Articles Posted in Government & Administrative 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

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Hyatt is the named inventor on more than 70 patents and approximately 400 pending applications, all filed before June 1995. With numerous amendments, those pending applications contained approximately 115,000 total claims by 2015. Each application incorporates and claims priority from applications dating back to the early 1970s. By 2015, the Patent Office (PTO) dedicated 14 full-time patent examiners to Hyatt’s applications. In the mid-2000s, the PTO started issuing final rejections, prompting appeals to the Patent Trial and Appeal Board (PTAB); the examiners never filed answers to Hyatt’s briefs, preventing PTAB from acquiring jurisdiction over his appeals. In 2013, the PTO issued formal “Requirements,” that Hyatt limit the number of claims from each patent family to 600 absent a showing that more were necessary, identify the earliest possible priority date and supporting disclosure for each selected claim, and present a copy of the selected claims to the PTO. The Federal Circuit upheld the "unique requirements." The PTO reopened prosecution of 80 previously-rejected applications. In 2014, Hyatt sued, alleging the PTO unreasonably delayed examination of his applications by reopening prosecution rather than letting PTAB hear his appeals. The PTO won summary judgment. Hyatt filed a petition (5 U.S.C. 553(e)) requesting that the PTO either repeal Manual of Patent Examining Procedure 1207.04 or declare it unenforceable. Section 1207.04 describes an examiner’s ability to, “with approval from the supervisory patent examiner, reopen prosecution to enter a new ground of rejection in response to appellant’s brief.” The Federal Circuit affirmed the dismissal of Hyatt’s 2016 suit challenging the denial of that petition. Hyatt’s claims are either time-barred or reliant on mistaken statutory interpretation. View "Hyatt v. United States Patent and Trademark Office" on Justia Law

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Palantir filed a pre-award bid protest, challenging the Army’s solicitation for Distributed Common Ground System-Army Increment 2 (DCGS-A2), the Army’s primary system for processing and disseminating multisensor intelligence and weather information. The solicitation seeks a single contractor to be the system data architect, developer, and integrator of DCGS-A2. Palantir’s complaint alleges that the Army violated the Federal Acquisition Streamlining Act (FASA) 10 U.S.C. 2377(c) by failing to determine whether its needs could be met by commercial items before issuing the contested solicitation. The Claims Court agreed. The Federal Circuit affirmed the entry of an injunction, rejecting arguments that the trial court erroneously added requirements to section 2377, including that the Army was required to “fully investigate,” “fully explore,” “examine,” and “evaluate” whether all or part of its requirements could be satisfied by commercially available items, such as Palantir’s product. FASA requires an agency to use the results of market research to “determine” whether there are commercial items that “meet the agency’s requirements; could be modified to meet the agency’s requirements; or could meet the agency’s requirements if those requirements were modified to a reasonable extent.” While the trial court’s thorough opinion sometimes uses words other than “determine,” read in context, those words were intended to be synonymous with “determine.” View "Palantir USG, Inc. v. United States" on Justia Law

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Miller served in the government's military and civilian sectors before retiring. Because he became an “employee” before October 1982, Miller’s credit for military service can count toward the calculation of his civil service retirement annuity, subject to 5 U.S.C. 8332(c)(2). An annuitant who does not satisfy the requirements of section 8332(c)(2)(A)–(B) but wishes to count military service toward civil service retirement must waive his military retired pay for that period and, in some circumstances, pay a deposit. 5 C.F.R. 831.301(c). The Merit Systems Protection Board affirmed the Office of Personnel Management determination of the periods of Miller’s government service that were “creditable” for calculating his civil service retirement annuity. The Federal Circuit concluded that the Board erred in its decision with respect to Periods One and Two, but upheld its decision with respect to Period Three. For concurrent military and civilian service in Period One, Miller is entitled to credit toward both his military and civilian retirement. Substantial evidence does not support the Board’s finding that Miller was in leave-without-pay status during Period Two; he was in a concurrent service situation and is entitled to have Period Two credited as civilian service. Miller is deemed to have had no civilian service during Period Three and has not made a deposit or waived his military retirement pay for this period. View "Miller v. Office of Personnel Management" on Justia Law

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Pay for doctors employed at VA hospitals, consisting of base pay, market pay, and performance pay is governed by 38 U.S.C. 7431. A pay panel meets at least every two years to determine market compensation for an individual physician and must consider new pay tables, issued by the Veterans Health Administration (VHA). Two women physicians at the Central Arkansas Veterans Healthcare System were hired in 2008 for an annual pay of $195,000, slightly less than the maximum allowed by the pay table. One year later, their base pay increased. As of November 2010, both were due for adjustments to market pay. In December 2010, VHA initiated a pay freeze. In 2012, each doctor filed an EEOC complaint, identifying male doctors whom they alleged were similarly situated and were being paid more. An EEOC officer concluded that they could not prove that the reasons for the salary differences were pretextual or resulted from unlawful discrimination. The pay freeze continued until December 2013. Both doctors then received base increases according to their longevity and received market pay increases to make their compensation “more in line with other emergency department physicians.” Each was restored to the middle of the salary spread. The doctors sued under the Equal Pay Act The Claims Court did not analyze whether they had established a prima facie case of salary discrimination, holding that they had not shown that discrimination was the reason for a male physician’s raise one year after being hired or for delays in processing their raises in time to avoid the pay freeze. The Federal Circuit affirmed. The doctors presented no evidence that the pay differential was based on sex, either historically or presently. View "Gordon v. United States" on Justia Law