In 2018, the United States Court of Appeals for the Seventh Circuit held the MSPB acted arbitrarily and capriciously when it dismissed an ATF employee’s Individual Right of Action appeal. The Seventh Circuit’s 2018 opinion found that the employee “properly alleged a ‘protected disclosure’ and exhausted his administrative remedies so that the Board had jurisdiction to evaluate the merits of his claim.” The MSPB AJ denied relief, and the employee appealed to the Seventh Circuit again. On July 16, 2020, the appeals court again held that the MSPB acted arbitrarily, capriciously, and contrary to law. This time, the remand to the MSPB was only on the extent of relief to the employee.

On June 26, 2020, the United States Court of Appeals for the Federal Circuit held that the removal of illegally appointed employees who had otherwise not committed misconduct or performed poorly still promoted the efficiency of the service.

On June 29, 2020, the United States Supreme Court held that restrictions on the President of the United States’ ability to fire a single director of a federal agency violates the separation of powers clause of the United States Constitution.

On June 15, 2020, the Supreme Court of the United States, by a 6-3 vote, held that an employer who fires an individual merely for being gay or transgender violates Title VII’s prohibition on sex discrimination.

FEDagent recently reported the U.S. Supreme Court’s decision in Babb v. Wilkie. In Babb, the Supreme Court reversed a panel of U.S. Court of Appeals for the Eleventh Circuit and held the prohibition against age discrimination in the federal workplace was broader than that applied in the private sector. We update you now that plaintiff Noris Babb is requesting the full Eleventh Circuit to apply the Supreme Court’s holding to lower the bar to establish EEO reprisal claims in the federal workplace.

In October 2016, Little Rock, AR Police Officer Dennis Hutchins shot and killed Roy Lee Richards, Jr. The U.S. Court of Appeals for the Eighth Circuit recently found that Officer Hutchins’s shooting of Richards, who possessed a pellet gun, was unreasonable under the Fourth Amendment, and denied Officer Hutchins qualified immunity.

Whether an unsuccessful attempt to detain a suspect by use of physical force is a “seizure” within the meaning of the Fourth Amendment, in a case where officers shot a suspect who temporarily eluded capture and subsequently sued for civil damages, is set to be decided by the U.S. Supreme Court in its Fall Term.

From February 2017 through February 2018, the Rutherford County, TN Sheriff’s Office investigated the sale of cannabidiol, commonly known as CBD, products by stores in Rutherford County. During the investigation, a law enforcement officer purchased CBD products from a store, and submitted them to the Tennessee Bureau of Investigation (“TBI”) for lab testing. In May 2017, a lab report indicated that the product contained CBD, a Schedule VI substance.

Officers who tased a plaintiff up to eight times where the plaintiff acted violently and uncooperatively, even after being handcuffed, were entitled to qualified immunity in §1983 action, the Eighth Circuit this week held.

A Department of Veterans Affairs medical center director made multiple protected disclosures to the VA Office of Inspector General about agency spending and contracts in October 2013. He repeated those concerns in a conference call in January 2014. His second line supervisor was on that conference call. The second-line supervisor, several weeks later, appointed an Administrative Investigation Board (AIB) to investigate inappropriate relationships with subordinate staff, and investigators treated the medical center director as a subject of that investigation.

On April 6, 2020, the United States Supreme Court issued its decision in Babb v. Wilkie. The question in this case was whether the Age Discrimination in Employment Act of 1967 (ADEA) requires federal sector employees to show that age was a “but-for” cause of the personnel action taken, rather than merely show that it was tainted by any discrimination at any stage. Previously, the court interpreted the private-sector provision to require “but-for” causation. In its April 6 decision, the Court held that “[t]he plain meaning of § 633a(a) demands that personnel actions be untainted by any consideration of age.”

A warrant authorizing a search of property and the seizure of a vehicle implicitly included a search of the property for police to seize the vehicle’s keys, the Eighth Circuit recently held.

In a complaint filed in the United States Court of Federal Claims, five federal employees, on behalf of themselves and all others similarly situated, alleged that they performed work “with or in close proximity to objects, surfaces, and/or individuals infected with the novel coronavirus (“COVID-19”).” On March 27, 2020, in their complaint, the employees alleged they were entitled to, but did not receive, hazardous duty pay differential for exposure to virulent biologicals set forth in federal regulations.

Congress did not intend to give the Department of Veterans Affairs carte blanch to impose penalties against non-executive career employees without review, the Federal Circuit held this week.

Recently, the First Circuit held that police officers who engage in community caretaking functions on private property without a warrant are entitled to constitutional protection.

In November 2019, FEDagent reported on oral argument in Hernandez v. Mesa. This is the second time the case came before the Supreme Court. The Supreme Court has issued a decision on the case and found that Bivens does not extend to claims based on a cross-border shooting.

Ken Cuccinelli’s appointment as acting Director of the U.S. Citizenship and Immigration Services is unconstitutional, a federal district court held this week.

The Social Security Administration (SSA) removed a preference-eligible veteran from his position as an attorney advisor near the end of his one-year probationary period due to allegedly poor performance. The employee filed for corrective action with the Merit Systems Protection Board, alleging that the agency violated the Uniformed Services Employment and Reemployment Rights Act (USERRA) when it removed him because of his preference-eligible status. An MSPB administrative judge denied the request for corrective action, and the employee appealed to the Federal Circuit. On November 7, 2019, the U.S. Court of Appeals for the Federal Circuit reversed the MSPB decision, and remanded the case to the MSPB for a determination of the appropriate corrective action. On January 22, 2020, before the remand took effect, the government filed a petition for rehearing en banc, asking that all judges of the Federal Circuit hear the case and rule on a “precedent-setting question of exceptional importance.”

On September 2, 2013, Ronald and Sharon Jenkins went to buy crabs at the Warf in Washington, DC. Mr. Jenkins operated their vehicle and got into an altercation with another driver in the parking lot after the other driver “stole” a parking spot that Mr. Jenkins was waiting for. The Jenkinses found another spot, and went on to purchase crabs. Before they returned to their vehicle, a police radio reported “a traffic dispute that possibly resulted in some type of assault” in which “a knife had been pulled.” Officer Michael Davis responded to the scene and spoke with other officers there.

On January 15, 2020, the United States Supreme Court heard oral argument in the matter of Babb v. Wilkie. The question in this case is whether the Age Discrimination in Employment Act of 1967 (ADEA) requires federal sector employees to show that age was a “but-for” cause of the personnel action taken. Previously, the court has interpreted the private-sector provision to require “but-for” causation.