Major Settlements and Other Wins
Court decisions are important – and Tully Rinckey PLLC’s attorneys have secured many with positive impacts on our clients. But court decisions are not everything. In fact only a tiny fraction of civil cases filed in federal court actually make it to trial. That is why you need to an aggressive attorney experienced in negotiating a settlement. Reaching a settlement can save you money and time from not having to go to trial.
Below is a sampling of major settlements and other decisions secured by Tully Rinckey PLLC attorneys.
Federal Employment Law
- Equal Employment Opportunity (EEO) claim for religious discrimination against a federal agency settled for a promotion, $53,000, assignment of supervisory duties, and removal of derogatory material.
- Merit Systems Protection Board (MSPB) victory in a Veterans Employment Opportunity Act (VEOA) case. Won reinstatement, full back pay and full attorneys’ fees for a housekeeping aide in a Department of Veterans Affairs hospital who was improperly removed from employment when the agency incorrectly “audited” his file after he sought a reasonable accommodation, and revoked the veterans’ preference under which he had been hired.
- Successful in appealing an agency decision dismissing client’s formal EEO Complaint where the agency erroneously asserted that client’s formal EEO Complaint alleged claims from resolved in a prior case. The Equal Employment Opportunity Commission (EEOC) overturned the agency’s decision to dismiss complaint and remanded the case to the agency for an investigation consistent with 29 CFR 1614.108.
- Successful in defeating a motion for summary judgment against the agency. The agency unsuccessfully moved to get the EEOC to dismiss the case without a hearing where there were several disputes of material fact and credibility determinations at issue.
- Settled a severance matter for benefits to the employee exceeding $130,000.
- Settled a case for a retroactive three-grade promotion with full attorney’s fees.
- Drafted and filed a memorandum of law in a case before the EEOC advocating $206,000 in damages which was read into the record by the administrative judge and adopted in total.
- Successfully appealed a veteran’s disability rating for post-traumatic stress disorder (PTSD) before the Department of Veterans Affairs, increasing the Veteran’s incorrect 30 percent rating to the correct 70 percent rating. That resulted in an award of over three years of past due benefits owed the veteran.
- Represented a veteran wrongfully terminated from his civilian job after his military deployment in violation of the Uniformed Services Employment Rights and Reemployment Rights Act (USERRA). The negotiated settlement resulted in the veteran receiving over six months of pay and allowances from the wrongful termination.
- Successfully defended a service academy cadet from disenrollment; client will graduate with peers.
- After ROTC disenrollment initiated, won waiver of scholarship recoupment and client was not required to enter active duty.
- Successfully advised client on Notice of Disagreement (NOD) with VA concerning mental and physical competency. Engaged support from a member of Congress. VA agreed with client’s NOD.
- Secured compassionate reassignment for a U.S. Coast Guard member based on humanitarian factors after defending client against hostile work environment.
- Won honorable discharge from the Army for a lieutenant colonel facing a board of inquiry for misconduct.
- Secured reversal of cancelled assignment through successful Article 138 complaint on behalf of an officer client. The client was restored with favorable assignment to complete an in-residence master’s degree.
- Won reassignment of Army National Guard officer injured in the line of duty while on active duty mobilization. The client moved from a Warrior Transition Unit to a Community Care Unit closer to client’s home.
- Successfully petitioned the Board for Correction of Naval Records to remove adverse material from a Marine Corps client’s record, resulting in client’s retroactive promotion, which had previously been denied.
- Successfully assisted a Navy client, a surgeon, in contesting efforts by client’s command to restrict medical privileges. The end result was that client was able to retain medical privileges without any restrictions.
- Convinced the Department of the Army Suitability Evaluation Review Board (DASEB) to transfer into the restricted portion of the client’s Official Military Personnel File (OMPF) his general officer memorandum of reprimand (GOMOR) stemming from a drunk driving arrest and accident. The transference of the GOMOR, as well as the DASEB’s decision memo and all allied documents to the restricted portion of his OMPF made the client eligible for promotion.
- Secured a discharge upgrade from the Navy Discharge Review Board for a client who had been discharged from the Marine Corps pursuant to a discharge in lieu of court-martial after facing charges for larceny.
- Convinced the superintendent of the Coast Guard Academy to retain the client, a cadet, despite a commander of cadet’s recommendation for disenrollment based on an honor violation. Not only was the client secured a future as a commissioned officer in the Coast Guard, he was also saved over $100,000 in the required recoupment of scholarship paid for his education and training at the academy.
- Convinced a commander to show mercy when applying nonjudicial punishment to a Coast Guardsman client facing several charges in a captain’s mast. The client also received extraordinary relief by having the commander throw out the entire Article 15 by the end of the proceedings.
- Successfully got the DASEB to grant full relief by deleting the GOMOR from our client’s military record, even though and advisory recommended the opposite.
- Convinced an administrative separation board to suspend the recommended Other Than Honorable (OTH) discharge of a marine in the Reserves who had twice tested positive for using illegal drugs. While most service members are discharged after one positive drug test, the client was allowed to remain a marine.
- Successfully got the Defense Finance and Accounting Service (DFAS) to drop a claim against the client for $53,000 for an alleged Basic Allowance for Housing (BAH) overpayments by the U.S. government. Discovered the overpayment stemmed from a Navy clerical error and secured a refund for payments that the client had already made as well as reimbursement for withheld pay.
National Security Law
- Successfully got a client’s access to sensitive compartmented information reinstated after the agency suspended it due to concerns surrounding client’s use of information technology systems.
- Won a Defense Office of Hearings and Appeals (DOHA) case in which the client’s security clearance was denied due to financial considerations.
- Won a DOHA case after the Department of Defense (DoD) proposed to revoke client’s security clearance due to concerns surrounding drug involvement.
- Won a DOHA case after the DoD proposed to deny client’s security clearance due to foreign influence concerns.
- Successfully obtained client’s security clearance after submitting a written response to the DoD’s Intent to Revoke client’s security clearance over concerns surrounding alcohol use, drug involvement, and criminal conduct.
- Successfully obtained client’s security clearance after submitting a written response to DOHA’s intent to deny client’s clearance due to concerns regarding foreign influence, sexual behavior, and personal conduct.
LANDMARK DECISIONS & APPEALS
LEGAL DISCLAIMER: THE RESULTS OF ALL CLIENT MATTERS DEPEND ON A VARIETY OF FACTORS UNIQUE TO EACH MATTER. PAST SUCCESSES DO NOT PREDICT OR GUARANTEE FUTURE SUCCESSES.
- Mathew B. Tully – Jose D. Hernandez v. Dept of the Air Force – Obtained appeal decision from the Merit Systems Protection Board that the board should overturn its original decision and could adjudicate claims of USERRA violations prior to the statute’s enactment in 1994. Jose D. Hernandez, a retired aircraft mechanic for the Air Force contended he was erroneously charged for leave time from 1980 to 2001. Hernandez was granted the petition and the original decision was vacated.
- Mathew B. Tully – Pucilowski v. Department of Justice – Alexander F. Pucilowski Jr., a federal corrections officer and federal air marshal contended he was erroneously charge for military leave from 1989 to 2002 while in the National Guard. Court said a series of its recent rulings on military leave pay cases, including Hernandez, has signaled its view that the Uniformed Services Employment and Reemployment Rights Act should be interpreted liberally to the benefit of guardsmen and reservists. This case resulted in more favorable military leave pay determinations by the U.S. Merit Systems Protection Board toward federal employees who are also in the National Guard or military reserve. “Will expand the time frame for which guard personnel can seek compensation and potentially make their case easier to prove” – Mathew B. Tully
- Mathew B. Tully – Jackson v. United States – The United States Supreme Court vacated the prior judgment upholding defendant’s sentence and remanded the matter to the court for reconsideration of defendant’s sentence in light of Booker.
- Mathew B. Tully – State of New York County Court: Orange County – People v Jones Decision and Order – Client’s 9 year sentence and conviction vacated with Appeal victory.
- Mathew B. Tully – Miller v. U.S. Postal Service – MSPB said reservists who worked at the Postal Service also eligible for back pay because of an erroneous leave policy.
- Mathew B. Tully and Greg T. Rinckey – Collins v. Department of the Agriculture – Filed an appeal alleging that while employed by the Department of the Agriculture he was charged military leave even on non-work days which caused him to use annual, sick, or leave without pay to perform military duties from 1989 -2000. Based on USERRA, the agency was ordered to correct its records and to pay appellant the back pay that was owed.
- Greg T. Rinckey – Garcia v. Department of State Marc – A. Garcia petitioned for review of an initial decision denying his request for corrective action. Garcia was granted the petition and the original decision was vacated. Held that the board could adjudicate claims of USERRA violations prior to the statute’s enactment.
- Greg T. Rinckey – Savage v. Savage – Successful Supreme Court appeal in which lower court decision which found client to be in willful violation of a child support order was reversed and reimbursed counsel fees.
- Steven L. Herrick – Darrell Crawford v. Dep’t of the Army – Obtained decision from the Merit Systems Protection Board that the Army violated his rights under the Uniformed Services Employment and Reemployment Rights Act by failing to reemploy him in a proper position after his return from active military duty.
- Steven L. Herrick – James Townsend v. JP Morgan Chase – Obtained settlement in which defendant, who had effectively demoted client upon his return from service in violation of USERRA, reassigned client to the position he occupied before leaving for military service. Defendant also paid client’s attorney fees.Due to Tully Rinckey PLLC’s aggressive case strategy, the Department of the Army agreed to settle the case and pay the client $150,000, which included back pay with interest and benefits, plus one year of salary, and full reimbursement of attorneys’ fees. Moreover, the Agency agreed to expunge the proposal and decision to remove from the employee’s entire record, create a successful rating for the client’s 2009 performance evaluation as well as produce a neutral reference for employment purposes.
- Steven L. Herrick – Isabella v. Department of State – Appellant Isabella applied to the Department of State (DOS) for a Defense Security Service appointment. DOS refused to hire him because his 37th birthday was approaching before they could get his application processed. He appealed to the MSPB who rejected the DOS claim due to the law that requires a federal agency to waive the maximum age rule when hiring a veteran unless they can prove that the age limit rule would be essential to the job duties. The MSPB remanded the case to the Administrative Judge who ruled in favor of DOS. Appellant appealed to the MSPB again, who reaffirmed its decision that the age rule cannot be applied. MSPB ordered DOS to process Appellant’s application. In this case, the OPM intervened saying that the MSPB’s decision would severely impact civil service law. MSPB once again reaffirmed its original decision.The Agency originally removed the employee from federal employment due to alleged sexual harassment. However, while deposing the alleged victim, Tully Rinckey PLLC got her to acknowledge that the incident in question could have been unintentional conduct, and the Deciding Official testified that he would not have removed the employee if the alleged conduct was in fact not deliberate. Further, through discovery, Tully Rinckey PLLC was able to establish that the Proposing Official was not a credible person and had ulterior and improper motives for the employee’s removal.
- Federal Employment Law Case – Filed an MSPB appeal after an OPM denied client’s claim for a survivor annuity benefit following her ex-husband’s death. The divorce settlement agreement, although handwritten and fairly unsophisticated, did express the ex’s intent for her to receive the annuity upon his death. OPM rescinded its decision and issued the survivor annuity.
- Thomas J. Carr – Successfully defended U.S. Border Patrol agents Dennis J. Rascoe and Daniel S. Taylor who were justified in shooting Timothy J. Fleury in what authorities call a drug related incident.
- Schenectady County SPCA v. Richard Mills – Won appeal in FOIL request to have information released regarding veterinarians, and veterinarian technicians.
- Tully Rinckey PLLC – Hussey v. United States Department of Agriculture – To date, the U.S. Merit Systems Protection Board (MSPB) has issued three final decisions awarding the firm over $45,000 in reasonable attorneys’ fees based upon the successfully enforced settlement of the appellant’s removal appeal. In one of those decisions, the Board held that “the appellant met his burden of showing that he is the prevailing party, he incurred attorney fees and that an award of attorneys fees is warranted in the interest of justice.” E.g., Hussey v. United States Department of Agriculture, MSPB Docket No. DA-0752-10-0130-A-1 (Jan. 6, 2011).
- Donald E. Kelly – Tully Rinckey PLLC secured a Supreme Court decision dismissing all charges against their client. The client was facing a range of felony charges stemming from a shooting in the City of Syracuse. The client potentially could have spent the remainder of his life in jail for a crime he did not commit. He always maintained his absolute innocence of the crime and the court agreed.
- Donald E. Kelly – Client was charged with possessing drugs with the intent to sell. We convinced the court this indictment lacked sufficient legal grounds to stand, and the searches leading to it were illegal. Ultimately, the evidence tied to the indictment was suppressed and we secured dismissal of all charges.
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