Justia Government & Administrative Law Opinion Summaries

Gallegos worked for the FDA, 1980-2000. He was removed for refusal to accept a reassignment that required relocation. Gallegos appealed to the Merit System Protection Board. In 2001, the parties entered into a settlement, providing that the Agency would expunge from Gallegos’s file and Standard Form 50 any indication that he was removed. A revised SF50 would indicate “voluntary resignation.” Gallegos was to “be provided with a copy of the revised SF50 … notify the Agency of any concerns within 15-days.” The Board approved the settlement, noting that any petition for enforcement must be filed within a reasonable period after discovery of noncompliance, consistent with 5 C.F.R. 1201.182(a). Almost 14 years later, Gallegos alleged that he discovered that his revised SF-50 indicated resignation “in lieu of involuntary action.” Gallegos alleged that he had misplaced the agreement and was only able to confirm the breach by obtaining a copy in response to a FOIA request. In 2015, Gallegos filed a petition for enforcement with the Board. An administrative judge concluded that Gallegos had received the revised SF-50 14 years earlier, and that Gallegos did not establish good cause for the delay. The Board and Federal Circuit affirmed, noting Gallegos’s failure to maintain a copy of the agreement and his apparent failure to compare the SF-50 with the settlement agreement. Gallegos did not establish good cause for untimely filing. View "Gallegos v. Merit System Protection Board" on Justia Law

Following a request from ICP, Customs issued a Ruling Letter, classifying ICP’s white sauce as “sauces and preparations therefor” under the Harmonized Tariff Schedule of the United States (HTSUS) 2103.90.9060. Years later, Customs issued a Notice of Action reclassifying pending and future entries of white sauce as “[b]utter and . . . dairy spreads” under HTSUS 0405.20.3000, which increased the tariff by approximately 2400%. After protesting and paying duties on a single entry, ICP filed a claim in the Court of International Trade, alleging the Notice of Action improperly revoked the Ruling Letter without following the procedures required by 19 U.S.C. 1625(c). Since ICP filed its first action in 2005, the CIT has issued five separate opinions on the matter, two of which were appealed to the Federal Circuit. In awarding ICP attorney fees, the Trade Court found that “The record ... establishe[d] that the goverment position was rooted in a desire to avoid the timely revocation process” by using the Notice of Action, rather than following the procedures of 1625(c)(1). The Federal Circuit affirmed the award under the Equal Access to Justice Act, 28 U.S.C. 2412(d)(1)(A), upholding the Trade Court’s analysis of whether the government’s conduct was “substantially justified.” View "International Custom Products, Inc. v. United States" on Justia Law

Wilson was a civilian Resource Analyst at the Nuclear Propulsion Directorate at the Naval Sea Systems Command, which required a Department of Energy security clearance. The DOE revoked Wilson’s security clearance, stating that Wilson: knowingly brought a personal firearm onto a Navy facility in violation of regulations; armed himself with a personal weapon while acting as a Metropolitan Police Department reserve officer, contrary to regulations; and made false statements and false time and attendance entries to his civilian employer, the Naval Reserve Unit and the MPD. Wilson maintains that he brought his firearm to the facility in response to the 2013 Washington Navy Yard shooting, in perceived compliance with his duty as a Navy Reservist, and requested reinstatement under the Uniformed Services Employment and Reemployment Rights Act, 38 U.S.C. 4301. The Navy removed Wilson from federal service. A Merit Systems Protection Board administrative judge determined that the Board lacked authority to consider claims of discrimination or reprisal in the context of a removal based on security clearance revocation; that the Navy provided him the procedural protections of 5 U.S.C. 7513(b); and that the Navy did not have a policy to reassign employees to alternate positions that do not require a security clearance. The Federal Circuit affirmed the Board’s finding that it lacked the authority to consider Wilson’s USERRA claim. View "Wilson v. Department of the Navy" on Justia Law

Miller worked as the Superintendent of Industries at the Beaumont, Texas Federal Correctional Complex, overseeing a prison factory that produced ballistic helmets primarily for military use. Miller occasionally served associate warden and was described by Warden Upton as “a fantastic employee.” In 2009, Miller disclosed to the government-owned corporation that ran the prison and to Upton what he perceived to be mismanagement of factory funds. The Office of Inspector General (OIG) conducted an inspection. Upton asked Miller to not report to the factory that day. The next day, Miller reported that there had been “sabotage” at the factory, and urged that it be closed pending investigation. Hours later, Upton informed Miller that he was being reassigned. Upton later testified that OIG was concerned that Miller might compromise its investigation. Over the next four and a half years, Miller was assigned to low-level positions. Upton attributed his reassignments to unidentified OIG staff. Eventually, Upton reassigned Miller to sit on a couch in the lobby for eight months. Miller appealed to the Merit Systems Protection Board, alleging violation of the Whistleblower Protection Act, 5 U.S.C. 2302(b)(8). The Administrative Judge found that the government had rebutted his case. The Federal Circuit reversed. The government did not prove by clear and convincing evidence that it would have reassigned Miller absent his protected disclosures. View "Miller v. Department of Justice" on Justia Law

In 2012, the FTC announced the “Robocall Challenge,” under 15 U.S.C. 3719(b). The public was invited to create “innovative solutions to block illegal robocalls.” for a $50,000 prize. Contestants granted the FTC non-exclusive, irrevocable, royalty free and worldwide license and agreed to release the FTC from all liability. The FTC received about 800 submissions. The judges, with little guidance from the contest rules, decided that the frontrunners would be those entries that proposed using filtering as a service (FaaS) to block robocalls. Frankel’s submission proposed a “traceback” solution rather than FaaS. When his submission was not chosen, Frankel sued under the bid protest provisions of 28 U.S.C. 1491(b) and alleging breach of contract. The Federal Circuit affirmed the Claims Court’s rejection of both theories. His contract with the FTC was not a procurement contract, so Frankel did not have standing to register an objection to the award under section 1491(b). Frankel is unable to show “fraud, irregularity, intentional misconduct, gross mistake, or lack of good faith.” Any other breach of contract claim based on the judging process is barred by the limitation of liability clause. View "Frankel v. United States" on Justia Law

Graviss has worked in education since 1978. In 2008, she became a pre-school special needs teacher at Kingsolver Elementary, part of Fort Knox Schools. Kingsolver’s principal, McClain, issued Graviss a reprimand based on an “inappropriate interaction with a student” and “failure to follow directives,” asserting that Graviss and her aide had physically carried a misbehaving pre-school student and Graviss had emailed concerns to the director of special education, although McClain had directed Graviss to “bring all issues directly to [her].” The union filed a grievance. Subsequently, one of Graviss’s students had an episode, repeatedly flailing his arms, kicking, and screaming. While the other students were out at recess, Graviss employed physical restraint to subdue the child. After an investigation, McClain submitted a Family Advocacy Program Department of Defense Education Activity Serious Incident Report and Alleged Child Abuse Report to the Family Advocacy Program (child protective services for the military). McClain forwarded the Report to her direct supervisor, who was later the decision-maker in Graviss’s termination. An arbitrator concluded that that Graviss's termination promoted the efficiency of the service and was reasonable. The Federal Circuit reversed, concluding that Graviss’s due process rights were violated by improper ex parte communication between a supervisor and the deciding official. That communication contained new information that the supervisor wanted Graviss terminated for insubordination. View "Federal Education Association v. Department of Defense" on Justia Law

Purifoy missed two days of work as a housekeeping aid in a Milwaukee VA medical facility without authorization. That week, he sought treatment for substance abuse at the facility where he worked. He was admitted and transferred to Madison for treatment. Purifoy verbally informed his VA supervisor that he would miss work, but did not fill out leave paperwork. Nor did he inform his parole officer that he would miss upcoming supervision visits. His parole officer issued an arrest warrant. Purifoy agreed to report to the Milwaukee Secure Detention Facility of the Wisconsin Department of Corrections for treatment as an alternative to parole revocation. He entered the program, but was terminated after an altercation with another inmate; he remained as an inmate at MSDF for 38 more days. Following his release, Purifoy returned to work. The VA removed him from employment as a penalty for his unexcused absences, having first sent him a notice of proposed removal while he was at MSDF. A second notice cited two instances of extended unauthorized absence. Although an ALJ ordered Purifoy reinstated, the Merit Systems Protection Board upheld the termination. The Federal Circuit vacated, finding that the Board’s analysist improperly omitted relevant mitigation factors and discarded the ALJ’s credibility determinations without adequate rationale. View "Purifoy v. Dep't of Veterans Affairs" on Justia Law

In 1987, Fitzgerald began working as an Immigration Inspector with the Immigration and Naturalization Service of the Department of Justice. From 1988-2000, she served as a Customs Inspector with the Customs Service of the Department of the Treasury. Fitzgerald has been continuously employed in various Instructor positions at the Federal Law Enforcement Training Center (FLETC) since 2000, providing training to federal criminal investigators and law enforcement officers. In 2012, Fitzgerald requested review of her employment history so that she could obtain Customs Officer retirement credit for her past service with INS and Customs. Federal retirement laws extend enhanced benefits to certain groups, such as law-enforcement officers and firefighters, who have served in physically rigorous positions. Under the Federal Employees’ Retirement System, those benefits include eligibility to retire with an annuity at an earlier age than many other federal employees and eligibility to retire based on fewer years of service, 5 U.S.C. 8412(d)(1),(2). In 2007 the law was amended to extend benefits to Customs and Border Patrol Officers. The Merit Systems Protection Board and Federal Circuit affirmed denial of her claim, finding that the amendment did not provide “retroactive service” credit for service performed before July 2008, its effective date. View "Fitzgerald v. Dep't of Homeland Sec." on Justia Law

In 2015, Jones, a veteran, filed 16 appeals with the Merit Systems Protection Board (MSPB), alleging that the U.S. Department of Health and Human Services (HHS) violated the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), 38 U.S.C. 4301–4333, when it did not select him for various job vacancies. An administrative judge consolidated the appeals and ultimately denied relief in an Initial Decision. That Decision became the Final Decision of the MSPB when Jones did not timely file a petition for review. The Federal Circuit affirmed, first holding that it had jurisdiction, rejecting an argument that there was no . final MSPB decision from which Jones could appeal. The AJ properly found that neither direct nor circumstantial evidence supported Jones’s USERRA claim and failed to demonstrate by a preponderance of the evidence that his military service was a motivating factor in HHS’s decision not to hire him for the subject job vacancies. View "Jones v. Dept. of Health & Human Servs." on Justia Law

Freddie Mac is a privately-owned, publicly-chartered financial services corporation, 12 U.S.C. 1452, created to provide stability in the secondary residential mortgage market. Piszel began working as the CFO of Freddie Mac in 2006. Piszel with a signing bonus of $5 million in Freddie Mac restricted stock units that would vest over four years, an annual salary of $650,000, and performance-based incentive compensation of $3 million a year in restricted stock. If terminated without cause, Piszel would receive a lump-sum cash payment of double his annual salary and certain restricted stock units would continue to vest. In 2008, facing Freddie Mac's potential collapse, Congress passed the Housing and Economic Recovery Act,12 U.S.C. 4511, establishing the FHFA as Freddie Mac's new primary regulator, with authority to disaffirm any contract, after which damages for the breach would be limited to “actual direct compensatory damages.” The Act contained a limit on “golden parachutes.” Piszel alleges that he was terminated without cause and Freddie Mac “refused to provide him with any of the benefits to which he was contractually entitled.” The Claims Court dismissed his allegations of an unconstitutional taking. The Federal Circuit affirmed, noting that Piszel’s breach of contract claim remains intact despite the legislation, particularly in light of Piszel’s assertion that his contract called for “deferred compensation,” rather than a golden parachute. View "Piszel v. United States" on Justia Law