Articles Posted in Government & Administrative Law

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In 1998, Do a government employee since 1990, was hired by HUD’s Information Systems Audit Division. She became Division Director. In 2006, Asuncion, then working as a Justice Department auditor, applied for a GS-11 position in Do’s Division. On her resume and Questionnaire, Asuncion claimed she had a college degree in accounting. A pre-employment investigation revealed that Asuncion did not have that degree. Asuncion explained that she had completed the required coursework but needed to take one additional course to raise her GPA. Asuncion claimed good-faith mistake and promised to secure her degree. After conferring with her supervisor, Do approved Asuncion’s hiring. Asuncion was eventually promoted. In 2009, Do posted two GS-14 auditor positions. Human resources flagged Asuncion “as a qualified candidate.” Do selected Asuncion, knowing that Asuncion still did not have an accounting degree. Do later was advised that Asuncion could continue as an auditor but must obtain her degree. Asuncion resigned in 2016. HUD demoted Do to Nonsupervisory Senior Auditor and suspended her for 14 days. The Federal Circuit reversed. Do’s due process rights were violated; the Board relied on a new ground to sustain the discipline. Do's notice alleged a single charge of “negligence of duty” in hiring and promoting Asuncion. The Board’s decision concluded that Do negligently failed to investigate whether Asuncion met alternative requirements. That alternative theory appears nowhere in the notice or in the deciding official’s decision. View "Do v. Department of Housing and Urban Development" on Justia Law

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During World War II, the Hanford Nuclear Reservation was established by the U.S. Army Corps of Engineers. After the war, Hanford continued in use, operated by contractors. Each time the work was transferred to another contractor, the employees that performed the work would stay the same, typically with the same pay and benefits. The Hanford Multi-Employer Pension Plan (MEPP) was established in 1987 as a contract between “Employers,” defined as named contractors, and “Employees.” The government is not a party to the MEPP but may not be amended without government approval. In 1996, some employees accepted employment with a Hanford subcontractor, Lockheed, and were informed that, upon their retirement, they would not receive retirement benefits that were previously afforded under the MEPP. They were subsequently told that they would remain in the MEPP but that, instead of calculating their pension benefits based on their total years in service, their benefits would be calculated using the highest five-year salary, and that they could not challenge the change until they retired. This became a MEPP amendment. In 2016, former Lockheed employees sued the government, alleging that an implied contract was breached when they did not receive benefits based on their total years in service. The Federal Circuit held that the former employees did not prove that an implied-in-fact contract existed. The government funds Lockheed and others to manage Hanford, but there is no evidence that the government intended to be contractually obligated to their employees; there was no mutuality of intent. View "Turping v. United States" on Justia Law

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For 33 years, Jenkins worked for the Army, finally as a Supervisory Army Community Services Division Chief. In 2010-2012, Jenkins continually failed performance reviews and once served a suspension for submitting an Information Paper to a higher command without routing and gaining required approval through his first-level supervisor. Jenkins was put on a Performance Improvement Plan (PIP). After notifying Jenkins that he failed his PIP, his supervisor asked Jenkins whether he would move to a non-supervisory position at the same grade and pay level, Jenkins refused. Jenkins’s first-level supervisor proposed his removal for unacceptable performance. After receiving notice, but before he was removed, Jenkins sent his first-level supervisor an email, stating that “[e]ffective 31 March 2012 I will retire.” Jenkins submitted responses challenging his removal; on March 21, the Army issued a Final Removal Decision effective April 1, 2012. That same day, it issued a Cancellation of Removal, conditioned on Jenkins retiring effective March 31. Jenkins then submitted Standard Form-50, stating “voluntary retirement” effective 31 March 2012 as his reason for resignation. Jenkins later appealed to the Merit Systems Protection Board alleging that his retirement was involuntary. The Federal Circuit affirmed the Board’s dismissal for lack of jurisdiction, reasoning that the Army had rescinded the removal and nothing indicated Jenkins sought to withdraw his retirement before the effective removal date; Jenkins failed to make a non-frivolous claim. View "Jenkins v. Merit Systems Protection Board" on Justia Law

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Following a positive drug test, DHS removed Hansen from his position as an Information Technology Specialist for U.S. Customs and Border Protection. After failing the drug test, Hansen had submitted a letter to the agency, claiming that he had unknowingly consumed pot brownies prepared by a friend-of-a-friend’s neighbor, a stranger to him, at a barbeque. The Merit Systems Protection Board affirmed. Hansen appealed, arguing that the Board improperly assigned him the burden of proving that he inadvertently ingested marijuana, that it erred in finding his position was subject to random drug testing, and that even if it was subject to such testing, he lacked required notice of that fact. The Federal Circuit affirmed, holding that intent is not an element of the charged conduct and that the Board properly required Hansen to introduce rebuttal evidence to counter the government’s showing of nexus and choice of penalty. Substantial evidence supports the Board’s finding that Hansen’s position was designated for random drug testing. View "Hansen v. Department of Homeland Security" on Justia Law

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Kerr was employed by the federal agency since 1980. Following adverse personnel actions, Kerr alleged sex and religious discrimination and retaliation before the agency’s Equal Employment Opportunity office. Kerr subsequently challenged her 2006 removal and the earlier adverse personnel actions before the Merit Systems Protection Board (MSPB), citing Title VII and retaliation under the Whistleblower Protection Act (WPA), 5 U.S.C. 1201. The MSPB indicated that it lacked jurisdiction over the less-serious personnel decisions and gave Kerr the opportunity to present her removal-related claims to the agency’s EEO office or have the MSPB decide them. Kerr chose the EEO office. The MSPB dismissed Kerr’s appeal without prejudice. The EEO office rejected Kerr’s discrimination claims and concluded that the WPA claim was not within its jurisdiction, telling Kerr that she could not appeal the constructive discharge claim to the EEOC, but could either appeal to the MSPB or file suit. Kerr filed suit. On remand from the Ninth Circuit, the government first argued that the court lacked jurisdiction over Kerr’s WPA claim because she failed to exhaust her administrative remedies by MSPB review. The district court dismissed the WPA claim. A jury returned a defense verdict on the discrimination claim. The Ninth Circuit affirmed. The Supreme Court denied certiorari. The MSPB rejected Kerr’s request to reopen, concluding that there was neither good cause nor equitable tolling for the untimely filing. The Federal Circuit reversed. Kerr did have a reasonable basis for thinking that the district court was an appropriate forum for all of her claims. The court noted the language of 5 U.S.C. 7702, Tenth Circuit precedent, and that the government did not warn Kerr she would waive her claim by failing to file at the MSPB. Kerr has demonstrated reasonable diligence and there is no prejudice to the agency. View "Kerr v. Merit Systems Protection Board" on Justia Law

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Cook served on active duty in the Navy, 1972-1973. Cook’s service records indicate that he experienced back pain. In 2000, Cook sought service connection for back problems and later filed a claim for total disability based on individual unemployability (TDIU), also back-related. The regional office (RO) denied both claims. Cook appealed and testified at a Board hearing in 2012. The Board remanded; the RO again denied both claims. Cook again appealed and requested an additional hearing to present further evidence. The Board denied Cook that additional hearing and denied both of his claims. The Veterans Court, upon joint motion, vacated and remanded because the Board did not adequately explain its decision. On remand, Cook again requested another Board hearing. The Board denied a hearing and denied Cook’s claims for service connection and TDIU. The Veterans Court vacated and ordered a hearing. The Federal Circuit affirmed. The Veterans’ Judicial Review Act codified a veteran’s longstanding right to a Board of Veterans’ Appeals hearing, 38 U.S.C. 7107(b). The courts concluded that the statute entitles an appellant to an opportunity for a hearing whenever the Board decides an appeal, including on remand. View "Cook v. Wilkie" on Justia Law

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The Capitol Police and the Union were negotiating a new collective bargaining agreement. The Police notified the Union of planned changes to its personnel policies. The Union responded with its own proposals. The Police declined to negotiate some proposals. The Compliance Board ruled for the Police as to some proposals but for the Union as to others and ordered the Police to bargain with the Union. In related cases, the Federal Circuit held that it lacked jurisdiction over the Police’s petitions for direct review of the negotiability decisions but that it had jurisdiction over the Office of Compliance petitions to enforce those decisions. In ruling on the enforcement petitions, the court reviewed the underlying negotiability decisions under the Administrative Procedure Act, 5 U.S.C. 706, default standard of review. In this decision, the court held that whether the Board refers a negotiability petition to a hearing officer is a matter for the Board's discretion, not a matter of statutory compulsion, and that the opportunity for such a referral may be lost if not timely requested. The court separately dismissed the Police’s petitions for direct review of the negotiability decisions regarding 12 specific proposals; held that it has jurisdiction over the enforcement action under 2 U.S.C. 1407(a)(2); granted the petition for enforcement with respect to five proposals while denying the petition with respect to six proposals; and set aside the order with respect to one proposal, remanding for determination of whether that proposal involves a change in conditions of employment. View "Office of Compliance v. United States Capitol Police" on Justia Law

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The Congressional Accountability Act (CAA) conferred rights and protections to employees of the legislative branch, modeled after and incorporating executive branch labor and employment statutes. CAA section 1351 gives legislative branch employees the right to bargain “with respect to conditions of employment" through their chosen representative, 5 U.S.C. 7117, but does not define “conditions of employment.” The Compliance Board issues regulations to implement section 1351; its regulations track the language in the Federal Service Labor-Management Relations Statute, defining “conditions of employment” as “personnel policies, practices, and matters, whether established by rule, regulation, or otherwise, affecting working conditions, except that such term does not include policies, practices, and matters . . . [t]o the extent such matters are specifically provided for by Federal statute.” A negotiability dispute arose between the U.S. Capitol Police and the Union during negotiations for a new collective bargaining agreement (CBA). The Police proposed to exclude employee terminations from the scope of the CBA’s grievance and arbitration procedures. The Union proposed language to ensure that terminations would continue to be covered by the grievance procedures. The Police refused to negotiate. The Compliance Board found the Union’s proposals negotiable. The Federal Circuit dismissed the Police’s petition for lack of jurisdiction, but, applying the Administrative Procedure Act standard of review, granted an enforcement petition, finding that the Compliance Board’s decision not contrary to law or otherwise invalid. View "United States Capitol Police v. Office of Compliance" on Justia Law

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Plaintiffs, retired or separated from their VA positions in 1993-1999, with accrued but unused leave. The Lump Sum Pay Act (LSPA), 5 U.S.C. 5551-5552, provides that an employee “who is separated from the service . . . is entitled to receive a lump-sum payment for accumulated and current accrued annual or vacation leave” equal to the pay the employee would have received had he remained in federal service until the expiration of the period of annual or vacation leave. Plaintiffs received lump-sum payments for their accrued and unused annual leave and later received supplemental lump-sum payments that reflected statutory pay increases and general system-wide pay increases that became effective before the expiration of their accrued annual leave. Plaintiffs sued, alleging that the VA omitted increases included Cost of Living Adjustments (COLAs) and Locality Pay Adjustments and that payments made to certain plaintiffs improperly omitted non-overtime Sunday premium pay or evening and weekend “additional pay” that they would have received had they remained in federal service. They sought pre-judgment interest under the Back Pay Act, 5 U.S.C. 5596. The claims for additional COLAs, Locality Pay Adjustments, and non-overtime Sunday premium pay were resolved. The Claims Court held, and the Federal Circuit affirmed, that, as members of the class, plaintiffs were not entitled to have evening and weekend “additional pay” included in their payments. They were not entitled to receive pre-judgment interest on amounts improperly withheld from their payments. View "Athey v. United States" on Justia Law

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At issue were legal questions concerning the meaning of a regulation and the scope of the Board of Veterans’ Appeals’ remedial obligations under U.S. Code Title 38 and the Federal Circuit’s previous decision in Pirkl v. Shinseki, 718 F.3d 1379 (Fed. Cir. 2013) (Pirkl I). This case centered on clear and unmistakable (CUE) error in a disability decision from long ago. After Pirkl I was decided, the Board on remand dismissed Appellant’s appeal of a decision not to give relief for a 1953 CUE past the effective date of a 1956 rating reduction. The Court of Appeals for Veterans Claims affirmed. The Federal Circuit vacated the Veterans Court’s decision and remanded the case after addressing the remedy required for a CUE error in a disability rating decision, holding that the Veterans Court mistakenly interpreted a key regulation and took too narrow a view of the legally required corrective remedy for the rating decision error. View "Pirkl v. Wilkie" on Justia Law