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

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

Gallo served as an FAA air traffic control specialist from 1982 until 1995 when she experienced a job-related injury for which she received OWCP benefits. Gallo recovered enough to return to light duty. In 1996 she lost her medical certification to continue as an operational ATCS. Until 2000 she was assigned to a “non-operational” automation specialist position, which did not provide the same retirement credit or weekend pay. She received OWCP benefits for the differential. Gallo fully recovered in 2000 and received medical clearance; the Agency terminated OWCP benefit. She applied for restoration under 5 U.S.C. 8151(b)(2), which provides the right to priority consideration for restoration to federal employees who have overcome a compensable injury. The Agency assigned Gallo to a supervisory ATCS position. In setting her salary, the Agency did not take into account pay increases granted to operational ATCS employees during while Gallo was working as an automation specialist. The Merit Systems Protection Board denied her claim. The Federal Circuit reversed. The Board erred in interpreting “resumes employment with the Federal Government” under section 8151(a), and any pay increases that Gallo would have received based on her creditable service time with the federal government are “benefits based on length of service.” View "Gallo v. Dep't of Transp." on Justia Law

In 2008, Rocha was appointed to an excepted service position at the State Department. By letter (July, 2010), the Department informed Rocha that his appointment would soon expire and that the agency would not convert his appointment into a career or career-conditional position. An administrative judge concluded that the board had no jurisdiction over Rocha’s appeal because he was serving under an excepted service appointment in the Federal Career Intern Program. Rocha was informed by the administrative judge that the decision would become final on December 15, 2010. The initial decision was served upon Rocha by email; he had consented to electronic filing. On June 3, 2011, Rocha filed a petition with the board, which informed Rocha that his petition was untimely and that it would consider the merits only if he established good cause for untimely filing. In response, Rocha asserted that he never received notification that his case had been dismissed. On December 22, the board dismissed, noting that its regulations require an e-filer to monitor case activity at e-Appeal Online to ensure receipt of all documents. Rocha presented no evidence of circumstances beyond his control that affected his ability to comply with time limits. The Federal Circuit affirmed. View "Rocha v. Merit Sys. Protection Bd." on Justia Law

A subsidiary of Marathon hired Preston as a relief pumper in Marathon’s coal bed methane well operation. After beginning work, Preston signed an Employee Agreement containing the assignment at issue. Later, Preston worked with Marathon Engineer Smith on a baffle system to improve machinery used to extract methane gas from water-saturated coal in a coal bed methane gas well. Marathon installed the system on wells. After Preston’s employment ended, both Marathon and Preston pursued patents. The district court declared that Preston is the sole inventor of one patent and that Smith was misjoined as an inventor; ordered the PTO to issue a new certificate reflecting Preston as the sole inventor; declared Marathon the owner of other patents pursuant to the employment agreement and that Preston breached the agreement for failing to assign his rights. The court entered summary judgment in favor of Marathon on its shop right claim, finding that, even if Marathon did not own the patents, it had a shop right to practice the inventions. The Federal Circuit affirmed that Preston assigned his rights in two inventions to Marathon pursuant to his employment agreement. Because that assignment was automatic, there was no breach of that agreement. View "Preston v. Marathon Oil Co." on Justia Law

Whitmore began his federal government career in 1972. In 1990 his group transferred to the Occupational Safety and Health Administration. Prior to 2005, Whitmore regularly received better than satisfactory performance reviews, bonuses, and awards, and was never subject to discipline. In 2005, Whitmore began making public disclosures that OSHA was failing to enforce its recordkeeping requirements and acquiescing in industry reports of impossibly low numbers of injuries and illnesses. He provided comments to newspapers. Also in 2005, Whitmore provided an affidavit supporting a co-worker in her Equal Employment Opportunity complaint for alleged discrimination and retaliation by her managers at OSHA. Due to various medical and personal matters, Whitmore took significant leave from work. Following a number of additional incidents, he was removed from his position. The Merit Systems Protection Board upheld the termination. The Federal Circuit reversed. In analyzing whether the DOL had proven by clear and convincing evidence that Whitmore would have been removed regard-less of his whistleblowing disclosures (5 U.S.C. 2302(b)(8)), the MSPB excluded or ignored evidence offered by Whitmore necessary to adjudicate Whitmore’s retaliation claim, and otherwise applied the law incorrectly. View "Whitmore v. Dep't of Labor" on Justia Law

Plaintiff, a Naval Criminal Investigative Service engineer since 1984, agreed to a transfer in 2002. The transfer was delayed because of her mother’s poor health. Shortly before the transfer was to occur, she voluntarily responded to a summons to act as a grand juror. The Navy paid her while she served as a grand juror (5 U.S.C. 6322(a)), but ordered her to report to Washington year later and directed her not to seek or accept extension of her grand jury duties. She nonetheless was sworn in for a second term. The Navy declared her to be AWOL, the Merit Systems Protection Board dismissed an appeal, and she was terminated from her employment. The claims court granted summary judgment in favor of the government on pre-removal back pay claim and dismissed, for lack of subject matter jurisdiction, her post- removal claims for back pay, reinstatement, and other forms of compensation. The Federal Circuit reversed in part, holding that the claims court erred in interpreting 5 U.S.C. 6322(a), which entitles a grand juror to court leave when "summoned," regardless of whether the grand juror volunteered to be summoned. View "Hall v. United States" on Justia Law

Norris was an SEC trial attorney from 1992, until he was removed in 2009. He had twice previously been disciplined for exercising poor judgment and misuse of government email. The firing was based on emails expressing political views, demeaning support staff, and sending a confidential suspicious activity report to an appointed receiver in violation of SEC policies. Norris claimed that the 2008 emails were influenced by his wife becoming fully disabled, his daughter suffering from Asperger's Disorder, and his own adult AD/HD. The union submitted the removal to arbitration. During the hearing, the arbitrator received testimony that Norris had a confrontation with agency commissioners in 2007 and that he was barred from presenting cases to commissioners in the future; Norris denied the allegation. Norris testified that his personal circumstances had improved. The arbitrator affirmed the firing. The Federal Circuit vacated, holding that the arbitrator should have considered evidence of post-removal change in circumstances to determine whether the penalty was reasonable. The court cautioned the arbitrator not to consider information not included in the notice of removal the 2007 incident). View "Norris v. Sec. & Exch. Comm'n" on Justia Law