Recently in Employment Law Category

A decision of the Merit Systems Protection Board (Board) affirming the Social Security Administration's removal of petitioner for his participation in an income tax fraud sponsored by another Social Security employee is affirmed as to a conclusion that the Social Security established the charge against the petitioner. However, the decision is vacated and remanded to the extent it upheld the penalty of removal as neither the record before the Board nor its findings and conclusions were adequate to enable the circuit court to evaluate and adjudicate the issue of whether petitioner was treated discriminatorily because Social Security removed him but re-employed the other employee.     

Read Williams v. Soc. Sec. Admin., No. 09-3020

Appellate Information

Appeal from:  Merit Systems Protections Board

Decided November 9, 2009

Judges

Before Linn, Friedman, and Dyk, Circuit Judges

Opinion by:  Friedman, District Judge

Counsel

For Appellant:  Phillip R. Kete, American Federation of Government Employees Local 1923.

For Appellee:  Jacob A. Schunk, Commercial Litigation Branch, Civil Division, US Department of Justice, Michael F. Hertz, Acting Assistant Attorney General, Jeanne E. Davidson, Patricia M. McCarthy, Maame A.F. Ewusi-Mensah. 

A decision of the U.S. Court of Appeals for Veterans Claims', denying a surviving spouse's claim for dependency and indemnity compensation (DIC) from the Department of Veterans' Affairs, is affirmed as the government's interpretation of 38 U.S.C. section 1311(a)(2) is correct as it does not provide a stand-alone or independent basis for entitlement to DIC benefits. 

Read Barela v. Shinseki, No. 09-7002

Appellate Information

Appeal from:  United States Court of Appeals for Veterans Claims

Decided November 3, 2009

Judges

Before Michel, Chief Judge, Newman and Prost, Circuit Judges

Opinion by Circuit Judge Prost

Counsel

For Appellant:  Kenneth M. Carpenter

For Appellee:  Meredyth Cohen Havasy, Commercial Litigation Branch, Civil Division, U.S. Department of Justice

Decision of the Veterans Court that 38 C.F.R. section 3.343(a) does not apply to the total disability state of claimant's retrospective stated rating is affirmed as the Department of Veterans Affairs' interpretation of the applicability of the section is not plainly erroneous or inconsistent with the regulation.   

Read Reizenstein v. Shinseki, No. 09-7012

Appeal from:  United States Court of Appeals for Veterans Claims

Decided September 29, 2009

Judges

Before Newman, Mayer, and Prost, Circuit Judges

Opinion by Prost,  Circuit Judge.   

Counsel

For Appellant:  Kenneth M. Carpenter

For Appellee:  Martin F. Hockey, Jr., Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice. 

Department of Justice's Bureau of Justice Assistance's (BJA) denial of claim for benefits by plaintiff and her three children under the Public Safety Officers' Benefits Act (PSOB Act) 42 U.S.C. section 3796, is affirmed as the BJA correctly determined that plaintiff's deceased husband did not die as a result of the type of injury that is compensable under the PSOB Act. 

Read Juneau v. Dep't of Justice, No. 09-8002

Appeal from:  Public Safety Officers' Benefits

Decided September 29, 2009

Judges

Before Michel, Chief Judge, Newman, and Prost, Circuit Judges

Opinion by Michel, Chief Judge.   

Counsel

For Appellant:  Joseph P. durham, Jr., Langley & Lee, LLC

For Appellee:  Jeffrey A. Regner, Commercial Litigation Branch, Civil Division, United States Department of Justice. 

Judgment of the United States Court of Federal Claims denying petitioner's claim for back pay based on improper transfer after serving in the Navy for twenty years is affirmed in part, vacated in part and remanded where: 1) judgment of the court that petitioner's transfer to the Fleet Reserve was not improper is affirmed; and 2) judgment rejecting petitioner's claim for back pay from October 2000 to mid-May 2001 based on his post-transfer service is vacated and remanded.   

Read Walls v. US, No. 08-5179

Appeal from:  United States Court of Federal Claims

Decided September 29, 2009

Judges

Before Newman, Gajarsa, and Dyk, Circuit Judges

Opinion by Dyk, Circuit Judge.   

Counsel

For Appellant:  Rebecca A. Koch, Kirkland & Ellis LLP

For Appellee:  Kent Kiffner, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice

Veterans Court's refusal to permit the daughters of the deceased veteran-claimants to be substituted for their fathers is reversed and remanded where: 1) with respect to the deceased veteran's daughter's accrued benefits claim, assuming she has preserved her rights as an accrued benefits claimant, she is entitled to substitution on her father's claim and to the benefits of the Veterans Court's decision in his favor; and 2) with respect to the claim for attorney fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. section 2412, the EAJA claim survives the death of the veteran, regardless of whether the EAJA application was actually filed by the veteran claimant prior to his death.     

Read Phillips v. Shinseki, No. 08-7124

Appeal from:  United States Court of Appeals for Veterans Claims

Decided September 25, 2009

Judges

Before Michel, Chief Judge, Bryson, Circuit Judge, and Spencer, Chief District Judge

Opinion by Bryson, Circuit Judge.   

Counsel

For Appellant:  Eric Alan Shumsky, Sidley Austin LLP

For Appellee:  Meredyth Cohen Havasy, United States Department of Justice

United States Court of Appeals for Veterans Claims' (Veterans Court) judgment affirming the decision of the Board of Veterans' Appeals rejecting petitioner's claim for an earlier-effective date for entitlement to benefits is affirmed as the Veterans Court gave the petitioner adequate notice of the earlier denial of his claim. 

Read Edwards v. Shinseki, No. 08-7078

Appeal from:  United States Court of Appeals for Veterans Claims

Decided September 24, 2009

Judges

Before Rader, Bryson, and Dyk, Circuit Judges

Opinion by Rader, Circuit Judge.   

Counsel

For Appellant:  James R. Barney, Finnegan, Henderson, Farabow, Garrett & Dunner, LLP of Washington, DC, Elizabeth D. Ferrill, Mark R. Lippman, The Veterans Law Group

For Appellee:  Tara K. Hogan, Commercial Litigation Branch, Civil Division, United States Department of Justice, Jeanne E. Davidson, Director, Martin F. Hockey, Jr. Assistant Director, Michael J. Timinski, Deputy Assistant General Counsel, Office of the General Counsel, United States Department of Veterans Affairs.

Decision of the Merit Systems Protection Board that plaintiff is ineligible to make a deposit in the Civil Service Retirement System (CSRS) is affirmed as plaintiff is not within the class of persons permitted to make a deposit pursuant to section 8334(c). 

Read Dela Rosa v. Office of Pers. Mgmt., No. 09-3121

Appeal from:  Merit Systems Protection Board

Decided September 22, 2009

Judges

Before Michel, Chief Judge, Newman and Prost, Circuit Judges
Opinion by Newman, Circuit Judge.   

Counsel

For Appellant:  Benjamin Dela Rosa

For Appellee:  Christopher A. Bowen, Litigation Branch, Civil Division, Unites States Department of Justice.  

In a dispute over whether the commuting time for federal employees who use government vehicles constitutes a compensable period of work under the Fair Labor Standards Act, summary judgment for the government is affirmed where there are no regulations or rulings by either the OPM or the Department of Labor that dictate a different result from that reached by this court when it resolved prior similar disputes. 

Read Easter v. US, No. 08-5187

Appellate Information
Appeal from the United States Court of Federal Claims.
Decided August 5, 2009

Judges
Before MAYER, and BRYSON, Circuit Judges, and SPENCER, Chief District Judge.
Opinion by BRYSON, Circuit Judge.

Counsel
For Plaintiff: Jules Bernstein, Bernstein & Lipsett, P.C., Washington, DC.

For Defendant: Shalom Brilliant, United States Department of Justice, Washington, DC.