Articles Posted in Government & Administrative Law

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Rumsey, a Department of Justice employee, protested grant-making decisions and ultimately went to the media and members of Congress and filed a complaint with the Inspector General, alleging fraud. Her efforts resulted in corrective action. Rumsey alleged that the agency subsequently gave her improperly low performance ratings, moved some of her job duties to other employees, and canceled her telework agreement. She prevailed in an individual right of action appeal with the Merit Systems Protection Board, alleging whistleblower reprisal. Rumsey sought attorney’s fees under 5 U.S.C. 1221(g)(1)(B). At the time of that request, Rumsey and Slavet, one of the three lawyers that represented Rumsey during the Board proceedings, were in fee dispute before the District of Columbia Bar, Attorney/Client Arbitration Board. Rumsey “distanced herself from Slavet,” who had been Rumsey’s principal lawyer before and during the initial hearing before the administrative judge. The AJ had previously awarded sanctions based on Slavet’s failure to respond to discovery requests. The Board affirmed the AJ’s refusal to award attorney’s fees for Slavet’s services. Slavet and Rumsey settled their fee dispute, agreeing that Rumsey would pay $120,000 of the $145,445 sought by Slavet. The Federal Circuit reversed. Rumsey carried her burden of showing entitlement to some award of attorney’s fees. View "Rumsey v. Department of Justice" on Justia Law

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Miskill was employed as an IT Specialist with the Social Security Administration for 14 years. Her supervisor proposed to remove Miskill for violations of the time and attendance policy. The Assistant Associate Commissioner sustained four charges and removed Miskill from Federal Service. The Union submitted a grievance and subsequently invoked arbitration. Miskill obtained the records of the eight other individuals within her component at the Division of Network Engineering (DNE) for the relevant time period. Those records were analyzed by a CPA, Certified Product Examiner, and Certified Information Technology professional, who concluded that the eight other DNE employees had committed the same or similar violations as Miskill; none were investigated or charged with misconduct. The parties later stipulated that those employees were under investigation, but had not yet been charged. The Arbitrator sustained Miskill’s removal, finding that the comparators were not similarly situated because possible disciplinary action regarding them was still pending. The Federal Circuit vacated. Miskill sufficiently raised the issue of disparate treatment but arbitrator erred in its treatment of the comparator evidence. His categorical conclusion that the eight DNE employees could not be comparator employees because they were under investigation was an incorrect statement of law. Although the fact that a comparator employee is under investigation is a factor to be considered in determining whether that comparator is similarly situated, it is not a complete bar. View "Miskill v. Social Security Administration" on Justia Law

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Louisiana law recognizes the right to extract minerals separately from ownership of the land (mineral servitudes). Servitudes generally revert back to the landowner if not used for 10 years. The servitudes at issue were established in 1932-1934, by deeds contemplating the 10-year prescriptive period. From 1934-1937, the United States acquired 180,000 acres of the encumbered land in Kisatchie National Forest. In 1940, Louisiana’s Act 315 retroactively declared that outstanding mineral rights in land sold to the United States would be imprescriptible while the government remained the landowner. Nebo acquired mineral rights in 1942, believing its rights imprescriptible. The government sought a declaratory judgment. The Fifth Circuit held that Nebo’s rights to a specific tract were imprescriptible. In 1973, the Supreme Court held that Act 315 could not be applied retroactively to land acquired by the government under the Migratory Bird Conservation Act. The Court did not overrule Nebo, distinguishing its facts. The government began issuing mineral leases. Servitude owners sought declaratory relief. The Fifth Circuit held that Act 315 could not provide the federal rule of decision and that the Kisatchie servitudes had prescribed. The Supreme Court denied certiorari. One servitude holder sued in the Claims Court, based on the same facts. The Federal Circuit affirmed dismissal of permanent takings claims, contract claims, and some temporary takings claims under the statute of limitations. The Claims Court subsequently held that remaining temporary takings claims were barred by 28 U.S.C. 1500; because the judicial takings claim would require the Claims Court to question the merits of the Fifth Circuit’s decision it also lacked jurisdiction over those claims. View "Petro-Hunt, L.L.C. v. United States" on Justia Law

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Appellants, current and former employees of the U.S. Secret Service, alleged that, as a result of new practices, the government denied them the two consecutive days off from work to which they were entitled under 5 U.S.C. 6101(a)(3)(B). The Claims Court concluded that it was without jurisdiction because this provision is not money-mandating because it only concerns work scheduling practices and does not address employees’ entitlement to pay. The Federal Circuit affirmed that court's dismissal of the case. “At most,” section 6101(a)(3)(B) entitles employees to have their basic 40-hour workweek scheduled in a particular fashion; whether their basic 40- hour workweek is Monday through Friday with Saturday and Sunday off, or Monday through Saturday with Wednesday and Sunday off, does not, itself, affect employees’ statutory entitlement to pay. Because section 6101(a)(3)(B) does not “‘command[] payment of money to the employee,’” nor is it “reasonably amenable to the reading that it mandates a right to money damages,” violations of the subsection do not implicate the remedies prescribed in the Back Pay Act. View "Adams v. United States" on Justia 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