Employment Law News - Federal Circuit
Federal Circuit - The FindLaw Federal Circuit Court of Appeals Opinion Summaries Blog

Recently in Employment Law Category

The Transportation Security Administration learns about a credible hijacking plot. It then pulls air marshals off of certain long-distance flights because of a budget shortfall. This was, in a word, stupid.

Robert MacLean was one of those air marshals. After going to his supervisors and other proper channels, and after he was rebuked with warnings about his career, he anonymously tipped off the press. He was later fired.

We've covered his case extensively, from the Federal Circuit's opinion in his favor, holding that the Whistleblower Protection Act applied to his case, to that court's denial of banc rehearing.

In January, the Department of Homeland Security submitted its petition for certiorari, arguing that applicable security regulations prohibited MacLean's disclosures and that the Federal Circuit's opinion "effectively permits individual federal employees to override the TSA's judgments about the dangers of public disclosure."

What was MacLean's response? Let's take a look at his Brief in Opposition:

Last year, the Federal Circuit gave us that warm-and-fuzzy feeling. You know the feeling -- it's the one you get at the end of the movie where the good guy wins. That feeling.

Robert MacLean was a federal air marshal. Shortly after learning of a hijacking plot, the Transportation Security Administration (TSA) decided to pull air marshals off of certain flights. If that sounds like an idiotic response to you, you're simpatico with MacLean, who first complained to his supervisors, then leaked the plan to MSNBC.

Long story short: MacLean was fired, even though the information wasn't classified as Sensitive Security Information (SSI) until after he leaked it. Fortunately, as we reported last year, the Federal Circuit came to the rescue, holding that the Whistleblower Protection Act could apply to his case, and later denied an en banc rehearing. The government is now petitioning for Supreme Court review.

The Federal Circuit is in the unique position of hearing very specialized and specific types of cases. If you're an IP attorney, or work with veterans, then it's important to keep a close eye on the cases coming out of this circuit, and 2013 was a pretty interesting year for the Federal Circuit.

Federal Circuit in the News

The infamous government bailout of 2008 still haunts us as the issue of whether Ben Bernanke could be deposed, while still in his position, was raised in a lawsuit from Maurice Greenberg, owner of Starr International, Co., a 12% stake holder in AIG. The last word by the Federal Circuit was that Bernanke may not be deposed while he is Chairman, but considering he steps down in less than a month, we're guessing this is not the last we'll hear on this issue.

The Federal Circuit also made history in September when Judge Hughes was confirmed as the first openly gay judge to sit on a Court of Appeals.

Fed Cir Rejects DHS' Request In TSA Whistleblower Case

Last month, the Federal Circuit rejected a petition from the Justice and Homeland Security departments (DHS). On August 30, the U.S. Appeals Court for the Federal Circuit assessed a petition from the DHS requesting a full court review of a decision supporting former TSA air marshal Robert MacLean and his whistleblower actions back in 2006, CNN reports.

Seven years ago, MacLean had exposed a 2003 DHS decision to sever the inclusion of federal air marshals on long-distance flights, even with the increasing threat of terrorism on passenger flights. Marshal was then fired for leaking this information about air marshal travel cuts.

The government just got a blank check for managing employees with reduced oversight, thanks to the Federal Circuit, and critics are already the worst.

When a federal employee has a grievance, often, their remedy is to appeal the issue to the Merit Systems Protection Board. Common appeals include whistleblower claims and furlough complaints, which are extremely popular in the time of sequestration.

Now, after the Federal Circuit Court of Appeals extended the Supreme Court's Egan v. Navy decision from 1988, holding that the MSPB could not review security clearance determinations, the door to the MSPB will now be closed for a larger group of workers: "noncritical sensitive" positions.

Robert MacLean became a Federal Air Marshal in 2001. In 2003, the Marshals received word of a potential hijacking plot. Unsurprisingly enough, because the Transportation Security Administration (TSA) fails at everything, they botched the response. Because of a budget shortfall, they cancelled all missions on certain flights.

Terror/hijacking alert? Meh.

MacLean discussed his concerns through the proper channels, but nothing was done. So he did what he thought was best: leak the story to the press.

Reality Trumps Eligibility in Disability Benefits Appeal

Workers aren't allowed to double-dip between Federal Employees Retirement System (FERS) disability retirement annuities and Social Security Administration (SSA) disability benefits. The Office of Personnel Management (OPM) must reduce a FERS disability annuity for any month in which the recipient is also "entitled" to SSA disability benefits.

Until this week, however, there was a grey area of statutory interpretation: What happens when an employee is eligible for Social Security benefits, but doesn't receive those benefits? Will he receive his full FERS annuity?

Affirmed: Postal Worker Fired for Using Gift Card

Stealing gift cards from undeliverable mail seems like something that Newman would have done on "Seinfeld." Except Newman never stooped so low. Instead, Warren Schiff -- Richard Dreyfuss' character on "Weeds" -- will be remembered as the TV mail carrier who pilfered gifts from undelivered mail.

So what would happen if a postal employee pulled a similar stunt in real life?

He would lose his job. And the federal employment review process would offer no relief.

One of the key roles of the Federal Circuit Court of Appeals is to hear reviews from the Merit System Protection Board (MSPB). This year, the court has issued a number of decisions affecting the rights of federal employees post-termination.

Below, we've included a run-down of three of the more interesting employment law decisions handed down this year.

SCOTUS; District Court Has Original Jurisdiction in MSPB 'Mixed Cases'

The Federal Circuit Court of Appeals generally hears reviews from the Merit Systems Protection Board (MSPB). The Supreme Court clarified an exception to that rule this week.

Monday, the Court ruled that a federal employee who claims that an agency action appealable to the MSPB violates an anti-discrimination statute should seek judicial review in district court — not the Federal Circuit — regardless whether the MSPB decided her case on procedural grounds or on the merits.