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Top 3 Federal Circuit Employment Law Decisions of 2012

By Corey Licht, Esq. on December 28, 2012 | Last updated on March 21, 2019

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.

1. Fee Shifting and the Prevailing Party Rule

After getting into an argument with a supervisor, USPS worker Thomas O. Ward was cited for improper conduct and issued a Notice of Proposed Removal based solely on the incident. Ward appealed the removal to the MSPB. The Board cited past instances of misconduct and sustained the removal.

The Federal Circuit Court of Appeals later vacated the judgment, finding that the Board erred in bringing up past instances of misconduct without giving Ward the opportunity to rebut the allegations. Ward subsequently sought attorneys fees under 28 U.S.C. 2412(d).

The statute allows a prevailing party to claim fees in a suit against the United States if the government's position was not "substantially justified" and no "special circumstances make the award unjust." The Federal Circuit held that Ward was entitled to attorneys fees as a "prevailing party" since the remand was caused by administrative error on the part of the MSPB.

2. Employee or Not an Employee?

Susan Roy served as a temporary Immigration Judge in the Department of Justice for several months in 2008. She soon after became permanent and served as judge until 2010, when she was terminated for alleged misconduct. Roy appealed her termination to the MSPB, but the Board held that Roy was not an "employee" under 5 U.S.C. 7511(a)(1)(C)(ii) and therefore did not have the right to appeal.

Under the statute, an employee is one who has completed 2 years of current continuous service in the same or similar position. The Federal Circuit Court of Appeals, upheld the MSPB's decision, holding that a period temporary employment doesn't count towards the statute's requirement of two years of continuous, permanent service.

3. Exception: The Mixed Case

While the Federal Circuit Court of Appeals generally hears reviews from the MSPB, this month, the Supreme Court clarified an important exception to that rule: the "mixed case."

Carolyn Kloeckner was fired from her job with the Labor Department for being absent while her discrimination and hostile work environment claims were pending before an EEOC judge. Kloeckner had a mixed case since her removal was appealable to the MSPB and she was asserting that the agency's actions were discriminatory.

There was previously a circuit split as to how to deal with such mixed cases. The Supreme Court put an end to that split, holding that mixed cases, like Kloeckner's, should be reviewed in district court, not the Federal Circuit.

Stay tuned to see what kind of employment law insight the Federal Circuit Court of Appeals brings us in 2013.

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