Friday, August 22, 2014

MSPB, organization chart

OSC, mediation

MSPB, Mediation

Appeal to the United States Court of Appeals for the Federal Circuit

Thursday, August 21, 2014

In IRA, VEOA and USERRA appeals, evidence that the administrative process has been exhausted is also required.  


USERRA Appeals have no time limit for filing (5 C.F.R. § 1208.12).

MSPB appeal , required information

C.F.R. §§ 1201.24 (most appeals)

1209.6 (individual right of action (IRA) appeals, which involve claims of retaliation for whistleblowing)

1208.13 (Uniformed Services Employment and Reemployment Rights Act (USERRA))

1208.23 (Veterans Employment Opportunities Act (VEOA))

1203.11 (request for regulation review). 

Using the Board's Appeal Form or its e-Appeal Online application will ensure that all required information is provided, but using the form is not required.

Wednesday, August 20, 2014

watermelon jello

MSPB, appeal process

MSPB, mediation


Tuesday, August 19, 2014


狠砸千億 中國扶植「陸版台積電」






有形之手 結合無形之手







中國雖然早在10年前就躍居全球IC消費最大國,但中國半導體發展仍處處受制於人。根據市調機構IC Insights預估,2017年中國半導體市場將有7成至8成,仍仰賴進口。讓中國政府頭疼的是,前年,中國進口了2322億美元的IC。這金額,比中國購買石油的外匯還要高。





Under 5 U.S.C. Section 7701(c)(2)(B), the MSPB may not sustain a personnel action “based on” a PPP.
If raised in an otherwise appealable action appeal, a PPP claim is an affirmative defense.
A PPP may be raised as an affirmative defense in an appeal of an otherwise appealable action. 
申訴人bear the burden of proving all affirmative defenses. An appellant bears the burden of proving such affirmative defenses by preponderant evidence.
the appellant may raise an “affirmative defense” by claiming that the agency’s personnel action was the product of retaliation for his or her whistleblowing activity. 

An affirmative defense is an assertion by the employee that, if proven, constitutes a defense to the charged action even when the charged action is proven.

Thus, if an agency removes, suspends or demotes a tenured employee as defined by 5 U.S.C. § 7511(a) and the employee files an MSPB appeal from this action under 5 U.S.C. § 7513, the employee may also raise a claim (affirmative defense) that the agency took the action at issue in retaliation for his or her protected whistleblowing activity.

When the appellant raises a whistleblower retaliation claim (affirmative defense) in the context of an otherwise appealable action,

If an agency takes an “otherwise appealable action,” such as a removal, a suspension of more than 14 days, or a demotion, against an employee, then he or she may raise violations of  section 2302(b)(9) as an “affirmative defense” to that action.

An affirmative defense occurs when an employee claims that an action should not be sustained because: (1) there was a harmful error in the agency’s procedures for taking the action; (2) the decision was based on a PPP; or (3) the decision was otherwise not in accordance with the law.  5 U.S.C. § 7701(c)(2).  While an agency has the burden to prove that its action is supported by a preponderance of the evidence, the appellant asserting an affirmative defense bears the burden to prove the affirmative defense by a preponderance of the evidence.  5 C.F.R. § 1201.56(a)(2).

An individual employee also could raise this provision as an affirmative defense to an agency’s adverse personnel action that is within MSPB’s jurisdiction, such as a removal.  5 U.S.C. § 7701(c)(2)(B).

Political Economist of Environmental Change in the Global South

impacts of major economic and environmental changes on livelihoods, agro-food systems, resource management, and social justice. Specifically, we seek a colleague with interests and experience in the following fields as they pertain to sustainable agriculture and food systems -- economics, geography, anthropology, sociology, public policy, sustainable development, social and food justice, human welfare, behavior and culture, food security, food sovereignty, small-farm viability, nutrition and health. agroecology ,sustainable food systems. 

Monday, August 18, 2014

MSPB, appellate jurisdiction

5 CFR 1201.3 - appellate jurisdiction


beyond a reasonable doubt (criminal standard) (higher standard than) clear and convincing evidence (WPA) preponderance of the evidence (CSRA)

CSRA (statutory predecessor)   → WPA 

Sexual Orientation and Transgender Issues in Organizations – Global Perspectives on LGBT Workforce Diversity

Editor: Thomas Köllen (Vienna University of Economics and Business)
Book publisher: Springer (
Each chapter will be assigned a unique DOI name. Publication is anticipated for early spring 2016.

Over the last decade workforce diversity has attracted much scientific attention. Given the shortage of literature on issues related to homosexual, bisexual and transgender employees, compared with other facets of workforce diversity, this book aims at opening up new perspectives on this issue. Emphasis is placed on the equal consideration of gay, lesbian, bisexual, and transgender issues. In management practice many organizations use the term LGBT to designate the target group of organizational practices (e.g. diversity management), although, in reality, these usually only aim at lesbian and gay employees. As transgenderism is not related to a certain sexual orientation, subsuming this phenomenon into one umbrella term, together with different sexual orientations, marginalizes the unique stressors transgender employees have to face. Unique experiences of transgender employees, for example, can appear before, within, and after transitioning. In this context, this book encourages researchers to submit contributions that broaden the understanding of both issues related to employees’ sexual orientation (such as being bisexual, lesbian, gay, and also being heterosexual), and/or issues that are specifically related to transgender employees.

Contributions should provide deeper insights into the differing experiences of the whole spectrum of LGBT employees in the workplace in different national and occupational contexts. Furthermore, contributions are welcome that offer contextualized insights for evaluating and conceptualizing organizational initiatives aiming at a higher level of inclusion for LGBT employees. Theoretical or conceptual contributions on these issues are appreciated as well. In order to broaden the predominantly Anglo-American perspective on LGBT workforce diversity, contributions reflecting the situations in African, Asian, Continental European, or South and Central American countries are strongly encouraged; however contributions from all nations will be very warmly welcomed.

Chapters proposed may address (but are not limited to) one or more aspects or sub-aspects of the following topics. Chapters that address other aspects of LGBT workforce diversity are welcome as well.  

1.       LGBT workplace issues: employees’ perspective
 (e.g. stressors, experiences of discrimination/micro-aggressions/support, identity management /disclosure decisions, career paths, barriers, intersectional perspectives, etc.) – different occupational or national contexts
a.       Gendered perspectives on lesbian and/or gay employees
b.      Homosexual employees (joint perspectives)
c.       Bisexual employees
d.      Transgender employees
e.      LGBT employees (joint perspectives)
f.        Issues related to LGBT supervisors or entrepreneurs

2.       LGBT workplace issues: organizational perspective (in different occupational or national contexts)
a.   (Diversity) management initiatives aimed at homosexual and/or bisexual and/or transgender      employees (best practice, conceptualization, evaluation)
b.   Organizational working climates for homosexual, bisexual and/or transgender employees (layers, conceptualizing measurement, etc.)

3.       Theoretical approaches
a.       The relation of L, G, B, and T within organizational LGBT discourses and practices
b.      Comparative works on the legal situation of, L, G, B, and/or T employees in different countries (e.g. anti-discrimination legislation)
c.    Theoretical perspectives on L, G, B, and/or T workplace issues (e.g. queer theory, postmodern approaches, psychological and/or intersectional approaches, business case vs. moral case, etc.)

Contributions that deal with these and related issues from a variety of perspectives are warmly welcomed. Chapters may take a range of forms, may be empirically based or conceptual, may focus on different levels of analysis, and may be based on quantitative and qualitative approaches.

Submission Guidelines

·         Book chapter proposals received: November 10, 2014
·         Notification of accepted chapter proposals: December 5, 2014
·         Receipt of full book chapters: April 1, 2015 (Earlier submissions are welcome).
·         Review book chapters and revision feedback: May 10, 2015
·         Receipt by editor of final draft of book chapters: July 1, 2015
·         Anticipated publication:  Spring 2016

Length:                                 Chapter proposals should not exceed 500 words. Book chapters should not exceed 6,000 words including figures, tables and graphs.
Format of citations:            Harvard Reference Style (detailed information will be provided after proposal acceptance)
Language/Spelling:             American English

Please submit your chapter proposal by Microsoft Word email attachment no later thanNovember 10, 2014. Please note that submitting authors whose proposals are accepted, may be asked later to anonymously provide constructive feedback on one other chapter. Please note also that authors will be primarily responsible for correct spelling and grammar within their own chapters, and that the use of a native English-speaking proof-reader is strongly urged prior to the final draft stage.


affirmative defense

An affirmative defense is a type of legal defense that can be raised by a defendant in support of his or her side of a case. As a general rule, through an affirmative defense, a defendant presents additional facts that serve to diminish the civil claims or criminal charges being brought against him or her. This is done without arguing against any pertinent elements of the alleged crime. In other words, the defendant agrees with the facts presented by the plaintiff or prosecution but also introduces additional facts that mitigate the defendant's liability or culpability.

For example, suppose that a plaintiff sues a defendant for damages relating to a car accident. Specifically, the plaintiff alleges that the defendant struck the back of the plaintiff’s car, resulting in damages to the car’s bumper. Without disagreeing with this fact, the defendant may raise an affirmative defense by arguing that the plaintiff contributed to the accident. The defendant may claim that the plaintiff slammed on the car brakes, thereby causing the defendant to rear-end the plaintiff’s car.

Affirmative defenses are used primarily in common law countries, and they can be raised in both civil and criminal cases. For example, in a civil lawsuit, suppose that an employee is suing an employer for gender discrimination. Without denying the charges that have been brought, the employer may raise one or more civil affirmative defenses. The employer may state that it has gender discrimination policies and procedures in place to ensure thatharassment does not occur in the workplace. Additionally, the employer may claim that the company took measures to address the harassment once it was reported to the human resources department.

Affirmative defenses may also be raised by defendants in criminal cases. For instance, suppose that a woman is on trial for murdering her husband. Without disagreeing that she murdered her husband, the woman may claim self-defense. She may state that her husband attacked her, and she had to kill him in order to protect herself from harm. Self-defense is a common affirmative defense, and is frequently used to support exonerating a defendant.

The effect of most affirmative defenses is to either reduce - or excuse altogether - a defendant’s liability in a civil case or culpability in a criminal caseExoneration or liability or culpability occurs even if a plaintiff is able to show that the facts supporting the plaintiff’s case are true. If an affirmative defense is sought in a case, a judge typically instructs the jury on the specific defense theory at hand. The jury must then take that defense into consideration when rendering a verdict in the case.

whistleblowing appeal, PPP # 8

申訴人可以OAAIRAMSPB申訴。就OAA而言,申訴人可提出affirmative defense, 主張機關人事措施為對其吹哨之報復,申訴人須提出証據証明其吹哨為促成報復人事措施之因素。

 Generally, if you have not been subject to an OAA, you must rely on OSC to request corrective action on your behalf, but under limited circumstances, you may be able to seek relief from MSPB on your own. Specifically, you may file what is known as an individual right of action (IRA) appeal if you believe that an agency has taken, threatened to take, or failed to take a personnel action against you because you "blew the whistle," i.e., disclosed information that you reasonably believed evidences a violation of law, rule, or regulation, gross mismanagement or a gross waste of funds, an abuse of authority or a substantial and specific danger to public health or safety. 5 U.S.C. §§ 1221(a), 2302(b)(8). Before bringing an IRA appeal, however, you must ask OSC to investigate the matter.

violating veterans’ preference 申訴

種上訴救濟途徑:1.VEOA申訴, 2.違反 PPP # 11

須於違反情事發生60日內, Department of LaborVeterans' Employment and Training Service (VETS)提出申訴, 一位VETS代表會與機關合作,共同解決問題,唯若VETS無法於60日解決申訴
爭議,申訴人可向MSPB提出申訴[1](VEOA appeal)[2],MSPB受理申訴後,120日內未作成裁決,則可向法院(U. S. District Court)尋求司法救濟[3]
VEOA申訴優點:1.申訴可直接向MSPB提出,不須經由Office of Special Counsel (OSC); 2.VEOA不要求機關(有意識地)知道違反退伍軍人優待。例如:政府機關承認其未遵守退伍軍人優待規定,因其誤判某特定職位不須適用退伍軍人優待規定,MSPB認為本案損害申訴人之退伍軍人

退伍軍人優待權利受到損害者,固可經由VEOA 申訴糾正機關錯誤,然而,(有意識地)知道違反退伍軍人優待規定之公務員,VEOA申訴無法對其進行任何(MSPB, 2011)
本項PPP明訂須有意識地(knowingly)違反退伍軍人優待, MSPB對有意識違反退伍軍人優待之公務員,予以紀律處分(disciplinary action)。另外,本項PPP需以otherwise appealable action (OAA)MSPB提出,或經由Office of Special CounselMSPB提出,MSPB缺乏有意識地違反退伍軍人優待之申訴,可能因為申訴人選擇規定較寬鬆之VEOA申訴途徑(MSPB, 2011)

if you believe that an agency violated a veterans preference requirement you may also ask MSPB to correct the violation. That is because such a violation is prohibited not just by 5 U.S.C. § 2302(b)(11), but also by the Veterans Employment Opportunities Act of 1998 (VEOA) (codified in various sections of 5 U.S.C. chapter 33). Under VEOA, there is no requirement that you first seek corrective action from OSC, but you must first raise your claim with the Secretary of Labor.

OSC對於違反本項PPP,僅能紀律處分,Dept. of Labor才有權力採取改正措施(corrective action)[5]

[1]  (visited August 6, 2014)
[2] 5 U.S.C. 3330a; 5 C.F.R. § 1208.2;
[4] Graves v. Department of Veterans Affairs, 114 M.S.P.R. 245, (2010)

Sunday, August 17, 2014

復審 vs 申訴/再申訴


公務人員保障法第 25 條、第 26條(復審)






公保法第十八條規定:「公務人員對於服務機關或人事主管機關所為之行政處分,認為違法或不當,致損害其權利或利益者,得依本法提起復審。」據此規定,復審標的為行政處分。早期我國學者承認所謂「特別權力關係」理論,將公務員納入「公法上勤務關係」之中,並認為在此關係中對於此等人員的決定僅屬「內部事項」的措施,故不屬於行政處分。從而,受該決定的公務員不得請求行政救濟。後來特別權力關係理論在我國已逐漸破棄,大法官會議逐步建構出以「對於公務員權益有重大影響」作為認定行政處分的基礎,進而突破特別權力關係不具外部效力的藩籬。準此以言,復審標的之存否,其癥結應在於如何判定所謂「外部效力」的問題上。司法院大法官從釋字187 號解釋以降,樹立判斷基準為:一則以涉及公法上財產請求權;他則涉及對公務員服公職權利的重大影響。

大法官作成釋字 298 號解釋,揭示了「足以改變公務員身分或對於公務員有重大影響之處分




公務人員保障法第 77 條、第 78條(申訴、再申訴)






按公保法第23 條第1 項規定:「公務人員對於服務機關所提供之工作條件及所為之管理認為不當者,得依本法提出申訴、再申訴。」由此規定可知,申訴標的為「服務機關所提供之工作條件」或「服務機關所為之管理」。依目前實務的解釋,前者如服務機關所提供執行職務必要之機具設備、良好之工作環境、安全及衛生完善措施之提供等;後者係指機關為達行政目的所為之作為或不作為,即除行政處分以外,包括機關內部生效之表意行為或事實行為等,其有具體事實者,均屬管理措施範圍,例如機關長官所為之工作指派、不改變公務人員身份關係之記大過、記過、申誡懲處、考績評定、請假之否准或機關長官所發之職務命令等。

有疑問者,在於申訴標的是否僅限於「具體個案」,亦即僅採「個案救濟原則」?目前實務上係採「個案救濟原則」而認為,本法第29 條第1 款規定,申訴案件無具體之事實內容者,不予處理。故其內容僅指具體的機關行為,而不包括抽象法規。學者 林明鏘 教授則採否定說,而認為本法第23 條所稱「工作條件」與「管理措施」,在解釋上係指行政處分以外對機關內部生效的表意行為或事實行為,不問其內容屬具體、個案或抽象及普遍性,皆應包括在內。 李建良 教授則採個案救濟原則。其認為從申訴制度的功能定位而言,旨在針對「行政處分以外」的人事行政事項,提供公務員救濟的管道,具有補充復審程序的功能。


救濟流程: 申訴、(調處)、再申訴

月旦法學雜誌200211 (90期),112-140

The Millennials Are Generation Nice

pug, buddhist temple in Taiwan

從各國公務人員保障制度看台灣 行政法思潮的演進

公務人員考績制度變革後 救濟程序如何配套因應, 2010

Taiwan 公務員保障法發展


[1] See 5 USC 2302(a)(2)(A), 5 CFR 1209.4(a).

Saturday, August 16, 2014


if you file a claim with MSPB in connection with an otherwise appealable action(OAA), we will hear your claim that you believe this provision was violated, but only if it is related to your claims about the underlying personnel action being appealed. 

Such claims will not be heard by MSPB if your appeal is filed under the Veterans Employment Opportunities Act of 1998 (violation of veterans’ preference rights), the Uniformed Services Employment and Reemployment Rights Act of 1994 (discrimination based on military service), or the Whistleblower Protection Act (individual right of action appeals based on retaliation for making protected disclosures), as such appeals are not filed under MSPB’s otherwise appealable action authority, but rather specific subject-matter based statutory authorities.

Fighting, waterborne disease plague displaced South Sudanese