Case Law Update

Comprehensive summaries of recent court and administrative decisions (from the MSPB, EEOC and FLRA) affecting the terms, conditions and rights of federal employment. The update is written by a lawyer in an understandable format to keep you informed of key legal developments affecting federal employment.

Title	Published Date	Author
Reliance on Charge not Contained in Notice of Proposed Removal Constitutes Due Process Violation, Board Rules	11 May 2012	FEDmanager
Temporary Government Workers Eligible for Same Immunities as Full-Time Employees in § 1983 Cases, Supreme Court Rules	08 May 2012	FEDmanager
Federal Employees’ Due Process Rights Include Right to be Provided with Deciding Official with Authority, MSPB Rules	01 May 2012	FEDmanager
Procedural Protections Triggered after Agency’s Removal of Employee who Lost Security Clearance then Held Non-Sensitive Position for Six Years Prior to Removal	24 April 2012	FEDmanager
Military Service and Civilian Service Cannot be Combined to Meet One-Year Current Continuous Service Requirement, Federal Circuit Rules	17 April 2012	FEDmanager
MSPB Overrules Line of Cases Requiring FERS Disability Retirement Applicants to Show Nexus between Medical Condition and Specific Job Tasks or Show Unambiguously and Without Contradiction that Applicant Cannot Perform Position’s Tasks	10 April 2012	FEDmanager
Denial of Eligibility to hold Sensitive Position not an Authorized Reason for Employee’s Indefinite Suspension	03 April 2012	FEDmanager
MSPB rules it has Jurisdiction to Hear RIF Appeals if Representative Rate of Pay for New Position is lower than that of Old Position, even if Employee’s Actual Basic Pay is Higher following the RIF	27 March 2012	FEDmanager
Contact with ADR Office Does Not Waive 45-Day Deadline to Initiate Contact with EEO Counselor, Thus Plaintiff’s EEO Contact Was Untimely, Judge Rules	20 March 2012	FEDmanager
GSA’s Decision Not To Hire IT Specialist Was Not Appealable Suitability Action, Despite Agency Notice Saying He Failed To Meet Position’s “Suitability Requirements,” Federal Circuit Rules	13 March 2012	FEDmanager
Agency’s Failure to Include Giglio in Its Proposed Removal Notice Constituted Denial of Due Process, Necessitating Reversal of the Removal Action, MSPB Rules	06 March 2012	FEDmanager
Former IRS Employee Sentenced to Nearly 9 Years for Theft of Government Property, Aggravated Identity Theft	28 February 2012	FEDmanager
Navy Had No Duty to Give Employee “Non-Sensitive” Duties Pending Investigation of His Security Clearance Where Statute, Regulation or Policy Does Not Impose Such a Duty, Federal Circuit Rules	21 February 2012	FEDmanager
Known Flaw in Agency’s QuickHire System Deprived Applicant of His Veterans’ Preference Rights, U.S. Merit Systems Protection Board Rules	14 February 2012	FEDmanager
Criminal Investigator's Retirement Annuity Should Not Include Availability Pay Because Her Last Years of Service Were Part-Time, MSPB Rules	07 February 2012	FEDmanager
Employee's Discrimination Claim Based on Accretion-of-Duties Promotion Fails Because She Did Not Convey Her Interest in Promotion, Eighth Circuit Rules	31 January 2012	FEDmanager
Agency's Settlement Agreement with Two Other Employees Did Not Preclude It from Disciplining Petitioner, Federal Circuit Rules	24 January 2012	FEDmanager
Employee Who Knew He Was Wrongly Treated as a Probationary Employee During His Termination Failed to Justify Untimely EEO Contact, EEOC Rules	17 January 2012	FEDmanager
Former DoD Employee Sentenced to 2 ½ Years in Prison for Submitting False Travel Claims	10 January 2012	FEDmanager
Recipient of FERS Disability Annuity Payments Not Entitled to Cost-of-Living Increases upon Reinstatement of Payments, Federal Circuit Rules	03 January 2012	FEDmanager
Postal Service Did Not Breach Settlement Agreement Where Agreement was Silent about the Time Frame, and Agency had a Legitimate Reason for Changing the Terms, Federal Circuit Rules	20 December 2011	FEDmanager
Fed Who Lied about a Criminal Conviction both Before and After His Appointment, Resulting in Termination during His Probationary Period, Was Not Entitled to Extra Due Process, Federal Circuit Rules	13 December 2011	FEDmanager
Former USAID Employee Sentenced to 29 Months in Prison, Payment of $1.9 Million to IRS	06 December 2011	FEDmanager
Father Lacked Legal Standing to Sue for an Alleged Violation of His Daughter's Rights under the Rehabilitation Act, D.C. Federal Court Rules	29 November 2011	FEDmanager
Postal Worker Stalked by Customer Entitled to Hearing to Determine if Intolerable Working Conditions Led to Constructive Suspension, MSPB Rules	15 November 2011	FEDmanager
Federal Circuit Rules It Lacks Jurisdiction Over "Mixed Case" Where Fed Alleged Her Removal Was In Retaliation for Prior EEO Activity	08 November 2011	FEDmanager
MSPB Considering Whether Feds Should Receive More Protection When Suspended Because of Security Clearance Concerns	01 November 2011	FEDmanager
Demotion Proper Where Federal Manager Made Inappropriate Comments about Race and Sex, Federal Circuit Rules	25 October 2011	FEDmanager
DoD Employee Pleads Guilty to Submitting Nearly $500,000 in False Travel Claims	18 October 2011	FEDmanager
U.S. Supreme Court to Decide Whether Agencies Violating the Privacy Act Can Be Sued for Non-Monetary Damages	11 October 2011	FEDmanager
TSA Supervisor's Lack of Racial Sensitivity Leads to Demotion	04 October 2011	FEDmanager
Noted Federal Scientist Pleads Guilty to Attempted Espionage	27 September 2011	FEDmanager
Legal Analysis Differs Between "Actual" and "Perceived" Whistleblowers, MSPB Explains	20 September 2011	FEDmanager
EEOC Finds No Claim Where Agency Cancels Vacancy After Selection, But There Was No Deliberate Attempt to Avoid Selecting Applicant	13 September 2011	FEDmanager
AJ's Exclusion of Witness Testimony Proper Where Agency Failed to Identify Witness in Initial Disclosures	06 September 2011	FEDmanager
Removal of CBP Officer Unable to Work Graveyard Shift and Overtime was Proper	30 August 2011	FEDmanager
OSC Finds DOE Violated Whistleblower's Due Process Rights with 13-Month Suspension	23 August 2011	FEDmanager
Fed Can Sue for Hostile Work Environment Based on Sex Stereotyping	16 August 2011	FEDmanager
Termination Was Proper Where CBP Intern Sent Negative Letters	02 August 2011	FEDmanager
FTC Employee Who Stole Electronics from Agency Sentenced to 18 Months in Prison	26 July 2011	FEDmanager
OSC Complaint Alleging Hatch Act Violation Was So Vague That Dismissal Was Proper, MSPB Rules	19 July 2011	FEDmanager
Army Employee Entitled to TDY Expenses Where Agency Incorrectly Designated Her PDS	12 July 2011	FEDmanager
Federal Circuit Upholds Removal for Failing to Follow Directives and Being AWOL	05 July 2011	FEDmanager
Job Applicant's Management Experience Description Insufficient to Support Age Discrimination	28 June 2011	FEDmanager
Former OPM Background Investigator Sentenced to Prison For False Statement	21 June 2011	FEDmanager
DOD Permitted to Record Nurse's 3-Month Absence as AWOL, and Consequently Her Removal was Justified	14 June 2011	FEDmanager
Deciding Official's Consideration of Ex Parte "New and Material Information" in Proposed Removal Action Violated Due Process	07 June 2011	FEDmanager
Employee's Allegations of Wrongdoing Were Not "Disclosures" Under the WPA	31 May 2011	FEDmanager
USPS Did Not Regard Former Employee as "Disabled," Therefore Did Not Discriminate Against Him Under Rehabilitation Act	24 May 2011	FEDmanager
Former DHS Specialist Pleads Guilty to Conflict of Interest Charge	17 May 2011	FEDmanager

12 »End

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And for a few laughs, join GEICO at the 2012 Funniest Fed Competition, a series of comedy shows where federal employees and members of the military perform original standup routines in front of live, voting audiences in an effort to nab the title of "D.C.'s Funniest Federal Employee."

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FLTCIP Open Season Results

More than 48,000 Apply

Federal Long Term Care Partners has released the results of the 2011 Open Season for the Federal Long Term Insurance Program (FLTCIP), Long Term Care Partners recently said, which has been heralded “a complete success.” More than 45,000 individuals were approved for enrollment during the 2011 FLTCIP Open Season, bringing FLTCIP’s total enrollment to more than 270,000, an increase of 20 percent.

The majority of 2011 applicants ultimately opted for one of FLTCIP’s pre-packaged plans. The most popular plans were those with a Daily Benefit Amount of $150 or $200 per day and a Benefit Period of three years – a good match for the average national cost and duration of long term care services, Long Term Care said.