Summary of Significant Cases

In the Supreme Court of the United States:

Harper v. Virginia Department of Taxation, 509 U.S. 86 (1993). This case, in which I was counsel of record before the Supreme Court of the United States, involved the efforts of federal retirees to obtain refunds of taxes unconstitutionally imposed by several states on their federal pensions. The case drew national media attention (and considerable local attention) around the time of the Supreme Court's decision and through 1994. In addition to briefing and arguing this case before the Supreme Court (and three times before the Supreme Court of Virginia), I was extensively involved in a legislative effort to forge a compromise resolution. This effort eventually reached Capitol Hill, where legislation was introduced in both houses to exempt any refunds from federal taxation. Ultimately, the decision and the legislation resulted in refunds of approximately $400 million to federal retirees in Virginia and well over $1 billion nationwide. In addition to my work directly in this case, I also filed amicus briefs in the case of Davis v. Michigan Department of Treasury, 489 U.S. 803 (1989), the original decision that held that the states' discriminatory taxation scheme was unconstitutional, and Reich v. Collins, 115 S. Ct. 547 (1994), which ultimately required refunds to be paid. I also represented the retirees in the states of Mississippi (Marx v. Broom, 632 So. 2d 1315 (Miss. 1994)), Oklahoma (Strelecki v. Oklahoma Tax Comm'n, 872 P.2d 910 (Okla. 1993)) and Missouri (Hackman v. Missouri Department of Revenue, 771 S.W.2d 77 (Mo. 1989), cert. denied, 493 U.S. 1019 (1990) and Hamacher v. Director of Revenue, 779 S.W.2d 565 (Mo. 1989)). I was also counsel of record in the Supreme Court for the South Carolina retirees in Bass v. South Carolina, 501 U.S. 1246 (1991) and 509 U.S. 916 (1993).

Sheridan v. United States, 487 U.S. 392 (1988). I was counsel of record and argued this case, which involved a question of statutory interpretation concerning the intentional tort exception of the Federal Tort Claims Act. My clients were injured when a drunken and disturbed Naval corpsman opened fire on vehicles passing the campus of the Bethesda Naval Hospital. While the law was clear that the United States could not be held liable for the intentional torts of employees such as this corpsman, I argued (and the Court held) that the United States could be held liable for its negligence in allowing the assault to occur (i.e., failing to apprehend the corpsman, failing to enforce regulations concerning possession of weapons on base).

Peralta v. Heights Medical Center, Inc., 485 U.S. 80 (1988). I was counsel of record (but did not argue) in this case arising out of the state courts in Texas. This case involved a challenge to the constitutionality of a Texas Rule of Civil Procedure that required the presentation of a meritorious defense on the merits as a prerequisite to obtaining relief from a default judgment that was obtained without constitutionally sufficient notice. The Texas courts had held, in conformance with the published rule, that a party could only obtain relief from a judgment if he could show that he had a defense to the underlying claim. My client had no defense to the underlying claim (he had guaranteed an employee's hospital charges), but because he was never served with the complaint, he ended up losing in seizures and foreclosures far more than the original debt. The Supreme Court held that the Texas Rule of Civil Procedure was unconstitutional; that a judgment obtained without notice is constitutionally void and as such cannot be enforced under any circumstance.

United States v. Fausto, 484 U.S. 439 (1988). This case represented one of the early statutory construction cases involving the Civil Service Reform Act of 1978. I represented a group of cargo loadmasters in South Carolina who had been unable to get the Office of Personnel Management to properly classify their positions. In an amicus brief, I argued that by passage of the CSRA and creation of the Merit Systems Protection Board Congress did not intend to foreclose judicial review of all civil service matters. Several aspects of civil service law, including the Classification Act, for example, were untouched by the CSRA. The Court rejected this argument, however, and essentially held that the only judicial review of civil service matters is that expressly provided by the CSRA.

Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788 (1985). This case arose as a challenge by the NAACP-LDF to its exclusion from participation in the Combined Federal Campaign. I filed an amicus brief on behalf of the United Black Fund arguing that the Office of Personnel Management could properly exclude advocacy groups from participation in the CFC. This case was analyzed on a First Amendment "forum analysis" basis (although we had argued in the alternative that it need not). By a narrow margin, the Court concluded that Office of Personnel Management had articulated a content neutral rational basis for excluding the NAACP-LDF and thus its exclusion could stand.

Lindahl v. Office of Personnel Management, 470 U.S. 768 (1985). This case involved the availability of judicial review of decisions of the Merit Systems Protection Board concerning disability retirement. In a splintered decision, the Federal Circuit had held that no judicial review of Board disability retirement decisions was available. This decision conflicted with the decisions of several other circuits, including one which I had won in the District of Columbia Circuit, Turner v. Office of Personnel Management, 707 F.2d 1499 (D.C. Cir. 1983). Representing the National Association of Retired Federal Employees, I filed an amicus brief urging the Supreme Court to grant certiorari and, after the Court agreed to hear the case, a second brief urging that the Federal Circuit be reversed. The Court reversed the Federal Circuit and held that limited judicial review of disability retirement decisions is available.

In the Federal Courts of Appeal:

Augustine v. Veterans Admin., 429 F.3d 1334 (Fed. Cir. 2006). Ms. Augustine prevailed before the Merit Systems Protection Board on her claim enforcing her right to veterans preference and her counsel sought an award of attorney fees. The Board denied fees, however, holding that because her counsel was not licensed to practice law in the state in which the hearing was held, he had engaged in the unauthorized practice of law and thus could not seek fees. The Federal Circuit reversed, holding that federal law and not state law controls who is authorized to practice before federal administrative agencies.

Warren v. Office of Personnel Management, 407 F.3d 1309 (Fed. Cir. 2005). In this case, the Office of Personnel Management denied Ms. Warren a survivor annuity and the MSPB sustained that denial. The Board concluded the language of the divorce decree did not adequately evince an intent to provide Ms. Warren with a survivor annuity. The court reversed the Board’s decision, however, holding that OPM had failed to provide the requisite notice to her ex-husband advising him of his opportunity to make a post-divorce survivor benefit election.

Tunik v. Merit Sys. Prot. Bd., 407 F.3d 1326 (Fed. Cir. 2005). This litigation challenged the MSPB’s reversal of 20 years precedent concerning the rights of administrative law judges to allege constructive removal when they believed that their employing agencies had interfered with their decisional independence. The federal circuit reversed the Board, holding that because the Board’s prior interpretation of the law had been promulgated in agency regulations, it could only change that interpretation by notice-and-comment rule making, not by adjudication.

Price v. Social Security Admin., 398 F.3d 1322 (Fed. Cir. 2005). Elizabeth Price was placed on enforce leave when she was indicted for filing a false claim for Social Security benefits. On appeal, the MSPB ruled that the agency deprived her of due process by failing to give her notice and an opportunity to respond before suspending her. Subsequently, however, the Board reversed an initial decision requiring the agency to pay attorney fees. The Federal Circuit affirmed the Board’s decision.

Bloch v. Powell, 348 F.3d 1060 (D.C. Cir. 2003). This case involved the State Department’s denial of a pension to a career employee who resigned rather than face removal on national security grounds. Even though Bloch met all the requirements for retirement, the State Department relied upon the peculiar wording on the Foreign Service Retirement Act to “refuse to consent” to Bloch’s retirement. Bloch argued that he had a due process right to the pension he has earned over the course of his 32 years of employment with the State Department. The Court of Appeals, in an opinion by then-Circuit Judge Roberts, disagreed.

Williamson v. Merit Sys. Prot. Bd., 334 F.3d 1058 (Fed. Cir. 2003). In this case, the Federal Circuit held that the MSPB acted arbitrarily and abused its discretion when it refused to reinstate an appeal that had previously been dismissed without prejudice. The court held that the Board failed to follow its own regulations, that it ignored preponderant evidence that the appeal had been timely reinstated and that, even if the appeal had been untimely, the Board erred in failing to find good cause for any delay.

Brown v. United States, 327 F.3d 1198 (D.C. Cir. 2003). This case arose as a class action of behalf of certain former Secret Service employees who complained that they had been denied proper credit for locality pay in their annuities. The district court had agreed with the retirees and held that the “weighted national average” methodology employed by the government violated their entitlement to an individualized calculation of their annuity. The court of appeal reversed, however, holding that the government was entitled to deference in its choice of methodologies for calculating annuities.

Sacco v. Department of Justice, 317 F. 3d 1384 (Fed. Cir. 2003). In this case, the employer unilaterally rescinded its adverse action after the employee initiated an appeal before the Merit Systems Protection Board. Board precedent had allowed employees to recover their attorney fees in such situations, but the Board reversed that precedent in light of the Supreme Court’s decision in Buckhannon v. West Virginia Dep’t of Health and Human Resources, 532 U.S. 598 (2001). We argued, unsuccessfully, that the court was obligated to give Chevron deference to the Board’s long-standing interpretation of the fee-shifting statute of the Civil Service Reform Act.

Hannon v. Department of Justice, 234 F.3d 674 (Fed. Cir. 2000), cert. denied, 534 U.S. 1065 (2001). This case involves the efforts of “Diversion Investigators” employed by the Drug Enforcement Administration to obtain “Law Enforcement Retirement” credit for their service. This is one of several hundred cases that are currently being litigated before the Court of Federal Claims and the Merit Systems Protection Board. Since the initiation of this litigation, the DEA has decided to formally convert the position of Diversion Investigator into a criminal investigator position.

Hastings v. Federal Aviation Administration, 187 F.3d 938 (8th Cir. 1999). This case involved the efforts of Air Traffic Controllers to challenge the Office of Personnel Management’s refusal to reclassify their positions. Congress had enacted legislation authorizing the FAA to increase the full performance grade level at certain facilities. The FAA made these adjustments in an arbitrary way, including upgrading the facilities in the home states of the senators who had authorized the legislation.

Sebastian v.United States, 185 F. 3d 1368 (Fed. Cir. 1999), cert. denied, 529 U.S. 1065 (2000). This case involved the efforts of retired members of the armed services, as a class, to enforce their entitlement to continued medical treatment at military facilities. They, our their spouses, had been induced to commit to career service in the military by the promise of continued, life-time medical care. They claimed that this promise was deferred compensation and thus property which could not be extirpated without just compensation. The Court, though professing sympathy to the military retirees, rejected their claim, holding that only Congress could provide them relief.

Fox v. Office of Personnel Management, 100 F.3d 141 (Fed. Cir. 1996). This case involved an effort by a former spouse to obtain a survivor annuity as provided in her property settlement agreement. OPM refused to award the survivor annuity and the MSPB sustained OPM's decision. The Court reversed and awarded the benefit, holding that evidence outside the property settlement agreement could be considered to give meaning to the terms of that agreement.

Castle v. Rubin, 78 F.3d 654 (D.C. Cir. 1996). In this case, the jury found that the plaintiff was fired from her government position on account of her sex. The trial court, however, denied reinstatement, based on its use of "after-acquired evidence." I argued (unsuccessfully) that use of after-acquired evidence to limit relief to government employees, and other employees who had specific avenues to appeal disciplinary action, was improper.

Diamond v. Atwood, 43 F.3d 1538 (D.C. Cir. 1996). In this race and sex discrimination case, the district court had entered summary judgment in favor of the plaintiff, holding that the agency was bound by its finding of discrimination in its proposed disposition of the administrative complaint of discrimination. The district court did not, however, order the government to place the plaintiff in the position he was discriminatorily denied. The government appealed, and I cross-appealed on the issue of whether the plaintiff should be able to "bump" the selectee. The court accepted the government's argument, however, and thus remanded the case for trial without addressing the remedial issues I raised.

Barth v. Gelb, 2 F.3d 1180 (D.C. Cir. 1993), cert. denied, 114 S. Ct. 1538 (1994). This case involved the efforts of an insulin-dependent diabetic to obtain a Foreign Service position with the Voice of America. The court of appeals held that the accommodation sought by an applicant was unduly burdensome, even though this same accommodation would readily and routinely have been offered to an incumbent. I filed a petition for certiorari, arguing that neither the Rehabilitation Act nor the Americans with Disabilities Act supported a distinction between applicants and employees with respect to employers' obligations to provide reasonable accommodations, but the Supreme Court denied the petition.

Burkey v. Government Employees Hosp. Assn., 983 F.2d 656 (5th Cir. 1993). One of my principal functions between 1983 and 1993 was to serve as litigation counsel for the Government Employees Hospital Association, a health insurer that operates exclusively under the Federal Employees Health Benefits Act. As litigation counsel, it was my responsibility to oversee all litigation against the company, including members' benefits disputes. In addition to securing local counsel, I was actively involved in almost all litigation. In this particular case, the district court held that GEHA had wrongfully denied benefits and it assessed exemplary damages against GEHA under Louisiana law. I argued, and the court agreed, that GEHA was governed exclusively by federal law and that accordingly Louisiana's penalty provisions were preempted.

Proud v. Stone, 945 F.2d 796 (4th Cir. 1991). This was age discrimination case involving an individual who was hired to work overseas. Shortly after moving to Germany to take the position, a much younger person became available to fill the position. My client was then fired and the younger person was hired. In ruling for the government, the court of appeals held that because the person who hired my client knew his age at the time of his hiring, no claim of age discrimination could be made.

Olson v. Mobil Oil Corp., 904 F.2d 198 (4th Cir. 1990). This case involved a question of tolling the time limit for filing a claim of age discrimination. After being told that his position was being abolished in a division-wide down-sizing, my client elected to retire. Several months later, he learned that his job had not in fact been abolished but that his duties had been given to a younger employee. In a split decision, the court of appeals held that my client's knowledge that he was being forced to retire was sufficient knowledge for him to file an administrative complaint of age discrimination.

Harris v. Office of Personnel Management, 888 F.2d 121 (Fed. Cir. 1989). This case involved an effort by a widow to obtain a survivor annuity. The MSPB had denied the survivor annuity, holding that the retiree had missed a statutory deadline for advising OPM of his marriage to my client. I argued that OPM was statutorily required to provide annual notice to retirees of the requirements for notifying OPM of changes in their marital circumstances. The court accepted my argument and held that OPM's failure to provide the required annual notice would waive the one year notice deadline.

National Assn. of Retired Fed. Employees v. Horner, 879 F.2d 873 (D.C. Cir. 1989). When the Office of Personnel Management discontinued its practice of sharing the addresses of new retirees with the National Association of Retired Federal Employees, NARFE filed suit seeking this information under the Freedom of Information Act. The district court granted relief, but the government appealed. The court of appeals stayed its resolution of the appeal pending decision in a related case, United States Department of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749 (1989). I filed an amicus brief in the Supreme Court on behalf of NARFE, but my arguments were unsuccessful.

Ireland v. Shultz, 829 F.2d 1189 (D.C. Cir. 1987). This case involved a claim by a State Department employee who was fired in 1954 ostensibly due to a reduction in force, but in actuality because his wife was Russian and he and his wife spoke Russian in their home. When the true reasons for his removal turned up thirty years later, I filed suit seeking reinstatement and back pay. The trial court held that the complaint was timely, but denied relief. The court of appeals reversed the denial of relief and transferred the case to the Claims Court. Ultimately, judgment was entered in the Claims Court for over $1 million, the largest individual back pay award in the court's history.