Articles Posted in US Court of Appeals for the Federal Circuit

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Sacramento FBI Agent Parkinson led a group tasked with relocating a previously compromised undercover facility. In 2006, the FBI leased a facility from Rodda, who agreed to contribute $70,000 to construction, documents, permits and fees. Parkinson negotiated the lease for the FBI, and managed the tenant improvement funds. In 2008, during the work, Parkinson made whistleblower-eligible disclosures, implicating pilots in misconduct. Parkinson’s supervisor issued Parkinson a low-performance rating, removed him as group leader, and reassigned him. Believing this to be retaliation, Parkinson contacted Senator Grassley, who forwarded Parkinson’s allegations to the Department of Justice’s Office of the Investigator General (OIG), which OIG sent the FBI its report. The Merit Systems Protection Board (MSPB) upheld Parkinson’s subsequent termination for lack of candor under oath and obstruction of the Office of Professional Responsibility. The Federal Circuit sustained the obstruction charge and dismissal of Parkinson’s affirmative defense of violations of the Uniformed Services Employment and Reemployment Rights Act, but remanded the lack of candor charge. On rehearing, en banc, the court concluded that 5 U.S.C. 2303 requires all FBI employees to bring claims of whistleblower reprisal to the Attorney General and vacated that portion of its prior opinion. View "Parkinson v. Department of Justice" on Justia Law

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Waymo sued Uber and Ottomotto for patent infringement and violations of trade secret laws, claiming that its former employee, Levandowski, improperly downloaded documents related to Waymo’s driverless vehicle technology, then left Waymo to found Ottomotto, which Uber subsequently acquired. Before that acquisition closed, counsel for Ottomotto and Uber retained Stroz to investigate Ottomotto employees previously employed by Waymo, including Levandowski. During discovery, Waymo successfully moved to compel the defendants to produce the Stroz Report. Waymo also subpoenaed Stroz to obtain the Report plus the communications, documents, and devices provided to Stroz. Levandowski, Ottomotto, and Uber unsuccessfully moved to quash the subpoena, arguing that the Report was subject to attorney-client privilege or work-product protection. The Federal Circuit denied Levandowski’s petition for mandamus relief. Levandowski failed to articulate any persuasive reasons why disclosure of the Report should be barred; the possibility of admissions against his interest is a valid function of civil discovery. The court rejected Levandowski’s “unsupported assertions” that the district court would be unable to “cleanse the trial of all taint from the improper disclosure,” noting that the court had examined the Report in camera and declined to exclude it. The district court properly determined that the common interest doctrine did not apply, found that Levandowski waived work-product protection, and rejected Levandowski’s claim of Fifth Amendment privilege. View "Waymo LLC v. Uber Technologies, Inc." on Justia Law

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Piccolo, an officer at the Bureau of Immigration and Customs Enforcement, within the Department of Homeland Security (DHS) made a disclosure related to DHS’s practice of releasing unaccompanied alien children to non-family sponsors with criminal records. The Merit Systems Protection Board (MSPB) dismissed, for lack of jurisdiction, his individual right of action appeal claiming that he was subject to adverse personnel action in retaliation for that protected whistleblowing activity. The MSPB found that he failed to make nonfrivolous allegations “to demonstrate that his protected activity was a contributing factor in the agency’s decision to take [adverse] personnel action,” 5 U.S.C. 1221(e)(1). The MSPB subsequently agreed that Piccolo had established jurisdiction and that “the AJ made legal errors in his jurisdictional findings” The Federal Circuit reversed and remanded, “reiterating” that a petitioner’s credibility including, as in this case, consideration of affidavits submitted by an allegedly retaliatory supervisor claiming no knowledge of the petitioner’s protected disclosure or motivation to retaliate, “relate[s] to the merits of [the] claim.” Non-frivolous allegations suffice at the jurisdictional stage Piccolo’s disclosures allege serious breaches in DHS’s practices that threaten the safety of minor children. His non-frivolous allegations that such disclosures contributed to negative personnel action deserve a merits hearing. View "Piccolo v. Merit Systems Protection Board" on Justia Law

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There are 10 federal holidays each year; six are celebrated on Mondays. All federal employees are paid for holidays that fall on a workday but on which the employee is not required to work. 5 C.F.R. 610.405-406. When employees are required to work on holidays, they are entitled to premium pay for their work on that day that is not overtime work, 5 U.S.C. 5546(b). Certain employees whose basic workweek of five workdays is Monday through Friday are granted days off “in-lieu-of” holidays when holidays fall on weekends. Employees whose basic workweek of five workdays is other than Monday through Friday enjoy corresponding benefits. Yanko has been employed, part-time, by the VA for several years. His regular workweek is Sunday through Thursday. Between December 15, 2009, and May 16, 2016, eight public holidays fell on either Friday or Saturday. Yanko, as a part-time employee, was not credited with an in-lieu-of holiday for any of those days, pursuant to a longstanding policy of the Office of Personnel Management. The Court of Federal Claims and Federal Circuit rejected Yanko’s claims, holding that the statute and Executive Order do not provide part-time employees with a right to in-lieu-of holidays when federal holidays fall outside the employees’ normal workweek. The term “basic workweek,” which appears in both, refers only to full-time employees. View "Yanko v. United States" on Justia Law

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Rumsey, a Department of Justice employee, protested grant-making decisions and ultimately went to the media and members of Congress and filed a complaint with the Inspector General, alleging fraud. Her efforts resulted in corrective action. Rumsey alleged that the agency subsequently gave her improperly low performance ratings, moved some of her job duties to other employees, and canceled her telework agreement. She prevailed in an individual right of action appeal with the Merit Systems Protection Board, alleging whistleblower reprisal. Rumsey sought attorney’s fees under 5 U.S.C. 1221(g)(1)(B). At the time of that request, Rumsey and Slavet, one of the three lawyers that represented Rumsey during the Board proceedings, were in fee dispute before the District of Columbia Bar, Attorney/Client Arbitration Board. Rumsey “distanced herself from Slavet,” who had been Rumsey’s principal lawyer before and during the initial hearing before the administrative judge. The AJ had previously awarded sanctions based on Slavet’s failure to respond to discovery requests. The Board affirmed the AJ’s refusal to award attorney’s fees for Slavet’s services. Slavet and Rumsey settled their fee dispute, agreeing that Rumsey would pay $120,000 of the $145,445 sought by Slavet. The Federal Circuit reversed. Rumsey carried her burden of showing entitlement to some award of attorney’s fees. View "Rumsey v. Department of Justice" on Justia Law

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Miskill was employed as an IT Specialist with the Social Security Administration for 14 years. Her supervisor proposed to remove Miskill for violations of the time and attendance policy. The Assistant Associate Commissioner sustained four charges and removed Miskill from Federal Service. The Union submitted a grievance and subsequently invoked arbitration. Miskill obtained the records of the eight other individuals within her component at the Division of Network Engineering (DNE) for the relevant time period. Those records were analyzed by a CPA, Certified Product Examiner, and Certified Information Technology professional, who concluded that the eight other DNE employees had committed the same or similar violations as Miskill; none were investigated or charged with misconduct. The parties later stipulated that those employees were under investigation, but had not yet been charged. The Arbitrator sustained Miskill’s removal, finding that the comparators were not similarly situated because possible disciplinary action regarding them was still pending. The Federal Circuit vacated. Miskill sufficiently raised the issue of disparate treatment but arbitrator erred in its treatment of the comparator evidence. His categorical conclusion that the eight DNE employees could not be comparator employees because they were under investigation was an incorrect statement of law. Although the fact that a comparator employee is under investigation is a factor to be considered in determining whether that comparator is similarly situated, it is not a complete bar. View "Miskill v. Social Security Administration" on Justia Law

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Appellants, current and former employees of the U.S. Secret Service, alleged that, as a result of new practices, the government denied them the two consecutive days off from work to which they were entitled under 5 U.S.C. 6101(a)(3)(B). The Claims Court concluded that it was without jurisdiction because this provision is not money-mandating because it only concerns work scheduling practices and does not address employees’ entitlement to pay. The Federal Circuit affirmed that court's dismissal of the case. “At most,” section 6101(a)(3)(B) entitles employees to have their basic 40-hour workweek scheduled in a particular fashion; whether their basic 40- hour workweek is Monday through Friday with Saturday and Sunday off, or Monday through Saturday with Wednesday and Sunday off, does not, itself, affect employees’ statutory entitlement to pay. Because section 6101(a)(3)(B) does not “‘command[] payment of money to the employee,’” nor is it “reasonably amenable to the reading that it mandates a right to money damages,” violations of the subsection do not implicate the remedies prescribed in the Back Pay Act. View "Adams v. United States" on Justia Law

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Tartaglia served as Chief of Police at the Veterans Administration Hampton Virginia Medical Center. The VA proposed Tartaglia’s removal based on Abuse of Authority” (six specifications); “Lack of Candor” (two specifications); and “Misuse of Government Property” (one specification). The VA’s deciding official rejected Charge 3 as unsubstantiated, sustained Charge 1 based on five specifications and Charge 2 based on both specifications, and removed Tartaglia from service. An administrative judge affirmed Tartaglia’s removal, finding that the VA failed to prove either specification of Charge 2 and that it proved only three specifications of Charge 1. As to Charge 1, Tartaglia admitted to Specification 5: instructing a subordinate to drive him in a government-owned vehicle for a personal errand while on duty. The Merit Systems Protection Board sustained Tartaglia’s removal based solely on Specification 5, stating that removal fell within the Table of Penalties for that misconduct; Tartaglia’s “misconduct was particularly serious because it went beyond merely misappropriating a Government vehicle, but also included instructing a subordinate to help him”; mitigating factors such as Tartaglia’s “outstanding work record and lack of prior discipline” were “temper[ed]” because Tartaglia had served with the VA for “only approximately [four] years” and Tartaglia expressed remorse “only after initially denying the misconduct..” The Federal Circuit vacated, based on the Board’s miscalculation of Tartaglia’s length of service. View "Tartaglia v. Department of Veterans Affairs" on Justia Law