In First Federal Whistleblower Retaliation Case, Fourth Circuit Explores Definition of “Rule”
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.
Update: Cert Denied to Occupy Wall Street and Terry Cases
The U.S. Supreme Court denied petitions for writ of certiorari on Garcia v. Bloomberg and Robinson v. U.S., two cases on which FEDagent previously reported.
Two Employees Petition the Supreme Court to Hear Appeal Deadline Cases
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.
Appeals Court: FBI Employees Cannot Raise Defense of Whistleblower Reprisal in Adverse Action Appeals
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.
Federal Circuit Court Of Appeals Grants Petition For Rehearing En Banc In Due Process Case
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).
Dismissal of Class Action Suit Against OPM Resulting from Data Breach Appealed
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.
Supreme Court May Consider Change to Terry Frisk Standard
A West Virginian is asking the Supreme Court to consider whether the test for conducting a search in conjunction with a lawful Terry stop requires a particularized basis for believing the person poses a present danger to officer safety.
Supreme Court Grants Certiorari to Decide Whether Union Fees For Non-Member Public Employees Violate First Amendment
On September 28, 2017, the Supreme Court granted certiorari to consider whether agency fee arrangements imposed by public unions on non-member public employees are constitutional.
Supreme Court: Bivens Remedy Not Extended to Post-9/11 Detainment and Treatment Claims Made by Detainees
Following the terrorist attacks on September 11, 2001, the FBI ordered hundreds of illegal aliens to be taken into custody to determine whether the detainees had connections to terrorism.
Appeals Court Rules No Private Right of Action for False Statements By Government
A former federal employee terminated by the United States Agency for International Development (“USAID”) and the National Oceanic and Atmospheric Administration (“NOAA”) appealed his termination from both agencies under Title VII and also contended that NOAA violated a criminal statute that prohibits making false statements when the Agency allegedly lied about why he was terminated.
Constitutionality of Protestor Arrests Without Prior Warning Before Supreme Court
The Supreme Court is considering whether to hear a case asking whether, when officers permit individuals to exercise First Amendment rights to speech and peaceful assembly, officers must provide fair warning prior to arresting demonstrators for participation in the demonstration.
Federal Circuit Reverses MSPB Order to Repay OPM Overpayment
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.
Supreme Court: Veteran Can’t Be Forced To Indemnify Ex-Spouse When Electing Benefits
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.
Constitutional Individual Right to Carry Firearm Outside Home? Supreme Court Considers Hearing Case
The Supreme Court is considering whether to hear a case which asks whether the Second Amendment entitles ordinary citizens to carry handguns outside the home for self-defense.
Dismissal Due to the Suppression of Evidence Does Not Satisfy the Favorable Termination Element of a Malicious Prosecution Claim
In January 2010, police arrested Terry Margheim at his home in Greeley, CO on suspicion of domestic violence committed against his girlfriend. Weld County prosecutors then initiated a criminal prosecution against him. Margheim posted a $3,000 bond and was required to comply with a protection order to avoid contact with his girlfriend.
Supreme Court to Decide Appellate Jurisdiction in Federal Employee “Mixed Case” Appeals
In the first case argued before Supreme Court Justice Neil Gorsuch, Justices appeared to disagree about how to handle “mixed cases,” alleging both adverse employment actions against federal civil service employees and prohibited discrimination, where the Merit Systems Protection Board concludes it lacks jurisdiction because the employee was not subject to an appealable action.
Supreme Court Finds That FEHBA Preempts State Law Barring Subrogation and Reimbursement
Today, the Supreme Court held that contractual subrogation and reimbursement prescriptions plainly relate to “payments with respect to benefits” under the Federal Employees Health Benefits Act of 1959 (FEHBA) and preempt state laws barring subrogation and reimbursement.
Discrimination on the Basis of Sexual Orientation Covered under Sex Discrimination for the Purposes of Title VII
Last week, the U.S. Court of Appeals the for the Seventh Circuit held that discrimination on the basis of sexual orientation is a form of sex discrimination under Title VII of the Civil Rights Act of 1964.
Unlawful Pre-Trial Detention Claims Governed by Fourth Amendment
The Fourth Amendment governs a claim for unlawful pre-trial detention even beyond the start of legal process, the Supreme Court recently held in an opinion allowing a Section 1983 action to proceed against officers on grounds including the plaintiff’s pre-trial detention based on falsified evidence.
The Supreme Court Holds That Presidential Nominated Appointees Are Ineligible To Also Serve In An Acting Capacity In a Different Position
This week, the Supreme Court held that the Federal Vacancies Reform Act of 1998 (FVRA) prohibits persons who the President nominates for appointment to be placed in positions in acting capacities while awaiting confirmation by the Senate.