mental Health
Center Opens
DoD on Jan. 15 announced the open-
ing of a 24-hour telephone/e-mail
outreach center to counsel military
servicemembers, veterans, their fami-
lies 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 resources@dcoeoutreach.org, DoD
said. The center can address routine
requests for information about psy-
chological health and TBI, and answer
questions about symptoms a caller
is having, said Brig. Gen. Loree K.
continued on page 8
Vol. 58, No. 26
 Informed Investor

How Are Investors Protected Through the SIPC?

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

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 (tech-
nical 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 offi-
cial 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 offi-
cial—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 allega-
tions,” 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  January 26, 2009
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 “satisfac-
tory.” He insisted that “the board disregarded facts” that dem-
onstrate 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 fol-
lowing 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 deter-
mined 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 jurisdic-
tion 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 sev-
eral 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)
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 knock-
ing 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 intend-
ed—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 discrimina-
tion—in February 2007 Farris filed a discrimination com-
plaint 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 applica-
tion. 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 for-
mal 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 appel-
lant 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 evi-
dence 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 informa-
tion 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 equi-
table 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 infor-
mation 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 addi-
tion to answering questions, staffers will be able to refer call-
ers 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-
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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.
NEW!
f e at u r e s f o r 2 0 0 9 i n c l u d e :
• 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!
January 26, 2009
Carol Stream, IL 60132-3167
P.O. Box 3167
Federal Employees News Digest