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

Shapiro began working for the Social Security Administration as an administrative law judge in 1997. As early as 1998, the Agency informed Shapiro that his performance was lacking. Shapiro’s poor performance continued and, in early 2000, “a tremendous backlog” of cases in his docket became apparent. The Agency began to take an active role in assisting Shapiro, including reviewing cases, drafting decisions, and returning them for signature. Shapiro’s performance, however, did not improve. The Agency continued to provide assistance and issue warnings until Shapiro’s supervisor concluded that “despite the extraordinary efforts to assist him, to mentor him, [and] to train him,” Shapiro could not manage his docket to meet expectations. The Agency filed a complaint under 5 U.S.C. 7521, with the Merit System Protection Board seeking a finding of good cause to remove Shapiro based on “unacceptable performance” and “neglect of duty.” The Federal Circuit affirmed the finding of good cause, noting that Shapiro’s production was dramatically lower than similarly situated ALJs, and that this failure to manage his caseload constituted good cause for removal. View "Shapiro v. Soc. Sec. Admin." on Justia Law

Konig’s SRI Employment Agreement, stated: I agree ….To promptly disclose… all discoveries, improvements, and inventions, including software … during … my employment, and … to effect transfer of ownership … to SRI . . . . I understand that termination of this employment shall not release me from my obligations. While employed by SRI, Konig started generating documents relating to a personalized information services idea called “Personal Web” and formed a company, Utopy. Konig left SRI and filed a provisional patent application in 1999; the 040 patent issued in 2005. In 2001, Konig asked an SRI scientist to test the Utopy products. The 040 patent was eventually assigned to PUM. Konig filed another patent application in 2008. PUM was the assignee; the 276 patent issued in 2010. In 2009, PUM sued Google, asserting infringement. PUM provided interrogatory responses that asserted that the conception of the inventions was while Konig was still at SRI. Google had acquired “any rights” that SRI had and counterclaimed breach of contract. The court stated that no reasonable juror could have found that the injury was “inherently unknowable,” applied the three-year limitations period for contracts claims, and granted PUM judgment on the counterclaim. The court also entered judgment of invalidity and noninfringement. The Federal Circuit affirmed, noting that the claim construction had no effect on the outcome and declining to issue an advisory opinion. View "Personalized User Model, LLP v. Google, Inc." on Justia Law

The Defense Contract Management Agency within the Department of Defense (DOD) employed Vassallo as a computer engineer in 2012. That summer, it announced a vacancy for the position of Lead Interdisciplinary Engineer, stating that only certain individuals could apply: “[c]urrent [DCMA]” employees or “[c]urrent [DOD] [e]mployee[s] with the Acquisition, Technology, and Logistics . . . [w]orkforce who are outside of the Military Components.” Vassallo, a veteran, applied, but DCMA rejected his application. The Office of Personnel Management (OPM) determined that DOD was not required to afford him veterans employment preferences under the Veterans Employment Opportunities Act of 1998 (VEOA), 112 Stat. 3182. OPM defines the word “agency” in 5 U.S.C. 3304(f)(1) to mean “Executive agency” as defined in 5 U.S.C. 105 and concluded that DCMA was not required to give Vassallo an opportunity to compete under 5 U.S.C. 3304(f)(1) because the DOD— the agency making the announcement—did not accept applications from outside its own workforce. Vassallo sought corrective action from the Merit Systems Protection Board, which concluded that OPM’s regulation permissibly fills a gap in the governing statute. The Federal Circuit affirmed, rejecting arguments that the OPM regulation contradicts the plain terms of the statute and unreasonably undermines the purpose of the VEOA. View "Vassallo v. Dept. of Defense" on Justia Law

Ryan was employed by FEMA (Department of Homeland Security). Her position required top secret security clearance. The agency suspended Ryan’s access to classified information after learning she had been indicted on federal charges of conflict of interest, soliciting a gratuity, and making a false statement. FEMA indefinitely suspended her without pay pending final determination by FEMA's Chief Security Officer concernng future eligibility for access to classified information. Ryan appealed to the Merit Systems Protection Board (MSPB). Although Ryan was acquitted, the MSPB found she was not entitled to immediate termination of the suspension because it “was based upon the suspension of her clearance and not the underlying reasons … (the indictment)” and MRPB cannot order reinstatement to a position requiring access to classified information while Ryan is without the required clearance. Ryan filed another appeal asserting unreasonable delay in adjudication of her security clearance. The MSPB affirmed dismissal for lack of subject matter jurisdiction. In a third decision, the MSPB found the basis for her suspension was not constructively amended. The Federal Circuit affirmed, noting that “denial of a security clearance . . . is not subject to [MSPB] review.” It was Ryan’s inability to access classified information, not the underlying reasons for the inability, that caused her suspension. View "Ryan v. Dep't of Homeland Sec." on Justia Law

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