Top 10 Cases Impacting the Federal Workforce
This week on FEDtalk, host James Heelan–Senior Counsel at Shaw Bransford & Roth–joins the program with colleagues Conor Dirks and Michael Sgarlat. Dirks is a Partner at Shaw Bransford & Roth, and Sgarlat is an Associate Attorney. The Attorneys speak from a combined three decades of experience representing federal employees in federal district and appellate courts, and administrative forums.
Heelan, Sgarlat, and Dirks author the weekly case law updates on FEDmanager and FEDagent.
Number 10—Miranne v. Navy
Think before you hit send. In this non-precedential case, the Federal Circuit affirmed an important concept to remember: a federal employee can be fired for the content of one e-mail, if that e-mail is sufficiently disrespectful.
On October 8, 2021, the Federal Circuit upheld the termination of a personnel psychologist for sending a “disrespectful” e-mail that accused leadership of “criminal” conduct related to a policy change. In May 2019, a personnel psychologist at the Department of the Navy, upset that a recent policy change would require him to obtain a secret security clearance, copied his entire chain of command on an e-mail. In that e-mail, he accused his chain of command of engaging in “fraud,” and a “conspiracy to commit fraud,” and encouraged the people copied on the e-mail to “avoid becoming further enmeshed in what I believe to be a criminal enterprise,” without evidence to support those claims. The Navy then removed the psychologist for “disrespectful and improper conduct.”
The Merit Systems Protection Board (MSPB) affirmed the Navy’s removal decision, concluding that the psychologist showed “dreadfully poor judgment” in sending an e-mail “as delicate and nuanced as a cannon blast” with “an air of moral superiority” that “simply cannot be minimized or misinterpreted.” The Federal Circuit agreed with the MSPB, adding that the employee was not fired in retaliation for protected whistleblowing activity because his belief that the Navy violated the law when they changed his position description was not reasonable.
Number 9—Frasier v. Evans
Qualified Immunity remains a strong legal defense for federal employees in Bivens cases. The Supreme Court declined to review a Tenth Circuit decision holding an individual police officer’s actual awareness of a person’s rights is not relevant to the Qualified Immunity analysis.
In 2014, two local police officers arrested a suspect on suspicion of drug activity. After videographer captured the officers physically abusing a suspect, the officers warrantlessly seized and searched the recording device in attempt to delete the video. The videographer later sued the police department and officers in a Section 1983 lawsuit, alleging First Amendment retaliation.
The District Court denied the officers’ motion for summary judgment on Qualified Immunity grounds, holding that evidence established the officers actually knew they were violating the videographer’s constitutional rights when they seized and searched his recording device. The Tenth Circuit reversed, holding that – because the Qualified Immunity analysis examines what a “reasonable officer” should have known about a person’s rights – meant the district court erred by considering evidence about the training the defendant police officers had received.
In November 2021, the Supreme Court denied the videographer’s petition for a writ of certiorari, allowing the Tenth Circuit decision to stand and casting doubt on whether federal courts may consider evidence of an officer’s subjective knowledge to decide whether Qualified Immunity applies. This development may benefit federal law enforcement defending against Bivens claims because the legal analysis for a Qualified Immunity defense is the same in both Section 1983 and Bivens cases.
Number 8—Lombardo v. City of St. Louis
For the federal law enforcement workforce, the scope of force allowed depends on the facts of each individual case. The Supreme Court knocked down a “per se,” categorical rule that excessive force is constitutional if an individual is resisting officers.
In December 2015, St. Louis police officers arrested an individual for trespassing a condemned building and failing to appear in court for a traffic violation. While in a holding cell, the individual began to take steps that signaled he was trying to commit suicide. When the officers saw this, they tried to subdue the individual, but he continued to struggle, even kicking one officer. Backup arrived, the individual was placed in a prone position face down on the floor and held down by officers. At least one officer placed pressure on his back and torso. After 15 minutes of struggling in this position, he died.
The deceased’s parents sued officers personally in a Section 1983 action, alleging they used excessive force to subdue their son. A Section 1983 action is the local and state analog to a Bivens cause of action and provides a statutory right to sue local and state law enforcement officers and other state employees for civil rights violations. The courts’ review of what constitutes of violation of an individual’s Fourth Amendment rights under Section 1983 would transfer to what constitutes a violation of an individual’s rights in the Bivens context.
The district court and Eighth Circuit both rejected the excessive force claim. In a unanimous decision on the parent’s petition for the Supreme Court to hear the case, the Court said it was unclear whether the appeals court thought that use of a prone restraining, regardless of the kind, intensity, duration, or circumstances, was per se constitutional if the individual resists officers. Supreme Court then specifically rejected such a per se rule.
Number 7—Beck v. Navy
Discriminating against a person for their rank in the military may violate Uniformed Services Employment and Reemployment Rights Act (USERRA).
A former Navy cook, who worked his way to becoming a civilian Event Forum Project Chief with the Department of the Navy, filed a USERRA claim on his non-selection for another Chief position with promotion potential. The applicant claimed the Navy Captain assigned as the selecting official for the position vacancy had previously disparaged and discriminated against the former cook for his lower military rank. He further argued that he was more qualified than the person who the Captain selected for the position, who was previously a trainee to the former cook.
After losing before an MSPB Administrative Judge, the former cook appealed to the Federal Circuit. The Court of Appeals reversed the MSPB decision and determined that Navy had failed to carry its evidentiary burden under USERRA, and that the Captain discriminated against the former cook for his lower military rank. In the decision, the Court then held the USERRA’s prohibition against discrimination based on “performance of service” may include an individual’s military rank.
Number 6—Braun v. HHS (Rehearing)
Agencies have long enjoyed flexibility in deciding whether to use misconduct or performance removal procedures when removing employees for performance issues. But in Braun, the Federal Circuit drew a line at “routine performance deficiencies” at which performance policies should be used to address performance concerns.
A tenured NIH scientist was fired for performance reasons under NIH’s generic “for cause” misconduct removal procedures. He pursued an appeal with the Federal Circuit, arguing that HHS should have been required to use its published “de-tenuring” process to remove his tenure before it could take a removal action against him, under the agency’s performance procedures.
In December 2020, a panel of three Federal Circuit judges held that HHS could utilize its generic “for cause” procedures to terminate tenured scientists for some (but not all) performance reasons, despite the existence of a performance “de-tenuring” process that afforded additional protections. In finding that “routine performance deficiencies” (unlike the “dramatic and disturbing” alleged deficiencies here) must be processed through performance procedures out of respect for the adoption of those policies, the Federal Circuit cracked open the door to challenges to prior rulings in Lovshin v. Navy and elsewhere that misconduct procedures may be used to address performance concerns despite the existence of performance removal procedures.
On June 4, 2021, the Federal Circuit denied the scientist’s petition to rehear his appeal en banc. The order denying rehearing was accompanied by two stinging dissents highlighting the repercussions of undermining the tenure system and challenging the majority’s decision to allow HHS to deviate from its own published performance procedures (and the Supreme Court’s mandate that agencies must follow their own procedures) just because the performance failure was not a “routine performance deficiency.”
Number 5—DiCocco v. Garland
Whether the Age Discrimination in Employment Act (ADEA) allows for a “disparate-impact” cause of action for the federal workforce is ripe for Supreme Court review. The Fourth Circuit created a split among the federal appeals courts, by finding that federal employees do not have a disparate-impact cause of action against their federal employers under the ADEA.
In July 2014, a 67-year-old psychiatrist accepted a job with the Bureau of Prisons. As a condition of her hiring, she was required to take the physical fitness test required for all new BOP employees. The test demanded she complete certain intensive requirements like dragging a 75-pound dummy, an obstacle course, and climbing several flights of stairs with a 20-pound weighted belt all within a set time.
The psychiatrist filed a complaint in federal district court, arguing that BOP’s physical fitness test violated the ADEA because it disparately impacts those over 40. The Supreme Court approved such a cause of action in 1971, against private sector employers. The district court dismissed the psychiatrist’s case for lack of standing. She then appealed to the Fourth Circuit, which held that while she did have standing – her case still needed to be dismissed because the ADEA does not allow disparate-impact claims against federal sector employers.
The dissent noted that the majority’s decision created a split with several sister circuits, including the Ninth and Tenth Circuits, that have recognized the disparate-impact claims under the federal sector provision of the ADEA. The Fourth Circuit’s departure from these other circuit courts makes the issue ripe for the Supreme Court to weigh in.
Number 4—Egbert v. Boule
Bivens remains the law of the land. The Supreme Court declined the opportunity to reconsider Bivens, allowing personal lawsuits against federal employees for allegedly violating people’s constitutional rights to continue.
In 2014, a Border Patrol agent went to the “Smuggler’s Inn” mere feet on the U.S. side of the U.S./Canada border to confront a Turkish national he had reason to believe was about to attempt an unlawful border crossing and refused the innkeeper’s request for the agent to leave.
The innkeeper filed a Bivens lawsuit against the agent, alleging the agent violated his Fourth Amendment rights by entering his property, and his First Amendment rights by reporting him to the IRS to audit him. The district court granted the agent’s motion to dismiss on grounds that case law prevented it from extending Bivens to both First Amendment and immigration enforcement contexts. The Ninth Circuit then reversed that decision on both grounds, creating a split with its sister circuit courts of appeal on the two issues.
In the agent’s petition to the Supreme Court for a writ of certiorari, he asked the Supreme Court to reverse Bivens and eliminate the judicially-created cause of action that allows people to personally sue federal employees. On November 5, 2021, the Supreme Court rejected that request without explanation and instead accepted the agent’s petition on other grounds.
Number 3—Vestal v. Treasury
Ask permission before doing something that could violate agency policy. The Federal Circuit affirmed an Internal Revenue Service (IRS) employee’s removal for intentionally giving taxpayer information to her attorney, even though the employee did not think doing so would violate agency policy.
In preparing her defense to a proposed suspension, without permission, an IRS employee sent her private attorney an unredacted record from a taxpayer’s file. IRS subsequently removed the employee for intentionally making an unauthorized disclosure of taxpayer information.
On appeal to the MSPB, the employee argued to an Administrative Judge that because she did not intend to violate a law or policy by making the disclosure to her attorney, that her unauthorized disclosure was not intentional. The Administrative Judge disagreed, finding the issue was about whether the employee intended to send a document with taxpayer information outside the IRS – not whether the employee intended to violate IRS policy. Because the employee intended to send the document, the Administrative Judge sustained her removal. The employee then appealed to the Federal Circuit.
The Court agreed with MSPB, emphasizing that “whether she knew the disclosure was wrong” was irrelevant to whether the employee committed misconduct by intentionally sending a document with taxpayer information outside the IRS.
Number 2—Rodriguez v. Veterans Affairs
The Department of Veterans Affairs’ (VA) implementation of the newest version of its accountability law, including its “substantial evidence” standard, is no more.
In 2017, Congress amended Sections 713 and 714 of Title 38 of the U.S. Code to make the termination of VA employees easier, faster, and importantly, much less rigorous. One of the changes to the law provided that on any VA employee appeal of an adverse employment action to the MSPB, the MSPB administrative judge will review the action under the lesser “substantial evidence” standard rather than the “preponderance of the evidence” burden of proof widely used for employees all around the federal government in misconduct actions under Title 5.
When VA implemented the new law, it took things one step further, and interpreted the law to allow the VA to impose a “substantial evidence” standard at the agency level, where they were making disciplinary decisions in the first instance. This evidentiary standard had the effect of lowering the legal bar for discipline, and making discipline appropriate as long as “a reasonable person, considering the record as a whole, might accept as adequate to support a conclusion, even though other reasonable persons might disagree.”
The Federal Circuit made two key holdings. First, the court held the law did not expand the “substantial evidence” standard to agency decision-making. Second, the court held, “preponderance of the evidence has long been recognized as the traditional burden of proof” in agency disciplinary proceedings, because at some stage of the proceeding, someone has to make a determination that the conduct actually happened. The Federal Circuit’s decision implicates hundreds of disciplinary actions taken under the 2017 law that may not have been legally sufficient.
Number 1—Santos v. NASA
The Federal Circuit recognized a long-ignored element of proof imposed on agencies in post- performance improvement plan (PIP) performance termination appeals: federal agencies must prove that employees deserved to be put on a PIP in the first place.
For decades, the MSPB has held that when an employee challenges their performance termination, agencies must prove that the employee performed unacceptably during a PIP. Also, for decades, the MSPB has held that there was no statutory or regulatory basis to require agencies to prove that the PIP itself was justified.
In a game-changing decision in March 2021, the Federal Circuit reversed decades of MSPB precedent. The appeals court held that the clear statutory language of 5 U.S.C. § 4302(c)(6), required agencies to also prove that the employee deserved to be put on a PIP in the first place when an employee is fired for failing a PIP and challenges the action at MSPB.
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