News

New FMLA Request Requirements for Federal Employees

Fri, 27 Mar 2026 01:29:02 GMT

Last week, the Merit Systems Protection Board (MSPB) issued a precedential decision holding that Family and Medical Leave Act (FMLA) leave requests must be made explicitly and in advance, overturning years of precedent to the contrary, and clarifying the evidentiary standards for “administratively acceptable” evidence for lengthy sick leave requests.

A Federal Bureau of Investigation (FBI) Special Agent was removed in August 2021 for being absent without leave (AWOL) from March 15 through May 28, 2021. Before this period, the agent was absent from August 17, 2020 through January 3, 2021 because of a job-related neck injury. He was instructed to return to full time work on January 4, 2021. On January 6, 2021, the first workday the agent was scheduled to return, he went to the emergency room and was diagnosed with lumbar radiculopathy. Based on this diagnosis, from January 6 to March 12, 2021, the agent was on leave without pay (LWOP) for 384 hours. This January 6 injury was not work related.

In March 2021, the agent’s supervisor learned he had been cleared to return to work on January 4, 2021 for his job-related neck injury. The supervisor sent the agent an email to return to work as of March 15, 2021. The agent responded to this email and stated he was instructed not to return to work until he was cleared, had a doctor’s appointment scheduled on April 2, 2021, was pursuing a workers’ compensation claim for his lumbar condition, and desired to use his sick leave until there was a resolution on the matter. His supervisor replied and explained he never received medical documentation related to this condition.

On March 22, 2021, the Agency emailed the agent and notified him that they had yet to receive medical documentation for his current injury absence. The agent was instructed to provide documentation that included details of his diagnosis, prognosis, and workplace limitations on FBI form FD-948, Certificate of Essential Duty Status (FD-948). On April 5, 2021, the agent submitted four FD-948s dated January 8, February 5, March 5, and April 2, 2021. These forms indicated that the agent would remain out of work from January 8 to May 7, 2021.

On April 7, 2021, the agent received notification that the submitted FD-948s were “administratively unacceptable” because the doctor had not provided the agent’s ICD code, prognosis, diagnosis, restrictions, and approximate return to work date. The agent was instructed to resubmit the documents. On April 9, 2021, the agent resubmitted a hand-written doctor’s note containing the missing information. The agent also resubmitted his updated FD-948s by having his spouse enter the doctor’s note information onto the form. On April 23, 2021, the Agency again said the re-submitted FD-948s were “administratively unacceptable” because it identified a different diagnosis of the agent’s lumbar condition instead of his prior on-the-job-neck-injury. The agent was again instructed to resubmit his FD-948s.

On May 7, 2021, the agent emailed his supervisor and notified him that he would be out of work for an indefinite period. His supervisor replied and reminded him “all previous leave guidance remains for each work day away.” The agent was subsequently removed on August 24, 2021 allegedly due to being absent without official leave (AWOL) from March 15, 2021 to May 28, 2021. The administrative judge (AJ) affirmed the removal and the charge of being AWOL but did not sustain the AWOL specifications for March 15 to April 2, 2021. The AJ upheld the AWOL charged from April 5 to May 28, 2021. The agent filed a petition for review of this initial decision.

On MSPB review, the parties disagreed as to whether the Agency properly denied the agent’s request to use sick leave, even if it was not for the original injury. The MSPB explained “[a]n AWOL charge will not be sustained if an employee presents administratively acceptable evidence showing that he was incapacitated for duty during the relevant time period, and he has sufficient sick leave to cover the period of absence.” The MSPB affirmed the AJ’s decision that the agency’s denial of the agent’s sick leave was improper because there was no information lacking on the April 9, 2021 medical documentation that might render it administratively unacceptable. Further, the Board reasoned that the Agency cannot base “its AWOL charge solely on an employee’s failure to submit medical documentation on a particular form.” A sick leave request must be granted when the agent provides administratively acceptable evidence of incapacitation. The agent’s medical documentation was acceptable for this purpose.

But the bigger issue in this case revolved around whether the agent could retroactively invoke FMLA leave to cover days which he was otherwise AWOL. The agent argued this charge should not be sustained because he was entitled to FMLA leave for his medical issues. Here, the agent was indeed covered under Title II for FMLA and would have been “entitled to a total of 12 administrative workweeks of leave during any 12-month period” for a health condition where the agent cannot perform his position functions. 5 U.S.C. § 6382(a)(1)(D). In the past the MSPB held an employee does not have to specifically invoke FMLA when requesting leave if there is evidence supporting that the leave can fall under FMLA, and that it was the agency’s obligation to grant FMLA when the employee presented circumstances where it could be otherwise used. See Bowen v. Dep’t of the Navy, 112 M.S.P.R. 607, ¶ 8 (2009), aff’d per curiam, 402 F. App’x 521 (Fed Cir. 2010). However, the FMLA statute provides that an employee “shall provide the employing agency with not less than 30 days' notice, before the date the leave is to begin, of the employee’s intention” to utilize FMLA leave. 5 U.S.C. § 6382(a)(1), (e). This responsibility of an employee applies unless both the employee and his personal representative are medically unable to notify the federal employer. 5 C.F.R. § 630.1203(b).

Therefore, the Board found an employee must invoke FMLA leave themselves in order to use it, and cannot retroactively designate leave as FMLA leave, even if the employee would have qualified if it was properly invoked, overruling previous MSPB precedent.

Read the full opinion: Bushkell v. DOJ

Pay Back: Employee Entitled to Attorneys’ Fees When a Case Becomes Moot after Agency Appeal

Tue, 17 Mar 2026 20:01:51 GMT

An employee petitioned for review of a Merit Systems Protection Board (MSPB) decision that denied her request for attorneys’ fees because, after the Agency first appealed an MSPB order declaring her removal unlawful and ordering her to be reinstated with back pay, the Agency voluntarily provided her with back pay while its appeal was pending. Last month, the Federal Circuit held the employee was entitled recover attorneys’ fees in a mooted agency appeal and reversed the MSPB’s decision.

The Back Pay Act provides a remedy when an agency employee is affected by unjust or unwarranted personnel action. An action which results in the reduction of pay, allowances or differentials, provides the employee with a few key entitlements: 1) correction of the personnel action; 2) all pay the employee would have received during this period less any pay gained through other employment during this time; and (3) reasonable attorneys’ fees related to the personnel action. 5 U.S.C. § 5596. But for decades now, the MSPB and Federal Circuit have held that it cannot award attorney fees when an agency voluntarily provides an employee with the relief they are entitled to, rather than doing so only as a result of a court or MSPB order.

The employee worked at the Department of Veterans Affairs (VA) from 2012-2020. She was removed from her position on August 10, 2020 for alleged unacceptable performance. The employee appealed to the MSPB arguing (1) that the VA was required to offer her a performance improvement plan (PIP) prior to her removal under the master collective bargaining agreement (CBA); and (2) that her removal stemmed from unreasonable performance standards.

Two years prior to the employee’s appeal, there was union arbitration on the same PIP issue the employee raised, brought by individuals in the national union for VA employees. The arbitrator found the master CBA required the VA offer employees a PIP prior to their removal. As the employee’s initial removal appeal was pending, the Federal Labor Relations Authority (FLRA) in that separate union litigation upheld the arbitrator’s decision. Based in part on this arbitrator and FLRA action, the AJ issued an initial decision on the merits which set aside the employee’s removal. The Agency then petitioned for review of this initial decision arguing that the FLRA decision was non-precedential, factually different from the employee’s case, and applied to a different category of workers, not including all Bargaining Unit employees.

Despite its petition, on December 8, 2021, the Agency notified the employee she was eligible for reinstatement via a mass mailing. The employee responded to the mailing indicating she wanted to be reinstated and made whole. The Agency reinstated her. After her reinstatement, the Agency notified the MSPB that the employee’s removal was cancelled, she was returned to her duty, and the process for her to receive backpay was initiated. In turn, on January 6, 2023, the MSPB instructed the Agency to provide reason as to why its appeal was not moot now that it had voluntarily provided the employee with relief. In response, the Agency stated whether the employee was entitled to attorneys’ fees was a live dispute. On July 21, 2023, the Board determined that the employee received all relief the Board could give her and thus dismissed the VA’s appeal. The MSPB notified the employee that she may be entitled to reasonable attorneys’ fees, and the employee petitioned the MSPB for attorney fees in response.

The employee’s petition was granted, but after the Agency petitioned for review to the full Board, it reversed the initial decision. The Board determined that although a decision had issued from the Board holding Appellant’s removal was contrary to law, it had been unenforceable during the pendency of the Agency’s petition for review, at which point the Agency voluntarily provided full relief through a different mechanism. The full Board held the petition for review was thus moot at the point of voluntary relief, and thus the employee had not received the kind of final order that might have entitled her to attorney fees. The employee filed a petition for review with the Federal Circuit arguing she was the prevailing party because the AJ’s initial decision provided her with legally enforceable relief.

The Federal Circuit sided with the employee because status as a prevailing party is conferred “when a court conclusively resolves a claim by granting enduring judicial relief on the merits that materially alters the legal relationship between the parties.” Lackey v. Stinnie, 604 U.S. 192, 203-04 (2025). The Federal Circuit explained they agree with circuit court precedent which demonstrates “[w]hen plaintiffs clearly succeeded in obtaining the relief sought … and an intervening event rendered the case moot on appeal, plaintiffs are still ‘prevailing parties’ for the purpose of attorney’s fees.” Diffenderfer v. Gomez-Colon, 587 F.3d 445, 454 (1st Cir. 2009) (citing UFO Chuting of Haw., Inc. v. Smith, 508 F.3d 1189, 1197 & n.8 (9th Cir. 2007). Here, the Federal Circuit determined the AJ’s initial decision on the merits resolved the employee’s claim and instructed the VA to both reinstate her and provide her with back pay. The Federal Circuit determined it was irrelevant the case became moot after the petition for review and stated the fact the claim was moot does not change the fact that the employee was the prevailing party and is therefore entitled to attorneys’ fees.

Read the full case: Neal v. DVA

Federal Circuit: SES-Specific Carveout Limits MSPB Post-Termination and Hearing Rights

Sat, 24 Jan 2026 04:30:36 GMT

The Civil Service Reform Act (“CSRA”) established a new classification system for federal employees in 1978. The system compartmentalized career civil service employees into three groups: (1) the competitive service; (2) the excepted service; and (3) the senior executive service (SES). The SES is comprised of “high-level federal employees who do not require presidential appointment but who nonetheless exercise significant responsibility.” Esparraguera v. Dep’t of the Army , 981 F.3d 1328, 1330 (Fed. Cir. 2020).

Federal employees in the competitive service, excepted service, and SES typically have appeal rights to the Merit Systems Protection Board (MSPB) when they are terminated for cause. However, the CSRA excluded executives from the Federal Bureau of Investigation (FBI) and the Drug Enforcement Agency (DEA) from the SES corps. In 1988, a decade after the CSRA’s enactment, Congress established a separate SES solely for the FBI and DEA through the FBI and DEA Senior Executive Service Act. With this Act, FBI and DEA employees were afforded some, but not all, of the rights afforded to SES members in the rest of the government. These rights include the notice and opportunity to respond to a proposed removal. See 5 U.S.C. § 3151(a)(5)(D). But unlike SES employees in the rest of the executive branch, who enjoy post-termination hearings at the MSPB, FBI or DEA SES members prewire limited by statute to post-termination hearings “held or decided pursuant to procedures established by regulations of the Attorney General.” Id. Despite the legislative text, these Attorney General regulations were never promulgated.

The executive at issue here was a DEA SES employee. He began working for the DEA in 1997, and assumed a GS-15 position in 2015. He subsequently applied for and was awarded a DEA SES position on March 29, 2020. The DEA executive was not notified of any change in appeal rights upon transition from civil service to SES. The DEA later proposed the executive’s removal from his SES position and Federal service in January 2022. Prior to the removal’s effectiveness, he retired.

In April 2022, the executive filed an appeal with the MSPB where he alleged involuntary retirement. The DEA moved to dismiss his appeal for lack of jurisdiction, stating that 5 U.S.C. § 3151 does not allow DEA SES employees to appeal to the Board. The MSPB granted the motion to dismiss. The executive’s petition for review to the whole Board was denied, and he petitioned for review at the Federal Circuit.

The Federal Circuit reasoned that though 5 U.S.C. § 3151 allocates some standard SES rights to FBI and DEA employees, it does not include the right to a post-termination appeal or hearing to the Board but rather defers this decision to the Attorney General established regulations, which, as mentioned, do not exist. The executive argued that without these regulations, he was denied due process, but the Federal Circuit concluded that while precedent suggests a constitutional right to a hearing somewhere, there is not a constitutional right to have that hearing specifically before the Board. The Federal Circuit held that it could not “ expand the Board’s limited jurisdiction where Congress foreclosed review.” Esparraguera , 981 F.3d at 1336.

Though the Federal Circuit held that the executive lacks Board appeal rights, it also suggested that he is not without recourse, as he maintains his ability to assert his constitutional due process right in federal district court.

Read the full case: Palmeri v. MSPB

Federal Circuit Liberally Defines Scope of Reasonableness in Petitions for Enforcement

Tue, 09 Dec 2025 23:11:24 GMT

In November 2025, the U.S. Court of Appeals for the Federal Circuit heard an appeal from the Merit Systems Protection Board (MSPB) to determine whether a petition for enforcement (PFE) of a settlement agreement was timely. PFEs can be used by employees to enforce the terms of a settlement agreement that has previously been entered into by the parties. MSPB regulations often set filing deadlines by number of days. However, for the filing of PFEs, the only guidance provided on the issue of timeliness is that they must be “filed promptly.” See 5 CFR 1201.182(a) . Case law expands on the word “promptly” in detailing that a PFE which “alleg[es] a breach of a settlement agreement must be filed within a reasonable amount of time of the date the petitioning party becomes aware of a breach of the agreement.” Kasarsky v. MSPB , 296 F.3d 1331, 1335 (Fed. Cir. 2002). The Federal Circuit held in this precedential decision that based on the circumstances, 14 months was a reasonable amount of time to wait to file a PFE after learning of the alleged breach, taking a broad approach to the word “reasonable.”

Miguel Reyes was a police officer with the Department of Veterans Affairs (VA) Central California Health Care System (CCHCS). In 2012, Reyes was removed from his position and appealed to the MSPB. Reyes and the VA entered into a settlement agreement. The settlement provided that only neutral employment references could be given on Reyes’s behalf by the VA. By policy, said references only identified Reyes’s dates of employment and job title. Additionally, the references explained Reyes’s VA employment ended by resignation.

In 2016, Reyes received a conditional job offer subject to a background investigation by the Office of Personnel Management (OPM). In Summer 2016, Reyes told the OPM investigator that he voluntarily resigned from the VA, but the investigator implied that OPM knew about the circumstances of his separation from the VA. In November 2016, Reyes received the OPM background investigation which stated that “per a binding legal agreement, [the HR officer] was only allowed to release [Reyes’s] dates of employment.” In June 2017, Reyes’s potential employer sought clarification on his VA termination, and in response Reyes provided a copy of the settlement. In September 2017, Reyes’s conditional offer was revoked.

On January 17, 2018, Reyes informed the VA of an alleged breach of settlement agreement and said he would file a PFE if he did not receive a response. Reyes did not receive a response and filed a PFE on January 18, 2018, arguing that the VA HR Officer’s disclosure violated the settlement and cost him an employment opportunity. The VA argued that they complied with the settlement agreement and said the PFE was untimely.

In June 2018, the administrative judge issued an initial decision which deemed the PFE untimely and argued that Reyes knew of the alleged breach when he received the OPM background check in November 2016. The 14-month delay in filing the PFE was designated as “unreasonable under the circumstances presented.” Reyes appealed the administrative judge’s decision to the full Board. The MSPB denied Reyes’s petition for review and affirmed the administrative judge’s initial decision.

The Federal Circuit ruled that the MSPB erred in dismissing the PFE for untimeliness. As mentioned, the MSPB has set no deadlines for the filing of PFEs. Reasonableness of time by way of promptness is currently the only standard. The 10-month period from November 2016 to September 2017, was deemed reasonable based on the circumstances of the case. Although Reyes received the OPM background investigation in November 2016, the Federal Circuit said it was not unreasonable for Reyes to wait until he knew of resulting harm from the breach of the settlement, the revocation of his conditional job offer in September 2017, to file a PFE. The Federal Circuit also held that it was not unreasonable for Reyes to retain counsel over the course of three months – from September 2017 to December 2017 – before contacting the VA and filing his PFE in January 2018.

Upon holding the PFE was filed in a reasonable amount of time, the Federal Circuit reversed and remanded the decision for further proceedings.

Read the full case: Reyes v. MSPB

Fourth Circuit Says States Lack Standing to Sue on Behalf of Terminated Probationary Employees

Tue, 23 Sep 2025 16:44:49 GMT

The Fourth Circuit issued a decision on September 9, 2025, holding that states lack Article III standing, and as such also lack the ability to bring a federal lawsuit, alleging harm from the termination of probationary federal employees and requesting the relief of reinstatement.

In March 2025, 19 plaintiff States sued 21 federal agencies in the U.S. District Court for the District of Maryland alleging the unlawful termination of federal agency probationary employees. The States argued the terminations were unlawful because (1) they were “not a result of individualized, for-cause determinations;” (2) the terminations constituted a reduction in force (RIF); and (3) the federal government did not abide by statutory RIF requirements, including giving the States 60 days’ notice of the terminations.

The States allege that probationary terminations stemming from the President’s Executive Order that sought to “eliminat[e] waste, bloat, and insularity” were effectively a Reduction-in-Force (RIF) without following the required procedures, and caused significant harm to the states. The States alleged that the terminations skyrocketed unemployment rates, and resulted in 330% and 149% increases in Maryland and California, respectively. The States claim that because of the terminations, a substantial amount of state resources were expended via “rapid response programs.” According to the States, state personnel were needed to address the federal shortfall in programs implemented by the States, and therefore, financial and personnel resources were diverted from other state government programs, causing financial harm.

The States requested “immediate temporary relief” to prevent agencies from terminating employees without individualized determinations on specific conduct or performance, and reinstatement for those already terminated. The States also sought “preliminary and permanent injunctive relief,” or a court-ordered remedy, to prevent future terminations that suffered the same procedural or substantive defects.

On March 13, 2025, the district court granted the States’ motion for a temporary restraining order, ordered the government to reinstate impacted probationary employees before March 17, 2025, and directed the defendant agencies to not separate employees through probationary termination or RIFs unless they followed notice requirements, regulations, and applicable law. Additionally, a preliminary injunction hearing was set for

March 16, 2025. On April 1, 2025 the States’ request for a preliminary injunction was granted. The government was ordered to undo the terminations of probationary employees.

The U.S. Government, by way of the defendant agencies, appealed the preliminary injunction, requesting a stay, or a suspension of the injunction, pending appeal. On April 9, 2025, the Fourth Circuit granted the stay noting the government was “likely to succeed in showing the district court lacked jurisdiction over Plaintiffs’ claims.”

On appeal, the Fourth Circuit explained that jurisdiction is only proper when “a plaintiff has affirmatively established ‘(1) that he or she suffered an injury in fact that is concrete, particularized, and actual or imminent, (2) that the injury was caused by the defendant, and (3) that the injury would likely be redressed by the requested judicial relief.’” (citing Thole v. U.S. Bank N.A., 590 U.S. 538, 540 (2020)). The Fourth Circuit explained that the States cannot use previously incurred expenses to justify harm for purposes of standing because it would not show a present case or controversy, which standing requires. The Fourth Circuit instead explained that prospective relief must be legitimatized by prospective injury.

The Fourth Circuit held that because “the States did not allege a cognizable injury” they are not the proper parties to bring suit. The impacted parties here were federal employees, not the States, and therefore, according to the appeals court, the relief requested by the States was “wholly out of proportion to the injury alleged.”

The Fourth Circuit vacated the judgment of the district court, and the case was remanded for dismissal.

Read the full opinion: State of Maryland v. USDA

Supreme Court’s Emergency Docket Allows Department of Education Reduction in Force to Continue

Thu, 21 Aug 2025 15:56:56 GMT

On March 11, 2025, the Secretary of Education initiated reduction-in-force proceedings, seeking to reduce the Department’s workforce by roughly 50 percent. The President subsequently ordered the Secretary of Education to “take all necessary steps to facilitate the closure of the Department of Education” in a March 20, 2025 Executive Order.

Twenty-one states filed a lawsuit, objecting to the large-scale reduction in force, and claiming that workforce reductions of that magnitude would prevent the Department from carrying out its statutory functions.

On May 22, 2025, the United States District Court for the District of Massachusetts entered a preliminary injunction, purporting to halt the workforce reductions and restore those employees who were laid off. The District Court found that “the record abundantly revealed” that the administration’s intent “is to effectively dismantle the Department without an authorizing statute.” The court held that this action would violate the Separation of Powers doctrine and the Take Care Clause, which requires the President to “take care” that the laws passed by Congress are faithfully executed.

In its ruling, the District Court ordered the Department of Education to “reinstate federal employees” and “restore the Department to the status quo such that it is able to carry out its statutory functions.” It enjoined the Department of Education from carrying out its reduction in force, from implementing the Executive Order, and from transferring job functions out of the Department to other agencies.

On June 4, 2025, after the government appealed, the United States Court of Appeals for the First Circuit denied the government's request to stay, or suspend, the preliminary injunction.

The Government then sought emergency relief from the Supreme Court on June 6, 2025 in McMahon v. New York. Emergency relief is an extraordinary remedy, generally only granted under emergency circumstances. On July 14, 2025, the Supreme Court granted emergency relief, and stayed the preliminary injunction while litigation proceeds. This means the Government is allowed to continue with the widespread reduction of force for Department of Education employees and can continue with the closure of the Agency while the matter is still pending before the First Circuit. The stay was granted in a 6-3 split with Justices Sotomayor, Kagan, and Jackson dissenting. The majority did not explain its decision.

Justice Sotomayor in her dissent highlighted the constitutional implications of abolishing a cabinet-level agency without Congressional authorization. The dissent explained the impact on the separation of powers by detailing how the lawmaking power is solely designated to Congress, and how the President is not able to amend, enact, or repeal statutes without congressional authorization. In addition, the dissent explained, the evidence gathered by the District Court demonstrated the Department of Education will likely not be able to carry out its statutorily designated functions, impacting services the Agency provides. For example, in her dissent, Justice Sotomayor, using the facts developed at the district court level, described the stay’s impact on the federal student aid program and highlighted how schools who accept federal-aid eligible students must initially be certified by the Department of Education, and then must frequently be re-certified. A reduction in force impacts recertification processing times, affecting the enrollment of federal aid-dependent students. In highlighting the ways in which staff reductions affect agency function, the dissenters painted the reduction in force and implementation of the Executive Order as a de facto closure of the agency without Congressional authorization.

Read the Decision on the Application for Stay and Dissent here: McMahon v. New York

Supreme Court: Ames Takes Aim at “Background Circumstances” Reverse Discrimination Test

Tue, 29 Jul 2025 15:05:29 GMT

On June 5, at the end of October 2024 term, the Supreme Court held that majority group members do not need to meet a higher evidentiary standard to demonstrate unlawful discrimination under Title VII of the Civil Rights Act of 1964. The decision unanimously overturned the Sixth Circuit’s “background circumstances” requirement and addressed a circuit split (a divergence in precedent between two separate federal courts of appeals).

The question before the Court in Ames v. Ohio Department of Youth Services was whether a “majority group” member must have a heightened burden of proof to demonstrate that an employer discriminates against the majority. Petitioner Marlean Ames worked at the Ohio Department of Youth Services since 2004, where she was promoted from executive secretary to program administrator. In 2019, the petitioner, a heterosexual woman, applied for a new management position within the agency. The petitioner interviewed for the position but, ultimately, a lesbian woman was selected for a job. After the interview process, the petitioner was removed from her program administrator position, demoted, and took a pay cut. A gay man was hired to fill the petitioner’s former, and then-vacant position. The petitioner filed suit under Title VII, asserting that because of her sexual orientation, she was denied the management position and demoted.

The district court granted summary judgment in favor of the agency, citing the McDonnell Douglas Corp. v. Green a burden shifting framework which uses circumstantial evidence to evaluate disparate treatment claims. That burden shifting framework places an initial burden on plaintiffs to show a few things that, if established, create an inference of discrimination, including establishing that the plaintiff is a member of a protected class. The Court noted that typically, this initial burden, called prima facie, is “not onerous.” The burden then shifts to the agency to articulate a legitimate, non-discriminatory reason for the employment decision. If the agency can articulate a legitimate reason, the burden shifts again and requires the employee to prove that the employer’s articulated justification for the employment decision was “pretext,” or an excuse for, discrimination. The district court relied on Sixth Circuit precedent and reasoned that the plaintiff failed to meet their prima facie burden under the Sixth Circuit’s precedent requiring members of “majority” groups (like heterosexual individuals) to demonstrate background circumstances to prove majority group discrimination. The district court held that the plaintiff, as a heterosexual person, and therefore, a majority group member, did not meet her evidentiary burden for the first part of the McDonnell Douglas framework because she could not show that there were “background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority.”

The Sixth Circuit affirmed the district court’s decision, reiterating that the plaintiff had to demonstrate these “background circumstances” in addition to the traditional prima facie showing. The Sixth Circuit provided examples of applicable circumstances, namely showing the minority group at issue made the employment decision, or demonstrating patterns of discrimination against the majority group. The Sixth Circuit’s decision emphasized the circuit split over whether majority and minority group plaintiffs are subject to different evidentiary standards when proving the first McDonnell Douglas step.

The Supreme Court granted certiorari to address this circuit split, and ultimately did not find support in the statutory provisions of Title VII for requiring a heightened burden for members of majority groups. The Supreme Court cites to 42 U.S.C. § 2000e-2(a)(1) to explain that the Title VII disparate treatment provision prevents employers “from intentionally discriminating against their employees on the basis of race, color, religion, sex, or national origin.” The Court reasoned that the disparate treatment provision does not distinguish between majority and minority plaintiffs, but makes it unlawful to discharge, refuse to hire individuals, or to otherwise discriminate against an individual through means such as compensation or employment privilege. The Supreme Court held that Title VII’s individual protections do not allow courts to obligate heightened requirements for majority group plaintiffs.

For those reasons, the Supreme Court rejected the Sixth Circuit’s “background circumstances” rule, vacated the district court’s judgment, and remanded the case for proper prima facie standard application.

Read the full case: Ames v. Ohio Department of Youth Services .

Supreme Court: Administrative Exhaustion Issues May Require Jury Trial

Thu, 24 Jul 2025 17:27:57 GMT

Last month, the Supreme Court issued a decision holding that the right to a jury trial extends to the issue of administrative exhaustion when the exhaustion issue is intertwined with the merits of a claim requiring a jury trial. That is, if resolving a factual dispute regarding administrative exhaustion would also resolve a claim in the case, parties are entitled to a jury trial on both issues.

Congress passed the Prison Litigation Reform Act of 1995 (PLRA) with the aim of ensuring only prisoner complaints that had some merit were litigated in the courts. To accomplish this, the PLRA requires inmates exhaust all available administrative remedies. An exception to the requirement exists where prison officials take some action that effectively thwarts an inmates ability to exhaust, or otherwise makes the process unavailable. Failure to exhaust administrative remedies is a commonly asserted affirmative defense. Frequently, the exhaustion issue is resolved by a judge deciding motions to dismiss or a motion for summary judgment.

Kyle Richards, a prisoner in Michigan, sued Thomas Perttu, a prison employee, alleging sexual abuse and that Perttu impeded Richards’ ability to file grievances regarding the abuse by destroying forms and threatening to kill Richards. Perttu moved for summary judgment at the district court on grounds that Richards failed to exhaust administrative remedies prior to bringing suit. The district court denied Perttu’s motion and held an evidentiary hearing to resolve the factual dispute of whether Richards properly exhausted his administrative remedies. The magistrate judge recommended finding that Richards failed to exhaust; the district court adopted this recommendation and dismissed the case. Richards appealed to the Sixth Circuit Court of Appeals, which reversed the district court and held that the Seventh Amendment requires the issue of exhaustion to be submitted to a jury when the facts surrounding exhaustion are intertwined with the facts underlying the merits of the case. Perttu appealed to the Supreme Court, which affirmed the Sixth Circuit.

Chief Justice Roberts noted for the Court that the PLRA is silent on who should resolve exhaustion issues as between judges and juries, and that the normal practice under the Federal Rules of Civil Procedure is that factual disputes go to the jury. The Court continued that in other scenarios, where the factual dispute is intertwined with the merits of the underlying claim to be decided by a jury, such issues are left for the jury to decide. Specifically, the Court drew on its cases involving both legal and equitable claims, and those involving subject matter jurisdiction. The Court observed that in both lines of cases, judges were not permitted to resolve factual disputes that were intertwined with the underlying merits because doing so would decide the ultimate issue and circumvent the right to a jury trial.

The Court concluded that because the usual practice when issues are intertwined is for the jury to resolve both issues, and because nothing in the PLRA suggested Congress sought to depart from the usual practice, parties are entitled to a jury trial when the issue of exhaustion under the PLRA is intertwined with the merits of the underlying claim. Justice Barret filed a dissent, in which Justices Thomas, Alito, and Kavanaugh joined.

Read the full opinion: Perttu v. Richards

Supreme Court Unanimously Rejects Moment of Threat Test

Fri, 30 May 2025 16:34:43 GMT

The Supreme Court has previously held that when a police officer uses deadly force, he violates the Fourth Amendment when the force used is not “objectively reasonable.” To determine the reasonableness of the force, the Supreme Court requires an assessment of the “totality of the circumstances.” The Fifth Circuit developed a narrower test that only required consideration whether the circumstances existing “at the moment of the threat” triggering the use of deadly force were reasonable. If the officer could reasonably think himself “at risk of serious harm,” that fact alone concludes the Fifth Circuit’s analysis. In a rare unanimous opinion, the Supreme Court rejected the Fifth Circuit’s test.

The case before the Supreme Court stemmed from the use of deadly force by Deputy Constable Roberto Felix of Harris County Precinct 5 when conducting a traffic stop on a highway outside Houston in April 2016. Deputy Constable Felix received a radio alert about an automobile on the road with outstanding toll violations. He spotted the car, pulled it over, and encountered the driver, Ashtian Barnes. Deputy Constable Felix asked Barnes for his license and proof of insurance. Barnes responded that he did not have his license with him and that the vehicle was a rental in his girlfriend’s name.

Barnes told Deputy Constable Felix that he may have identification in the trunk. Deputy Constable Felix directed Barnes to open the trunk. Barnes complied and also turned off the car. Deputy Constable Felix told Barnes to exit the car. Barnes opened the door but did not exit. Barnes instead turned the ignition back on. Deputy Constable Felix unholstered his gun. The car began to move forward, and Deputy Constable Felix jumped onto the doorsill. With Deputy Constable Felix’s head above the car, he had no visibility into the car. Deputy Constable Felix shouted, “Don’t fucking move!” He then fired two shots inside the vehicle. Barnes was hit. Two seconds elapsed from when Deputy Constable Felix stepped on the doorsill and shot Barnes.

Barnes died from the gunshot wound. His mother, Janice Barnes, sued Deputy Constable Felix on her son’s behalf under 42 U.S.C. § 1983, alleging Deputy Constable Felix violated Barnes’s Fourth Amendment rights by using excessive force. Relying on the Fifth Circuit’s moment of the threat test, the district court granted summary judgment to Deputy Constable Felix. The district court identified the moment of the threat as the two seconds before Deputy Constable Felix shot Barnes. On appeal to the Fifth Circuit, the court of appeals affirmed, stating that the test only required consideration whether the officer was “in danger at the moment of the threat that resulted in [his] use of deadly force” and any prior events leading up to the shooting were “not relevant.”

The Supreme Court granted certiorari to address whether in resolving Fourth Amendment excessive force claims, courts may apply the moment of threat test. It held that they cannot because the rule constricts the proper inquiry into the “totality of the circumstances.” The Supreme Court stated that there is no “easy-to-apply legal test” or “on/off switch” when analyzing the totality of the circumstances. It demands attention to the facts and circumstances relating to the incident as known to the officer. This includes the severity of the crime prompting the stop, the actions of the officer conducting the stop, and the stopped person’s conduct. The Supreme Court stated that the totality of the circumstances inquiry has no time limit and earlier facts and circumstances may bear on how a reasonable officer would have understood and responded. Because the moment of threat rule prevents attention to the context and conflicts with the Supreme Court’s instruction to analyze the totality of the circumstances, the unanimous Court rejected it.

The Supreme Court vacated the judgment of the Fifth Circuit and remanded the case to be analyzed under the totality of the circumstances.

Read the full case: Barnes v. Felix

Federal Circuit: If You Blow the Whistle, Be Professional About It

Tue, 28 Jan 2025 15:53:59 GMT

The Whistleblower Protection Act (“WPA”) prohibits federal agencies from retaliating against an employee for, among other things, disclosing information reasonably believed to be evidence of a violation of any law, rule, or regulation. The Federal Circuit recently clarified that while the WPA protects whistleblowers from punishment for making protected disclosures, a whistleblower can be disciplined for lack of professionalism in the way they make their disclosures.

A doctor joined the Department of Veterans Affairs in August 2010 as a physician in a temporary appointment, which was later converted into a permanent appointment. In 2012, the doctor applied for her facility’s Hospitalist Section Chief position, a position for which VA was prohibited from appointing a non-U.S. citizen unless it was impossible to recruit qualified citizens. The doctor was not selected for the position and a non-U.S. citizen was selected instead.

In the months following her non-selection, the doctor sent several emails to management questioning why she was not selected and criticizing the VA’s selection of a non-U.S. citizen. Several of these emails, however, “transcended civility.” For example, in emails to all facility hospitalists, the doctor accused the Hospital Section Chief selectee of falsifying his work schedule, called the selectee a “total failure at running this group,” and accused several doctors of allowing “harassing schedules” and called for the non-renewal of their appointments. The doctor was then advised to “not disseminate inflammatory and accusatory e-mails regarding” her colleagues and superiors, and was instructed not to contact the then-VA Secretary to express her concerns about the Hospitalist Section Chief hiring process and scheduling practices. Despite these instructions, The doctor continued raising her concerns, including to the then-VA Secretary.

The doctor received a notice of termination on September 11, 2012, based in part on her insubordination to cease disseminating inflammatory and defamatory emails regarding colleagues, creation of a hostile work environment, and for bringing complaints outside of her chain of command. The doctor filed an individual right of action with the Merit Systems Protection Board (“MSPB”). The initial decision found that the doctor’s emails regarding the Hospitalist Section Chief position were disclosures protected by the WPA, yet upheld the doctor’s removal because the Agency showed by clear and convincing evidence that it would have terminated the doctor’s appointment notwithstanding her protected disclosures. The full MSPB Board affirmed the initial decision.

On appeal, the Federal Circuit ultimately agreed with the MSPB’s decision to uphold the doctor’s removal, but made one key clarification—the WPA does not require a protected disclosure to be channeled through a whistleblower’s chain of command. The Court found that “a report of wrongdoing…may not be prohibited nor retaliated against, if made outside the chain of command or even to the head of the agency.” In other words, the WPA protects disclosures falling within the scope of the statute, regardless to whom the disclosure is made. Despite the MSPB’s contrary finding, the Federal Circuit found that this error was harmless.

Regarding the propriety of her removal, though, the Federal Circuit found that the Agency proved it would have terminated the doctor’s appointment notwithstanding her protected disclosures, citing the unprofessional and disruptive nature of her emails. The Court reasoned that even though her emails related to her protected whistleblower disclosures, that did not preclude the Agency from using those emails to support its removal action. The Court made clear that the WPA “protects [the doctor] from being punished for making protected disclosures, not for the way in which she chose to do so.” Therefore, the Agency was permitted to discipline the doctor for her lack of professionalism in the way she communicated her protected disclosures—through inflammatory emails.

The Court acknowledged that not all protected disclosures are made in a polite way. The WPA protects “impolite whistleblowing as much as it protects polite whistleblowing,” and does not contemplate punishment for making protected disclosures in a blunt manner. However, there is a limit to its protection—the WPA cannot shield a whistleblower from being punished for misconduct, including for a lack of professionalism that veers into harassing or hostile language. Because the Federal Circuit agreed that the doctor’s communications crossed the line, it upheld her removal.

Read full case here: Biswas v. DVA

Federal Circuit Remands to MSPB Whether Promotion Is a Protected Benefit of Employment under USERRA

Tue, 14 Jan 2025 16:27:34 GMT

The Uniformed Services Employment and Reemployment Rights Act requires federal agencies to consider military services members for any advantage of employment that they would have been entitled to but for their absence for military service obligations. The Federal Circuit recently held that the Merit Systems Protection Board applied the incorrect legal standard when determining what is considered an advantage of employment.

Anthony Knox was a Drug Enforcement Administration Special Agent from 1997 until 2020. He was also a member of the U.S. Air Force Reserves and deployed to Iraq for from November 22, 2002, to November 21, 2003. While deployed, Knox was entitled to a within-grade increase from a GS-12, step 2 to a GS-12, step 3 on February 23, 2004. The effective date of the within-grade increase was incorrectly set for April 20, 2003.

In March 2004, Knox requested a promotion to GS-13 on April 20, 2004. Per agency policy at the time, Special Agents could be considered for promotion to GS-13 after one year in grade if recommended by the Special Agent in Charge (SAC) based on established criteria. Although the promotions were “not automatic,” the policy provided that they “will normally be accepted after review by the Position Review Committee.” DEA did not process Knox’s promotion request. It cited an upcoming change of policy. The agency issued the revised policy on June 15, 2004. The new policy clarified that promotions are “neither an entitlement nor automatic.” Knox was not promoted to GS-13 until April 17, 2016.

In January 2020, Knox filed an appeal with the Board. He brought reemployment and discrimination claims under the USERRA. For his reemployment claims, Knox alleged that DEA erroneously effected his within-grade increase in April 2003, due to his military service. He further alleged that the agency delayed his promotion eligibility because of the error, and that the delay resulted in his promotion application being considered and denied under a less-favorable agency policy. Knox sought retroactive correction of the within-grade increase to February 2003, and promotion to February 2004.

An MSPB administrative judge granted the within-grade increase reemployment claim and denied the promotion reemployment claim. In denying the promotion reemployment claim, the administrative judge found that because promotions were not “automatic,” Knox did not show he would have been entitled to promotion as an advantage of employment. The administrative judge also denied both discrimination claims. The parties did not petition for review with the Board, and instead filed a petition for judicial review with the Federal Circuit.

The Federal Circuit ruled that the administrative judge applied the incorrect legal standard in denying Knox’s promotion reemployment claim, as the administrative judge required Knox to prove he was entitled to an “automatic” promotion. The Federal Circuit held that regulation, 5 C.F.R. § 353,106, determines whether an employee absent on military duty is entitled to an advantage of employment. That regulation requires consideration whether: (1) the advantage is one generally granted to all employees and whether it was denied solely because of absence for military service, (2) the absent employee was treated the same as if he had remained at work, and (3) it was reasonably certain that the benefit would have accrued but for the absence for military service.

Because the administrative judge did not consider whether Knox was entitled to promotion as an advantage of his employment per the standard under OPM regulation, the Federal Circuit vacated and remanded the decision for further proceedings on Knox’s promotion reemployment claim. The Federal Circuit also instructed the Board to determine whether all three regulatory factors must be met to prove a USERRA reemployment claim and which party bears the burden of proof on them. The court found that the administrative judge did not err in denying Knox’s discrimination claims.

Read the full case: Knox v. DOJ

Supreme Court Justices Question Reservist Claim for Differential Pay

Tue, 17 Dec 2024 16:22:46 GMT

On December 9, counsel for petitioner Nick Feliciano, an air traffic controller for the Federal Aviation Administration and Coast Guard reserve officer, argued before the Supreme Court that Mr. Feliciano should be entitled to differential pay that matches his federal salary while ordered to active reserve duty.

The question before the Court in Feliciano v. Department of Transportation was whether federal civilian employees called to active duty are entitled to differential pay “during” a national emergency even if, as here, that duty is not directly connected to the national emergency. The air traffic controller performed active duty from October 2012 to September 2014 in support of various military operations, and subsequently was called up to active duty to receive authorized medical care through February 2017. He did not receive differential pay while under these orders.

Per the U.S. Office of Personnel Management , a reservist differential payment is “[a] payment made to eligible Federal civilian employees who are members of the Reserve or National Guard during periods when they are called or ordered to active duty under “certain specified provisions of law,” where the “payment is equal to the amount by which an employee’s projected civilian ‘basic pay’ for a covered pay period exceeds the amount by which an employee’s actual military ‘pay and allowances’” for that period. Essentially, differential pay seeks to compensate the civilian employee serving on military orders at the rate of his federal employee salary, rather than his reservist pay.

The air traffic controller’s activation orders cited President Bush’s Executive Order 13223, which was signed following the September 11, 2001 terrorist attacks on the Pentagon and World Trade Center as justification for his reserve activation “in support of a DOD contingency operation.” He was activated to serve in Charleston, South Carolina, operating a Coast Guard vessel to protect other military vessels entering and exiting the harbor.

Reservist differentials are authorized by 5 U.S.C. § 5538(a), which grants the differential entitlement to reservists serving on active duty under specific statutory sections, including during “contingency operation[s]” that are carried out “during a war or during a national emergency declared by the President or Congress.”

As such, at the Supreme Court, much of the questioning revolved around whether the phrase “during a war or during a national emergency” entitled reservists to the differential so long as there was an active war or national emergency, even if the reservist’s service was not directly tied to the emergency or war. Counsel for the air traffic controller argued that the statutory language was plain, and that the word “during” imposed only a temporal limitation, not a substantive one. In other words, because there were multiple national emergency declarations active during his time of service, he was entitled to differential pay. But the government countered that the word “during” should be read as a substantive limitation, meaning that the service must be performed in the course of addressing a national emergency, rather than simply occurring at the same time.

Justices Coney Barrett, Sotomayor, and Alito all pointed to the fact that there are over 40 national emergencies, several lasting for decades, and that the air traffic controller’s argument would entitle all reservists who were federal civilian employees to differential pay, no matter the substance of their service, until the end of all national emergencies. Those Justices expressed skepticism that the air traffic controller’s position was a realistic reading of the statute and Congressional intent given the duration of national emergencies.

However, the Justices, including Chief Justice Roberts, appeared open to the air traffic controller’s position, with the Chief Justice informing counsel for the government that “just looking at the language” it appeared to have a “pretty strong temporal aspect.”

Listen to the oral argument here .

MSPB: No Abuse of Power is Too Small

Thu, 21 Nov 2024 16:22:41 GMT

The Merit Systems Protection Board (“Board”) recently issued a precedential decision holding that an employee’s personal complaints and grievances about how an Agency treated them may constitute “nonfrivolous allegations of disclosures” of an abuse of authority. In doing so, the Board overruled prior decisions that held, as a blanket rule, that complaints from an employee about how they, personally, were treated did not constitute protected disclosures of an abuse of authority.

Appellant, a former Small Business Administration employee, filed an Individual Right of Action (IRA) appeal following her removal from her position. Appellant argued that she was subjected to reprisal, including the creation of a hostile work environment and termination of her employment, after she made protected disclosures. The Administrative Judge dismissed Appellant’s IRA for lack of jurisdiction, finding that Appellant did not make any nonfrivolous allegation that “her disclosures were protected under 5 U.S.C. § 2302(b)(8) as a violation of law, rule, or regulation, an abuse of authority, or gross mismanagement.”

The Board ultimately upheld the Administration Judge’s denial of Appellant’s IRA appeal. It agreed with the Administrative Judge that the Board only has jurisdiction over an IRA appeal if the Appellant has made nonfrivolous allegations that she made a protected disclosure. The Board also agreed with the Administrative Judge that the Appellant failed to do so in this instance.

However, the Board took issue with the Administrative Judge’s citation to and reliance on a prior Board decision, which found that an “appellant’s rambling allegations of abuses of authority are fundamentally his own personal complaints and grievances about how he was treated by the agency . . . and therefore do [not] constitute . . . a nonfrivolous allegation of a protected disclosure.”

The Board rejected this interpretation, finding that there “are no exceptions in the applicable statute for disclosures of abuses of authority that are personal complaints or grievances about treatment by an agency, nor does the Board’s definition include such an exception.” The Board also noted that an exception for “personal complaints and grievances” would not be consistent with the statutory definition of “abuse of authority,” which has no threshold limitation. In other words, there is no mandatory degree of seriousness or requirement that an allegation be more than de minimis, unlike other categories of disclosures.

The Board in Collier did not hold that all “personal complaints and grievances about how the agency treated an appellant” constitute protected disclosures. Instead, the Board held that agencies must analyze whether such complaints meet the definition of “abuse of authority,” rather than dispensing with them simply because they are an individual’s personal complaints.

Read the full decision here >

OPM’s Apportionment of FERS Annuity Supplements under Federal Circuit Review

Tue, 19 Nov 2024 16:22:47 GMT

For decades, the Office of Personnel Management (OPM) applied divorce court orders granting marital share of former employees’ retirement only to their basic annuity. In 2016, OPM began to apply the share to the annuity supplement. The Federal Law Enforcement Officers Association (FLEOA) has been on the front end of a fight against this changed practice, filing a complaint with OPM’s Office of Inspector General in 2018, and most recently filing an amicus brief in a pending Federal Circuit case last month.

The case involves Ronald Moulton, a retired Air Traffic Controller (ATC) with 25 years of service at the Federal Aviation Administration. Certain federal employees, like ATCs and law enforcement officers, who complete 25 years of service in certain positions are entitled to immediate annuity as well as an annuity supplement under 5 U.S.C. § 8421. The annuity supplement is designed to replicate the social security benefit available at age 62 for employees retiring earlier. Per section 8421(c), annuity supplements are to be computed “the same way” as basic annuity.

Moulton is a divorcee. In divorce proceedings, a Colorado state court awarded Moulton’s former spouse a pro rata share of his monthly annuity under FERS and benefits he would receive based on his ATC service. When a federal employee and his or her spouse divorce, payments that would otherwise be made to the employee shall be paid to another person “if and to the extent expressly provided for in the terms of … any court decree of divorce” under 5 U.S.C § 8467.

After Moulton retired in 2010, OPM calculated the benefit owed to Moulton’s former spouse without inclusion Moulton’s annuity supplement. Nearly 6 years later, OPM informed Moulton that it made a mistake, that Moulton’s annuity payment would be prospectively reduced, the former spouse’s annuity payment would be prospectively increased, and that OPM would retroactively collect from Moulton additional benefits. OPM made a similar change to other former employees’ annuity supplements around the same time. Moulton requested reconsideration, and OPM issued a final decision.

Moulton appealed OPM’s final decision to a Merit Systems Protection Board administrative judge. The administrative judge reversed OPM’s final decision, and OPM filed a petition for review with the full Board. The Board affirmed the administrative judge’s decision last year.

To determine whether OPM incorrectly adjudicated the benefit owed to Moulton’s former spouse, the Board both began with the language of the statute. OPM argued that the statute is clear and required it to apportion the annuity supplement the same as basic annuity. The Board disagreed. It held that OPM improperly read the statutory sections in isolation, rendering the “expressly provided for” language of 5 U.S.C. § 8467 inoperative.

The Board found that payment of basic annuity to someone other than an employee, like Moulton’s former spouse, can only occur if “expressly provided for” in some sort of judicial decree or order. Because computation and payment of an annuity supplement is to be treated the same way as the payment of basic annuity, the Board found that OPM would apportion payment of the annuity supplement only on express order. The Board found that the Colorado state court’s order did not expressly provide for the division of Moulton’s annuity supplement, and ordered OPM to rescind its final decision, stop apportioning the annuity supplement, and refund all previously apportioned annuity supplement amounts to Moulton.

OPM appealed the Board decision to the U.S. Court of Appeals for the Federal Circuit. The question before the Federal Circuit is whether the annuity supplement statute, 5 U.S.C. § 8421, authorizes apportionment of a retirement annuity supplement only when expressly provided for in a court order. In October, FLEOA filed an amicus brief in the appeal. FLEOA agreed with the decision rendered by the Board and the position taken by Moulton on appeal.

FLEOA stated that its members, federal law enforcement officers, frequently rely on the annuity supplement to provide income to themselves before they become eligible for social security. Much of FLEOA’s brief described the impact that OPM’s 2016 change in apportionment of annuity allocations has had on its members. It provided examples of the unexpected costs the change has had on its members who budgeted for retirement and carefully negotiated divorce settlements under the impression they would receive the full annuity supplement, not their former spouse.

OPM’s deadline to submit a reply brief is December 6, 2024. Oral arguments will be held before the Federal Circuit issues its decision. We will report on this case when the Federal Circuit issues its decision.

Read the MSPB decision .

Read the Federal Circuit’s grant of petition .

Read FLEOA’s amicus brief .

Could a New Trump Administration Push for Another Federal Hiring Freeze?

Wed, 13 Nov 2024 12:22:37 GMT

On November 13, 2024, Jason Briefel, Director of Government & Public Affairs at Shaw Bransford & Roth P.C., was featured on Government Executive discussing the enduring effects of the 2017 federal hiring freeze. Jason notes that, despite its 79-day duration, the freeze had lasting impacts on many agencies and programs. He highlights that even years later, various programs and agencies exhibited lingering challenges attributable to the freeze, indicating its prolonged influence on federal operations.

Read the full article here >

Fourth Circuit Extends Bivens to Eighth Amendment Excessive Force Claim

Mon, 26 Aug 2024 16:12:19 GMT

In a rare case, a three-judge panel of the Court of Appeals for the Fourth Circuit extended Bivens to a federal inmate’s Eighth Amendment excessive force claim against Bureau of Prisons (BOP) officials.

Andrew Fields III, an inmate at U.S. Penitentiary Lee in Virginia, filed a civil rights lawsuit in the Western District of Viriginia. In addition to his claims against the BOP, prison warden, and supervisory officers, Fields included one count under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics—an Eighth Amendment claim alleging excessive force, against the individual officers who he claimed violated his constitutional rights. Fields claimed that on November 10, 2021, BOP officers placed him in restraints after a scuffle on his way to the special housing unit (SHU). Fields further alleged that while restrained in the SHU, officers would come and physically abuse him by slamming his head into the wall and hitting him with a shield. Upon his release from the SHU, Fields tried to file an administrative grievance, following BOP procedure. However, Fields alleged that prison staff denied him access to the requisite forms, denying him the ability to pursue an administrative remedy.

Pursuant to 28 U.S.C. §1915A(b), the Prison Litigation Reform Act (PLRA), the district court must review all cases involving suits against BOP and its officials to determine whether a complaint should be dismissed for being frivolous, malicious, or failing to state a claim. The district court concluded that Fields could not obtain relief and dismissed Fields’s case. Fields appealed to the U.S. Court of Appeals for the Fourth Circuit, challenging the dismissal of his Eighth Amendment excessive force claim only.

The Fourth Circuit explained that plaintiffs can only proceed in a suit against federal-officer defendants by finding an implied cause of action under Bivens. The analysis under Bivens is a two-step process: (1) whether the case is in a new Bivens context, different from the three cases where there is an implied cause of action; and if so, (2) whether the Court is the proper forum to extend the damages action to this new context, as opposed to Congress. The Fourth Circuit noted that the Supreme Court has made clear that Bivens should generally not be extended to apply to new contexts outside of the three it had previously decided.

In this case, Fields conceded that his claim arose in a new Bivens context, so the Fourth Circuit only analyzed the second prong of the test. The court of appeals noted that it declined to extend Bivens in many recent cases because Congress left out an individual damages remedy when it created the PLRA, because plaintiffs have access to alternative remedies, and because of the systemic issues that could result in expanding Bivens, such as impairing federal officials’ ability to make administrative decisions. The court of appeals considered, and rejected, all three bases for not extending Bivens here.

The Fourth Circuit found Fields’s case to be a “rare” one where the allegation is that he was subject to horrendous abuse for no reason, and that when he tried to pursue administrative remedies, he was denied the ability to do so by prison officials. The court of appeals also stated there was little to no concern about systemwide consequences because Fields’s allegations only concern the conduct of individual BOP officers and do not implicate any BOP rules or policies. Finally, the Fourth Circuit stated that Congress’s decision to not statutorily overrule Bivens altogether in passing the PLRA allows for the continued analysis and extension of Bivens to new contexts such as the one presented by Fields.

The Fourth Circuit reversed and remanded the case to proceed in the district court for Fields’s Eighth Amendment excessive force claims.

Read the full case: Fields v. Federal Bureau of Prisons

How Agency Leaders Can Prepare for More Aggressive House Oversight

Fri, 03 Mar 2023 23:41:29 GMT

Partner, Chris Keeven , is quoted in Federal News Network discussing the potential impact of increased congressional oversight on federal employees. Chris states that "Federal employees can often be casualties of that tension," referring to the political dynamics between the executive branch and Congress.

To read the full article, visit Federal News Network >

Congressional Investigations Are Heating Up. Can Career Feds Protect Themselves?

Thu, 23 Feb 2023 04:49:08 GMT

Partner, Chris Keeven , was recently featured in Federal News Network's article, Congressional Investigations Are Heating Up. Can Career Feds Protect Themselves? In the piece, Chris discusses the increasing oversight from Congress and the potential risks federal employees face, stating, "Unfortunately, that's just part of the risk and reality of being a federal employee... As the partisan tensions have risen, oftentimes the workforce can be collateral damage of that." He emphasizes the importance of preparation and obtaining professional liability insurance to safeguard against adverse actions.

To learn more and to read the full article here >

Here's How Career Feds Can Avoid Getting Tripped Up by Congressional Investigations

Wed, 22 Feb 2023 04:58:16 GMT

Partner, Chris Keeven , was recently featured in Government Executive's article, Here's How Career Feds Can Avoid Getting Tripped Up by Congressional Investigations . In the piece, Chris cautions that career employees can become "casualties" when a congressional committee's political agenda conflicts with that of an agency. Chris emphasizes that employees have the right to private counsel, noting that it is these attorneys—not agency representatives—who can accompany individuals into congressional depositions.

To read the full article, visit Government Executive >

Debra Roth Quoted in Government Executive on Landmark Federal Employment Ruling

Fri, 19 Mar 2021 05:14:01 GMT

Partner, Debra Roth , was quoted in Government Executive’s coverage of the Federal Circuit’s decision in Santos v. NASA, a case reshaping how agencies approach performance-based removals. “It weeds out misuse of managerial authority,” Roth said of the ruling. She noted the decision may lead to a more efficient and formalized system, adding, “It’s important to keep the system honest.”

Read the full article here >

Partner Debra Roth Featured on 60 Minutes

Sun, 14 Jun 2020 12:14:49 GMT

Debra L. Roth , Managing Partner at Shaw Bransford & Roth, appeared on CBS's 60 Minutes with correspondent Norah O'Donnell to discuss the Merit Systems Protection Board's (MSPB) inability to function due to vacant positions.

Roth highlighted the growing backlog of nearly 2,900 cases and the adverse effects on federal employees awaiting appeal decisions.She noted that approximately 15% of appellants eventually have their terminations overturned, emphasizing the importance of timely adjudication.The 60 Minutes segment also covered the case of whistleblower Rick Bright, whose appeal was stalled due to the MSPB's inoperability.Roth's insights underscored the critical need for a functioning MSPB to uphold merit-based employment principles in the federal workforce.

Watch the full segment and read the article on CBS News >

The Technology 202: 6 Ways the Shutdown is Affecting the Tech Sector

Mon, 14 Jan 2019 05:20:11 GMT

In a Washington Post article titled " The Technology 202: Six ways the shutdown is affecting the tech sector ," Debra Roth , partner at Shaw Bransford & Roth, cautioned that furloughed federal employees seeking temporary work during the government shutdown should be mindful of potential employment restrictions. Debra noted, "They could be risking their jobs or other administrative charges against them," emphasizing that agencies may have varying policies regarding outside employment during furloughs.

Read the full article here >

Moonlighting Feds Could Be Risking Their Jobs

Fri, 11 Jan 2019 05:25:35 GMT

In the Nextgov article titled " Moonlighting Feds Could Be Risking Their Jobs, " Debra Roth , partner at Shaw Bransford & Roth, cautioned that furloughed federal employees seeking secondary employment during government shutdowns might violate agency policies, potentially jeopardizing their federal positions. Debra emphasized that many agencies require prior approval for outside employment, and obtaining such approval can be challenging during shutdowns when ethics officials are also furloughed.

Read the full article here >

Employees Under Investigation Can Be Comparators

Mon, 28 Aug 2017 05:33:14 GMT

Partner, Debra Roth's "Ask the Lawyer" column for Federal Times, discusses the implications of comparing employees under investigation in disciplinary actions. Debra states that employees facing allegations or investigations can serve as comparators in determining disciplinary outcomes. She advises federal employees to be aware of how comparator evidence is used and to seek legal counsel when involved in disciplinary proceedings.

Read the full article here >