Union sought to bargain with the Internal Revenue Service for grievance rights for dismissed probationary employees. The IRS refused to negotiate and the Authority upheld the refusal. The Panel affirmed. It held that under the civil service statutes, probationary employees are different from tenured employees and the plain import of these differences is Congress has refused to extend certain remedies such a grievances to probationary employees in order to protect the executive branch right to terminate probationary employees who are not performing up to standard. The panel reasoned that allowing the proposed grievance for statutory violations would gut this intricate scheme as artful pleading would allow merit based dismissals to be grieved based on frivolous statutory violations. The panel noted that its conclusion was consistent with those of the DC Circuit and 30 years of Authority decisions.
Black field a motion under 28 USC 3582 to reduce his crack cocaine mandatory minimum under the fair Sentencing Act and its implementing guideline amendments. The district court denied his motion. The panel, with one judge adding a concurrence, affirmed. It held that the Act is not retroactive nor are the guideline amendments. Additionally, both United States Supreme Court and 4th Circuit precedent limit the Act to sentencing proceedings after the Act’s effective date. For those like Black, who was sentenced several years before the Act took effect, there is no means to obtain a shorter sentence under the Act. The panel specifically rejected the argument that the 3582 motion creates a new sentencing for purposes of the Act holding 3852 motions seek to modify an existing sentence and therefore the Act does not apply. The panel noted this is the same conclusion as all other circuits to consider the issue. The concurrence argued that while precedent compels this result, Black’s sentence is unfair and called upon the United States Supreme Court, Congress and the executive to remedy the plight of those sentenced under the older higher sentences.