Federal Circuit Court of Appeals Grants Petition for Rehearing En Banc in Due Process Case
On October 13, 2017, the United States Court of Appeals for the Federal Circuit granted a petition for rehearing en banc filed by the Department of Defense, and vacated the court’s panel opinion in Federal Education Association-Stateside Region v. Department of Defense. 841 F.3d 1362 (Fed. Cir. 2016), reversing an arbitrator’s opinion after finding a due process violation. In its October 13, 2017 order, the appeals court requested that the parties address the relevant cases and issues, but specifically requested that the parties address the court’s decisions in Sullivan v. Department of Navy, 720 F.2d 1266 (Fed. Cir. 1983) and Ryder v. United States, 585 F.2d 482 (Ct. Cl. 1978).
Dismissal of Class Action Suit Against OPM Resulting from Data Breach Appealed
In a consolidated multidistrict class action against the Office of Personnel Management following a severe data breach of OPM’s cybersecurity that affected millions of federal employees and former federal employees, federal employees and the union alleged gross negligence and a violation of constitutional rights to informational privacy, but the United States District Court for the District of Columbia dismissed the case on September 19, 2017. On October 12, 2017, the employees appealed the dismissal to the United States Court of Appeals for the D.C Circuit.
Supreme Court Grants Certiorari to Decide Whether Union Fees for Non-Member Public Employees Violate First Amendment
On September 28, 2017, the Supreme Court granted certiorari to consider whether agency fee arrangements imposed by public unions on non-member public employees are constitutional.
Court of Appeals Reverses Dismissal of Whistleblower Case by MSPB
The United States Court of Appeals for the Federal Circuit reversed the MSPB’s dismissal of a Department of Homeland Security employee’s Individual Right of Action (“IRA”) whistleblower retaliation appeal.
Federal Circuit: Employees Under Investigation Can Still Be Comparator Employees
The United States Court of Appeals for the Federal Circuit overturned an arbitrator’s decision sustaining the employee’s removal for violating the agency’s time and attendance policies after finding that the arbitrator erred by imposing a “categorical rule of exclusion” against using employees who are similarly situated and under investigation as comparators when arguing that a penalty is not reasonable.
Sixth Circuit Rules that Feds Can't Collect Twice
On July 10, 2017, the United States Court of Appeals for the Sixth Circuit ruled that because liability under the workers’ compensation scheme for federal employees, the Federal Employees’ Compensation Act (“FECA”) is “exclusive” of “all other liability of the United States” to the employee under tort liability statutes, the plaintiff could not recover under the Federal Tort Claims Act (“FTCA”) even when his “work-related injury [had] been allegedly negligently treated by an entirely non-work-related federal hospital.
Despite Lack of Quorum, Board Grants Stay at OSC Request
On July 13, 2017, the Merit Systems Protection Board, currently without a quorum and consisting of only one member (Vice Chairman Mark Robbins) extended a stay of a Department of Veterans Affairs physician’s removal after the request was made by the Office of Special Counsel.
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.
Appeals Court Affirms Dismissal of COLA Dispute
After a $232,500,000 settlement agreement was executed in 2000 that also mandated that the United States Office of Personnel Management issue new regulations governing the Cost of Living Adjustment (“COLA”) program, plaintiff federal employees filed suit alleging that the government breached the settlement agreement and both the express and implied covenant of good faith and fair dealing.
Federal Circuit Reverses MSPB Order to Repay OPM Overpayment
After the Merit Systems Protection Board found that a retired federal employee failed to prove that the recovery of overpaid benefits from the Federal Employee Retirement System (“FERS”) would be against equity and good conscience, the Court of Appeals for the Federal Circuit reversed the MSPB’s decision, finding that the Administrative Judge’s analysis (which the full Board accepted) was not supported by substantial evidence, was erroneous, and that recovery of the overpayment was unconscionable given the “inexplicable” three-year delay by OPM to finalize the retiree’s benefits, and the additional four-year delay between the retiree’s request for reconsideration and OPM’s decision.
Supreme Court: Veteran Can’t Be Forced to Indemnify Ex-Spouse When Electing Benefits
A retired Air Force Veteran’s divorce decree awarded his ex-wife 50 percent of the veteran’s future Air Force retirement pay, but thirteen years after the divorce, the veteran was found partially disabled due to an earlier service-related injury, and elected to give up an equal amount ($250 monthly) of retirement pay in order to receive disability pay – thereby reducing the value of his ex-wife’s 50 percent share by 50 percent of $250.
Constitutional Individual Right to Carry Firearm Outside Home? Supreme Court Considers Hearing Case
The Supreme Court is considering whether to hear a case which asks whether the Second Amendment entitles ordinary citizens to carry handguns outside the home for self-defense.
Supreme Court to Decide Appellate Jurisdiction in Federal Employee “Mixed Case” Appeals
In the first case argued before Supreme Court Justice Neil Gorsuch, Justices appeared to disagree about how to handle “mixed cases,” alleging both adverse employment actions against federal civil service employees and prohibited discrimination, where the Merit Systems Protection Board concludes it lacks jurisdiction because the employee was not subject to an appealable action.
Supreme Court Finds That FEHBA Preempts State Law Barring Subrogation and Reimbursement
Today, the Supreme Court held that contractual subrogation and reimbursement prescriptions plainly relate to “payments with respect to benefits” under the Federal Employees Health Benefits Act of 1959 (FEHBA) and preempt state laws barring subrogation and reimbursement.
Discrimination on the Basis of Sexual Orientation Covered under Sex Discrimination for the Purposes of Title VII
Last week, the U.S. Court of Appeals the for the Seventh Circuit held that discrimination on the basis of sexual orientation is a form of sex discrimination under Title VII of the Civil Rights Act of 1964.
Supreme Court Holds That Presidential Nominated Appointees Are Ineligible To Also Serve In An Acting Capacity In a Different Position
This week, the Supreme Court held that the Federal Vacancies Reform Act of 1998 (FVRA) prohibits persons who the President nominates for appointment to be placed in positions in acting capacities while awaiting confirmation by the Senate.
Motion to Compel Granted in Part in Federal Employee Class Action Data Breach Litigation
Customers brought separate actions against Anthem, a health insurance company, after the company’s computer systems were compromised by a cyberattack.
Representatives Lieu and Beyer Release Guidance on Federal Employees Sharing Information with Public
On Thursday, February 16, 2017, Representatives Ted Lieu (D-CA) and Don Beyer (D-VA) released guidance for federal employees who may want to break the Trump administration’s “blackout” on federal agency communications with the press.