Articles Posted in Government & Administrative Law

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Presumptive service connection exists for veterans who served in the Persian Gulf War and have chronic: undiagnosed illness; medically unexplained chronic multisymptom illness (MUCMI); or any diagnosed illness as determined by the Secretary, 38 U.S.C. 1117(a)(2). VA regulations define MUCMI as “a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multisymptom illnesses of partially understood etiology and pathophysiology, such as diabetes and multiple sclerosis, will not be considered medically unexplained.”. Both the statute and regulation identify sleep disturbances and signs or symptoms involving the respiratory system as possible MUCMI manifestations. The VA revised its M21-1 Manual, changing the definition of MUCMI to require “both an inconclusive pathology, and an inconclusive etiology.” Under the subsection “Signs and Symptoms of Undiagnosed Illnesses or MUCMIs,” the VA added, “Sleep apnea cannot be presumptively service-connected (SC) under the provisions of 38 C.F.R. 3.317 since it is a diagnosable condition.” The Federal Circuit dismissed a veterans’ group’s petition for review for lack of jurisdiction, reasoning that the revisions are not binding and not reviewable under 38 U.S.C. 502. View "Disabled American Veterans v. Secretary of Veterans Affairs" on Justia Law

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Tartaglia served as Chief of Police at the Veterans Administration Hampton Virginia Medical Center. The VA proposed Tartaglia’s removal based on Abuse of Authority” (six specifications); “Lack of Candor” (two specifications); and “Misuse of Government Property” (one specification). The VA’s deciding official rejected Charge 3 as unsubstantiated, sustained Charge 1 based on five specifications and Charge 2 based on both specifications, and removed Tartaglia from service. An administrative judge affirmed Tartaglia’s removal, finding that the VA failed to prove either specification of Charge 2 and that it proved only three specifications of Charge 1. As to Charge 1, Tartaglia admitted to Specification 5: instructing a subordinate to drive him in a government-owned vehicle for a personal errand while on duty. The Merit Systems Protection Board sustained Tartaglia’s removal based solely on Specification 5, stating that removal fell within the Table of Penalties for that misconduct; Tartaglia’s “misconduct was particularly serious because it went beyond merely misappropriating a Government vehicle, but also included instructing a subordinate to help him”; mitigating factors such as Tartaglia’s “outstanding work record and lack of prior discipline” were “temper[ed]” because Tartaglia had served with the VA for “only approximately [four] years” and Tartaglia expressed remorse “only after initially denying the misconduct..” The Federal Circuit vacated, based on the Board’s miscalculation of Tartaglia’s length of service. View "Tartaglia v. Department of Veterans Affairs" on Justia Law

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The Wyandot Nation of Kansas, a Native American tribe allegedly tracing its ancestry to the Historic Wyandot Nation, claims to be a federally recognized Indian tribe and a successor-in-interest to treaties between the Historic Wyandot Nation and the United States. Wyandot Nation filed suit, alleging that the government had breached its trust and fiduciary obligations with respect to trusts that resulted from those treaties, including one related to amounts payable under an 1867 treaty and one related to the Huron Cemetery. The Court of Federal Claims dismissed for lack of jurisdiction and standing. The Federal Circuit affirmed. Tribal recognition is within the primary jurisdiction of the Department of Interior; a court cannot independently make a determination of the effects of the various treaties or resolve the various conflicting legal and factual contentions. Wyandot Nation petitioned the Department of Interior in 1996 for federal recognition pursuant to the List Act regulations. Interior preliminarily determined that “the Wyandot Nation of Kansas, which consists of the descendants of the citizen Wyandotts of Kansas terminated in 1855, [does not qualify for] Federal acknowledgment through the administrative process and can only become a Federally recognized Indian Tribe by an act of Congress.” The Nation did not pursue further administrative or judicial review. View "Wyandot Nation of Kansas v. United States" on Justia Law

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Kitlinski, employed by the DEA and a Coast Guard reservist, was recalled to active duty. For an extended period, he served full-time at Coast Guard headquarters in Washington, D.C. He filed complaints under the Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. 4301-35, and an equal employment opportunity complaint against DEA, based on DEA’s responses to his requests to be transferred from DEA’s San Diego office to Arlington, Virginia, where Kitlinski’s wife worked. After a deposition, Kitlinski returned to his car, in a secure DEA parking lot, and discovered a Blackberry device bearing a DEA sticker under his car's hood. He suspected that it was intended to track his location and record his conversations. Kitlinski reported his discovery to the FBI. Kitlinski’s wife was interrogated and was threatened with discipline if she did not turn over the Blackberry. Kitlinski filed an action with the Merit Systems Protection Board, alleging that the placement of the Blackberry and his wife's interview violated USERRA as discrimination and by creating a hostile work environment. He also alleged retaliation and a hostile work environment in retaliation for his exercise of his USERRA rights. The Federal Circuit affirmed the Board’s dismissal of various claims but remanded in part because the Board did not make a finding on Kitlinski’s claim that DEA had created a hostile work environment in retaliation for his USERRA activities. View "Kitlinski v. Merit Systems Protection Board" on Justia Law

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Mid Continent Nail requested that the Department of Commerce initiate a third administrative review of its anti-dumping duty order covering certain steel nails from China. Mid Continent did not serve the request directly on Suntec, a Chinese exporter and producer named in the antidumping order and in the request. When Commerce actually initiated the review about a month after receiving the request, it published a notice in the Federal Register, as provided in 19 U.S.C. 1675(a)(1). Despite that publication, however, Suntec did not participate in the review. Because of a lapse in its relationship with the counsel who had been its representative for years in the steel-nail proceedings, Suntec remained unaware of the review until Commerce announced the final results. The Court of International Trade declined to set aside the results of the review as applied to Suntec. The Federal Circuit affirmed, holding that Suntec had failed to demonstrate that it was substantially prejudiced by the service error as to the request for the review because the Federal Register notice constituted notice to Suntec as a matter of law and fully enabled Suntec to participate in the review. View "Suntec Industries Co., Ltd. v. United States" on Justia Law

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Veterans Access, Choice, and Accountability Act (VACAA) provisions vesting significant authority in administrative judges violates Appointments Clause. In 2014, Congress investigated reports that senior executives in the Department of Veterans Affairs (DVA) had manipulated hospital performance metrics by maintaining secret wait lists of veterans who needed care. The resulting VACAA established new rules for the removal of DVA Senior Executive employees, 38 U.S.C. 713. Previously, senior DVA executives could only be removed under the Civil Service Reform Act, 5 U.S.C. 1101, and were entitled to appeal to the Merit Systems Protection Board (MSPB), to a hearing, and to attorney representation. Section 713 created an accelerated timeline for MSPB appeals and required the MSPB to refer all appeals to an administrative judge (AJ) for decision within 21 days. Helman, the Director of the Phoenix Veterans Affairs Health Care System, was removed from her position under section 713. An MSPB AJ affirmed. Helman sought review from the full Board. Citing section 713(e)(2), the Board refused to take any further action. The Federal Circuit remanded, holding that, by prohibiting Board review under section 713(e)(2), Congress vested significant authority in an AJ in violation of the Appointments Clause. Section 713(e)(2) and two related sections are severable, leaving the remainder of the statute intact. View "Helman v. Department of Veterans Affairs" on Justia Law

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The 2013 Department of Defense (DOD) budget was cut by $37 billion halfway through Fiscal Year 2013. The Secretary of Defense directed DOD managers to prepare to furlough most civilian employees for up to 11 workdays, with exceptions for employees deployed to a combat zone, those whose jobs are necessary to protect safety of life and property, Navy Shipyard employees, National Intelligence Program employees, Foreign Military Sales employees, political appointees, non-appropriated fund instrumentality employees, foreign national employees, and various employees not paid directly by DOD Military accounts. Snyder, a civilian engineer at the Naval Surface Warfare Center (Dahlgren) received a Notice of Proposed Furlough. Snyder worked on an Advanced Shipboard Weapons Control project, governed by a Cooperative Research and Development Agreement (CRADA) between Dahlgren and Lockheed. Lockheed was solely responsible for funding and paid $2.6 million in 2012 to the U.S. Treasurer. Unused funds were to be remitted to Lockheed. Lockheed and Snyder requested that Dahlgren employees supporting the CRADA be exempt from furlough. The Navy denied the request. The Federal Circuit affirmed the Merit System Protection Board in upholding Snyder’s furlough. An agency may furlough an employee for lack of work or funds or other non-disciplinary reasons, 5 U.S.C. 7511(a)(5), 7512(5) if the furlough “will promote the efficiency of the service.” The court found the furlough decision to “be a reasonable management solution to the financial restrictions placed on the agency.” View "Snyder v. Department of the Navy" on Justia Law

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Banks was hired by the VA in July 2015. Her appointment was in the excepted service and was subject to a one-year probationary period. In March 2016, the VA notified Banks that it planned to terminate her due to performance issues. Rather than wait for the agency to terminate her, Banks resigned. Banks appealed to the Merit Systems Board, asserting that her resignation constituted a constructive removal. An administrative judge found that Banks was not preference eligible, that the record contained no evidence of prior federal service, and that Banks was within her probationary period, and concluded that Banks was not an “employee” under 5 U.S.C. 7511(a)(1) with the right to appeal to the Board. The AJ concluded that Banks’s allegations of a hostile work environment and retaliation did not provide jurisdiction under 5 U.S.C. 7702(a), absent non-frivolous allegations of an agency action independently appealable to the Board. The Board upheld the dismissal after considering new evidence indicating that, before being hired by the VA, Banks had been currently and continuously employed by the U.S. Postal Service for three years. The Board concluded that this prior federal service did not give Banks a right to appeal because the Postal Service is not an “Executive agency” under 5 U.S.C. 7511(a)(1)(C)(ii). The Federal Circuit affirmed, agreeing that the Board lacked jurisdiction. View "Banks v. Merit Systems Protection Board" on Justia Law

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Boyd worked for the Postal Service, 1985-2010. In 2011, she sought disability retirement benefits under the Federal Employees Retirement System (FERS). The Office of Personnel Management (OPM) approved her application, stating it would provide interim FERS benefits; that she would not receive FERS benefits until OPM received confirmation that she had applied for Social Security disability (SSDI) benefits; that her FERS benefits would be offset by SSDI benefits; and that Social Security checks should not be negotiated until the FERS benefit had been reduced. Boyd provided OPM with notice of her SSDI award but cashed the SSDI checks. Five months later, OPM notified Boyd that she had been overpaid by $3,322, which it would recover by offsetting 36 monthly FERS benefits by $92.27. Boyd requested a waiver or a reduced payment based on financial hardship. Boyd completed a Financial Resources Questionnaire but did not provide a later-requested update. OPM denied a waiver but reduced the monthly offset to $40. Boyd appealed to the Merit Systems Protection Board, pro se, but did not file evidence nor respond to a show-cause order. The ALJ affirmed, finding that she was “not without fault” and did not refute the reasonableness of the reduced payment schedule. The Board affirmed. The Federal Circuit vacated, citing erroneous application of the overpayment recovery statute, 5 U.S.C. 8346(b), and remanded for determination of whether Boyd knew or suspected that she had been overpaid, and, if not, whether the recovery would be against equity and good conscience. View "Boyd v. Office of Personnel Management" on Justia Law

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Fedora began working for the Postal Service in 1980 and retired in 2012, then filed an appeal with the Merit Systems Protection Board alleging that his retirement was involuntary and amounted to constructive discharge. He claimed that he was forced to perform work in violation of his medical restrictions, was harassed, and was threatened with loss of his pension. An administrative judge found that Fedora had failed to make a non-frivolous allegation and dismissed. The Board issued a final order affirming the AJ’s decision, stating that the Federal Circuit “must receive [his] request for review no later than 60 calendar days after the date of [the Board’s] order.” . He filed a petition for review on October 20, 2014, within 60 days of his receipt of the order (August 19), but not within 60 days of issuance of the notice (August 15). Fedora argued that the Board’s final order directed him to the court's “Guide for Pro Se Petitioners and Appellants,” which incorrectly instructed that a petitioner “may file a petition for review in this court within 60 days of receipt of the Board’s decision.” The Federal Circuit dismissed his petition for lack of jurisdiction, 5 U.S.C. 7703(b)(1)(A), stating that it lacks authority to equitably toll the filing requirements. View "Fedora v. Merit Systems Protection Board" on Justia Law