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

Conforto worked for the Department of the Navy for 39 years; she alleges that she was forced to retire in 2010 because of events motivated by age and sex discrimination, and retaliation for prior equal employment opportunity activity. Her parking space was taken away; her subordinate was promoted over her; and she was denied permission to attend training. After Conforto submitted retirement papers but before her retirement became effective, her supervisor criticized her work, issued a formal letter of reprimand, denied a request for sick leave, and proposed to suspend her. After her retirement the agency charged her with improperly copying materials from her work computer, gave her a negative appraisal, and denied a bonus or raise for 2010. The Department concluded that she had not been subjected to discrimination or retaliation and had retired voluntarily. The Merit Systems Protection Board dismissed her appeal for lack of jurisdiction, finding her retirement voluntary. The Federal Circuit affirmed, rejecting a challenge to its jurisdiction under the Supreme Court’s decision in Kloeckner v. Solis (2012). Jurisdiction exits under 5 U.S.C. 7702(a)(1) in “mixed cases,” in which an employee has been affected by an action which the employee may appeal to the Merit Systems Protection Board and alleges discrimination. View "Conforto v. Merit Sys. Protection Bd." on Justia Law

Young served as a Public Housing Revitalization Specialist in the Office of Public Housing in the Cleveland office of the Department of Housing and Urban Development for 10 years. Young was representing himself at an arbitration hearing, appealing his five-day suspension for disruptive behavior, misrepresentation of authority, and use of insulting language to and about other employees. One of the witnesses testifying against him was Darr, Executive Director of the Coschocton Metropolitan Housing Authority and a HUD client. Following Darr’s testimony, there was a recess; Darr claims that while he was walking down the hallway, about 25-30 feet away from Young, Young shouted from immediately outside the door of the hearing room, “[y]ou are a racist. You are a member of the KKK, and you should be shot.” Young was later placed on administrative leave; notice of proposed removal issued. Interviews were conducted after Young submitted his oral and written statements, so that Young was unaware of the content and substance of the interviews and was unable to respond to anything unearthed during those interviews. An arbitrator rejected a challenge to Young’s termination. The Federal Circuit reversed, finding that the agency violated Young’s due process rights and its own procedures.View "Young v. Dep't of Housing & Urban Dev." on Justia Law

Prasch worked as a mail carrier for the Postal Service until suffering a work-related injury, compensable under the Federal Employees’ Compensation Act. He received benefits from the Office of Workers’ Compensation Programs from December 2007 until October 2008. Prasch applied for disability retirement. OPM approved his application and deposited $14,640.27, representing retroactive retirement annuity payments from December 2007 through the approval of his application. OPM paid him another $5,869.60 in retirement annuity benefits before determining that Prasch had received FECA disability benefits from OWCP during the period that OPM was paying him retirement annuity benefits. Because governing statutes prohibit dual benefits, OPM adjusted the commencement date of Prasch’s retirement annuity and computed an overpayment of $14,703.62.and sent a proposed repayment schedule. Prasch requested a waiver of the repayment obligation, lower installments, or a compromise payment, but he did not ask for reconsideration of OPM’s decisions as to the existence of the overpayment or its amount. OPM affirmed its initial decision, finding that Prasch should have known that he could not receive dual benefits and rejecting his claim of financial hardship, but extended the time for repayment. The Merit Systems Protection denied an appeal. The Federal Circuit affirmed. View "Prasch v. Office of Pers. Mgmt." on Justia Law

Denney served as a criminal investigator or special FBI agent from 1983 until her retirement in 2008. From 1983 until early 2001, Denney was eligible for and received “availability pay” under 5 U.S.C. 5545a, a form of premium pay equal to “25 percent of the rate of basic pay for the position” for criminal investigators that work at least 40 hours per week and actually work or are available to work an additional two hours per regular workday. The investigator and her supervisor must annually certify that the investigator meets the requirements. In 2001 Denney began working part-time and was no longer eligible for, and no longer received, availability pay. The Office of Personnel Management held that availability pay should not be included in “average pay” in calculating Denney’s retirement annuity. The Merit Systems Protection Board and Federal Circuit affirmed. View "Denney v. Office of Pers. Mgmt." on Justia Law

Stephenson began receiving a Federal Employees Retirement System disability retirement, annuity and applied for SSA disability benefits, as required of applicants for FERS disability retirement. SSA determined that he was entitled to receive monthly SSA disability benefits; the Office of Personnel Management reduced his FERS annuity, 5 U.S.C. 8452(a)(2)(A); 42 U.S.C. 423. The Social Security Act allows a “trial work period,” without loss of benefits. Stephenson completed a nine-month trial work period and demonstrated ability to work. SSA notified Stephenson that he was not entitled to payments beginning September 2009, but that he could get a 36-month extended period of eligibility after the trial work period. Stephenson requested that OPM terminate the offset in his FERS annuity. OPM denied the request finding that he retained eligibility for Social Security benefits and that the offset did not depend on actual receipt of benefits. An administrative judge and the Merit Systems Protection Board denied appeals, acknowledging section 8452’s use of the word “entitled,” not “eligible,” but finding Stephenson remained “entitled” to SSA benefits during the 36-month period. The Federal Circuit reversed; because Stephenson performed substantial gainful activity during that period, he was not “entitled” to benefits under section 223 of the Social Security Act. View "Stephenson v. Office of Pers. Mgmt." on Justia Law

Judge Abrams was an ALJ with the Social Security Administration since 2001. In 2007 the national office sent regional offices guidelines to facilitate case processing and service delivery. A Collective Bargaining Agreement between SSA and its ALJs provided that the benchmarks were guidelines, and would not be used as a source of any disciplinary or performance action. Later that year a nationwide initiative began to move cases through the process more quickly, with a particular focus on completing cases that were more than 900 days old. Abrams had frequently come to management’s attention due to his difficulty in timely processing cases. Efforts to address this included agreeing to exchange his older cases for newer cases, not assigning new cases or giving him “thin” cases, offering him docket management training, and offering to have his aged cases reassigned; the latter two he refused. After attempts to work with Abrams in 2007-2008, the SSA filed three complaints and sought suspensions for failure to follow instructions. The three complaints were combined, and a hearing was conducted. The ALJ concluded the evidence weighed in favor of removal. The initial decision was affirmed by the full Merit Systems Protection Board and the Federal Circuit. View "Abrams v. Soc. Sec. Admin." on Justia Law

Semper worked as a probation officer for the District Court of the Virgin Islands until he was removed from his position on August 6, 2010. The reason given for his termination was that he was negligent in supervision of a convicted defendant who was killed while on release pending sentencing. . Semper filed a complaint in the Claims Court against the United States, the Chief Judge, and the court’s Chief Probation Officer. The Claims Court dismissed, holding that it lacked jurisdiction. The Federal Circuit affirmed, first holding that the Civil Service Reform Act of 1978, 5 U.S.C. 7501-7543, applied to Semper, regardless of which governmental branch employed him. He was classified as a member of the “excepted service,” not the “competitive service,” and was not among those excepted service employees whom the statute makes eligible for judicial or administrative review of adverse agency action. View "Semper v. United States" on Justia Law

Conyers and Northover were indefinitely suspended and demoted, respectively, from their positions with the Department of Defense after they were found ineligible to occupy “noncritical sensitive” positions. The Department argued that, because the positions were designated “noncritical sensitive,” the Merit Systems Protection Board could not review the merits of the Department’s determinations under the precedent set forth in Navy v. Egan, 484 U.S. 518 (1988). The Board held that Egan limits review of an otherwise appealable adverse action only if that action is based upon eligibility for or a denial, revocation, or suspension of access to classified information. The Federal Circuit reversed and remanded. Egan prohibits Board review of agency determinations concerning eligibility of an employee to occupy a “sensitive” position, regardless of whether the position requires access to classified information. View "Berry v. Conyers" on Justia Law

Adams was employed as an Information Technology Specialist with the Missile Defense Agency of the Department of Defense, a position designated Special Sensitive and requiring the employee to maintain a Top Secret security clearance with access to Sensitive Compartmented Information. The Defense Intelligence Agency notified Adams that it had suspended his access to Sensitive Compartmented Information and had made a preliminary determination to revoke his security clearance for violations of agency security regulations. Weeks later, the Missile Defense Agency notified Adams that he would be suspended from his position indefinitely without pay. The Merit Systems Protection Board sustained the decision and the Federal Circuit affirmed, holding that the agency had afforded Adams the required minimal procedural protections and that “an employee is not entitled to a transfer to a nonsensitive position absent a separate transfer right arising from some” other source. Adams remained on indefinite suspension without pay pending completion of the agency appeals process. The Department of Defense terminated his employment and denied his request for early retirement. The MSPB held that it lacked jurisdiction to review the termination and denial. The Federal Circuit affirmed in part, but reversed concerning MSPB authority to review denial of a retirement request. View "Adams v. Dep't of Def." on Justia Law

Whiteman was employed by the FAA and reported violations of regulations, mismanagement, and abuses of authority. Whiteman alleged that colleagues and supervisors began to threaten and intimidate her. She filed EEO actions and reported one incident to police. She was excluded from the radar room and stripped of duties, then reassigned to the control tower instead of her previous job. In 2003, Whiteman settled with the FAA resolving all claims, “known or unknown” in exchange for guaranteed priority consideration for the next available supervisor position. December 9, 2003, Whiteman applied for a position. No other applicants were considered. December 18, 2003, the FAA adopted pay scale changes, which reduced the salary of the position. Whiteman accepted the position, but sued, alleging that the FAA’s delay in notifying her of the vacancy breached the settlement agreement and caused loss of earnings. The district court dismissed for lack of subject matter jurisdiction. Whiteman appealed to the Merit Systems Protection Board contending that the FAA had unlawfully retaliated against her for whistleblowing. The Board concluded that the claim was barred. The Federal Circuit affirmed in part. The MSPB incorrectly concluded that Whiteman’s post-settlement retaliation claim was collaterally estopped, but its conclusion that the settlement agreement is enforceable is supported by substantial evidence. View "Whiteman v. Dep't of Transp." on Justia Law