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Federal Employees Must Challenge Adverse Employment Actions Pursuant to the Procedural Route Prescribed by the Civil Service Reform Act
Expert Article by Alexander Kipp
On June 11, 2012, in a 6-3 opinion authored by Justice Thomas, the U.S. Supreme Court held that the Civil Service Reform Act of 1978 (CSRA) provides the exclusive avenue to judicial review even when a qualifying federal employee challenges an adverse employment action by arguing that a federal statute is unconstitutional.
In Elgin, et al. v. Department of Treasury, et al., all of the petitioners were male federal employees who were fired for failing to register for the Selective Service. The Military Selective Service Act requires, with few exceptions, that all male U.S. citizens between the ages of 18 and 25 register for the draft. A different federal law bars from civil service anyone who knowingly refused to do so.
Mr. Elgin and the other petitioners challenged their firings in a suit in Federal District Court. They argued that they should not have been fired because the Military Selective Service Act and the federal law barring them from civil service for knowingly refusing to register are unconstitutional. The Federal District Court denied petitioners’ constitutional claims on the merits. The First Circuit vacated and remanded with instructions to dismiss for lack of jurisdiction. The First Circuit held that challenges to a removal are not exempt from the CSRA review scheme simply because an employee challenges the constitutionality of the statute authorizing the removal.
The U.S. Supreme Court agreed to hear the case to decide whether the CSRA precludes District Court jurisdiction over the petitioners’ claims even though they are constitutional claims for equitable relief. In other words, the issue was not whether petitioners’ constitutional challenge was correct, but rather how petitioners get to raise their challenge. To that end, the Supreme Court concluded that it is “fairly discernable” from the CSRA’s text, structure and purpose that Congress intended that petitioners must first bring their claims to the Merit Systems Protection Board (MSPB), rather than District Court, even if the MSPB cannot declare a law unconstitutional. The Supreme Court reasoned that even if the MSPB cannot decide a constitutional question, the Federal Circuit that reviews MSPB decisions could. Therefore, there is no reason to believe that Congress meant to allow litigants like petitioners to bypass the procedure it created for most other employment-related claims.
This case is obviously of great interest to federal employers, employees, and their respective representatives. However, it will also be interesting to see what impact, if any, this decision has on future employment-related matters that come before the U.S. Supreme Court.
On July 24-25, 2012 in San Diego, CA
Staying up to speed with complex and technical Defense Contract Audit Agency (DCAA) rules and regulations will help you remain competitive in your government contracts business
At American Conference Institute’s DCAA Audit & Compliance Boot Camp in San Diego next month, government contractors will learn the fundamental compliance requirements of the business system rule, when to challenge DCAA findings of significant deficiencies, and the core elements of a successful cost or price analysis.
Unlike other training events, this unique, practical course will provide hands-on benchmarking with DCAA, former DCAA, and leading government contractors from: ViaSat, Rolls-Royce North America, SAIC, Afognak/Alutiiq, AECOM, Boeing, and General Atomics Aeronautical Systems.
Participants will also benefit from expert insights from the top legal and accounting firms in the U.S.
Plus, enhanced pre-Boot Camp working groups to maximize your training – July 23:
A: Fundamentals of Cost, Pricing, and DCAA Compliance: Making Sense of Key FAR, DFARS, CAS and Audit Requirements
– led by Claude Ognibene (ViaSat) and Paul Cederwall (Pacific Northwest Consultants)
B: The Nuts and Bolts of Determining Cost “Allowability” and “Allocability” under the CAS and FAR: How to Comply with CAS, GAAP, Reasonableness and Allocability Standards
– led by Kathy Merrick (Afognak/Alutiiq), Thomas Lemmer (McKenna Long & Aldridge) and David Eck (Dixon Hughes Goodman – Former Regional Director, DCAA Central and Mid-Atlantic Region)
For more information, visit here or call 888-224-2480.
GROUP RATES AVAILABLE. CPE & CLE Credits Provided.
People attending this Boot Camp are also attending ACI’s Industry Forum on Government Subcontracting Management, Compliance & Enforcement on October 2-3 in Arlington, VA
The Only Comprehensive, Practical Forum on How to Reduce Heightened,
Unique U.S. Export & Re-Export Compliance Risks in Canada.
Back in Toronto by popular demand, American Conference Institute/The Canadian Institute’s 2nd Industry Forum on “U.S. Export & Re-Export Compliance for Canadian Operations” is the only comprehensive, practical event in Canada that will allow you to network and hear from senior U.S. and Canadian government and industry professionals from the high technology, aerospace, defense, satellite, space and other industries. Benefit from Q & A and first-hand insights from senior U.S. and Canadian Government officials on export control reform, U.S. enforcement priorities, and the interaction between U.S. and Canadian export/re-export controls, privacy, human rights and security requirements.
Canadian firms, subsidiaries, affiliates, manufacturers, suppliers, freight forwarders and others that export, re-export or re-transfer U.S. export-controlled items, technical data, services and encryption materials must ensure strict compliance with the International Traffic in Arms Regulations(ITAR), Export Administration Regulations (EAR) and U.S. economic sanctions restrictions. Enforcement of U.S. export controls and economic sanctions is extra-territorial in reach, with U.S. officials targeting companies and individuals in Canada for investigations, audits, visits and harsh penalties.
Amid the new ITAR rule governing dual and third country nationals and deemed export/re-export rule under the EAR, it is critical to revisit the impact of these requirements on your export activities, employment practices, supply chain management, physical and virtual security procedures. Coupled with Canada’s Enhanced Security Strategy, it is also crucial to gain clarification on what U.S. and Canadian regulators expect for your export compliance program, security assessments, screening and supply chain management.
Equally, it is critical to make sense of the maze of ECCNs under the EAR, how the EAR interacts with Canadian requirements, and how to comply with complex end-use, end- user and encryption controls under U.S. and Canadian regulations.
Just as the plumbing system in your house fills your bathtub and runs your shower, why shouldn’t the same Distributed Antenna System (DAS) be used to support commercial cellular and public safety radio service?
That’s the challenge attendees heard earlier today in the “Establishing Universal Indoor Public Safety Radio Coverage” session at ACI’s 5th Annual DAS Congress.
And it’s the thesis of the Safer Buildings Coalition – a non-profit founded by SOLiD that seeks to ensure that public safety radio services be made available anywhere cellular signals are delivered through a DAS.
Here are some highlights from the presentation:
Mr. DiCarlo has over 18 years of experience litigating employee benefit disputes. He represents both retirement and welfare plans, as well as their sponsors and insurers, in claims for benefits and/or fiduciary breach. Mr. DiCarlo has represented some of America’s largest employers in disputes stemming from service provider fees, investments in employer securities, the prudence of particular investments, executive compensation disputes, disclosure and securities issues and challenges to benefit claim review procedures and decisions. ERISA is a complex area of law requiring litigators with deep experience in litigation of this type. Mr. DiCarlo currently serves as national coordinating counsel for one of our nation’s largest insurers, representing this client in litigation in all 50 states.
Mr. DiCarlo is currently recognized by Chambers USA: America’s Leading Lawyers for Business as a leading individual in the ERISA Litigation category. He received his J.D. degree, cum laude, from the University of Georgia School of Law in 1994, and his B.A. from the University of Georgia in 1991.
Contact Patrick C. DiCarlo
Emily Seymour Costin is a senior associate in the ERISA Litigation Group, where her practice focuses on various employment, employee benefits and ERISA litigation matters. Emily’s ERISA and employee benefits litigation experience includes representing plan sponsors and fiduciaries in actions for breach of fiduciary duty under ERISA, including matters involving the proper administration and investment of plan assets, the prudent selection and oversight of investment and other service providers, and prohibited transaction issues. Emily has managed various types of ERISA class actions, including those involving 401(k)/employer stock, ESOPs, benefit termination and investment/fee matters. She also frequently defends plan sponsors and insurers against individual ERISA claims for short-term disability, long-term disability, and life insurance benefits.
In addition, Emily frequently represents employers in employment litigation and has significant experience litigating actions involving discrimination, harassment, retaliation, wrongful termination, executive compensation, non-competition and non-solicitation issues.
- When the Presumption of Prudence Applies (July 3, 2012)
- ERISA Stock Drop Actions: The Class of 2012 (July 8, 2012)
- ERISA “Fiduciary Exception” Does Not Exempt Attorney Correspondence Created After the Filing of a Complaint from Work-Product Protection (July 9, 2012)
Contact Emily Seymour Costin
Phone: (202) 239-3695
Fax: (202) 654-4995
Jonathan Rose is a partner in the ERISA Litigation Group in the firm’s
Washington, D.C., office. His practice is focused on the representation of
plan sponsors and fiduciaries involved in ERISA and related employment
litigation. In addition, Mr. Rose advises plan sponsors and fiduciaries of
qualified and non-qualified pension and welfare benefit plans on
compliance with the wide range of fiduciary duties required in the
administration and investment of plan assets, including the prudent
selection and oversight of investment and other service providers,
disclosure obligations and prohibited transaction issues. Mr. Rose also
advises plan sponsors and fiduciaries on issues involving plan design and
maintenance of tax qualified status. He has extensive experience handling
litigation in many areas of labor and employment law, including
whistleblower claims against government contractors, federal and state
discrimination claims and federal and state wage and hour claims. Mr.
Rose also regularly assists employers in the negotiation of employment
and severance agreements, and also provides advice in negotiating
collective bargaining agreements. Mr. Rose also has significant experience
representing large financial institutions in providing fiduciary advice, and
representing them in their fiduciary capacity in litigation involving trust
administration and investment related issues.
Contact Jonathan G. Rose
Alston & Bird LLP
The Atlantic Building
950 F Street, NW
Washington, DC 20004-1404
Doug Hinson is the leader of the firm’s ERISA Litigation Group. He has led
the defense of numerous Fortune 500, government, private and non-profit
clients in all types of ERISA class actions, including 401(k) fee and
employer stock matters, welfare benefit terminations, defined benefit
calculation and anti-cutback actions, and severance matters. In addition,
Mr. Hinson has substantial experience and expertise in securities, complex
commercial and insurance class action litigation. Mr. Hinson’s practice is
national in scope. He has been recognized as a “national leader” in ERISA
litigation by Chambers USA: America’s Leading Lawyers for Business,
Best Lawyers in America and The Legal 500 publications, and is listed in
Who’s Who in American Law and Super Lawyers magazine. Mr. Hinson is
the chair of the Employee Benefits Committee of the Tort, Trial and
Insurance Practice Section—and a member of the Joint Committee on
Employee Benefits—of the American Bar Association.
Contact H. Douglas Hinson
Alston & Bird LLP
One Atlantic Center
1201 West Peachtree Street
Atlanta, GA 30309-3424
ACI’s 16th National on Wage & Hour Claims and Class Actions will provide comprehensive updates and strategic solutions to the latest wage and hour issues, including misclassification and exemption, class certification, meal and rest breaks.
In addition to expert insight, don’t miss the chance to hear from distinguished jurists, state and federal government officials, and leading labor and employment attorneys, and network with some of the nation’s preeminent privacy professionals from: Wells Fargo, Microsoft, Ryder System, The Hertz Corporation, CenturyLink, Family Dollar Stores, Best Buy, Federal Express, Providence Health and Services, Automobile Protection Corporation, DHL, Home Depot, Canam Steel Corporation, Marsh & McLennan Companies, Boehringer Ingelheim Pharmaceuticals, Crawford & Company and many others.
By attending this conference, you will:
• Get updates directly from DOJ, NLRB and CDLSE officials, and learn how to incorporate the latest priorities, enforcement initiatives and investigations into your defense strategies
• Hear how state and federal judges are handling class certification, e-discovery, settlement considerations and the latest plaintiff theories and emerging defenses
• Get your questioned answered and adapt your strategies to new and innovative techniques and claims being brought by the plaintiff’s bar
• Incorporate Wal-Mart v. Dukes and the latest court decisions on class certification and hybrid claims into your litigation strategy in defending against class and collective actions
Complete Your Experience By Attending the Pre and Post-Conference Focus Sessions:
• Wage & Hour Boot Camp: An In-Depth Analysis of Wage & Hour Law for New Essentials For New Practitioners
• Wage & Hour Litigation Focus on the Hotbed of California
Mounting Risks of Suspension, Debarment, Penalties and Lost Business – There Has Never Been a More Critical Time to Attend This Unique, Practical Forum on Negotiating and Managing Successful Subcontracting Agreements.
American Conference Institute’s Industry Forum on Government Subcontract Management, Compliance & Enforcement is a unique event that will bring together primes, subcontractors, lawyers, accountants and government officials – allowing attendees ample time for Q & A and benchmarking. Gain proven-effective strategies that can be incorporated immediately into your daily work flow.
Whether you are a prime or subcontractor, your organization is contending with heightened oversight, more burdensome regulations and amplifi ed fallout from False Claims Act cases. Reducing your subcontracting risks is essential to keeping your business on track during and after an election year with so many uncertainties.Take Away Best Practices for Complying with Mandatory Subcontractor Flowdown Requirements, Disclosure Guidelines, and Preventing Non-Performance and Payment Disputes
ACI has done extensive research with both prime and subcontractors to deliver this program that addresses the most complex subcontracting compliance and liability risks threatening your bottom line. Each session is uniquely tailored to discuss how to manage heightened risk factors, and resolve contentious payment and performance disputes.
This is one of the few events that will gather government, leading prime and subcontractors, lawyers and accountants all into one room for a two-day, in-depth discussion on subcontracting best practices and risk mitigation techniques.
Hear First-Hand Insights from the U.S. Small Business Administration:
Small Business Contracting Update: Pending Legislation, Regulatory Reforms and Case Developments Impacting Your Bottom Line – led by John Klein, Associate General Counsel for Procurement Law (U.S. Small Business Administration)
Benchmark with Industry Experts:
- Rita Wells – Acquisition Executive (Fluor Governmental Group)
- Aileen Heim – Vice President, Legal (American Rheinmetall Munitions)
- Cliff Greenblatt – General Counsel (TASC)
- Gurmeet S. Chadha – Director, Contracts and Procurement (ECC)
- Anna Lueje – Senior Counsel (Northrop Grumman)
- David Stoughton – Legal Counsel (Raytheon Intelligence and Information Systems)
- Scott Lyon – General Counsel (Optimos)
- Mark Nackman – Assistant General Counsel (General Dynamics Advanced Information Systems)
- Richard Covel – Vice President and General Counsel (Dynamics Research)