Justia U.S. Federal Circuit Court of Appeals Opinion Summaries

Articles Posted in Labor & Employment Law
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The Federal Employees’ Retirement System Act provides early retirement benefits to law enforcement officers (LEOs), 5 U.S.C. 8412(d) after obtaining sufficient "LEO credit," which may be awarded for time served in either a primary law enforcement position or secondary (supervisory or administrative) law enforcement position if an employee is “transferred directly” to a secondary position after serving in a primary position. Klipp worked for the TSA, 1991-2009. In a parallel case, Klipp was determined to be entitled to LEO credit for 1991–98, but not for 1998–2008; his 2004–2009 position was not eligible for LEO credit, although it was a secondary position, because there was a break in service between his primary position and his secondary position.Klipp then sought primary LEO credit for his post-2004 position. In 2004, TSA hired Klipp as a Supervisory Criminal Investigator-Assistant Federal Security Director-Law Enforcement (AFSD-LE) for the New Orleans International Airport. The government never hired subordinate officers or investigators for him to supervise. In 2005, Klipp’s position title changed to “nonsupervisory” criminal investigator. Klipp argued that LEO credit can be awarded if the applicant’s actual duties were primarily LEO duties, even if the position description denotes a secondary position. The Merit Systems Protection Board denied Klipp's request for retroactive LEO retirement coverage for 2005-2009. The Federal Circuit vacated. The Board did not properly analyze whether 50 percent or more of Klipp’s actual duties were LEO duties under circuit precedent. View "Klipp v. Department of Homeland Security" on Justia Law

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Rickel, a Fire Protection Specialist at Naval Air Station Jacksonville, was Assistant Chief of Training, responsible for determining training requirements, reviewing training records, and ensuring that firefighters’ certifications were current. Rickel applied for the Deputy Fire Chief position. Fire Chief Brusoe selected Gray. Rickel questioned the promotion and Gray’s candor in his application, asserting that several unidentified candidates had been promoted without required credentials. Gray responded that Rickel should update the training records. Rickel questioned Gray’s authority as his supervisor and claimed that his position did not require him to do so. Chief Brusoe informed Rickel that Gray was his supervisor. Gray instructed Rickel to update the records and documented that such a task was within his job description. The due date passed. The Executive Officer of Naval Air Station Jacksonville confirmed that the task was within Rickel’s responsibilities. Rickel did not respond to requests for status updates nor did he complete the work. Gray undertook the project, noting that it took 16.5 hours.Chief Brusoe proposed to remove Rickel for failure to follow instructions. Rickel appealed to the Merit Systems Protection Board, alleging unlawful retaliation for his protected disclosures. The Federal Circuit affirmed the Board’s finding that Rickel had engaged in protected whistleblowing activity, which was a contributing factor in the removal decision but that the agency had proven “by clear and convincing evidence that it would have removed [Rickel] even in the absence of his protected activity.” View "Rickel v. Department of the Navy" on Justia Law

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Bryant was a VA police officer, assigned to the Columbus Community Based Out-Patient Clinic in Columbus, Georgia. The VA issued Bryant a notice of proposed removal under 38 U.S.C. 714 based on conduct unbecoming a federal employee. The notice alleged that while sheriff's officers were attempting to serve Bryant “with a Temporary Family Violence Order of Protection,” Bryant made inappropriate statements and displayed a lack of professionalism; Bryant “ma[de] threats” that “caused these [officers] to fear for their safety,” which was “unacceptable” and “inexcusable” for a “[f]ederal [p]olice [o]fficer entrusted with carrying a loaded firearm each day.”The deciding official found that the charge was supported by substantial evidence and decided to remove Bryant from employment. Bryant contested whether the charged conduct occurred and whether removal was an appropriate penalty under the Douglas factors, and alleged as an affirmative defense of reprisal for protected whistleblowing activity. The administrative judge found that “the agency proved the charge by substantial evidence.” The Federal Circuit vacated in part. The Merit Systems Protection Board applied the wrong standard and, on remand, must apply a “preponderance of the evidence” standard to determine whether the conduct occurred and apply the Douglas factors to the penalty. Bryant failed to prove his affirmative defense of whistleblower reprisal. View "Bryant v. Department of Veterans Affairs" on Justia Law

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Bannister has been employed by the VA for over two decades. While working as a pharmacist at the Baton Rouge Southeast Louisiana Veterans Health Care System, Bannister received a notice of proposed removal under 38 U.S.C. 714 based on conduct unbecoming a federal employee. The notice alleged that Bannister had repeatedly spoken rudely and inappropriately to veterans and coworkers, had “yell[ed] and scream[ed]” at pharmacy personnel after being informed that she had been assigned to provide curbside triage to patients.The VA issued a final decision sustaining the charge but mitigating the proposed penalty to a 30-day suspension. After considering Bannister’s “written replies” “along with all the evidence developed and provided to [Bannister],” the deciding official “found that the charge as stated in the notice of proposed removal [was] supported by substantial evidence.” Bannister contested whether the charged conduct occurred, and she alleged as an affirmative defense that the VA suspended her in reprisal for protected whistleblowing activity. The Merit Systems Protection Board upheld Bannister’s suspension.The Federal Circuit rejected her whistleblower claim but found that the Board’s decision as to the underlying suspension rested on an incorrect statement of law. On remand, the Board should apply the preponderance-of-the-evidence standard of proof. View "Bannister v. Department of Veterans Affairs" on Justia Law

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Dr. Standley was employed by the Department of Energy (DOE) National Nuclear Security Administration. Standley contends that over several years he sought to ensure that the Space and Atmospheric Burst Reporting System (SABRS) for nuclear detection, was funded and supported, believing this was required under section 1065 of the National Defense Authorization Act of 2008. He claims his superiors attempted to block funding and his work on SABRS. In 2015, Standley sent an email entitled “Obstruction of Public law 110- 118, NDAA 2008, Maintenance of Space-based Nuclear Detonation Detection System” to the Under Secretary of State for Arms Control and International Security Affairs, with copies to Department of Defense representatives, and the Office of Special Counsel. Following several additional unsuccessful attempts to change DOE's position, Standley filed an unsuccessful appeal with the Merit Systems Protection Board, alleging that DOE and its employees retaliated against him for his efforts to change the DOE policy by not selecting him for any of three DOE Director positions posted in 2014-2017. Standley claimed he was engaging in protected whistleblowing when he opposed efforts to defund SABRS. The Federal Circuit affirmed. Substantial evidence supports the Board’s decision. Section 1065 does not require that the DOE provide its SABRS program to the Secretary of Defense. The court acknowledged “Standley’s well-intentioned beliefs about the mission,” and his pro se status, but found his challenges to a government policy decision with which he disagreed unavailing. View "Standley v. Department of Energy" on Justia Law

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Ash challenged the Office of Personnel Management’s (OPM) denial of his application for disability retirement benefits. Ash asserted disparate treatment based on race and prior protected activity. The Merit Systems Protection Board (MSPB) affirmed. Ash appealed.The Federal Circuit transferred the case to the District of Maryland. Because this case involves an action that is appealable to the MSPB and a discrimination allegation, it is a mixed case. Under 5 U.S.C. 7703(b)(1)(A), an appellant generally must appeal a final MSPB decision to the Federal Circuit but if the appellant has been affected by an action that the appellant may appeal to the MSPB and alleges that a basis for the action was discrimination prohibited by enumerated federal statutes, then the appellant has a “mixed case” and must seek judicial review in federal district court. One of those enumerated federal statutes is 42 U.S.C, 2000e16, which prohibits racial discrimination with respect to “personnel actions.” An appeal arising from a benefits decision can be a “personnel action” giving rise to a mixed case. An OPM decision that adversely affects retirement “rights or benefits,” like the Ash decision, is a “personnel action,” 5 U.S.C. 8461(e), that is appealable to the MSPB and alleges discrimination. View "Ash v. Office of Personnel Management" on Justia Law

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Dr. Smolinski is a Supervisory Physician in the Traumatic Brain Injury Clinic of the Landstuhl Regional Medical Center (LRMC), an Army hospital in Germany. He was a Lieutenant Colonel in the Army and occasionally saw patients at LRMC as a visiting provider. The Army purportedly changed the salary Smolinski was offered and delayed his move to a new position. Smolinski’s subsequent complaint under the Whistleblower Protection Act, 5 U.S.C. 1221, alleged those actions were retaliation for his wife’s 2017 patient complaint, his 2018 testimony in an investigation into an officer, and his 2019 Office of Special Counsel (OSC) complaints.The Merit Systems Protection Board dismissed his complaint, citing lack of jurisdiction because Smolinski failed to establish that those activities were protected disclosures. The Federal Circuit affirmed in part. Smolinski failed to allege sufficient factual matter to state a plausible claim that his wife’s patient complaint was a protected disclosure, and did not exhaust his administrative remedies regarding his claim of retaliation for his OSC complaints. With respect to Smolinski’s claims alleging retaliation for his 2018 testimony, however, the court reversed the dismissal and remanded for the Board to consider those claims on the merits. View "Smolinski v. Merit Systems Protection Board" on Justia Law

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Dr. Metzinger brought an Equal Pay Act (EPA) suit against her employer, the VA, in the Eastern District of Louisiana, alleging that the government violated 29 U.S.C. 206(d), by paying her less than her male subordinates. She sought over $10,000 in damages. The government argued that the Court of Federal Claims had exclusive subject-matter jurisdiction over EPA claims against the government for over $10,000. In the alternative to dismissal, the government requested that the district court transfer Metzinger’s EPA claim to the Claims Court under 28 U.S.C. 1631. Metzinger opposed dismissal but allowed that if the district court concluded that it lacked jurisdiction, it should transfer the EPA claim. The district court agreed that it lacked subject-matter jurisdiction and transferred Metzinger’s EPA claim to the Claims Court under 28 U.S.C. 1631.Metzinger appealed to both the Fifth and Federal Circuits. The Fifth Circuit summarily dismissed. In a joint filing, the government reversed course, agreeing with Metzinger that the district court possessed jurisdiction. The Federal Circuit affirmed the transfer to the Claims Court. Precedent dictates that district courts lack subject-matter jurisdiction over EPA claims against the government for over $10,000. View "Metzinger v. Department of Veterans Affairs" on Justia Law

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Former and current Drug Enforcement Agency (DEA) employees were relocated to Puerto Rico or the U.S. Virgin Islands at the DEA’s request for two to five years. Each received a one-time relocation incentive bonus under 5 U.S.C. 5753(b), which provides that “[t]he Office of Personnel Management may authorize the head of an agency to pay a [relocation incentive] bonus” to an individual who relocates to accept a position. Each bonus was equivalent to 25% of each employee’s yearly salary. The employees allege they are entitled to a relocation incentive bonus for each year of their relocation, rather than the one-time bonus they received.The Federal Circuit affirmed the Claims Court’s dismissal of that claim, for lack of subject matter jurisdiction. The claim was not based on a statute or regulations that are money mandating, as required for jurisdiction under the Tucker Act, 28 U.S.C. 1491(a)(1). The statute and implementing regulations use discretionary language. View "Bell v. United States" on Justia Law

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Valles began working for the State Department as a passport specialist in 2011. In 2016, Valles served a three-day suspension for charges concerning inappropriate sexual and political comments made to co-workers and customers. In 2018, Valles served a five-day suspension for failure to follow instructions and failure to protect personally identifiable information. In 2019, Valles received a performance appraisal of “Fully Successful” for 2018.The agency nonetheless proposed Valles’ removal based on four charges from 18 specifications dating between July 2018 and February 2019. Some of the alleged conduct occurred during the 2018 evaluation period. The charges included failure to follow instructions, failure to properly move along applications and provide updates, leaving a passport application on a photocopier, failure to follow policies concerning the handling of fees, not maintaining control over applications, leaving his adjudication stamp unsecured, and drinking from a wine glass at his workstation in the public counter.An administrative judge upheld the termination. The Federal Circuit affirmed. The agency proved all the charges and established a nexus between the proven misconduct and the agency’s ability to carry out its mission. The penalty was reasonable, considering all the relevant “Douglas” factors, including the repeated nature and seriousness of the misconduct, Valles’ prior discipline, his seven years of federal service and job performance, the consistency of the penalty with similar cases, and the lack of rehabilitation potential on Valles’ part. View "Valles v. Department of State" on Justia Law