Justia Labor & Employment Law Opinion Summaries

Grover worked for many years for the Customs and Border Protection service and participated in the Civil Service Retirement System, 5 U.S.C. 8331–8351. He retired in 2008 and applied for a retirement annuity. By statute, the annuity must reflect the highest average annual pay based on three consecutive years of specified service, and for a customs officer like Grover in the years in question, the calculation must include overtime pay up to $17,500. The Office of Personnel Management (OPM), in calculating Grover’s pay, did not include anything close to $17,500 in overtime pay, although Grover asserted that he received more than $17,500 in overtime pay in those years. The Merit Systems Protection Board upheld OPM’s calculation, which relied on a particular official record. The Federal Circuit vacated. Neither OPM nor the Board recognized that the record is internally contradictory about what overtime pay Grover received, so neither sought further information, such as pay stubs, that might definitively resolve the uncertainty. The regulation does not permit the Board to affirm OPM’s calculation without resolving the amount-of-overtime-pay factual issue. View "Grover v. Office of Pers. Mgmt." on Justia Law

The Federal Aviation Administration hired De Santis in 2013 and fired him less than one month later, while he was in his probationary period. He appealed to the Merit Systems Protection Board under 5 C.F.R. 210.101, 315.805, and 315.806, which apply to employees in the competitive service. The Board dismissed for lack of jurisdiction because De Santis was in the excepted service, not the competitive service. The Federal Circuit affirmed, citing 49 U.S.C. 40122(g)(3), which authorizes FAA employees to appeal “any action that was appealable to the Board … as of March 31, 1996.” Under that section, Board jurisdiction over an FAA employee’s appeal depends on whether, given the employee’s status in the excepted service at the time of the challenged action, that employee comes within the grants of appeal rights that existed on March 31, 1996. The court rejected an alternative reading under which the Board would disregard the employee's actual current status and ask what status a person in that position, or a similar position, would have had on March 31, 1996. De Santis was an excepted-service employee, and the regulatory appeal rights at issue, unchanged since March 31, 1996, do not apply to excepted-service employees. View "De Santis v. Merit Sys.Protection Bd." on Justia Law

Plaintiffs, employed by the U.S. Customs and Border Protection, (CBP) as Supply Chain Security Specialists in its Customs-Trade Protection Against Terrorism program, travelled and worked at foreign posts designated by the Secretary of State as “danger pay posts.” They alleged that they did not receive overtime pay as required by the Fair Labor Standards Act, 29 U.S.C. 216(b). Count II, citing the Overseas Differentials and Allowances Act (ODAA) of 1960, 5 U.S.C. 5928, claimed that CBP denied them danger pay allowances for work performed at posts that the Department of State has designated as eligible for such allowances. The Claims Court dismissed Count II for lack of jurisdiction on grounds that ODAA is not a money-mandating statute, that the State Department regulation (DSSR) is not money-mandating, and that CBP has not adopted a policy of paying danger pay to all eligible employees. The Federal Circuit affirmed; section 5928, the DSSR, and the alleged unwritten policy of providing danger pay, cannot reasonably be construed as “money-mandating.” View "Acevedo v. United States" on Justia Law

Rainey, a State Department Supervisory Foreign Affairs Officer, was with the Africa Contingency Operations program when his supervisor relieved him of his duties as contracting officer representative. Rainey complained to the Office of Special Counsel, alleging that his duties had been terminated because he had refused his supervisor’s order to tell a contractor to rehire a terminated subcontractor. Rainey believed that carrying out the order would require him to violate the Federal Acquisition Regulation by improperly interfering with personnel decisions of a prime contractor and requiring the prime contractor to operate in conflict with the contract. The Office of Special Counsel closed its investigation without granting relief. Rainey filed an Individual Right of Action appeal with the Merit Systems Protection Board, citing the “right-to-disobey” provision of the Whistleblower Protection Act of 1989, 5 U.S.C. 2302(b)(9)(D). During his hearing, the Supreme Court held, in in Department of Homeland Security v. MacLean, that the word “law” in the Act's “right-to-disclose” provision, refers only to a statute, and not to a rule or regulation. The ALJ held that the Board lacked jurisdiction over a claim based on a regulation. The Board agreed. The Federal Circuit affirmed, stating that its decision was constrained by the right-to-disobey provision's language, which protects covered employees from retaliation “for refusing to obey an order that would require the individual to violate a law,” and the MacLean holding. View "Rainey v. Merit Sys. Protection Bd." on Justia Law

Lal was appointed as a distinguished consultant at the Centers for Disease Control, a component of the Department of Health and Human Services, in the excepted service under 42 U.S.C. 209(f), which provides that consultants “may be appointed without regard to the civil-service laws.” The agency understood this to mean that Lal was not subject to the statutory due process requirements of the civil-service laws under title 5 of the United States Code, and terminated her employment without providing notice of the termination or a right to respond, as would ordinarily be required by the civil-service laws. The Merit Systems Protection Board concluded that section 209(f) deprived it of jurisdiction. The Federal Circuit reversed. While section 209(f) placed Lal into the excepted service, it did not exempt her from the Civil Service Due Process Amendments of 1990, which provide appeal rights to certain excepted service employees, 5 U.S.C. 7511(a)(1)(C). View "Lal v. Merit Sys. Protection Bd." on Justia Law

From 2003-2008, Cahill did information-technology work for the Centers for Disease Control and Prevention as an independent contractor. In 2011, the agency hired him as an employee, “to support Data Management activities,” including studies for which field workers use hand-held devices called “Pocket PCs” to collect data. In 2014, Cahill filed a complaint with the Office of Special Counsel, 5 U.S.C. 1214(a)(1)(A), alleging that agency officials had violated the whistleblower protections of 5 U.S.C. 2302(b)(8)(A) by retaliating for his 2012 disclosures about agency practices, including that the Pocket PCs were outdated, had bad batteries, lost data, and presented data-entry problems. Cahill contended that he was treated differently after that meeting; that he was not invited to BCSB meetings, was discouraged from participating in projects to which he was assigned, was eventually placed on a Performance Action Plan; and that various supervisors treated him and evaluated him poorly. The Merit Systems Protection Board concluded that it lacked jurisdiction because Cahill had not presented nonfrivolous allegations that his March 2012 disclosure was known to at least one of the agency officials he charged with taking the challenged personnel actions. The Federal Circuit​ reversed, finding that Cahill adequately alleged that at least one supervisor knew of his statement. View "Cahill v. Merit Sys. Protection Bd." on Justia Law

Nguyen, a U.S. Patent and Trademark Office Supervisory Examiner, received a Notice of Proposed Reduction in Grade to Patent Examiner, alleging that she had violated rules prohibiting nepotism in attempting to prevent her son, a probationary examiner, from being fired. Nguyen received her yearly performance review, which reflected a reduced rating. Nguyen discussed with her supervisor, Banks, the possibility of resigning. Believing that Nguyen had resigned, Banks ordered that technicians collect Nguyen’s government-supplied laptop. Nguyen objected and sent an email to Banks, stating that she felt “forced . . . to resign.” Banks and another supervisor stopped by Nguyen’s office and assured her that “[a]s we stated multiple times today, the decision of whether to resign or stay is completely up to you.” Banks ordered that Nguyen’s access to computer supervisory functions be revoked, pending her grade reduction. Nguyen went to human resources to pick up retirement papers and sent Wallace emails offering to drop all appeal rights in exchange for a suspension instead of the grade reduction. Wallace was out of the office until the following Monday, one day after the reduction would be effective. Nguyen filed retirement papers that Friday, effective the next day, one day before her reduction would have gone into effect.. The Federal Circuit affirmed dismissal by the Merit Systems Protection Board. Nguyen failed to articulate a nonfrivolous argument that her retirement was involuntary. View "Nguyen v. Merit Sys. Protection Bd." on Justia Law

Miller served on active duty, 2003-2007, and has a VA disability rating of 60 percent. Since 2008, Miller has been employed as an FDIC Economic Analyst. He was hired at the GS-9 level and has risen to the GS-12 level. In 2012 the FDIC posted vacancy announcements for a CG-13 Financial Economist position: one open to all citizens and another for status candidates. Miller applied under both procedures and was one of three finalists. Three FDIC employees participated in the interviews, rating each candidate’s answers to questions on bank failure prediction models as Outstanding, Good, or Inadequate. All of the candidates received some "inadequate" ratings. No candidate was selected; the vacancy was cancelled. Miller filed a Department of Labor complaint, stating that the cancellation was in bad faith to avoid hiring a veteran or having to request a “pass over” from the Office of Personnel Management. The Merit Systems Protection Board denied his petition under the Veterans Employment Opportunities Act, finding that the allegation of non-selection in violation of veterans’ rights was sufficient to confer jurisdiction, but that Miller had not established a violation because the FDIC “conducted a thorough, structured interview of each of the candidates” and “none of the interviewees possessed the requisite skills and knowledge for the position.” The Federal Circuit affirmed; substantial evidence indicated that cancellation was predicated on a lack of appropriately qualified candidates. View "Miller v. Fed. Deposit Ins. Corp." on Justia Law

In 2013, Canava, a U.S. Border Patrol Agent, was indicted on felony counts and pleaded guilty to “Unlawful Imprisonment by Strangulation, Domestic Violence, a class six undesignated offense.” Judgment was entered for the “undesignated offense” of unlawful imprisonment. The Department of Homeland Security proposed to remove Canava from federal service under 5 U.S.C. 7371, which mandates removal of federal law enforcement officers convicted of a felony. The removal notice stated that “[p]ursuant to Arizona Law, A.R.S. § 13-604, this conviction is a felony conviction for all purposes until the offense is affirmatively designated a misdemeanor by the Court.” Canava argued that 5 U.S.C. 7371 did not apply and could not be the basis for his removal because he pleaded guilty to an “undesignated offense” and not a felony. According to Canava, until a judge designated his offense a felony, he had not been convicted of a felony. DHS disagreed. An Arbitrator sustained his removal. The Federal Circuit affirmed.Canava was convicted of an undesignated offense that, under Arizona law, carried the same punishment as a class 6 felony—a presumptive sentence of one year imprisonment, with a mitigated sentence of 0.33 years and an aggravated sentence of two years. View "Canava v. Dep't of Homeland Sec." on Justia Law

In 1989, Hicks, a Secretary at Maxwell Air Force Base, was removed from her position for failure to request leave in accordance with proper procedures and being absent without official leave. Following an appeal, Hicks’ removal was mitigated to a 60-day suspension. In 1990, the Air Force effected a new removal action. A Merit Systems Protection Board (MSPB) ALJ affirmed. A year later, Hicks sought review with the full board. The Federal Circuit affirmed dismissal of her motion, explaining that Hicks had not shown how her depression prevented her from meeting filing requirements. In 2014, Hicks contacted the U.S. Office of Special Counsel, alleging that the Air Force had removed her in retaliation for making protected disclosures. After Special Counsel terminated its investigation. Hicks filed an Individual Right of Action (IRA) appeal with MSPB. An ALJ dismissed for lack of jurisdiction; in 1990, when Hicks was removed, filing an appeal was not a “protected disclosure” under the Whistleblower Protection Act, 103 Stat. 16. MSPB and the Federal Circuit affirmed. The Whistleblower Protection Enhancement Act of 2012, 126 Stat. 1465, expanded its jurisdiction to cover IRA appeals alleging that an agency engaged in the prohibited personnel practices described in 5 U.S.C. 2302(b)(9), including appeals alleging reprisal for filing a previous MSPB appeal, but it did not apply retroactively to Hicks. View "Hicks v. Merit Sys. Protection Bd." on Justia Law