Federal Circuit: EPA Made “Baseless” Claim of Attorney-Client Privilege to Protect Draft Notices of Proposed Disciplinary Actions
Recently, the Court of Appeals for the Federal Circuit reversed a decision of an Merit System Protection Board Administrative Judge, and found that the EPA made no evidentiary showing to prove its claim of the attorney-client privilege to prevent the discovery of draft proposed disciplinary actions.
Fourth Circuit: Amendments to EEO Complaint Do Not Reset Timeline for Judicial Suit
After a federal district court ruled that a Patent and Trademark Office employee’s amendment to his initial EEO complaint reset the 180-day timeline for the accrual of the employee’s right to file a judicial suit, the Fourth Circuit Court of Appeals reversed and remanded the district court ruling, finding that the plain language of Title VII contemplates amendments to the initial complaint.
Federal Circuit: Intent Not an Element of “Positive Test” Charge
The Federal Circuit Court of Appeals, via a panel decision, held that when a federal employee is removed from service on a charge of “positive test for illegal drug use,” there is no requirement for the government to prove that the employee intended to use an illegal drug.
Parties in OPM Data Breach Suit Hold Oral Arguments at D.C. Circuit Court of Appeals
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.
Federal Circuit Denies Petition For Rehearing In Drug Test Case
An employee who was removed from federal employment as a result of a positive drug test appealed his removal.
Third Circuit: No Sovereign Immunity Waiver Under FTCA for Transportation Security Officers
The Third Circuit Court of Appeals affirmed a lower court decision dismissing a tort claim filed under the Federal Tort Claims Act by an airline traveler who was arrested after an alleged altercation with Transportation Security Officers (“TSOs”).
Whistleblower Protection Coordination Act Becomes Law
On June 25, 2018, President Trump signed into law the Whistleblower Protection Coordination Act (“WPCA”), which permanently reauthorized a “Whistleblower Protection Coordinator” at each federal agency’s respective Office of Inspector General.
Two MSPB Cases on Appeal Rights Overruled
In two companion cases before the United States Court of Appeals for the Federal Circuit, United States Postal Service employees challenged MSPB dismissals, for lack of jurisdiction, of their removal appeals.
Federal Circuit Court of Appeals Dissolves En Banc Court in Case Amid Jurisdiction Dispute
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).
Ninth Circuit: Prior Salary Alone Cannot Justify Wage Differential under Equal Pay Act
After hearing argument en banc late last year to “clarify the law,” the Ninth Circuit Court of Appeals issued a decision on April 9, 2018, holding that prior salary alone or in combination with other factors cannot justify wage differential under the Equal Pay Act.
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.
Federal Circuit: No Harmful Error in Drug Testing Case
After the Department of the Navy drug-tested him following a crane accident, a Rigger Supervisor with the Department of the Navy argued that his subsequent removal for illegal drug use violated due process because the Agency did not follow its own regulation and provide him advance written notice of the purpose of the drug test.
9th Circuit Adopts Federal Circuit Holdings in Whistleblower Appeal
The 9th Circuit Court of Appeals adopted the Federal Circuit Court of Appeals’ holdings with regard to the test of whether an agency has carried its burden to prove whether the agency would have taken the same personnel action against an employee irrespective of the employee’s protected disclosures, and with regard to whether an employee may be disciplined for the manner in which he or she communicates a protected disclosure.
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.
OSC Issues Updated Social Media Hatch Act Guidance
On February 13, 2018, the United States Office of Special Counsel released updated Hatch Act Guidance on Social Media to “help federal employees understand what the Hatch Act does and does not allow when using social media.”
Seventh Circuit: Board Theory of OSC Remedy Exhaustion Too Stringent
A Special Agent at the Department of Justice’s Bureau of Alcohol, Tobacco, and Firearms filed an Individual Right of Action appeal with the Merit Systems Protection Board, alleging that his supervisors retaliated against him after he disclosed his suspicion that another agent had improperly shot at a fleeing suspect, provided an inaccurate report of the shooting incident, and had committed perjury during the subsequent criminal trial.
MSPB Releases FY 2017 Report
On January 19, 2018, the Merit Systems Protection Board issued its FY 2017 Annual Report, which highlighted the Board’s lack of quorum, the most “critical issue” during the past year.