The Board Mitigates Removal for Department of Defense Employee Charged with Stealing Cafeteria Food
In June 2014, the appellant, a Security Specialist at the Department of Defense, took an extra $5.00 worth of food from the agency cafeteria without paying for the additional food.
Federal Circuit Deems Family Medical Opinion Unlawful in Removal Case
In Johnson v. Air Force, the U.S. Court of Appeals for the Federal Circuit clarified that receiving external opinions on a proposed removal is a violation of the due process clause.
Federal Circuit Rejects Perceived Whistleblowing Claim
The Merit Systems Protection Board (MSPB) has long recognized claims where the employee has not made a protected disclosure, where supervisors perceive the employee to be a whistleblower.
Federal Circuit Disputes VA’s Interpretation of 2017 “Accountability” Law
In two opinions issued on August 12, 2021, the United States Court of Appeals for the Federal Circuit found that the Department of Veterans Affairs erroneously interpreted the provisions of the Department of Veterans Affairs Accountability and Whistleblower Protection Act of 2017 when disciplining its employees. The purpose of the 2017 law, codified at 38 U.S.C. § 714, was to provide for expedited discipline of VA employees, strip MSPB of its authority to mitigate the VA’s chosen penalty, and to impose a less rigorous burden of proof on the agency at the appellate level than a traditional MSPB appeal.
Santos v. NASA: DOJ Declines to Petition the Court for Rehearing
We previously reported on the Federal Circuit’s panel decision in Santos v. NASA, issued on March 11, 2021. That decision held that pursuant to 5 U.S.C. § 4302(c)(6), when employees challenge their PIP-based performance terminations at MSPB, federal agencies must prove that employees deserved to be put on a PIP in the first place. The case turned on the meaning of the words “continue to,” used in Section 4302(c)(6), and whether that statutory language imposed a requirement on the agency to prove pre-PIP unacceptable performance. The panel opinion said yes.
Two Dissenters Push Back on Federal Circuit’s Denial of Braun v. HHS Rehearing
We previously reported on the Federal Circuit’s December 21, 2020 opinion in Braun v. HHS, a case where the appeals court found that HHS could utilize its generic “for cause” procedures to terminate tenured scientists for at least some performance-based reasons, despite the existence of a performance process requiring additional process for “de-tenuring” prior to termination.
Preselection Coupled With Service Discrimination Violates USERRA, Rules Federal Circuit
The United States Court of Appeals for the Federal Circuit described the litigation of a case it adjudicated on May 14, 2021 as “the decade-long journey of a hard-working man who served his country honorably, only to face workplace discrimination on the basis of that service.”
Federal Circuit: For the Third Time, No Retroactive VA “Accountability”
In 2017, Congress enacted the Department of Veterans Affairs Accountability and Whistleblower Protection Act of 2017 (“the Act”), which provided “a singular expedited procedure for all VA employees to respond and appeal to proposed removals, demotions, and suspensions for performance or misconduct,” and according to the United States Court of Appeals for the Federal Circuit, “provides less rigorous standards and expedited procedures” to discipline, and even terminate, employees.
Agencies Must Prove Pre-PIP Unacceptable Performance in Federal Circuit Decision
Before a federal employee can be terminated for unacceptable performance, the employing agency must provide the employee with an opportunity to demonstrate acceptable performance.
Penalties Mitigated in Arbitration, after an Agency Decision, Do Not Establish Disparate Treatment
McKenzie Holmes was a U.S. Postal Service (“USPS”) employee from 1989, until his removal in 2018. At the time of his removal, he worked as a city carrier at the Fort Dearborn Station in Chicago.
Tenth Circuit: Intimidating Witnesses for Testimony Is Not Lawful Assistance Protected under the Whistleblower Protection Act
In October 2017 Larry Baca began to work as a Supervisory Engineer, GS-13, and the Chief of Operations and Maintenance Division in the Directorate of Public Works at the U.S. Army White Sands Missile Range in New Mexico.
Supervisory Roles in Excepted Service Do Not Tack under 5 U.S.C. § 3321 to Satisfy Supervisory Probationary Period in Competitive Service
Deborah Mouton-Miller worked for the United States Postal Service (USPS) as an Audit Manager until April 2017, when she transferred to the Department of Homeland Security’s (DHS) Office of Inspector General for a promotion as Supervisory Auditor. Mouton-Miller’s position with USPS was classified as GG-0511-14, step 8, and her position with DHS was classified as GS-0511-14, step 8.
Third Circuit: Federal Civilian Dual Status Technicians Not Covered under the Uniformed Services Exception to Reduced Social Security Benefits
Floyd Douglas Newton worked as a National Guard dual status technician from 1980 until 2013. A dual status military technician is a federal civilian position supporting the Selected Reserve or armed forces. Though civilians, dual status technicians are required to maintain National Guard membership, hold a particular military grade, and wear appropriate military uniform, among other requirements.
Federal Circuit: Removal for Performance-Based Conduct Not Limited to Performance Actions
Dr. Allen Braun worked as a research doctor at the National Institutes of Health (NIH) for almost 32 years. In 2003, he became a tenured Senior Investigator for the National Institute on Deafness & Other Communication Disorders, a branch of NIH.
Federal Circuit: No Waiver of Sayers Arguments in VA Removal Case
A VA police officer was removed by the Department of Veterans Affairs under the 2017 “accountability” law 38 U.S.C. § 714 that limited review of VA’s actions against general schedule employees. The removal was based on conduct occurring prior to the enactment of the law. The employee appealed to the MSPB, and the MSPB affirmed the removal. On December 7, 2020, the United States Court of Appeals for the Federal Circuit vacated the MSPB’s decision, and remanded the case to the MSPB with instructions to remand the case further back to the agency.
MSPB Must Determine Jurisdiction Over IRA Claims On Face Of Complainant’s Allegations
The MSPB cannot consider an agency’s interpretation or presentation of evidence to decide whether an individual-right-of-action presents a non-frivolous allegation of whistleblower reprisal, the Federal Circuit clarified in a recent holding.
Sixth Circuit: Appeals of Enforcement Petitions Must Go to Federal Circuit
On October 14, 2020, the Sixth Circuit Court of Appeals held that appeals of MSPB decisions on petitions for enforcement must be heard by the U.S. Court of Appeals for the Federal Circuit, even appeals of petitions stemming from a “mixed case” typically appealable to federal district court for adjudication of discrimination claims.
Federal Circuit: CFC Has Discretion to Deny Liquidated Damages for Erroneous Classification
An NCIS investigations specialist filed suit, alleging that NCIS erroneously classified him as exempt from overtime pay, and for years denied him overtime compensation and premium pay in violation of the Fair Labor Standards Act (FLSA). On September 24, 2020, the United States Court of Appeals for the Federal Circuit affirmed the Court of Federal Claims’ decision, after a trial, to deny liquidated damages, despite finding that NCIS was liable for incorrectly classifying the position as FLSA-exempt.