While the Whistleblower Protection Enhancement Act (“WPEA”) protects whistleblowers from retaliation for disclosing a violation of law, rule, or regulation, the statute does not define those terms. In its first whistleblower retaliation case since Congress allowed whistleblower appellants from Board decisions to file in any U.S. Court of Appeals for a five-year trial period, the Fourth Circuit grappled with the definition of “rule” and its applicability to non-mandatory provisions.

A firefighter at the Department of the Navy petitioned the United States Court of Appeals for the Federal Circuit for review after the Merit Systems Protection Board ordered the Agency to determine if and when the employee would have been removed had he not retired before settling on what relief to grant him in the successful appeal of his involuntary retirement.

On November 15, 2017, the United States Equal Employment Opportunity Commission issued its annual Performance and Accountability Report, accompanied by a press release that touted the Agency’s improved management of case inventory, and the $86 million in monetary relief for federal employees and applicants that was secured through the EEOC.

On October 6, 2017, two petitions for writs of certiorari were filed with the United States Supreme Court, asking the Court to determine whether the time period for a federal employee to appeal a final order of the Merit Systems Protection Board to the United States Court of Appeals for the Federal Circuit is purely jurisdictional, and therefore cannot be “equitably tolled” under any circumstances.

On October 26, 2017, the Dr. Chris Kirkpatrick Whistleblower Protection Act (“the Act”) of 2017, was enacted. Dr. Kirkpatrick, a clinical psychologist at a VA Medical Center who complained that his patients were often too affected by medication to treat properly, committed suicide in 2015 after he was removed during his probationary period.

On October 26, 2017, the Federal Circuit Court of Appeals, after granting the Department of Justice’s petition for rehearing en banc, vacated its prior decision, and found that preference-eligible FBI employees appealing an adverse action to the Merit Systems Protection Board may not raise an affirmative defense of whistleblower reprisal, nor may they file an individual right of action (“IRA”) appeal to bring whistleblower claims to the Board.

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).

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.

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.

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.

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.

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.

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.

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.