D.C. Circuit: Unions Must Use FLRA to Challenge Trump’s Fed Workforce Executive Orders
After the president issued three executive orders regarding relations between the federal government and its employees, several federal employee unions filed lawsuits in district court to challenge provisions in those orders. Those suits were consolidated at the district court in June 2018. In its August 2018 decision, the district court found several provisions in the executive orders unlawful, and ordered agencies to cease implementation of those provisions. The government appealed the district court decision, and on July 16, 2019, the United States Court of Appeals for the D.C. Circuit found that the district court lacked jurisdiction to hear the unions’ claims, and vacated the district court judgment.
Appeals Court: ICE Had No Duty to Bargain Before Unilateral Change to Overtime Policy
After warnings from the Office of Special Counsel (OSC) and the Government Accountability Office (GAO), the Department of Homeland Security, Immigration and Customs Enforcement (ICE) made a change to how it calculated overtime pay. The American Federation of Government Employees (AFGE) filed a grievance against ICE for unilaterally changing the policy without bargaining with the union. After the Federal Labor Relations Authority (FLRA) sided with ICE and determined that ICE had no duty to bargain with the union, AFGE petitioned the United States Court of Appeals for the District of Columbia Circuit for review of the FLRA’s final order. On June 11, 2019, the appeals court denied AFGE’s petition.
Arbitrator: VA Adverse Action Report Violates Privacy Act
A union grievance protesting the publication of “Adverse Action Reports” (AAR) by the Department of Veterans Affairs (VA) resulted in an arbitration decision directing VA to remove AARs from its website and to cease and desist the publication of AARs.
Federal Circuit Skips Quorum-Less Board, Remands to MSPB Administrative Judge
After waiting years for the adjudication of his case without a quorum at the MSPB, a former federal employee requested relief from the United States Court of Appeals for the Federal Circuit. On April 30, 2019, the appeals court granted his motion.
Supreme Court Denies Certiorari on MSPB Jurisdiction Case
Two United States Postal Service employees challenged MSPB dismissals, for lack of jurisdiction, of their removal appeals. The MSPB found that the employees did not have appeal rights because they did not meet the definition of “employee” under 5 U.S.C. § 7511(a)(1)(B)(ii), which requires one year of current continuous service. The United States Court of Appeals affirmed the MSPB’s dismissals. On April 1, 2019, the United States Supreme Court denied the petition for writ of certiorari appealing the appeals court decision, thereby affirming and making final the dismissal of the employees’ MSPB removal appeals.
Third Circuit: Federal Employees May Bring Suits for Retaliation Under Title VII
The U.S. Court of Appeals for the Third Circuit recently held that a federal employee may bring suit against the Secretary of Labor for retaliation under Title VII, but declined to decide on the limits of such a claim.
Federal Circuit: Arbitrator’s Decision on Attorney Fees Award Requires Explanation
Last week, the U.S. Court of Appeals for the Federal Circuit vacated an arbitrator’s decision denying a union’s request for attorney fees accrued in an arbitration proceeding since the arbitrator’s award decision failed to explain his reasoning for denying fees.
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.
Federal Circuit: Deciding Official on a Proposed Adverse Action Stemming from a Security Clearance Determination Is Not Required to Have an Alternative, Available Penalty
The U.S. Court of Appeals for the Federal Circuit recently held that a deciding official has no obligation under 5 U.S.C. § 7513 to have available an alternative penalty when deciding on a proposed adverse action that is based on a security clearance determination.
FLRA Reconsidering Its Use of the Allen Factors to Award Attorney’s Fees
On March 1, 2019, the Federal Labor Relations Authority issued a press release stating that it was inviting amici curiae briefs on an issue in U.S. Department of Veterans’ Affairs, Michael E. DeBakey Medical Center, Houston, Texas, and American Federation of Government Employees (AFGE), Local 1633, Case No. 0-AR-5354. The issue involves whether the Federal Labor Relations Authority should reconsider relying on the factors in Allen v. U.S. Postal Service, 2 M.S.P.R. 420 (1980), when considering awards of attorney’s fees.
Federal Circuit: 38 U.S.C. § 7402(f) Compels VA to Remove Title 38 Employees That Lose Medical Licenses for Cause
Recently, the Federal Circuit examined the interaction between statutory language under 38 U.S.C. § 7402(f) that compels the Department of Veterans Affairs to terminate Title 38 employees who lose their medical licensure for cause, and the due process rights available to those employees.
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: 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”).