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

Miller worked as the Superintendent of Industries at the Beaumont, Texas Federal Correctional Complex, overseeing a prison factory that produced ballistic helmets primarily for military use. Miller occasionally served associate warden and was described by Warden Upton as “a fantastic employee.” In 2009, Miller disclosed to the government-owned corporation that ran the prison and to Upton what he perceived to be mismanagement of factory funds. The Office of Inspector General (OIG) conducted an inspection. Upton asked Miller to not report to the factory that day. The next day, Miller reported that there had been “sabotage” at the factory, and urged that it be closed pending investigation. Hours later, Upton informed Miller that he was being reassigned. Upton later testified that OIG was concerned that Miller might compromise its investigation. Over the next four and a half years, Miller was assigned to low-level positions. Upton attributed his reassignments to unidentified OIG staff. Eventually, Upton reassigned Miller to sit on a couch in the lobby for eight months. Miller appealed to the Merit Systems Protection Board, alleging violation of the Whistleblower Protection Act, 5 U.S.C. 2302(b)(8). The Administrative Judge found that the government had rebutted his case. The Federal Circuit reversed. The government did not prove by clear and convincing evidence that it would have reassigned Miller absent his protected disclosures. View "Miller v. Department of Justice" on Justia Law

Graviss has worked in education since 1978. In 2008, she became a pre-school special needs teacher at Kingsolver Elementary, part of Fort Knox Schools. Kingsolver’s principal, McClain, issued Graviss a reprimand based on an “inappropriate interaction with a student” and “failure to follow directives,” asserting that Graviss and her aide had physically carried a misbehaving pre-school student and Graviss had emailed concerns to the director of special education, although McClain had directed Graviss to “bring all issues directly to [her].” The union filed a grievance. Subsequently, one of Graviss’s students had an episode, repeatedly flailing his arms, kicking, and screaming. While the other students were out at recess, Graviss employed physical restraint to subdue the child. After an investigation, McClain submitted a Family Advocacy Program Department of Defense Education Activity Serious Incident Report and Alleged Child Abuse Report to the Family Advocacy Program (child protective services for the military). McClain forwarded the Report to her direct supervisor, who was later the decision-maker in Graviss’s termination. An arbitrator concluded that that Graviss's termination promoted the efficiency of the service and was reasonable. The Federal Circuit reversed, concluding that Graviss’s due process rights were violated by improper ex parte communication between a supervisor and the deciding official. That communication contained new information that the supervisor wanted Graviss terminated for insubordination. View "Federal Education Association v. Department of Defense" on Justia Law

In 2013, Cleaton, a Correctional Officer at the Federal Correctional Complex in Petersburg, Virginia, was indicted in Virginia state court on a felony charge for possession of marijuana with intent to distribute. He pled no contest to the felony charge pursuant to a plea deal. The court deferred the imposition of the sentence “upon the condition that defendant cooperate fully with the requests for information made by the Probation Officer, who is directed to conduct a thorough investigation and to file a long-form presentence report with the Court.” Weeks later, the Bureau of Prisons proposed to remove Cleaton from his position pursuant to 5 U.S.C. 7371(b). The Merit System Protection Board upheld the removal, rejecting Cleaton’s claim that he had not been convicted of a felony. After Cleaton was removed, he obtained new counsel and entered into a revised plea agreement. The court clarified that, upon successful completion of the probation period, the charges against Cleaton will be dismissed. The Federal Circuit affirmed. An individual can be “convicted” for purposes of section 7371(b) “once guilt has been established whether by plea or by verdict and nothing remains to be done except pass sentence.” View "Cleaton v. Dept. of Justice" on Justia Law

Purifoy missed two days of work as a housekeeping aid in a Milwaukee VA medical facility without authorization. That week, he sought treatment for substance abuse at the facility where he worked. He was admitted and transferred to Madison for treatment. Purifoy verbally informed his VA supervisor that he would miss work, but did not fill out leave paperwork. Nor did he inform his parole officer that he would miss upcoming supervision visits. His parole officer issued an arrest warrant. Purifoy agreed to report to the Milwaukee Secure Detention Facility of the Wisconsin Department of Corrections for treatment as an alternative to parole revocation. He entered the program, but was terminated after an altercation with another inmate; he remained as an inmate at MSDF for 38 more days. Following his release, Purifoy returned to work. The VA removed him from employment as a penalty for his unexcused absences, having first sent him a notice of proposed removal while he was at MSDF. A second notice cited two instances of extended unauthorized absence. Although an ALJ ordered Purifoy reinstated, the Merit Systems Protection Board upheld the termination. The Federal Circuit vacated, finding that the Board’s analysist improperly omitted relevant mitigation factors and discarded the ALJ’s credibility determinations without adequate rationale. View "Purifoy v. Dep't of Veterans Affairs" on Justia Law

In 1987, Fitzgerald began working as an Immigration Inspector with the Immigration and Naturalization Service of the Department of Justice. From 1988-2000, she served as a Customs Inspector with the Customs Service of the Department of the Treasury. Fitzgerald has been continuously employed in various Instructor positions at the Federal Law Enforcement Training Center (FLETC) since 2000, providing training to federal criminal investigators and law enforcement officers. In 2012, Fitzgerald requested review of her employment history so that she could obtain Customs Officer retirement credit for her past service with INS and Customs. Federal retirement laws extend enhanced benefits to certain groups, such as law-enforcement officers and firefighters, who have served in physically rigorous positions. Under the Federal Employees’ Retirement System, those benefits include eligibility to retire with an annuity at an earlier age than many other federal employees and eligibility to retire based on fewer years of service, 5 U.S.C. 8412(d)(1),(2). In 2007 the law was amended to extend benefits to Customs and Border Patrol Officers. The Merit Systems Protection Board and Federal Circuit affirmed denial of her claim, finding that the amendment did not provide “retroactive service” credit for service performed before July 2008, its effective date. View "Fitzgerald v. Dep't of Homeland Sec." on Justia Law

In 2015, Jones, a veteran, filed 16 appeals with the Merit Systems Protection Board (MSPB), alleging that the U.S. Department of Health and Human Services (HHS) violated the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), 38 U.S.C. 4301–4333, when it did not select him for various job vacancies. An administrative judge consolidated the appeals and ultimately denied relief in an Initial Decision. That Decision became the Final Decision of the MSPB when Jones did not timely file a petition for review. The Federal Circuit affirmed, first holding that it had jurisdiction, rejecting an argument that there was no . final MSPB decision from which Jones could appeal. The AJ properly found that neither direct nor circumstantial evidence supported Jones’s USERRA claim and failed to demonstrate by a preponderance of the evidence that his military service was a motivating factor in HHS’s decision not to hire him for the subject job vacancies. View "Jones v. Dept. of Health & Human Servs." on Justia Law

In 1985-1986, Kerrigan was a Navy carpenter. He injured his back and was awarded workers’ compensation benefits by the Office of Workers Compensation (OWCP). In 1993, Kerrigan raised concerns regarding his benefits. Over several years, Kerrigan made multiple requests, some of which were denied. In 2001, Kerrigan contacted the Department of Labor Office of Inspector General (OIG) alleging that DOL employees had based one denial on a form that they falsified or destroyed. The OIG did not investigate, but forwarded the letter to OWCP. Kerrigan pursued, over several years, a suit against DOL for illegal termination of benefits and a suit against the physician who reviewed his medical records. Both were dismissed. In 2013, Kerrigan filed a complaint with the U.S. Office of Special Counsel, which chose not to investigate, but referred him to the Merit Systems Protection Board, where Kerrigan alleged retaliatory termination of benefits. The ALJ dismissed Kerrigan’s appeal, stating that the Whistleblower Protection Act only covers actions taken by an agency concerning its own employees. The Board stated that 5 U.S.C. 8128(b) provides that benefits determinations are within the exclusive jurisdiction of the DOL and are unreviewable and that Kerrigan failed to nonfrivolously allege that his protected disclosures were a contributing factor in the decision to terminate benefits. The Federal Circuit affirmed. While 5 U.S.C. 8128(b) does not bar review, Kerrigan failed to nonfrivolously allege that his protected disclosure was a contributing factor in the decision. View "Kerrigan v. Merit Sys. Protection Bd." on Justia Law

Rosario was an Army Corps of Engineers biologist until his 2010 termination. In 2011, the Merit Systems Protection Board ordered his restoration. His improper removal caused Rosario to suffer depression. He took sick leave. In May 2012, Rosario submitted a letter from Dr. Rodriguez-Velez, to his supervisor, Castillo, stating that his symptoms, which included paranoia and aggressive episodes, were not improving. In April, Rosario submitted another letter, recommending that Rosario return to work, 20–30 hours per week. The Corps viewed this as a request for reasonable accommodation and requested further information. After a delay, Rosario replied that he was going to return to work full time. Castillo informed Rosario that due to the possibility of aggressive episodes, Rosario needed to provide a medical release. Rosario requested leave under protest, then submitted a letter from Dr. Rodriguez-Velez, recommending that Rosario apply for disability because his depression had returned. Rosario did not provide any other medical documentation, despite reminders, and continued to request leave. In November 2012, Rosario forwarded a doctor's report, recommending that Rosario return to work, 20–30 hours per week.The Corps issued a “Revised Notice of Proposed Removal” based on the same charges that led to the 2010 removal. Rosario was placed on administrative leave. Rosario appealed, arguing that he was constructively suspended from July-November 2012. The Board concluded that he was not constructively suspended. The Federal Circuit affirmed the decision as supported by substantial evidence. View "Rosario-Fabregas v. Merit Sys. Protection Bd." on Justia Law

Grover worked for many years for the Customs and Border Protection service and participated in the Civil Service Retirement System, 5 U.S.C. 8331–8351. He retired in 2008 and applied for a retirement annuity. By statute, the annuity must reflect the highest average annual pay based on three consecutive years of specified service, and for a customs officer like Grover in the years in question, the calculation must include overtime pay up to $17,500. The Office of Personnel Management (OPM), in calculating Grover’s pay, did not include anything close to $17,500 in overtime pay, although Grover asserted that he received more than $17,500 in overtime pay in those years. The Merit Systems Protection Board upheld OPM’s calculation, which relied on a particular official record. The Federal Circuit vacated. Neither OPM nor the Board recognized that the record is internally contradictory about what overtime pay Grover received, so neither sought further information, such as pay stubs, that might definitively resolve the uncertainty. The regulation does not permit the Board to affirm OPM’s calculation without resolving the amount-of-overtime-pay factual issue. View "Grover v. Office of Pers. Mgmt." on Justia Law

The Federal Aviation Administration hired De Santis in 2013 and fired him less than one month later, while he was in his probationary period. He appealed to the Merit Systems Protection Board under 5 C.F.R. 210.101, 315.805, and 315.806, which apply to employees in the competitive service. The Board dismissed for lack of jurisdiction because De Santis was in the excepted service, not the competitive service. The Federal Circuit affirmed, citing 49 U.S.C. 40122(g)(3), which authorizes FAA employees to appeal “any action that was appealable to the Board … as of March 31, 1996.” Under that section, Board jurisdiction over an FAA employee’s appeal depends on whether, given the employee’s status in the excepted service at the time of the challenged action, that employee comes within the grants of appeal rights that existed on March 31, 1996. The court rejected an alternative reading under which the Board would disregard the employee's actual current status and ask what status a person in that position, or a similar position, would have had on March 31, 1996. De Santis was an excepted-service employee, and the regulatory appeal rights at issue, unchanged since March 31, 1996, do not apply to excepted-service employees. View "De Santis v. Merit Sys.Protection Bd." on Justia Law