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

Ramirez was a Customs Officer, required to remain medically qualified to carry a service firearm. His wife reported to the police that he had cocked his service weapon and pointed it at her head. The police concluded that the allegations were unfounded. Ramirez was not charged. The Agency temporarily revoked Ramirez’s authority to carry a firearm and ordered a fitness-for-duty evaluation, with a psychiatric evaluation. His first evaluation was inconclusive. A second psychiatrist was also unable to assess Ramirez’s dangerousness but recommended that Ramirez be restricted from weapons-carrying positions based on his “lack of full cooperativeness.” A third-party psychologist had determined that Ramirez’s Minnesota Multiphasic Personality Inventory results were invalid due to “extreme defensiveness.” Ramirez answered every MMPI question; the finding was based on his answers. The Agency terminated him.In arbitration, the Agency denied Ramirez access to the MMPI assessments and interpretations. Ramirez offered the testimony of his own expert, who administered another MMPI and interpreted his scores as within a range typical among law enforcement personnel. After a fourth fitness-for-duty evaluation and MMPI assessment, the same psychologist again interpreted the results as invalid “because of high defensiveness.” The arbitrator affirmed Ramirez’s removal and denied Ramirez’s request to order the Agency to produce the records of his MMPI assessments.The Federal Circuit vacated. The arbitrator did not exceed his authority by seeking additional evidence after issuing his interim award but Ramirez was entitled to a meaningful opportunity to review and challenge the assessments underlying his adverse psychiatric evaluations. View "Ramirez v. Department of Homeland Security" on Justia Law

In 2014-2018, Harris was the Branch Chief of the Continuity of Operations (COOP) branch, a division of the SEC’s Office of Support Operations (OSO) in Washington, D.C. In mid-2017, performance issues began to surface with respect to the Achieving Results in Occupation and Teamwork and Collaboration critical elements of her performance evaluations. The notice described examples such as disregarding supervisory guidance, coming to meetings unprepared, and demonstrating inflexibility. Harris had 90 days to improve her performance by satisfying 15 Performance Improvement Requirements (PIP). In January 2018, after that period ended, Harris received a notice of proposed removal, identifying eight instances of failing to meet the Performance Improvement Requirements. In February 2018, Harris was removed from the agency for “unacceptable performance” of her duties, 5 U.S.C. 4303(a).The Merit Systems Protection Board and Federal Circuit upheld her removal. Substantial evidence indicates that Harris was sufficiently warned of her inadequate performance. Harris has not shown that her PIP standards were unreasonable. None of the agency’s actions during the PIP amount to sufficient evidence of pretext to call into question the well-supported conclusion that Harris received a meaningful opportunity to improve her performance. The court noted that Harris had waived any claims of discrimination or retaliation. View "Harris v. Securities and Exchange Commission" on Justia Law

The West Virginia adjutant general terminated Dyer from his position as a dual-status military technician with the U.S. Air Force. The National Guard Technicians Act of 1968 (NGTA) established authority for dual-status positions like Dyer’s. Under 32 U.S.C. 709, the NGTA requires dual-status technicians to maintain military membership with the National Guard. Dyer met this requirement by maintaining membership with the West Virginia Air National Guard (WVANG) until 2018 when Dyer was separated from the WVANG. The WV adjutant general terminated his dual-status position because he no longer met the military membership requirement of his employment.The Merit Systems Protection Board affirmed, rejecting Dyer’s argument that he was not provided the due process he is entitled to under Title 5. The Federal Circuit directed the Board to dismiss the appeal. According to 32 U.S.C. 709, the Board does not have jurisdiction over the termination of a dual-status employee to the extent the termination was required under the statute because the employee had been separated from the National Guard. View "Dyer v. Department of the Air Force" on Justia Law

In 2009, Avalos was confirmed as the Under Secretary of Agriculture for Marketing and Regulatory Programs at the USDA. Avalos met Trevino, also a USDA political appointee. Trevino later moved to the Department of Housing and Urban Development and was involved in developing a vacancy announcement and reviewing candidates for the Field Office Director position in HUD’s Albuquerque office. Avalos applied, but the certificate of eligible candidates from which selection would be made listed only a preference-eligible veteran. Treviño sought to consider additional candidates; she did not complete a pass-over request but let the certificate expire and began revising the vacancy announcement. HUD again announced the vacancy. Avalos applied and was the only candidate listed on the certificate. Avalos got the position.During a regular review of appointments, the Office of Personnel Management (OPM) noted that HUD had appointed Avalos without OPM approval and advised HUD that it would not have approved the appointment. OPM instructed HUD to “regularize” the appointment. HUD reconstructed the hiring record and found no intent to grant an unauthorized preference but determined that it could not certify that the appointment met merit and fitness requirements because of Treviño’s involvement. Avalos received a Notice of Proposed Termination. The Merit Systems Protection Board upheld the termination. The Federal Circuit affirmed. The Board correctly found that it had jurisdiction to review Avalos’s appointment and substantial evidence supports the decision to remove Avalos to correct his illegal appointment. View "Avalos v. Department of Housing and Urban Development" on Justia Law

Oliva worked for the VA, 2000-2016. In 2015, Oliva challenged the VA’s issuance of a letter of reprimand for Oliva accusing a supervisor of improperly pre-selecting an applicant for a position; Oliva claimed that his email constituted protected whistleblowing. Under a Settlement Agreement, the VA agreed to provide a written reference and the assurance of a positive verbal reference, if requested; Oliva’s Waco supervisor would not mention the retracted reprimand. Oliva was terminated from his employment in April 2016, for performance reasons. Oliva claims that the VA twice breached the Settlement: in March 2015, when Oliva applied for a position in the VA’s El Paso medical center the reprimand letter was disclosed and in February 2016, when Oliva applied for a position in the VA’s Greenville healthcare center a Waco employee disclosed that Oliva was on a Temporary Duty Assignment.The Claims Court held that Oliva’s complaint plausibly alleged breaches of the Agreement that resulted in the loss of future employment opportunities. Oliva sought $289,564 in lost salary and lost relocation pay of either $86,304 or $87,312. The Claims Court then held that Oliva had not stated plausible claims to recover lost salary or relocation pay. The Federal Circuit reversed. Oliva plausibly claimed that the alleged breaches were the cause of his lost salary. Oliva’s termination from his Waco job does not undercut that plausibility. View "Oliva v. United States" on Justia Law

Young was serving a one-year probationary period working for the IRS when the agency removed her for misconduct. Young appealed to the Merit Systems Protection Board, challenging her removal as an unlawful adverse action and filed a formal Equal Employment Opportunity (EEO) complaint alleging that she had been terminated because of discrimination based on her national origin, disability, and prior protected EEO activity. An administrative judge (AJ) dismissed Young’s action, reasoning that Young was a probationary employee, not entitled to full appellate rights. Young filed a complaint with the Office of Special Counsel, alleging whistleblower retaliation. The Office did not take action.Young then filed an Individual Right of Action (IRA) appeal, claiming that she had disclosed attendance violations and a hostile work environment, including refusal to accommodate her disabilities, and that she had been removed from her position in retaliation for those disclosures. The AJ ordered Young to make a nonfrivolous showing that she had made protected disclosures that led to her removal with detailed factual support. Young did not respond. The AJ dismissed her IRA appeal. Young contends that she was unable to file a timely response because of health issues, but she never sought an extension and she submitted other filings during the period she was given for filing a response. The Federal Circuit affirmed. Young failed to make nonfrivolous allegations that she made disclosures that the Board has jurisdiction to address in an IRA appeal, View "Young v. Merit Systems Protection Board" on Justia Law

Buffkin, a former teacher in the Department of Defense (DoD) school for the children of military personnel, challenged her termination. The collective bargaining agreement process for contesting adverse employment actions provides that any grievance will be mediated if requested by either party. A written request for arbitration must be served on the opposing party within 20 days following "the conclusion of the last stage in the grievance procedure.” “The date of the last day of mediation will be considered the conclusion of the last stage in the grievance procedure" for purposes of proceeding to arbitration.DoD denied Buffkin’s grievance. The union and DoD met with a mediator in December 2012. No agreement was reached. In July 2014, the union submitted a written request for arbitration. DoD signed the request and the parties received a list of arbitrators in August 2014. In March 2015, DoD listed Buffkin’s grievance as an open grievance and the parties held another mediation session. The union and DoD selected an arbitrator in January 2017. DoD then argued that the arbitration request was untimely. The arbitrator found that the union did not invoke arbitration within 20 days after the 2012 mediation concluded.The Federal Circuit vacated and remanded with instructions to address whether the union’s premature request for arbitration ripened into a timely request. Buffkin’s grievance was not resolved in the 2012 mediation; there was another mediation session in 2015, the last stage of the grievance procedure. Invoking arbitration in 2014 was premature, rather than too late. DoDs conduct and past practices indicate that it did not consider the arbitration request untimely. View "Buffkin v. Department of Defense" on Justia Law

Higgins began working at the Memphis VA Medical Center (VAMC) in 2007. Throughout his employment, Higgins reported unlawful activity ranging from misuse of agency letterhead to improper disposal of biohazardous material. Higgins had a history of conflict with his supervisors and coworkers. In 2016, a psychologist diagnosed Higgins as meeting the criteria for PTSD, chronic, concluding that “Higgins cannot work, even with restrictions, and this is permanent.” In March 2017, the VAMC suspended Higgins for using profanity with his supervisor. It was “the third incident of a similar type.” Because of his whistleblower status and PTSD, Higgins was offered a suspension without loss of pay.In June 2017, the VAMC removed Higgins based on charges of disruptive behavior and the use of profane language during three incidents. The VAMC’s Chief of Police considered Higgins’s statements a valid threat and recommended that the Director wear a bulletproof vest and receive a police escort to and from his car. The Director successfully filed a workers’ compensation claim for PTSD. An Administrative Judge determined that removal was “within the range of reasonableness” and promoted “the efficiency of the service.” Higgins had established a prima facie whistleblower retaliation defense but the agency would have removed Higgins even absent his protected whistleblowing activity. The Federal Circuit affirmed, rejecting arguments that the Board improperly discounted evidence of Higgins’s PTSD and that the AJ abused his discretion by excluding testimony relevant to institutional motive to retaliate. View "Higgins v. Department of Veterans Affairs" on Justia Law

In 2011, Sistek was appointed as a director at the VA’s Chief Business Office Purchased Care. Sistek subsequently made several protected disclosures to the VA’s Office of the Inspector General (OIG) questioning various financial practices and perceived contractual anomalies. Sistek’s supervisor became aware of Sistek’s concerns. Sistek was subsequently subjected to an investigation. Sistek filed a complaint with the Office of Special Counsel (OSC) alleging whistleblower reprisal based on several personnel actions, including the letter of reprimand. Sistek later filed an individual right of action appeal with the Merit Systems Protection Board, alleging retaliation under the Whistleblower Protection Act. The Administrative Judge declined to order any corrective action, finding that a retaliatory investigation, in itself, does not qualify as a personnel action eligible for corrective action under the Act. The OIG subsequently confirmed that the concerns raised by Sistek were justified. Sistek retired from the VA in 2018.The Federal Circuit affirmed. The Act defines qualifying personnel actions at 5 U.S.C. 2302(a)(2)(A); retaliatory investigations, in and of themselves, do not qualify. The Act provides that a retaliatory investigation may provide a basis for additional corrective action if raised in conjunction with one or more of the qualifying personnel actions. View "Sistek v. Department of Veterans Affairs" on Justia Law

The VA promoted Dr. Sayers to Chief of Pharmacy Services for the Greater Los Angeles (GLA) Health Care System in 2003. In 2016, a VA site-visit team discovered violations of policy in the pharmacies under Sayers’s supervision. When Sayers failed to follow orders to immediately correct the violations, the VA detailed him from his position pending review. Months later, the VA sent another team to the GLA pharmacies, discovering numerous, serious policy violations. Because compliance fell within Sayers’s purview, the GLA Chief of Staff proposed Sayers’s removal. The GLA Health Care Director acted as the deciding official and sustained the charges. The Merit Systems Protection Board (MSPB) and the Administrative Judge affirmed his removal, finding that substantial evidence supported factual specifications that Sayers failed to perform assigned duties and failed to follow instructions. The AJ declined to consider Sayers’s argument that his removal constituted an unreasonable penalty, inconsistent with the VA’s table of penalties and violating the VA’s policy of progressive discipline.The Federal Circuit vacated his removal. The basis for Sayers’s removal, the 2017 Accountability and Whistleblower Protection Act, 38 U.S.C. 714, which gives the VA a new, streamlined authority for disciplining employees for misconduct or poor performance, and places limitations on MSPB review of those actions, cannot be retroactively applied to conduct that occurred before its enactment. View "Sayers v. Department of Veterans Affairs" on Justia Law