D.C. Circuit: No Requirement to Bargain on CBP Performance Appraisal Changes
The National Treasury Employees Union appealed the Federal Labor Relations Authority’s denial of its negotiability petition related to changes in the number of different possible rating levels for its members at U.S. Customs and Border Protection. On December 3, 2019, the United States Court of Appeals for the D.C. Circuit denied the union’s appeal, finding instead that the FLRA’s decision was “based on a permissible and reasonable interpretation of the Statute,” and that it was “consistent with well-established precedent.”
Federal Circuit: Hasty Probationary Period Removal Motivated by Preference-Eligible Status
The Social Security Administration removed a preference-eligible veteran from his position as an attorney advisor near the end of his one-year probationary period due to allegedly poor performance. The employee filed for corrective action with the Merit Systems Protection Board, alleging that the agency violated the Uniformed Services Employment and Reemployment Rights Act (USERRA) when it removed him because of his preference-eligible status. An MSPB administrative judge denied the request for corrective action, and the employee appealed to the Federal Circuit. On November 7, 2019, the U.S. Court of Appeals for the Federal Circuit reversed the MSPB decision, and remanded the case to the MSPB for a determination of the appropriate corrective action.
FLRA: DOD Violated Educator CBA
The Federal Labor Relations Authority found that the Department of Defense violated its collective-bargaining agreement (CBA) with the educators’ union (the Federal Education Association – Stateside Region) when it refused to credit “plus hours” earned before educators earned a master’s degree when determining employee pay lanes.
Federal Circuit: Cadet Service Cannot Help Satisfy Five-Year FERS Service Requirement
A political appointee retired from federal service after almost four years of civilian service, relying on advice from a human resources official that he could “buy back” time spent as a cadet at West Point and credit it towards the five years of civilian service required to qualify for a FERS retirement annuity.
First Circuit: No Need to Correctly Label Legal Theory for OSC Exhaustion
An ICE Supervisory Special Agent delivered a document to a colleague at the direction of his supervisor, the Assistant Special Agent in Charge. The colleague (a Special Agent) later used the document in support of his own whistleblower case against the Agency. After the Agency learned of the Supervisory Special Agent’s involvement in his colleague’s appeal, he was not selected for promotion, and received a lower-than-normal performance appraisal. He then filed a complaint with the Office of Special Counsel, alleging that the agency retaliated against him for providing information to his colleague that was later used in his colleague’s appeal.
Fifth Circuit: Duration of Immigration Stop, Not the Questions Asked by Agents, Determines Its Constitutionality
On May 26, 2017, Miguel Angel Vega-Torres was a passenger on a commercial bus that stopped at a border patrol checkpoint in Falfurrias, Texas. Border Patrol Agent David Gonzalez conducted an inspection of the bus at the checkpoint. During that inspection, Agent Gonzalez asked Vega-Torres for his citizenship documentation. Vega-Torres handed Agent Gonzalez his Legal Permanent Resident (“LPR”) card. Agent Gonzalez had a difficult time matching Vega-Torres’s face with the LPR card photo because Vega-Torres was occupied on his cell phone and made brief eye contact with Agent Gonzalez.
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.