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Federal Salary Council Says Feds Are Significantly Behind in Pay

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The Federal Salary Council, a group of union representatives and outside experts on compensation that oversees the General Schedule, recently announced that federal workers earn an average 34.07 percent less than their private sector counterparts.

Hernandez v. Mesa Heard by Supreme Court

case law update

Recently, the Supreme Court heard oral argument in Hernandez v. Mesa to address issues arising out of the actions of U.S. Border Patrol agent Jesus Mesa when he fired a shot from United States soil that killed 15-year old Mexican boy Sergio Hernandez on Mexican soil.  

Supreme Court Clarifies Probable Cause Determinations Based on Officer’s Understanding of Surrounding Circumstances

After years in waiting, the Supreme Court ruled on District of Columbia v. Wesby, and found that DC police officers did not violate the Fourth Amendment after arresting 21 individuals at a party for unlawful entry. In doing so, the Court clarified that probable cause determinations are made from a reasonable officer’s consideration of the surrounding circumstances.

Supreme Court Grants Certiorari to Decide Whether Union Fees For Non-Member Public Employees Violate First Amendment

case law update

On September 28, 2017, the Supreme Court granted certiorari to consider whether agency fee arrangements imposed by public unions on non-member public employees are constitutional.

The Illinois Public Labor Relations Act, 5 ILCS 315 et seq., authorizes a union representing public employees to collect its dues from its members and “fair share” fees from non-member employees to “pay their proportionate share of the costs of the collective bargaining process, contract administration and pursuing matters affecting wages, hours and conditions of employment.”

In 2015, Governor of Illinois, Bruce Rauner, filed suit against various labor organizations that represented bargaining units of state employees in federal district court to halt unions from collecting the “fair share” fees. The governor contended that the Illinois Public Labor Relations Act violates the First Amendment by compelling employees who disapprove of the union to contribute money to it. The Attorney General of Illinois, Lisa Madigan, intervened on the side of the unions.

The district court dismissed the governor’s complaint on the ground that he had no standing to sue because he was not subject to the fees. However, two public employees (Mark Janus and Brian Trygg) already moved to intervene in the suit before the district court dismissed the governor’s complaint. Janus filed his First Amendment claim against AFSCME, Council 31, Trygg filed his claim against Teamsters, and both filed against the Director of the Illinois Department of Central Management Services.

The district court granted the employees’ motion to intervene and found that the complaint attached to their motion was a valid substitute for the governor’s dismissed complaint. Still, the district court dismissed Janus’s and Trygg’s claims. Trygg’s claim was dismissed because he previously had a “full and fair opportunity” to challenge the fees before the Illinois Labor Relations Board and the Illinois Appellate Court. Janus’s claim was dismissed because he failed to state a valid claim. That is, the district court was not able to overrule the Supreme Court’s 1977 decision in Abood v. Detroit Board of Education, 431 U.S. 209 (1977).

In Abood, the Supreme Court upheld, against a challenge based on the First Amendment, a Michigan law that allowed a public employer (a municipal board of education), whose employees (public school teachers) were represented by a union, to require non-member employees to pay fees to it. The Supreme Court found that the non-member employees benefited from the union’s collective bargaining agreement with the employer. However, the Supreme Court stated that the fees could only be great enough to cover the cost of the union’s activities that benefited them and could not be expanded to enable the union to use a portion of them “for the expression of political views, on behalf of political candidates, or toward the advancement of other ideological causes not germane to [the union’s] duties as collective-bargaining representative.” Now, approximately 40 years later, Abood remains the law.

In an effort to have the Supreme Court overrule its 1977 decision, Janus went through the motions required to come before the Supreme Court and appealed the district court’s decision to dismiss his First Amendment claim to the U.S. Court of Appeals for the Seventh Circuit. The court of appeals also dismissed Janus’s claim, and Janus filed petition for a writ of certiorari on June 6, 2017.

Janus’s petition for writ of certiorari marked the third time that the issue of overruling Abood has come before the Supreme Court in recent years. Three years ago, in Harris v. Quinn, 134 S.Ct. 2618 (2014), the Supreme Court considered Abood, but never ruled on the issue of whether an agency fee imposed on non-members of a union is a violation of the non-members’ First Amendment right. Instead, the Supreme Court concluded that the employees in that case were not public employees, and left the issue open for further review. Then, in 2015, the Supreme Court granted certiorari in Friedrichs v. California Teachers Association, 136 S.Ct. 1083 (2016), to resolve the question of “whether Abood … should be overruled and public-sector ‘agency shop’ arrangements invalidated under the First Amendment.” Following the death of Justice Antonin Scalia, the bench split 4 to 4 on this question.

Here, Janus contended that Abood should be overruled because agency fee provisions compel public employees to support political advocacy. According to Janus, paying a fee violates his First Amendment rights because issues related to collective bargaining are inherently political. Janus also argued that Abood failed to subject agency fees either to the strict scrutiny applicable to regulations of speech or to the level of scrutiny the Supreme Court has applied to compelled expressive associations. Janus then contended that agency fee provisions are not able to survive heightened constitutional scrutiny. Respondents contested Janus’s petition. Among other things, Respondents argues that Abood should be left undisturbed, and that even if the Supreme Court wishes to review Abood, it should wait for a case with a full factual record, which this case does not have.

On September 28, 2017, the Supreme Court granted Janus’s petition for writ of certiorari. At this time, no date for oral argument has been set.

FedAgent will report on oral argument when it is heard and the Supreme Court’s decision when it issues.

Supreme Court May Consider Change to Terry Frisk Standard

case law update

A West Virginian is asking the Supreme Court to consider whether the test for conducting a search in conjunction with a lawful Terry stop requires a particularized basis for believing the person poses a present danger to officer safety.

One afternoon in March 2014, the Ranson, West Virginia police department received an anonymous telephone call reporting a “black male” loading a firearm in the parking lot of a 7-Eleven store and putting that firearm into his pocket. The caller reported the man was a passenger in a car driven by a white woman. Although the caller did not report criminal activity, as it was legal in West Virginia to openly carry a firearm without a license, the police department dispatched an officer to respond.

The officer spotted a car matching the caller’s description and pulled the driver over for not wearing a seatbelt. While the first officer was speaking with the driver, a second officer arrived, opened the passenger-side car door, and asked Shaquille Robinson to step out. The officer then searched Robinson and found a gun “protruding” from Robinson’s pants pocket. The officer then handcuffed Robinson and subsequently recognized him as a convicted felon.

Robinson subsequently entered a conditional guilty plea to being a felon in possession of a firearm, reserving his right to appeal the trial court’s denial of his motion to suppress the firearm found during the roadside search. He was sentenced to thirty-seven months in prison and three years of supervised release.

The U.S. Court of Appeals for the Fourth Circuit eventually sustained the motion denial in an en banc decision. In so holding, the Fourth Circuit held whenever an “officer reasonably suspected that the person he has stopped is armed, the officer is warranted in the belief that his safety is in danger, thus justifying a Terry search.” In support of that holding, the en banc court interpreted the Supreme Court’s language in Terry to conclude that a risk of danger is inherent where a person, forcibly stopped, is armed.

The Fourth Circuit, according to Robinson, thus joined the Ninth and Tenth Circuit Courts of Appeal, and the Supreme Court of Illinois, holding that an officer’s reasonable belief that a weapon is present is enough, by itself, to make a person “presently dangerous” and thus subject to search under Terry. Those courts are at odds with the Sixth and Seventh Circuit Courts of Appeal, and the highest courts in Arizona, Idaho, and New Mexico.

Robinson highlights the divisions between the courts in his petition for the U.S. Supreme Court to hear his case. For example, in his petition, Robinson asks the Supreme Court to consider an individual subjected to a search in Arizona or Idaho based solely on an officer’s belief the individual is harmed. If the search turned up evidence, the individual’s motion to suppress would be granted if he were prosecuted in state court. But, that same evidence would be admissible if local policed turned it over to the federal government to prosecute in federal court.

The Department of Justice supports the Fourth Circuit’s decision and disagrees with Robinson that it is inconsistent with the holdings of other federal courts of appeal and state courts of last resort.

As of October 2, 2017, Robinson’s petition was fully briefed and it has been distributed to the justices of the Supreme Court to consider in its conference at the end of the month, to decide whether to hear the case. FedAgent will report on the Supreme Court’s decision whether to grant certiorari when the decision issues.

Read the petition for certiorari and associated briefs: Robinson v. United States

Supreme Court to Decide Appellate Jurisdiction in Federal Employee “Mixed Case” Appeals

case law update

In the first case argued before Supreme Court Justice Neil Gorsuch, Justices appeared to disagree about how to handle “mixed cases,” alleging both adverse employment actions against federal civil service employees and prohibited discrimination, where the Merit Systems Protection Board concludes it lacks jurisdiction because the employee was not subject to an appealable action.

Supreme Court: Bivens Remedy Not Extended to Post-9/11 Detainment and Treatment Claims Made by Detainees

case law update

Following the terrorist attacks on September 11, 2001, the FBI ordered hundreds of illegal aliens to be taken into custody to determine whether the detainees had connections to terrorism.

Recently, the Supreme Court reviewed claims made by several detainees with respect to the FBI’s post-September 11 practices.

Respondents were six men of Arab or South Asian descent. Each were arrested during the course of the FBI’s September 11 investigation, subjected to a hold-until-cleared policy, and detained at the Metropolitan Detention Center (MDC) in Brooklyn, New York. Respondents were held in the Administrative Maximum Special Housing Unit (SHU) of the MDC.

Pursuant to Bureau of Prisons policy, detainees were held in tiny cells for over 23 hours a day, had little opportunity for exercise or recreation, were forbidden to keep anything in their cells, were denied access to most forms of communication, and were frequently strip searched. Guards also engaged in physical and verbal abuse, slammed detainees into walls, twisted their arms, wrists and fingers, broke their bones, referred to them as terrorists, threatened them, made humiliating sexual comments to them, and insulted their religion. 

After being released from MDC, respondents were removed from the United
States. They brought suit against petitioners, who included the former Attorney General John Ashcroft, former FBI Director Robert Mueller, and former Immigration and Naturalization Service Commissioner James Ziglar (executive officials), and against the then MDC Warden and then Associate Warden (wardens). 

Respondents brought four claims pursuant to the Supreme Court’s decision in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971). Respondents alleged that petitioners detained them in harsh pretrial conditions for a punitive purpose in violation of the substantive due process component of the Fifth Amendment, and because of their actual or apparent race, religion, or national origin in violation of the equal protection component of the Fifth Amendment; that the wardens subjected them to punitive strip searches in violation of the Fourth Amendment and the substantive due process component of the Fifth Amendment; and that the wardens knowingly allowed the guards to abuse them in violation of the substantive due process component of the Fifth Amendment. Respondents also brought a claim under 42 U.S.C. § 1985(3), and alleged that petitioners conspired with one another to hold them in harsh conditions because of their actual or apparent race, religion, or national origin.

The district court dismissed the claims against the executive officials and allowed the claims against the wardens. The U.S. Court of Appeals for the Second Circuit affirmed the district court’s decision with respect to the wardens. The court of appeals then reversed the district court’s decision with respect to the executive officials and reinstated the respondents’ claims. Petitioners filed a petition for a writ of certiorari on May 9, 2016, and the Supreme Court granted the petition on October 11, 2016.

Justice Kennedy delivered the opinion of the Court. The Supreme Court first addressed whether the detention policy claims at issue presented a new context under Bivens. If a case is different in a meaningful way from previous Bivens cases decided by the Court, then the claims present a new Bivens context. The court of appeals did not find that the respondents presented a new Bivens context when they challenged the conditions of confinement imposed on them pursuant to the high-level executive policy, and allowed the respondents’ claims to proceed under Bivens.

Here, the Supreme Court determined that respondents presented a new Bivens context. The Court found that the respondents’ detention policy claims had little resemblance to the three Bivens claims the Court has approved in the past: “a claim against FBI agents for handcuffing a man in his own home without a warrant a claim against a Congressman for firing his female secretary; and a claim against prison officials for failure to treat an inmate’s asthma.” Bivens, 403 U.S. 388; Davis v. Passman, 442 U.S. 228 (1979); Chappell v. Wallace, 462 U.S. 296 (1983). 

When a new Bivens context is recognized, a special factors analysis is required before allowing the damages suit to proceed. Since the court of appeals failed recognize a new Bivens context here, it did not conduct a special factors analysis. The Court ruled that the special factors showing whether a damages action should be allowed is “a decision for Congress to make, not the courts.”

Still, it mentioned several factors that should be considered. In regard to the claims against the executive officials, the Court noted that a Bivens action is not a “proper vehicle for altering” the FBI’s policies. With respect to other special factors that apply to the claims against all petitioners, the Court considered that the claims inquire into national security. It noted that “[n]ational-security policy is the prerogative of the Congress and the President,” not the courts. Likewise, the Court found it “telling” that Congress has failed to provide a damages remedy given the amount of time that has passed since September 11, 2001. The Court also stated that respondents had other alternative forms of judicial relief. The respondents could have challenged individual instances of discrimination or law enforcement overreach. Further, the respondents could have sought a habeas corpus remedy that would have provided a faster and more direct route to relief than a suit for damages. Instead, the respondents challenged large-scale policy decisions.

The Court then considered the respondents’ claims of prisoner abuse against the Warden in violation of the Fifth Amendment. The court of appeals held that the substantive standard for the sufficiency of the claims was whether the warden showed “deliberate indifference” to prisoner abuse. The Court concluded that the prisoner abuse allegations against the Warden state a plausible ground to find a constitutional violation if a Bivens remedy were implied.

The Warden contended that Bivens should not extend to this instance of alleged prisoner abuse. The Court looked at whether the claim arose under a new Bivens context. It noted that the case had “significant parallels” to a previous Bivens case, Carlson v. Green, 446 U.S. 14 (1980). In that case, the Court allowed a Bivens claim for prisoner mistreatment. Still, the Court found that the constitutional right is different here because Carlson was predicated on the Eighth Amendment and this claim was predicated on the Fifth Amendment. Because this a new context under Bivens, the court of appeals should have performed a special factors analysis before allowing the claim to proceed. The Court declined to perform the special factors analysis, vacated the court of appeals’ judgment, and remanded this claim.

Lastly, the Court reviewed the respondents’ claim that petitioners are subject to liability for civil conspiracy under 42 U.S.C. §1985(3). The Court, assuming the claims to be “true and well pleaded,” found that the petitioners were entitled to qualified immunity on this claim. The Court stated that officials employed by the same governmental department do not conspire when they speak to one another and work together in their official capacities. Thus, the Court found that the law the respondents sought to invoke could not be clearly established and reasonable officers in the in the petitioners’ positions would not have known, and could not have predicted, that § 1985(3) prohibited their consultations and the resulting policies that caused the injuries alleged.

Read the full case: Ziglar v. Abbassi


This case law update was written by Michael J. Sgarlat, associate attorney, Shaw Bransford & Roth, PC.

For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.




Supreme Court: Veteran Can’t Be Forced To Indemnify Ex-Spouse When Electing Benefits

case law update

A retired Air Force Veteran’s divorce decree awarded his ex-wife 50 percent of the veteran’s future Air Force retirement pay, but thirteen years after the divorce, the veteran was found partially disabled due to an earlier service-related injury, and elected to give up an equal amount ($250 monthly) of retirement pay in order to receive disability pay – thereby reducing the value of his ex-wife’s 50 percent share by 50 percent of $250.

This Week on FEDtalk

Preparing for 2020 with Public Employee Groups

Tune in to FEDtalk this week to hear from public employee groups about their plans for 2020. Guests from across the federal community will discuss the biggest issues of 2019 spilling into the new year, policy priorities for their organization, and important events every federal employee should look out for this year.

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FLEOA Successfully Advocates for Change to Michigan LEOSA Policy

On Tuesday, FLEOA President Larry Cosme issued a letter on Michigan LEOSA policy.  The full text of the statement is below.

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