In two opinions issued on August 12, 2021, the United States Court of Appeals for the Federal Circuit found that the Department of Veterans Affairs erroneously interpreted the provisions of the Department of Veterans Affairs Accountability and Whistleblower Protection Act of 2017 when disciplining its employees. The purpose of the 2017 law, codified at 38 U.S.C. § 714, was to provide for expedited discipline of VA employees, strip MSPB of its authority to mitigate the VA’s chosen penalty, and to impose a less rigorous burden of proof on the agency at the appellate level than a traditional MSPB appeal.

The United States Court of Appeals for the Federal Circuit described the litigation of a case it adjudicated on May 14, 2021 as “the decade-long journey of a hard-working man who served his country honorably, only to face workplace discrimination on the basis of that service.” In its opinion, the Federal Circuit held that the Merit Systems Protection Board (MSPB) erred in finding that the candidate’s nonselection for a position at the Department of the Navy would have occurred “regardless of his prior military service.”

On March 22, 2021, the Supreme Court of the United States heard oral argument in Cedar Point Nursery v. Hassid.

Before a federal employee can be terminated for unacceptable performance, the employing agency must provide the employee with an opportunity to demonstrate acceptable performance.

A VA police officer was removed by the Department of Veterans Affairs under the 2017 “accountability” law 38 U.S.C. § 714 that limited review of VA’s actions against general schedule employees. The removal was based on conduct occurring prior to the enactment of the law. The employee appealed to the MSPB, and the MSPB affirmed the removal. On December 7, 2020, the United States Court of Appeals for the Federal Circuit vacated the MSPB’s decision, and remanded the case to the MSPB with instructions to remand the case further back to the agency.

On November 3, 2020, the United States Office of Special Counsel (OSC) announced that it had reached two agreements with the Council of the Inspectors General on Integrity and Efficiency (CIGIE). A statement by OSC claimed that the “core goals of the agreements are to protect the independence of the respective Inspectors General and provide better outcomes to whistleblowers who report allegations of wrongdoing by OIGs.” The agreements are “the result of a years-long effort to clarify standards of procedure for such disclosures.”

An NCIS investigations specialist filed suit, alleging that NCIS erroneously classified him as exempt from overtime pay, and for years denied him overtime compensation and premium pay in violation of the Fair Labor Standards Act (FLSA). On September 24, 2020, the United States Court of Appeals for the Federal Circuit affirmed the Court of Federal Claims’ decision, after a trial, to deny liquidated damages, despite finding that NCIS was liable for incorrectly classifying the position as FLSA-exempt.

On August 31, 2020, in a 2-1 decision after a remand from the en banc court, a panel of the United States Court of Appeals for the D.C. Circuit held that the Committee on the Judiciary of the United States House of Representatives (“Judiciary Committee”) had no valid cause of action to enforce its subpoena for executive branch records related to former White House Counsel Donald F. McGahn, II, where the Executive Branch blocked McGahn’s testimony and asserted “absolute testimonial immunity.”

A dual-status military technician, whose position was partially civilian and partially military, appealed his termination for failing to maintain membership in the National Guard, a prerequisite to his dual-status appointment under 32 U.S.C. § 709(b), to the Merit Systems Protection Board. The MSPB took jurisdiction and heard the case on the merits, ultimately affirming the termination. The employee petitioned the United States Court of Appeals for the Federal Circuit for review. On August 21, 2020, the appeals court vacated the MSPB decision, finding that the Board did not have jurisdiction to hear the appeal in the first place.

On August 6, 2020, the United States Court of Appeals for the Federal Circuit affirmed a district court ruling that the federal judiciary has been charging unlawfully excessive fees for access to records through the Public Access to Court Electronic Records (PACER) system.

In 2018, the United States Court of Appeals for the Seventh Circuit held the MSPB acted arbitrarily and capriciously when it dismissed an ATF employee’s Individual Right of Action appeal. The Seventh Circuit’s 2018 opinion found that the employee “properly alleged a ‘protected disclosure’ and exhausted his administrative remedies so that the Board had jurisdiction to evaluate the merits of his claim.” The MSPB AJ denied relief, and the employee appealed to the Seventh Circuit again. On July 16, 2020, the appeals court again held that the MSPB acted arbitrarily, capriciously, and contrary to law. This time, the remand to the MSPB was only on the extent of relief to the employee.

On June 26, 2020, the United States Court of Appeals for the Federal Circuit held that the removal of illegally appointed employees who had otherwise not committed misconduct or performed poorly still promoted the efficiency of the service.

On June 29, 2020, the United States Supreme Court held that restrictions on the President of the United States’ ability to fire a single director of a federal agency violates the separation of powers clause of the United States Constitution.

On June 15, 2020, the Supreme Court of the United States, by a 6-3 vote, held that an employer who fires an individual merely for being gay or transgender violates Title VII’s prohibition on sex discrimination.

A Department of Veterans Affairs medical center director made multiple protected disclosures to the VA Office of Inspector General about agency spending and contracts in October 2013. He repeated those concerns in a conference call in January 2014. His second line supervisor was on that conference call. The second-line supervisor, several weeks later, appointed an Administrative Investigation Board (AIB) to investigate inappropriate relationships with subordinate staff, and investigators treated the medical center director as a subject of that investigation.

On April 6, 2020, the United States Supreme Court issued its decision in Babb v. Wilkie. The question in this case was whether the Age Discrimination in Employment Act of 1967 (ADEA) requires federal sector employees to show that age was a “but-for” cause of the personnel action taken, rather than merely show that it was tainted by any discrimination at any stage. Previously, the court interpreted the private-sector provision to require “but-for” causation. In its April 6 decision, the Court held that “[t]he plain meaning of § 633a(a) demands that personnel actions be untainted by any consideration of age.”

In a complaint filed in the United States Court of Federal Claims, five federal employees, on behalf of themselves and all others similarly situated, alleged that they performed work “with or in close proximity to objects, surfaces, and/or individuals infected with the novel coronavirus (“COVID-19”).” On March 27, 2020, in their complaint, the employees alleged they were entitled to, but did not receive, hazardous duty pay differential for exposure to virulent biologicals set forth in federal regulations.

The Social Security Administration (SSA) 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. On January 22, 2020, before the remand took effect, the government filed a petition for rehearing en banc, asking that all judges of the Federal Circuit hear the case and rule on a “precedent-setting question of exceptional importance.”

On January 15, 2020, the United States Supreme Court heard oral argument in the matter of Babb v. Wilkie. The question in this case is whether the Age Discrimination in Employment Act of 1967 (ADEA) requires federal sector employees to show that age was a “but-for” cause of the personnel action taken. Previously, the court has interpreted the private-sector provision to require “but-for” causation.

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.