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 Clarifies Definition of “Abuse of Authority”
In an internal investigation, an Army doctor working testified that the commanding officer of the Army hospital harassed his wife and intimidated him after his wife filed a complaint.
McCray v. Biden: Federal Judge Denies Request to Enjoin the Vaccine Mandate
On December 7, 2021, a federal judge of the U.S. District Court for the District of Columbia denied a federal employee’s motion for a temporary restraining order. The employee sought to enjoin enforcement of the President’s executive orders directing federal agencies to require COVID-19 vaccination for federal employees and contractors, and requested the court declare that the President’s orders were unlawful.
Fourth Circuit: No Disparate Impact Claims Under ADEA for Feds
A former Bureau of Prisons employee claimed that BOP’s fitness test disparately impacts those older than 40. On November 17, 2021, the United States Court of Appeals for the Fourth Circuit held that sovereign immunity protected the government from such a suit as the Age Discrimination in Employment Act’s (ADEA) federal sector provision did not provide for a disparate impact cause of action.
The Performance Evaluations' Stake in Certain Misconduct Allegations
A passport specialist at the Department of State (DOS) was terminated based on four charges, and eighteen specifications, of misconduct. Eleven of those specifications came in a charge of failure to follow instructions. He argued that his fully successful performance evaluation should be considered as evidence that he consistently followed instructions.
Federal Circuit: Yes, You Can Be Terminated for One Bad Email
On October 8, 2021, the Federal Circuit Court of Appeals affirmed that federal employees can be fired for one e-mail, if the e-mail is sufficiently disrespectful. The employee appealed his removal to the Merit Systems Protection Board (MSPB).
OPM Issues Vaccine Requirement Enforcement Guidelines for Federal Agencies
The deadline for full vaccination set by the Executive Order is November 22, 2021. According to the OPM guidance, OPM recommends that agencies begin the disciplinary process as soon as November 9, 2021, rather than waiting for the deadline.
President Biden Mandates COVID-19 Vaccination for Federal Employees
On September 9, 2021, President Biden issued an “Executive Order on Requiring Coronavirus Disease 2019 Vaccination for Federal Employees,” an executive order “requir[ing] COVID-19 vaccination for all Federal employees, subject to such exceptions as required by law.”
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.