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

Appleberry worked for the U.S. Citizenship and Immigration Services, under a collective bargaining agreement. Deeming her performance unsatisfactory, the agency placed her on a “performance improvement plan” and then found that she failed to improve. Eventually, relying on that failure, the agency fired her. When Appleberry brought her removal to arbitration, as authorized (but not required) by the collective bargaining agreement, the arbitrator concluded that she could not challenge the key bases for the removal, i.e., the agency determinations that she should be placed on the performance-improvement plan and that she failed under the plan; that the collective bargaining agreement, pursuant to 5 U.S.C. 7121, prescribed the exclusive process, including time limits, for challenging those determinations; but that Appleberry had abandoned that process after initiating it through filing grievances, allowing the time for completing challenges to run. The arbitrator barred reconsideration of “issues that were raised in [her] earlier grievances, or that could have been raised but were not.” The Federal Circuit affirmed, rejecting an argument that the arbitrator should not have barred consideration of the performance-improvement-plan issues raised in her earlier, uncompleted grievances; the arbitrator properly enforced the grievance process designated as “exclusive” in the collective bargaining agreement. View "Appleberry v. Dep't of Homeland Sec." on Justia Law

The Forest Service removed Bernard, a firefighter, from his position as supervisor. Bernard appealed. The agency and Bernard settled: the agency reinstated him in a non-supervisory role and provided back pay, promising that Bernard would not be restricted from applying for supervisory positions and would be given future fire assignments “the same as any other employee.” To receive assignments, an employee must have an Incident Qualification Card (red card), listing specific firefighting positions the employee is qualified to fill. A renewal card requires completion of annual training. Five months after his reinstatement, Bernard successfully completed the course. Other participants received renewal cards, but the agency did not issue a card to Bernard, indicating that an audit of his records found too few hard-copy documents supporting the entries. Bernard provided a copy of his 2010 card, signed by a certifying official, listing Bernard as qualified, until 2014, for 11 firefighting positions. After the agency requested additional documentation, Bernard notified it of a potential breach of the settlement, and received a card certifying him for seven positions. Bernard petitioned the Merit Systems Protection Board. An administrative judge found that Bernard had not established a breach, and— without acknowledging repeated requests for discovery—that Bernard “did not support his bare allegations with any evidence illustrating bad faith” and retaliation. The Federal Circuit vacated. The Board improperly denied discovery of potentially relevant evidence. View "Bernard v. Dep't of Agric." on Justia Law

Nurses employed by the Department of Veterans Affairs claimed entitlement to overtime pay under 38 U.S.C. 7453(e)(1), which requires the agency to compensate “officially ordered or approved” overtime work. The Claims Court dismissed because the nurses did not allege that the agency “expressly directed” their overtime. The Federal Circuit reversed and remanded. The statute does not require the official order or approval to be in any particular form, and the agency has not enacted any regulation interpreting the statute as mandating any particular procedure that must be followed to qualify for overtime pay. The words “officially ordered or approved” in section 453(e)(1) should have the same meaning as the same words which appear in the Federal Employee Pay Act, 5 U.S.C. 5542(a), which authorizes overtime pay generally for federal employees not covered by other specific statutes, The nurses allege the agency has “knowledge” that they work overtime “on a recurring and involuntary basis,” and that the agency ordered or approved such work through “expectation, requirement, and inducement.” Those allegations state a claim upon which relief may be granted under previous interpretation of the phrase “officially ordered or approved.” View "Mercier v. United States" on Justia Law

In 2013, the Department of Homeland Security issued a final decision removing Garcia from the U.S. Border Patrol for misconduct. Garcia received notice the same day. Under 5 U.S.C. 7121(e)(1), Garcia had the option to appeal his removal to the Merit Systems Protection Board (MSPB) or to invoke arbitration, under his union’s collective bargaining agreement (CBA). Article 34 of the CBA states that in cases involving adverse actions, such as removal, requests for arbitration “must be filed . . . not later than thirty (30) calendar days after the effective date of the action.” His union mailed a letter to the Agency requesting arbitration 28 days after the effective date of Garcia’s removal. The Agency did not receive this request until seven days later. After an arbitrator was appointed, the Agency moved to dismiss. The Arbitrator found the plain meaning of “filed” in the CBA requires actual receipt of the request for arbitration, relying on the definition of “file” used in federal court proceedings. The Federal Circuit reversed, holding that the request for arbitration need only be mailed within the 30-day time period. View "Garcia v. Dep't of Homeland Sec." on Justia Law

In 2010, while Kerner was an Evidence Custodian, GS-05, with the Department’s Fish and Wildlife Service, he applied for two vacancies: Wildlife Inspector, GS-09/11, and Wildlife Inspector, GS-11/11. Both positions were merit-promotion vacancies. Each required federal employee applicants to meet a time-in-grade requirement. A federal civil service applicant must have completed at least 52 weeks of experience equivalent to GS-07 to be qualified for the GS- 09 position, and at least 52 weeks of experience equivalent to GS-09 to be qualified for the GS-11 position. The vacancies also required one year of specialized experience in the federal civil service equivalent to GS-07 or GS-09, respectively. Kerner had no federal civil service experience at the GS-07 or GS-09 level and, therefore, did not meet the time-in-grade requirements. The Department determined that he did not qualify for either vacancy. Kerner then filed a Veterans Employment Opportunity Act claim with the Department of Labor, alleging that the Department violated his VEOA rights. The Department of Labor and Merit Systems Protection Board rejected the claim. The Federal Circuit affirmed. The provisions cited by Kerner only apply to preference-eligible veterans not already employed in federal civil service, not to current federal employees seeking merit promotions. View "Kerner v. Dep't of the Interior" on Justia Law

In March 2010, Herring was removed from her position as a cytotechnologist with the Department of the Navy. The Office of Personnel Management denied her application for disability retirement benefits. Herring received the relevant OPM denial letter on July 14, 2012. The deadline to file an appeal of the denial was August 13, 2012. However, because her attorney’s law office negligently failed to transmit to her attorney the documents submitted by Herring (while confirming to Herring that the necessary documents and payment had been received), Herring did not file the appeal until August 23. An administrative judge dismissed the appeal as untimely filed without good cause, and the Merit Systems Protection Board affirmed. The Federal Circuit reversed. The Board’s failure to consider a factor it has previously treated as significant to “good cause” indicates that the MSPB abused its discretion in its disposition of Herring’s petition. View "Herring v. Merit Sys. Protection Bd." on Justia Law

Hopper was hired by the Social Security Administration, which requested that the Office of Personnel Management (OPM) conduct a background investigation. Fifteen months later, OPM challenged his application. Asked whether, during the past five years, he had been fired from any job, Hopper responded “no.” OPM alleged that Hopper had been fired from two positions with different companies and that, in response to a question requesting a list of all employment for the past five years, Hopper failed to report one of those positions. Hopper responded with supporting documents, claiming that he was not fired from either position and, if he failed to report a position, “it was an honest mistake.” OPM rejected Hopper’s assertions. SSA removed Hopper. While appeal was pending, the Merit System Protection Board issued decisions that questioned whether an individual who meets the definition of “employee” and is separated under an OPM suitability action retains a right to appeal as an “adverse action.” At a hearing, OPM refused to participate. The ALJ mitigated OPM’s action to a reprimand. The Board upheld the decision. The Federal Circuit affirmed, rejecting an argument that the Board erred in approaching the case as an adverse action appeal, rather than as a suitability action under OPM’s regulations. The Civil Service Reform Act does not exempt suitability removals from Board jurisdiction. View "Archuleta v. Hopper" on Justia Law

Wrocklage was a Customs and Border Patrol Officer for 12 years. While screening travelers at Sault Sainte Marie, Wrocklage was the first to screen the Millers, who declared that they were carrying “fruits and vegetables.” At a secondary inspection point, Officer Hendricks issued a $300 fine to the Millers for failing to declare lemons and seeds. Wrocklage and LaLonde, contacted their supervisor, Price, challenging the propriety of the fine. Wrocklage took home a copy of the Treasury Enforcement Communication System (TECS) report, which included Miller’s social security number, birth date, address, and license plate number. In an email to the Joint Intake Center, Wrocklage reported that he believed the Millers had been wrongly charged. Wrocklage attached the TECS report and copied Berglund, an employee in Senator Levin’s office. Within hours, Wrocklage realized that the TECS report had been attached, contacted Berglund, and, in response to his request, Berglund deleted the emails before opening the report. Wrocklage immediately self-reported to DHS, which determined that the report had been printed by LaLonde. Wrocklage stated that he “d[id] not recall” where he obtained the report. Wrocklage and LaLonde explained that they both printed copies and jointly presented copies to Price, so it was possible that the copies were switched. DHS removed Wrocklage from his position for improper possession of TECS information, unauthorized disclosures of TECS information, and lack of candor during the investigation. The Merit Systems Protection Board affirmed. The Federal Circuit vacated, finding the charges of unauthorized disclosure and lack of candor not supported by substantial evidence. View "Wrocklage v. Dep't of Homeland Sec." on Justia Law

In a 2011 memorandum, the Secretary of the Navy explained that the Navy would be “challenged to reduce enlisted manning to meet future planned end strength controls due to record high retention in the current economic environment.” To address these concerns and to “optimize the quality” of the Navy, the Secretary initiated an Enlisted Retention Board (ERB) to identify 3,000 sailors for separation. The Navy notified all personnel, outlined a timeline, and identified particular pay grades and occupational classifications or specialties that would be subject to review. Sailors were informed that if their job rating was over-manned and slated for review, they could apply for conversion to an undermanned rating that would not be subject to review. The Navy also published the quotas for each overmanned rating that would be subject to the ERB to give the sailors information about competition among the different ratings and to enable them to make informed decisions about their careers. The ERB selected 2,946 sailors for honorable discharge. A putative class of about 300 of those discharged challenged their dismissal and sought back pay. The Court of Federal Claims dismissed the merit-based claims as nonjusticiable and denied remaining claims on the administrative record. The Federal Circuit affirmed. View "Anderson v. United States" on Justia Law

Darlene Devlin had been married for more than 40 years when her husband died, then a civilian federal employee for nearly six years, entitling Darlene to Basic Employee Death Benefits (BEDB), 5 U.S.C. 8442(b)(1)(A), 8466(b). However, Darlene died before she could sign or file an application for BEDB. Her son, Devlin, completed, signed, and filed an application for BEDB on her behalf. The Office of Personnel Management (OPM) denied the application, concluding that Darlene was not entitled to BEDB because she failed to submit an application for those benefits before her death. Devlin argued that his appointment as a co-administrator of his mother’s estate permitted him to sign and file the application for BEDB on her behalf. The e Merit Systems Protection Board and Federal Circuit affirmed the denial. View "Devlin v. Office of Pers. Mgmt." on Justia Law