Justia Government & Administrative Law Opinion Summaries

Rainey, a State Department Supervisory Foreign Affairs Officer, was with the Africa Contingency Operations program when his supervisor relieved him of his duties as contracting officer representative. Rainey complained to the Office of Special Counsel, alleging that his duties had been terminated because he had refused his supervisor’s order to tell a contractor to rehire a terminated subcontractor. Rainey believed that carrying out the order would require him to violate the Federal Acquisition Regulation by improperly interfering with personnel decisions of a prime contractor and requiring the prime contractor to operate in conflict with the contract. The Office of Special Counsel closed its investigation without granting relief. Rainey filed an Individual Right of Action appeal with the Merit Systems Protection Board, citing the “right-to-disobey” provision of the Whistleblower Protection Act of 1989, 5 U.S.C. 2302(b)(9)(D). During his hearing, the Supreme Court held, in in Department of Homeland Security v. MacLean, that the word “law” in the Act's “right-to-disclose” provision, refers only to a statute, and not to a rule or regulation. The ALJ held that the Board lacked jurisdiction over a claim based on a regulation. The Board agreed. The Federal Circuit affirmed, stating that its decision was constrained by the right-to-disobey provision's language, which protects covered employees from retaliation “for refusing to obey an order that would require the individual to violate a law,” and the MacLean holding. View "Rainey v. Merit Sys. Protection Bd." on Justia Law

Under the 1887 General Allotment Act and the 1934 Indian Reorganization Act, the U.S. is the trustee of Indian allotment land. A 1996 class action, filed on behalf of 300,000 Native Americans, alleged that the government had mismanaged their Individual Indian Money accounts by failing to account for billions of dollars from leases for oil extractions and logging. The litigation’s 2011 settlement provided for “historical accounting claims,” tied to that mismanagement, and “land administration claims” for individuals that held, on September 30, 2009, an ownership interest in land held in trust or restricted status, claiming breach of trust and fiduciary mismanagement of land, oil, natural gas, mineral, timber, grazing, water and other resources. Members of the land administration class who failed to opt out were deemed to have waived any claims within the scope of the settlement. The Claims Resolution Act of 2010 ratified the settlement and funded it with $3.4 billion, The court provided notice, including of the opt-out right. Challenges to the opt-out and notice provisions were rejected. Indian allotees with interests in the North Dakota Fort Berthold Reservation, located on the Bakken Oil Shale (contiguous deposits of oil and natural gas), cannot lease their oil-and-gas interests unless the Secretary approves the lease as “in the best interest of the Indian owners,” 122 Stat. 620 (1998). In 2013, allotees sued, alleging that, in 2006-2009, a company obtained Fort Berthold allotment leases at below-market rates, then resold them for a profit of $900 million. The Federal Circuit affirmed summary judgment for the government, holding that the allotees had forfeited their claims by failing to opt out of the earlier settlement. View "Two Shields v. United States" on Justia Law

Miller served on active duty, 2003-2007, and has a VA disability rating of 60 percent. Since 2008, Miller has been employed as an FDIC Economic Analyst. He was hired at the GS-9 level and has risen to the GS-12 level. In 2012 the FDIC posted vacancy announcements for a CG-13 Financial Economist position: one open to all citizens and another for status candidates. Miller applied under both procedures and was one of three finalists. Three FDIC employees participated in the interviews, rating each candidate’s answers to questions on bank failure prediction models as Outstanding, Good, or Inadequate. All of the candidates received some "inadequate" ratings. No candidate was selected; the vacancy was cancelled. Miller filed a Department of Labor complaint, stating that the cancellation was in bad faith to avoid hiring a veteran or having to request a “pass over” from the Office of Personnel Management. The Merit Systems Protection Board denied his petition under the Veterans Employment Opportunities Act, finding that the allegation of non-selection in violation of veterans’ rights was sufficient to confer jurisdiction, but that Miller had not established a violation because the FDIC “conducted a thorough, structured interview of each of the candidates” and “none of the interviewees possessed the requisite skills and knowledge for the position.” The Federal Circuit affirmed; substantial evidence indicated that cancellation was predicated on a lack of appropriately qualified candidates. View "Miller v. Fed. Deposit Ins. Corp." on Justia Law

Miller served on active duty, 2003-2007, and has a VA disability rating of 60 percent. Since 2008, Miller has been employed as an FDIC Economic Analyst. He was hired at the GS-9 level and has risen to the GS-12 level. In 2012 the FDIC posted vacancy announcements for a CG-13 Financial Economist position: one open to all citizens and another for status candidates. Miller applied under both procedures and was one of three finalists. Three FDIC employees participated in the interviews, rating each candidate’s answers to questions on bank failure prediction models as Outstanding, Good, or Inadequate. All of the candidates received some "inadequate" ratings. No candidate was selected; the vacancy was cancelled. Miller filed a Department of Labor complaint, stating that the cancellation was in bad faith to avoid hiring a veteran or having to request a “pass over” from the Office of Personnel Management. The Merit Systems Protection Board denied his petition under the Veterans Employment Opportunities Act, finding that the allegation of non-selection in violation of veterans’ rights was sufficient to confer jurisdiction, but that Miller had not established a violation because the FDIC “conducted a thorough, structured interview of each of the candidates” and “none of the interviewees possessed the requisite skills and knowledge for the position.” The Federal Circuit affirmed; substantial evidence indicated that cancellation was predicated on a lack of appropriately qualified candidates. View "Miller v. Fed. Deposit Ins. Corp." on Justia Law

In 2013, Canava, a U.S. Border Patrol Agent, was indicted on felony counts and pleaded guilty to “Unlawful Imprisonment by Strangulation, Domestic Violence, a class six undesignated offense.” Judgment was entered for the “undesignated offense” of unlawful imprisonment. The Department of Homeland Security proposed to remove Canava from federal service under 5 U.S.C. 7371, which mandates removal of federal law enforcement officers convicted of a felony. The removal notice stated that “[p]ursuant to Arizona Law, A.R.S. § 13-604, this conviction is a felony conviction for all purposes until the offense is affirmatively designated a misdemeanor by the Court.” Canava argued that 5 U.S.C. 7371 did not apply and could not be the basis for his removal because he pleaded guilty to an “undesignated offense” and not a felony. According to Canava, until a judge designated his offense a felony, he had not been convicted of a felony. DHS disagreed. An Arbitrator sustained his removal. The Federal Circuit affirmed.Canava was convicted of an undesignated offense that, under Arizona law, carried the same punishment as a class 6 felony—a presumptive sentence of one year imprisonment, with a mitigated sentence of 0.33 years and an aggravated sentence of two years. View "Canava v. Dep't of Homeland Sec." on Justia Law

In 1989, Hicks, a Secretary at Maxwell Air Force Base, was removed from her position for failure to request leave in accordance with proper procedures and being absent without official leave. Following an appeal, Hicks’ removal was mitigated to a 60-day suspension. In 1990, the Air Force effected a new removal action. A Merit Systems Protection Board (MSPB) ALJ affirmed. A year later, Hicks sought review with the full board. The Federal Circuit affirmed dismissal of her motion, explaining that Hicks had not shown how her depression prevented her from meeting filing requirements. In 2014, Hicks contacted the U.S. Office of Special Counsel, alleging that the Air Force had removed her in retaliation for making protected disclosures. After Special Counsel terminated its investigation. Hicks filed an Individual Right of Action (IRA) appeal with MSPB. An ALJ dismissed for lack of jurisdiction; in 1990, when Hicks was removed, filing an appeal was not a “protected disclosure” under the Whistleblower Protection Act, 103 Stat. 16. MSPB and the Federal Circuit affirmed. The Whistleblower Protection Enhancement Act of 2012, 126 Stat. 1465, expanded its jurisdiction to cover IRA appeals alleging that an agency engaged in the prohibited personnel practices described in 5 U.S.C. 2302(b)(9), including appeals alleging reprisal for filing a previous MSPB appeal, but it did not apply retroactively to Hicks. View "Hicks v. Merit Sys. Protection Bd." on Justia Law

The High Line is an elevated “linear park” in New York City that runs along the west side of Manhattan from Gansevoort Street to 34th Street. The park, used for walking, jogging, and other recreational purposes, occupied the elevated viaduct of a former railway line. In 2005, the elevated viaduct was converted to a public recreational trail under the authority of the National Trails System Act. Before the Federal District Court of Appeals was a takings matter: appellant Romanoff Equities, Inc., contended that the conversion of the railway property to a trail entailed a taking of its property without just compensation. The Court of Federal Claims held, on summary judgment, that the conversion did not result in a taking of Romanoff’s property. Finding no reversible error, the Federal District appellate court affirmed. View "Romanoff Equities, Inc. v. United States" on Justia Law

Karen Dixon, recently substituted as appellant for her deceased husband Donald, and appealed a Court of Appeals for Veterans Claims (Veterans Court) decision dismissing her appeal based on a nonjurisdictional timeliness defense that Secretary of Veterans Affairs Robert McDonald waived. Mr. Dixon was diagnosed in 2003 with sarcoidosis of the lungs and transverse myelitis. He filed a claim with the Department of Veterans Affairs (VA) seeking benefits for his sarcoidosis, which he alleged was connected to his service. A VA regional office denied Mr. Dixon’s claim, and the Board of Veterans Appeals affirmed. Acting pro se, Mr. Dixon filed a notice of appeal with the Veterans Court sixty days beyond the 120-day filing deadline set out in 38 U.S.C. 7266(a). The Veterans Court denied Mr. Dixon equitable tolling. He obtained pro bono counsel and filed a request for reconsideration of this denial, but the Veterans Court denied that request too. Mr. Dixon appealed, but then he died of his medical conditions while his appeal was pending. The Federal Circuit reversed because the Veterans Court’s denial of an extension of time had effectively denied Mr. Dixon’s new pro bono counsel access to evidence he would need to prove his claim. On remand, the Veterans Court substituted Mrs. Dixon and requested briefing from the parties on whether equitable tolling excused Mr. Dixon’s late filing. The Secretary responded by waiving his objection. Because the Veterans Court did not have the sua sponte authority to grant the Secretary relief on a defense he waived, the Federal Circuit Court of Appeals reversed the dismissal of Mrs. Dixon’s appeal and remanded for consideration on the merits. View "Dixon v. McDonald" on Justia Law

Maurice Sullivan appealed a Court of Appeals for Veterans Claims' judgment which affirmed a decision of the Board of Veterans’ Appeals conclusion that the Department of Veterans Affairs (“VA”) had satisfied its duty to assist Sullivan with a request to reopen his claim. Sullivan filed a claim for service-connected benefits for back and neck injuries. He sought treatment in 1984 for back and neck pain at a VA medical facility in Asheville, North Carolina, but that the doctors found nothing wrong with his back and neck. The VA denied Sullivan’s claim, finding that the medical evidence of record did not establish service-connection for his injuries. Ten years later, Sullivan submitted new evidence and sought to reopen his claim. The Board denied the request to reopen, finding the newly submitted evidence was not material. The Board also determined that the VA had satisfied its duty to assist Sullivan in obtaining identified and available evidence. After review, the Federal Circuit Court of Appeals found that the Veterans Court relied on the wrong legal standard in affirming the Board’s determination that the duty to assist was satisfied. Accordingly, the Court reversed and remanded for further proceedings. View "Sullivan v. McDonald" on Justia Law

Wade Thompson appealed a Court of Appeals for Veterans Claims' judgment which affirmed a decision of the Board of Veterans’ Appeals denying Thompson a disability rating in excess of 20% for degenerative disc disease of the lumbar spine prior to March 8, 2011. The Veterans Court’s decision was based in part upon its interpretation of 38 C.F.R. 4.40 in light of section 4.71a. Thompson’s appeal raised a question of first impression for the Federal Circuit: whether section 4.40 provided a basis for a rating separate from section 4.71a. After review of the applicable statutes, the Court concluded "no" and affirmed the Veterans Court. View "Thompson v. McDonald" on Justia Law