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

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

Immigration and Customs Enforcement (ICE) notified Ricci that she had been “tentatively” selected for a Criminal Investigator position; she was required to satisfactorily complete a background investigation before receiving a final offer of employment. ICE subsequently sent Ricci a “Notice of Proposed Action,” stating that her background investigation had revealed information serious enough to warrant that she be found unsuitable for the position and possibly denied examination for all ICE positions for up to three years. ICE alleged that Ricci had engaged in numerous acts of misconduct while employed with the Boston Police Department. Ricci filed an appeal with the Merit Systems Protection Board, claiming that ICE’s claim was based upon bad intelligence and that ICE was “continuing the . . . discrimination.” The administrative judge explained that the board generally lacks jurisdiction over an individual’s non-selection for a specific position, even if that non-selection is based upon the suitability criteria set out in 5 C.F.R. 731.202. Ricci asserted that ICE’s actions "effectively constitute[d] a suitability action of debarment.”The Federal Circuit affirmed the AJ's dismissal for lack of jurisdiction. ICE’s action was a non-selection for a specific vacant position. ICE did not take any “broader action” against Ricci, such as “debarring her from future agency employment.” Regardless of the impact on an applicant’s ability to secure future federal employment, the board may only review actions designated as appealable. View "Ricci v. Merit Systems Protection Board" on Justia Law

In 2014, the Phoenix VA Health Care System where Potter worked was in the midst of a patient care crisis that had resulted in an investigation by the Department of Veterans Affairs Office of Inspector General (OIG). Potter alleges she engaged in five whistleblowing activities by making four protected disclosures and by cooperating with OIG. In December 2014, during a reorganization of the Phoenix DVA, Potter’s title was changed, which she claimed amounts to a demotion; a position for which Potter had applied was withdrawn in November 2015; and Potter was assigned to “unclassified duties.” Potter alleges that in early 2017, conditions at the Phoenix DVA forced her “involuntary resignation.” constituting the agency’s fourth and final reprisal. Potter accepted an offer for a Staff Nurse position at the VA Northern California Health Care System in 2017, and filed a whistleblower reprisal complaint at the Office of Special Counsel. A Merit Systems Protection Board administrative judge found that Potter had shown only one prima facie case of whistleblower reprisal but denied corrective action because the government established that the DVA would have taken the same action even if Potter had not made the protected disclosures. The Federal Circuit affirmed as to three alleged reprisals. The court vacated as to the November 2015 failure to hire. View "Potter v. Department of Veterans Affairs" on Justia Law

In 1999, while working at the San Juan VA Medical Center, Dr. Sanchez, a urologist, reported to his superiors what he believed to be improper practices. In 2000, Sánchez received a proficiency report prepared by his supervisor, indicating that his performance “ha[d] shown a significant [negative] change since his last evaluation.” Sánchez was reassigned to the Ambulatory Care Service Line, where he believed that he would not perform surgery, care for patients, or supervise other staff members. He concluded that these actions were retaliation for his whistleblowing activities. Sánchez and the VA entered into a settlement agreement under which Sanchez was to be reassigned to the Ponce Outpatient Clinic with a compressed work schedule of 10 hours per day for four days per week, to include three hours of travel per day. The parties adhered to the Agreement for 16 years. In 2017, Sánchez received a letter, informing him that he was required to be at the Ponce clinic from “7:30 a.m. until 4:00 p.m. from Monday through Friday.” An AJ rejected his petition for enforcement with the Merit Systems Protection Board. The Federal Circuit affirmed. The background of the Agreement supports the conclusion that 16 years was a reasonable duration. As the party claiming a breach, Sánchez had the burden of proof but did not offer evidence that the claimed animosity persisted after that 16-year time period. View "Sanchez v. Department of Veterans Affairs" on Justia Law