Justia Labor & Employment Law Opinion Summaries

Articles Posted in US Court of Appeals for the Federal Circuit
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Johnson served as an Air Traffic Controller Watch Supervisor. The Air Force alleged that Johnson was at fault for a violation of FAA policy concerning the separation of aircraft during his watch in 2018 and that this was grounds for removal in light of his prior offenses. A notice of a removal decision was effective May 11, 2019. On May 7, 2019, the local Union initiated grievance procedures. When the dispute was not resolved, the Union invoked arbitration through the Federal Mediation and Conciliation Service. In November 2020, the Arbitrator upheld the removal decision.The Union appealed but withdrew from the appeal because its national union had placed the local Union in receivership and stripped its counsel of all authority to proceed. Without reaching the merits, the Federal Circuit dismissed Johnson’s motion (Federal Rule 43(b) of Appellate Procedure), to substitute the Union. A party may not substitute under Rule 43(b) where the original party to the appeal lacked standing; unions lack standing to initiate an appeal of an arbitration decision under 5 U.S.C. 7703(a). A party may not substitute under Rule 43(b) when the original party being substituted lacked standing to initiate the appeal. View "American Federation of Government Workers v. Department of the Air Force" on Justia Law

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Kluge, an Army Reserve commissioned officer and a civilian employee of the Department of Homeland Security (DHS), was ordered under 10 U.S.C. 12301(d) to report to active duty in support of a contingency operation, Operation Enduring Freedom. He was absent from his DHS job from January 15 to July 30, 2011. For the first few weeks, Kluge was on paid military leave; from February 27 until July 30, DHS did not pay him except for the July 4 holiday. Kluge sought to recover differential pay under 5 U.S.C. 5538 for himself and similarly situated service members employed by the federal government, naming the Office of Personnel Management (OPM) as the respondent.An administrative judge denied class certification and substituted DHS for OPM. DHS and Kluge stipulated that he was eligible for differential pay. The AJ determined that DHS owed Kluge $274.37 plus interest. The Federal Circuit affirmed. The court upheld a finding that putative class members lack commonality or that identifying class members and adjudicating their claims as a class would not be fairer or more efficient. There was no legal error or abuse of discretion in the substitution of DHS for OPM. Kluge failed to show any error in calculating the differential pay. View "Kluge v. Department of Homeland Security" on Justia Law

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The Office of Personnel Management (OPM), promulgated regulations (5 U.S.C. 5545(d) and 5343(c)(4)), to provide hazardous duty and environmental differential pay to federal employees. Current and former employees of the Federal Bureau of Prisons filed suit, alleging that they were entitled to hazardous duty and environmental differential pay due to their “work [with] or in close proximity to objects, surfaces, and/or individuals infected with COVID-19 without sufficient protective devices.”The Federal Circuit affirmed the Claims Court’s dismissal of their claims for hazardous duty and environmental differential pay (plus related overtime, interest, and attorneys’ fees and costs). For the plaintiffs to prevail, it is not enough that COVID-19 can readily be characterized as “unusual”—one of the requirements of the statutory provisions; their case depends on whether their allegations come within OPM’s existing regulations, which are not challenged and which delimit particular situations in which federal employees are entitled to hazardous duty and environmental differential payments. OPM has not addressed contagious-disease transmission outside certain situations within laboratories and jungle-work situations. Although OPM might be able to provide for differential pay based on COVID-19 in various workplace settings, it has not to date adopted regulations that do so. View "Adams v. United States" on Justia Law

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Dr. Edenfield is a VAMC anesthesiologist. VAMC physicians had obtained informed consent for endoscopic procedures on the day of the procedure. A 2016 policy allowed mid-level practitioners (nurse practitioners, physician assistants) to obtain informed consent from patients. The change was approved by the National Center for Ethics in Health Care, the Credentialing Committee (several Quillen VAMC service chiefs), the Medical Executive Board (20 physicians), the Medical Center Director, and the regional Veteran Integrated Service Network. Edenfield argued that it was against VA policy for midlevel practitioners to obtain informed consent for endoscopic procedures, quoting the Veterans Health Administration Handbook. Edenfield resigned as the supervisor of the Pre-Operative Clinic. Two years later, although his supervisor recommended that Edenfield receive a pay increase, a VAMC panel denied him a raise. Edenfield alleged retaliation and resigned as Chief of Anesthesiology, then filed an unsuccessful complaint with the Office of Special Counsel, citing the Whistleblower Protection Act. The Merit Systems Protection Board denied Edenfield’s request for corrective action, finding that his statements were not protected disclosures under 5 U.S.C. 2302(b)(8).The Federal Circuit reversed. Edenfield’s interpretation reflected an ambiguity In the Handbook and was reasonable; the Board erred in holding that Edenfield did not have a reasonable belief that he was making a protected disclosure and erred by relying on information that would not have been readily ascertainable by a disinterested observer. Such information cannot support a finding that Edenfield’s belief was unreasonable. View "Edenfield v. Department of Veterans Affairs" on Justia Law

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From December 22, 2018, to January 25, 2019, the federal government partially shut down because of a lapse in appropriations. Plaintiffs continued to work as “excepted employees” who work on “emergencies involving the safety of human life or the protection of property” and whom the government can “require[] to perform work during a covered lapse in appropriations,” 31 U.S.C. 1341(c)(2), 1342. During the shutdown, the government was barred from paying wages to excepted employees by the Anti-Deficiency Act, which prohibits the government from “authoriz[ing] an expenditure or obligation exceeding an amount available in an appropriation or fund for the expenditure or obligation.” The government paid their accrued wages after the shutdown ended. Plaintiffs sued under the Fair Labor Standards Act (FLSA) for failure “to timely pay their earned overtime and regular wages,” 29 U.S.C. 260; any employer who does not timely pay minimum or overtime wages is liable for liquidated damages equal to the amount of the untimely paid wages. The Claims Court has the discretion to award no liquidated damages if the employer shows “reasonable grounds for believing that [the] act was not a violation of the Act.”The Federal Circuit ordered the dismissal of the case. As a matter of law, the government does not violate the FLSA when it pays excepted employees for work performed during a government shutdown at the earliest date possible after a lapse in appropriations ends, View "Avalos v. United States" on Justia Law

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From December 22, 2018, to January 25, 2019, the government partially shut down because of a lapse in appropriations. Border Patrol Agents continued to work as “excepted employees” who work on “emergencies involving the safety of human life or the protection of property” and whom the government can “require[] to perform work during a covered lapse in appropriations,” 31 U.S.C. 1341(c)(2), 1342. During the shutdown, the government was barred from paying wages to excepted employees by the Anti-Deficiency Act, which prohibits the government from “authoriz[ing] an expenditure or obligation exceeding an amount available in an appropriation or fund for the expenditure or obligation.” The government paid their accrued wages after the shutdown ended. The agents sued, alleging that the government violated the Border Patrol Agent Pay Reform Act (BPAPRA), 5 U.S.C. 5550, by not paying their wages on their regularly scheduled payday” for work they performed during the shutdown and that the late payments were unjustified personnel actions under the Back Pay Act, section 5596(b)); they sought interest and attorney fees.The Federal Circuit ordered the dismissal of the case. The government does not violate any implicit timely payment obligation in the BPAPRA and Back Pay Act when, as required by the Anti-Deficiency Act, it defers payments to excepted employees until after a lapse in appropriations ends. View "Abrantes v. United States" on Justia Law

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Correctional officers at the Michigan federal prison typically work eight-hour shifts. Prison shifts are scheduled in advance; hospital shifts are scheduled differently because they arise only when an inmate is transferred to a hospital for care. Since the need for hospital shifts varies, supervisors create hospital shifts as needed. They use a list of correctional officers who volunteered to be contacted about these shifts, which provide overtime pay. It takes about 20 minutes to drive from the prison to each local hospital; prison shifts and hospital shifts are currently staggered by one hour. Officers claimed that under the Fair Labor Standards Act (FLSA) and Office of Personnel Management regulations, the prison must compensate them for the travel time between a prison shift and a hospital shift, where these shifts are back-to-back and the hospital shift is voluntary. They asserted that this travel time is a “principal activity,” travel during a “continuous workday,” or other “hours of work,” for which the FLSA mandates compensation.The Federal Circuit affirmed summary judgment in favor of the government. Travel between a regular prison shift and an immediately following voluntary hospital shift is not a principal activity; it does not occur during either shift or during a “continuous workday.” View "Bridges v. United States" on Justia Law

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McIntosh, employed by the Department of Defense, was responsible for approving travel expenses for government contracts. McIntosh, on several occasions refused to approve invoices and refused to provide contract information to her coworkers. Her supervisor, Boswell, informed McIntosh that her actions amounted to a “refus[al] to perform [her] job requirements.” McIntosh filed grievances, alleging that she was being forced to disclose unauthorized information and was harassed. The agency investigated and denied McIntosh’s grievances. McIntosh took sick leave for the day of her scheduled performance review, before Boswell’s retirement. Boswell requested medical documentation. McIntosh returned to work after Boswell retired. Cohen became her supervisor. Upon her return, McIntosh submitted a letter from her doctor, stating that she “should be excused from work due to illness from 3/22/2017 through 3/24/2017.” Employee Relation determined that the documentation was not acceptable. McIntosh never provided additional documentation but reiterated her grievances and requested reassignment. She declined to speak to Cohen and went home. Cohen placed McIntosh on paid leave and issued a Notice of Proposed Removal. The deciding official, Van Winkle, sustained the removal.The Merit Systems Protection Board affirmed, finding that the Department would have removed McIntosh even absent her protected whistleblowing activity. The Federal Circuit affirmed, rejecting arguments that the Board’s administrative judges are improperly appointed principal officers under the Appointments Clause and that substantial evidence did not support the Board’s decision. View "McIntosh v. Department of Defense" on Justia Law

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Johnson was a Dyess Air Force Base firefighter from 2017-2019. In 2018, Johnson’s mother came to live with Johnson's family. She took around 13 pills to treat health issues; Johnson was taking “seven or eight” pills. The Air Force subsequently selected Johnson for a mandatory random drug test. He tested positive for oxycodone and oxymorphone. Johnson told his supervisor, Ranard, that he had accidentally taken his mother’s pills instead of his own prescribed medication. Ranard proposed that Johnson be fired. The deciding officer, Lieutenant Colonel Fletcher, fired Johnson, explaining that he could not “risk the possibility of Johnson] coming to work again under the influence of illicit drugs.” At an arbitration hearing, Fletcher testified that he “just [didn’t] believe” that Johnson accidentally took his mother’s pill, having consulted his wife, a registered nurse, and his brother-in-law, a nurse practitioner, who “confirmed that the likelihood of that happening is slim to none.” The arbitrator denied Johnson’s grievance, affirming his termination.The Federal Circuit reversed and remanded. Fletcher’s ex parte communications violated Johnson’s right to due process. When Fletcher’s relatives allegedly “confirmed” that the chances of Johnson taking his mother’s pill were “slim to none,” they were not confirming information in the record; they were providing new opinions on the evidence. View "Johnson v. Department of the Air Force" on Justia Law

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The United States Court of Appeals for the Federal Circuit held that the interim relief statute does not preclude a second removal action while a first removal action is still pending when the second action cures a procedural deficiency in the first action.The Department of the Treasury initiated a removal action against Petitioner charging him with misuse of government property. Treasury sustained the charge and removed Petitioner. A Board administrative judge (AJ) reversed based on a due process defect in the action. Treasury and Petitioner both petitioned for review. While that petition was pending, Treasury initiated a second removal action based on the same charge and specifications that cured the procedural deficiency in the first removal action. Treasury then removed Petitioner. An AJ upheld the second removal action, and that decision became the Board's decision. The Federal Circuit affirmed, holding that Treasury was not precluded from initiating the second action while the first action was still pending. View "Coy v. Dep't of Treasury" on Justia Law