Justia U.S. D.C. Circuit Court of Appeals Opinion Summaries

The Back Pay Act, 5 U.S.C. 5596(b)(1), authorizes back pay awards to employees "affected by an unjustified or unwarranted personnel action." At issue was whether Customs and Border Protection must provide a border guard, whom an arbitrator found was wrongfully denied an overtime opportunity in violation of the agency's assignment policy, with monetary compensation under the Act or whether Customs must provide the next available overtime opportunity under the agency's assignment policy. Customs argues that the Act limits the guard's remedy to the terms of the assignment policy but the Authority rejected the agency's reading of subsection (b)(4) and ruled that even if the Act limits awards to the terms of the agency's assignment policy, that policy was inapplicable in this case because it applies only in situations involving administrative error and the arbitrator had concluded that the denial of overtime was "more than a mere mistake." Customs petitioned for review. The court agreed with the Authority that it lacks jurisdiction to review the Authority's final orders. Section 7123 of the Federal Service Labor-Management Relations Statute, 5 U.S.C. 7123(a)(1), vests the court with jurisdiction to review the Authority's final orders "other than an order...involving an award by an arbitrator." Because no exception applies, the court dismissed the petition. View "DHS v. FLRA" on Justia Law

Sunrise claimed that the federal government seized property from criminal defendant Charles Emor belonging to Sunrise. After SunRise was excluded from the criminal proceedings, SunRise filed a third-party forfeiture proceeding claiming ownership in the forfeited property and requesting a hearing to determine its interest. The district court granted the government's motion to dismiss SunRise's petition for lack of standing. The court concluded, however, that SunRise has Article III standing where it alleged that its property was taken by the government without due process; the district court improperly dismissed SunRise's claims based on an alter ego finding that the district court made at a hearing in which SunRise was not allowed to participate and SunRise has statutory standing under 21 U.S.C. 853(n)(2); and SunRise stated a valid claim of relief in order to obtain a hearing by alleging that the forfeited property at all times remained the property of SunRise. However, the court concluded that several of SunRise's claims fail as a matter of law and the district court need not consider them on remand. Accordingly, the court affirmed in part, reversed in part, and remanded. View "United States v. Emor" on Justia Law

The Transportation Security Administration (TSA) prohibited Ege, a pilot for Emirates Airlines, from flying to, from, or over the United States. Ege had experienced travel problems and had submitted an online inquiry to the DHS’s Traveler Redress Inquiry Program. He believes the TSA’s prohibition is based on his alleged inclusion on the “No-Fly List,” a subset of the Terrorist Screening Database (TSDB) used by the TSA to “deny boarding of individuals on commercial aircraft operated by U.S. carriers or flying to, from, or over the United States.” He sought removal from the No-Fly List or, at a minimum, a “meaningful opportunity to be heard.” The D.C. Circuit dismissed his petition for lack of standing and lack of jurisdiction. Neither the TSA nor the Department of Homeland Security (DHS), the only two rnamed agencies, has “authority to decide whose name goes on the No-Fly List.” The Terrorist Screening Center, which is administered by the Federal Bureau of Investigation), is “the sole entity with both the classified intelligence information” Ege wants and “the authority to remove” names from the No-Fly List/TSDB. View "Ege v. Dep't of Homeland Sec." on Justia Law

In 2012, the New York Times published the Sanger article, describing a classified government initiative to “undermine the Iranian nuclear program” through “increasingly sophisticated attacks on the computer systems.” Under the Freedom of Information Act (FOIA), 5 U.S.C. 552, Freedom Watch sought records from the Central Intelligence Agency (CIA), the National Security Agency (NSA), the Department of Defense (DoD), and the State Department, including “information that refers or relates in any way to information” released or made available to Sanger. The CIA, NSA, and DoD cited national security; each stated that it could “neither confirm nor deny the existence or non-existence” of responsive records. After FOIA’s deadline expired, Freedom Watch filed suit. The district court dismissed the CIA and NSA based on failure to exhaust administrative remedies; granted DoD summary judgment based on FOIA’s national security exemption; and granted the State Department partial judgment, finding certain requests unduly speculative. Concerning information released to Sanger, the State Department obtained a 60-day extension and produced 79 documents. The court denied a motion to depose a records custodian, finding no evidence of bad faith, and granted the State Department summary judgment. Before oral argument, Freedom Watch moved to supplement the record with news articles relating to the revelation that former Secretary of State Clinton had maintained a private email account on a private server and sought to expand the search on remand. The D.C. Circuit remanded to allow the court to oversee the search of the former Secretary’s emails for records responsive to Freedom Watch’s FOIA request, but otherwise affirmed. View "Freedom Watch, Inc. v. Nat'l Sec. Agency" on Justia Law

Plaintiffs worked in the State Department as Diplomatic Security Special Agents and volunteered to serve one-year in Iraq. They arrived in Iraq in February 2004. Initially, their permanent duty station was in Washington, D.C., so they received “locality pay” in addition to base salary intended to equalize federal employees’ compensation with that of non-federal workers in the same geographic area, 5 U.S.C. 5301, 5304. Months later, their permanent duty station changed to the U.S. Embassy in Baghdad and they no longer received locality pay. Plaintiffs also received compensation for a significant number of overtime hours. In 2005, they returned to the U.S. After the Office of Personnel Management’s new regulations took effect, the plaintiffs received notices of a review of premium pay earnings involving Iraq, that “the rate of the annual premium pay cap that applies to you is $128,200,” that earnings to date “have already or will shortly put you above the cap for the current pay year,” and that the Department would seek collection of any overpayments. Each later received a letter requiring repayment of from $435.94 to $10,514.98. The D.C. Circuit held that the Department permissibly construed the statute and did not act arbitrarily in denying a discretionary waiver of the obligation to repay. View "Lubow v. Dep't of State" on Justia Law

Retired officers of D.C.’s Metropolitan Police Department were subsequently re-hired by the D.C. Protective Services Division, which protects government buildings and D.C.-owned property. They received pension benefits from their service with the Police Department and salaries for their jobs with Protective Services, but Section 5- 723(e) of the D.C. Code requires reduction of plaintiffs’ salaries by the amount of their pensions to prevent so-called double-dipping. Pursuant to that provision, D.C. reduced plaintiffs’ salaries by the amount of their pensions. Following a remand for consideration under the Fair Labor Standards Act, plaintiffs raised a claim under the Public Salary Tax Act of 1939, 4 U.S.C. 111(a)), which was rejected. The D.C. Circuit affirmed. The Public Salary Tax Act allows states and D.C. to impose “taxation” on compensation paid to employees of the federal government, only if the taxation does not discriminate against federal employees. The D.C. salary reduction provision at issue is not “taxation.” It does not raise revenue, but operates on the opposite side of D.C.’s financial ledger. It reduces D.C.’s total expenditures on salaries. View "Cannon v. Dist. of Columbia" on Justia Law

The Union represents employees at the Anniston Army Depot. Clark is a bargaining-unit employee, but not a dues-paying union member. The Union learned that the Depot was assigning employees duties beyond their pay grade without additional compensation and filed a grievance on behalf of all bargaining-unit employees. The parties entered a settlement agreement that provided backpay. The Union was to notify Depot employees and gather information needed for claims. Though Clark had completed work above his pay grade, the Union failed to contact him. When Clark inquired about the settlement, a Union representative asked whether he was a member and told Clark he needed to join. Clark refused. The representative told Clark how to submit a claim. Clark complied. The Depot and the Union agreed to distribute $303,825 among 218 employees the Union had listed. The Union left Clark off the list and put only one non-member on the list. Clark filed an unfair labor practice charge with the FLRA, which alleged that the Union had violated 5 U.S.C. 7114(a)(1) and 7116(b)(8) by giving preferential treatment to union member. Before a hearing, the parties agreed that the Union would pay Clark $1,970, but 55 other nonunion employees would receive $200. Clark objected. The Regional Director approved the settlement; the FLRA General Counsel affirmed. The D.C. Circuit dismissed for lack of jurisdiction. Such a decision is not a “final order of the Authority” subject to review under 5 U.S.C. 7123(a). View "Clark v. Fed. Labor Relations Auth." on Justia Law

The Federal Communications Commission denied applications to renew 689 wireless spectrum licenses in the 24 gigahertz (GHz) and 39 GHz bands for failure to meet the “substantial service” performance standard during the license term. FiberTower claimed that the Commission’s interpretation of the performance standard as requiring some actual construction in each license area conflicted with the Commission’s statutory mandate in 47 U.S.C. 309(j)(4)(B). The D.C. Circuit declined to address that argument, which was not presented to the Commission. FiberTower also argued that the Commission’s interpretation of “substantial service” was inconsistent with that standard as originally promulgated by the Commission. The court rejected that argument. The court vacated with respect to 42 licenses because FiberTower claimed that their renewal applications stated construction had occurred. View "FiberTower Spectrum Holdings, LLC v. Fed. Commc'ns Comm'n" on Justia Law

The TSA screens passengers and property moving by passenger aircraft, 49 U.S.C. 44901(a) and is authorized to impose a “uniform fee . . . on passengers . . . in air transportation and intrastate air transportation originating at airports in the United States.” Airlines collect the fees from passengers and remit the funds to TSA. In 2013, Congress reset the fee to “$5.60 per one-way trip in air transportation or intrastate air transportation that originates at an airport in the United States.” TSA implemented the amendment; a “one-way trip” means a continuous trip from one point to another with no stopover exceeding specified limits, so that a trip from New York to Los Angeles to San Francisco and back to New York, with stopovers exceeding four hours would be three one-way trips. Airlines challenged TSA’s rules, arguing that TSA lacked authority to impose fees in excess of $11.20 on roundtrip itineraries that involved multiple “one-way trips.” While the case was pending, Congress amended the statute, mooting that claim. The airlines also claimed that the statute precludes TSA from charging a fee on travel that begins abroad but includes a connecting flight within the U.S. The D.C. Circuit held that the airlines have standing but accepted TSA’s explanation that its construction of ambiguous text better aligns the imposition of the fee with those who benefit from the security services provided. View "Airlines for Am. v. Transp. Sec. Admin" on Justia Law

The Immigration and Nationality Act limits the number of annual visas, 8 U.S.C. 1101, creates categories for which visas may be granted, and imposes country-based limits. The category at issue, “Skilled workers, professionals, and other workers” (EB-3) has a general limit of about 40,000 visas annually in three subcategories. Xie fits within the subcategory EW for workers in occupations that require less than two years of training, education, or experience, and for which qualified workers are not available in the U.S. The subcategory is subject to a separate cap of 5,000. The government indicated that the current annual EW limit for China is 319. Under a complicated system of cut-off dates, Xie has waited for over eight years. She argued that widely differing cutoff dates for Chinese EW applicants, other Chinese EB-3 applicants, and EW applicants from other countries violate section 203’s temporal priority mandate. The district court dismissed, stating that Xie failed “to identify any discrete agency action that DOS is required to take” and failed to point to any authority requiring that action. The D.C. Circuit reversed. Xie specifically sought application of 8 U.S.C. 1153(e)(1), which directs State to process applications in the order of their filing. While varying lengths of wait among categories may comply with the mandate, Xie is entitled to have her claim assessed. View "Xie v. Kerry" on Justia Law