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

Plaintiff applied for a position with the Department of Labor and responded "no" to whether he had been convicted or put on probation during the preceding 10 years. After he was hired, he signed the form, certifying the answers as true. It came out that plaintiff had been on probation for disturbing the peace He insisted that he had been arrested and placed on "informal probation," but not convicted. His attorney explained that plaintiff had pled guilty; the order stated that the plea was vacated and that "a plea of not guilty be entered, and that the accusatory filing is dismissed. ... does NOT relieve the defendant of the obligation to disclose the conviction" in application for public office. The Department terminated plaintiff during his probationary period. An ALJ dismissed his appeal, finding that the firing was based on conduct during the probationary period. The Merit System Protection Board and Federal Circuit denied appeals. To invoke 5 C.F.R. 315.806(c) for MSPB jurisdiction, plaintiff would have to identify facts in the record amounting to a non-frivolous assertion that the Department actually relied on a pre-employment condition in terminating his employment. Plaintiff failed to do so; the termination letter expressly referenced his signature on the application after he was hired. View "Younies v. Merit Sys. Prot. Bd." on Justia Law

The agency removed plaintiff from her position based on charges of rude, disruptive, aggressive, or intimidating behavior and misrepresentation. Plaintiff denied the charges and alleged retaliation for prior Equal Employment Opportunity claims of sex discrimination. The Administrative Judge and Merit Systems Protection Board affirmed the removal. Plaintiff petitioned the EEOC for review; that agency found that the evidence supported the conclusion that her removal was not motivated by retaliatory animus. The Federal Circuit dismissed an appeal, finding that it lacked jurisdiction to review the Board's decision on the "mixed case." The case involved both a specific type of action against an agency which may be appealed to the Board and an allegation in the nature of an affirmative defense that a basis for the action was discrimination within one of the categories” listed in 5 U.S.C. 7702(a)(1)(B). Affirmative defenses of retaliation for prior EEO activity are assertions of discrimination under Title VII and within the meaning of 5 U.S.C. 7702. View "Diggs. v. Dep't of Hous. & Urban Dev." on Justia Law

Plaintiff, employed by the federal government for almost 30 years, appealed from termination of her position with the VA. During her last months on the job she suffered depression and high blood pressure. The parties entered into a settlement in which plaintiff agreed to withdraw her appeal and forego all claims against the VA. An ALJ dismissed the appeal as settled. The March 2009 decision became final in April 2009. In November 2009, plaintiff filed a new appeal, seeking reinstatement. The appeal was docketed as a petition to enforce the agreement, but without allegation of noncompliance. The ALJ dismissed. The Board, unable to determine whether plaintiff's filing was an untimely appeal of the March decision or any basis for appeal, affirmed. The Federal Circuit affirmed. Plaintiff failed to show good cause for her untimely filing of the November 2009 appeal and the March 2009 decision implementing the agreement operated as a res judicata bar. View "Ford-Clifton v. Dep't of Veterans' Affairs" on Justia Law

Plaintiff, a mail processing clerk, was injured on-duty in 2005 and received workers' compensation. She partially recovered and, in 2008, the Postal Service provided a modified light duty assignment. In June 2010, pursuant to the National Reassessment Process, the Postal Service informed plaintiff that work within her medical restrictions was no longer available in her commuting area. The Merit Systems Protection Board dismissed her claim under 5 C.F.R. 353.304(c)) of wrongful denial of restoration following partial recovery from a compensable injury. The Federal Circuit affirmed. The Board applied the correct standard in determining its jurisdiction, and its factual determinations were supported by substantial evidence. Plaintiff did not identify any vacant position available within her commuting area that she was able to perform. Plaintiff did not make a non-frivolous allegation that the Service acted arbitrarily in not restoring her, even after the Board ordered her make such a showing and afforded her time to do so.

In 2006, plaintiff, employed as an auditor at the Department of Defense was removed from his position for failing to maintain his Secret level security clearance. His loss of security clearance was based on his wife's status as a diplomat for Honduras. The Merit Systems Protection Board affirmed. The Federal Circuit affirmed. The DoD complied with its internal procedures in revoking plaintiff's security clearance and the decision was supported by substantial evidence.

Petitioner married in 2001. Her husband had retired unmarried under the Civil Service Retirement System and elected to receive an annuity payable during his lifetime with no survivor benefits. He died in 2003, and petitioner's application for survivor annuity benefits was denied. After considering evidence about a conversation that husband purportedly had with one of its employees, the Office of Personnel Management affirmed, stating that husband could have elected to receive a reduced lifetime annuity with survivor benefits for a new wife only by notifying OPM of his intentions in a signed writing within two years of his marriage, 5 U.S.C. 8339(k)(2)(A). An administrative judge upheld the decision, stating that the decision would become final on June 21, 2004, unless a petition for review was filed. Petitioner did not file until 2010, claiming disability made her unable to attend to the matter. The Board denied her petition for review as untimely filed, finding no credible medical evidence regarding her condition. The Federal Circuit affirmed.

The plaintiff was an "excepted" (not in the competitive service or the Senior Executive Service) employee of the Veterans Canteen Service and was not preference-eligible (as a veteran or close relative). She appealed a notice of termination for misconduct. The Merit Systems Protection Board dismissed for lack of jurisdiction because she had been hired under 38 U.S.C. 7802(e). The Federal Circuit affirmed, holding that the plain language of the statute allows removal of such employees without regard to other civil service laws. Civil Service Due Process Amendments in 1990 did not extend protections to excepted, non-preference eligible employees.