Religious Accommodation Test Before the Supreme Court
This case law update was written by James P. Garay Heelan , an attorney at the law firm of Shaw Bransford & Roth, where since 2021 she has represented federal officials and employees in all aspects of federal personnel employment law. Ms. Grieshammer also advises federal agencies and employers on employment issues, such as proposed disciplinary actions and other employment-related litigation.
Fourth Circuit: MSPB Can't Adjudicate "Mixed Case" of EEO Claims, IRA Appeals
The Merit Systems Protection Board (MSPB) lacks jurisdiction to address equal employment opportunity (EEO) claims in “individual right of action” whistleblower reprisal appeals, the Fourth Circuit recently held.
Supreme Court Grants Cert to Split Circuit Decision on DHS Immigration Guidance
As the U.S. Court of Appeals for the Fifth and Sixth Circuits remain divided on halting the Department of Homeland Security (DHS) arrest and deportation guidance, the U.S. Supreme Court will step in.
Supreme Court Limits Personal Lawsuits Against Federal Employees
The U.S. Supreme Court’s sweeping decision in Egbert v. Boule precludes almost any new kinds of Bivens claims against federal employees, opening the door to a future overturn.
DNI Updates Marijuana-Related Security Clearance Guidance
Agencies received additional adjudicative guidance on three marijuana-related issues recently from the Director of National Intelligence (DNI), in its capacity as the Security Executive Agent with authority to set standards for security clearance adjudications across the Executive Branch.
Federal Circuit Rules “Willful” and “Intentional” are Not Synonymous
On June 14, 2021, the Federal Circuit affirmed the removal of an IRS employee who wrongly believed that the prohibition on disclosure of taxpayer information did not apply if the disclosure was made to her attorney in an attorney-client privileged communication.
TSA Gives Screening Personnel MSPB Appeal Rights
The Transportation Security Administration (TSA) and the Merit Systems Protection Board (MSPB) have reached an agreement to provide TSA screening personnel with appeal rights equivalent to the Title 5 appeal rights available to most other federal employees.
Religious Freedom Restoration Act Exposes Officials to Personal Liability, Supreme Court Rules
Government officials may be sued in their personal capacity for alleged violations of the Religious Freedom Restoration Act of 1993 (RFRA), the Supreme Court held in the case of Tanzin v. Tanvir, issued at the end of last year. While Tanzin occurred in a law enforcement context, some legal commentators believe the Court’s decision may have a “chilling effect” on officials who enforce nondiscrimination laws.
Officer Removed On Results Of Psychological Assessment Entitled On Appeal To Challenge Assessment’s Basis
Where an agency relies, directly or indirectly, on the results of a psychological assessment in justifying an employee’s removal, the agency must provide the employee with a meaningful opportunity to review and challenge the evidence underlying the assessment, the Federal Circuit recently held.
VA Employee Asks Eleventh Circuit To Ease EEO Reprisal Legal Standard For Federal Employees
FEDmanager recently reported the U.S. Supreme Court’s decision in Babb v. Wilkie. In Babb, the Supreme Court reversed a panel of U.S. Court of Appeals for the Eleventh Circuit and held the prohibition against age discrimination in the federal workplace was broader than that applied in the private sector. We update you now that plaintiff Noris Babb is requesting the full Eleventh Circuit to apply the Supreme Court’s holding to lower the bar to establish EEO reprisal claims in the federal workplace.
VA Penalty Determinations Under New Title 38 Authority Is Reviewable By MSPB, New Authority Cannot Be Retroactively Applied
Congress did not intend to give the Department of Veterans Affairs carte blanch to impose penalties against non-executive career employees without review, the Federal Circuit held last week.
Acting USCIS Director Appointment Unlawful, Court Holds
Ken Cuccinelli’s appointment as acting Director of the U.S. Citizenship and Immigration Services is unconstitutional, a federal district court held this week.
Brief Delay In Reporting Sexual Harassment Doesn’t Negate Complaint, Federal Circuit Affirms
A one-day delay in reporting an unwelcomed kiss in the workplace did not render the complaint un-credible, an administrative judge held and the Federal Circuit recently affirmed.
Absence of Evidence Cannot Favor Agency Defense Against Whistleblower Reprisal Claim
Last week, FEDmanager reported on the Federal Circuit’s decision in Siler v. EPA, on the issue of whether EPA adequately asserted the attorney-client privilege to withhold documents from Siler during the discovery phase of his MSPB appeal his removal from federal service. This week, we report on the portion of the court’s decision that vacated the MSPB’s denial of Siler’s whistleblower reprisal affirmative defense and remanded the matter to MSPB for further proceedings.
Federal Circuit: MSPB Wrong to Reject Evidence of Depression as Mitigating Factor
A Materials Engineer fired from the Department of the Navy for being absent without leave and falsifying time records successfully appealed the decision of the Merit Systems Protection Board to affirm his removal.
Incidents Leading to Involuntary Retirement Claim Must Be Reviewed 'Collectively'
To determine jurisdiction in an involuntary retirement appeal, the Merit Systems Protection Board must consider an appellant’s claims “collectively as a series of escalating incidents,” rather than one by one, the Federal Circuit recently held.
Constitutionality of Public Union “Agency Fees” Set for Decision
For the second time in less than three years, the U.S. Supreme Court is considering whether requiring public sector employees who are non-paid members of the bargaining unit to pay an “agency fee” to subsidize union activities is unconstitutional.
District Courts to Decide “Mixed Case” Appeals
Appeals from Merit System Protection Board jurisdictional dismissals of “mixed cases” are properly appealed to federal district court and not to the U.S. Court of Appeals for the Federal Circuit, the U.S. Supreme Court held last week.