Case Law Update James P. Garay Heelan Case Law Update James P. Garay Heelan

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.

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Case Law Update Conor Dirks Case Law Update Conor Dirks

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.

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Case Law Update Conor Dirks Case Law Update Conor Dirks

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.

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Case Law Update Conor Dirks Case Law Update Conor Dirks

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).

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Case Law Update Conor Dirks Case Law Update Conor Dirks

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.

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Case Law Update Conor Dirks Case Law Update Conor Dirks

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.

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Case Law Update Conor Dirks Case Law Update Conor Dirks

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.

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Case Law Update Conor Dirks Case Law Update Conor Dirks

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.

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Case Law Update Michael J. Sgarlat Case Law Update Michael J. Sgarlat

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.

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Case Law Update James P. Garay Heelan Case Law Update James P. Garay Heelan

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.

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