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Case Report - June 14, 2019 | 06-14-2019 | https://www.mspb.gov/decisions/case_reports/Case_Report_June_14_2019_1626941.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_June_14_2019_1626941.pdf | Case Report for June 14, 2019
NONPRECEDENTIAL COURT DECISION
Freeman v. Department of the Air Force, No. 2019-1509 (Fed. Cir.
June 12, 2019) (MSPB Docket No. AT-0752-16-0688-I-2): The court
affirmed the administrative judge’s initial decision sustaining the
agency’s decision to remove the appellant for unauthorized disclosure of
classified information and for being absent without leave (AWOL). The
court found no merit to the appellant’s argument that the
administrative judge erred in finding that his disclosure of classified
information was not entitled to whistleblower protection because such
protection is not available when the information is “specifically
required by Executive order to be kept secret in the interest of national
defense” unless the information is disclosed only to the designated
recipients and that, in this case, it was uncontested that the appellant
sent the classified information to unauthorized recipients. The court
also found that the administrative judge did not err in declining to
consider the appellant’s argument that the agency improperly classified
the information he disclosed because the Board was not the proper
forum for resolving such a dispute and lacks authority to assess the
propriety of national security determinations. Finally, the court found
that the appellant’s assertion that the administrative judge ignored his
arguments about the AWOL charge was inconsistent with the thorough
factual analysis in the initial decision.
Ingram v. Department of the Army, No. 2018-2415 (Fed. Cir. June 12,
2019) (MSPB Docket No. AT-1221-17-0498-W-1): The court affirmed the
administrative judge’s initial decision denying corrective action in this
individual right of action (IRA) appeal, in which the appellant, a
Computer/Systems Engineer, argued that the agency retaliated against
him for his protected whistleblowing activity by giving him unfairly low
performance appraisals in 2014 and 2015 and by moving him from his
position as a lead engineer to a non-lead engineer on a different
project. The court found no error in the administrative judge’s
determinations that the appellant failed to show that his transfer to a
different position constituted a covered personnel action under the
Whistleblower Protection Act (WPA) and failed to show that his prior
protected activity contributed to his 2014 performance appraisal. The
court further found no error in the administrative judge’s determination
that the agency established by clear and convincing evidence that it
would have issued the appellant the same 2015 performance appraisal in
the absence of his prior protected activity.
Mohammed v. Department of the Army, No. 2019-1226 (Fed. Cir.
June 11, 2019) (MSPB Docket No. SF-1221-18-0101-W-1): The court
affirmed the administrative judge’s initial decision denying corrective
action in this IRA appeal, in which the appellant, who served as an
assistant professor at the Defense Language Institute Foreign Language
Center, argued that the agency retaliated against her for filing a prior
IRA appeal and for disclosing that her supervisors retaliated against her
and subjected her to a hostile work environment by generating a red
flag notification reporting negative student comments about her class,
issuing her a memorandum of counseling, transferring her to a different
school, changing her duties, denying her requests to conduct Oral
Proficiency Interview tests and to teach study hall, placing her on
administrative leave, and not renewing her contract. The court found
no basis to disturb the administrative judge’s determination that the
red flag notification and informal memorandum of counseling were not
covered personnel actions under the WPA. The court further agreed
with the administrative judge that, although the appellant made one
protected disclosure that contributed to the personnel actions that were
covered under the WPA when she redisclosed the retaliation at issue in
her previous IRA appeal, the agency proved by clear and convincing
evidence that it would have taken the same covered personnel actions
in the absence of that disclosure. The court considered, but found no
merit to, the appellant’s arguments that the administrative judge
abused her discretion in crediting the hearing testimony of several
agency witnesses, that collateral estoppel or res judicata precluded the
agency from punishing her twice for the same act, and that the agency
deprived her of due process.
Nelson v. Department of Transportation, No. 2018-1880 (Fed. Cir.
June 11, 2019) (MSPB Docket No. DC-0752-17-0840-I-1): The court
affirmed the administrative judge’s initial decision sustaining the
appellant’s demotion from a GS-13 Protective Service Specialist position
to a GS-12 position and a 60-day suspension on the basis of the following
charges: (1) conversion of Government property supported by 455
instances in which the appellant used the agency’s parking facilities
without paying; and (2) inability to perform the essential functions of
his position due to the revocation of his Special Deputation upon the
initiation of the investigation into his failure to pay for parking. The
court found unavailing the appellant’s argument that the 60-day
suspension penalty was too harsh for the unpaid parking, finding that he
knew he was required to pay for the parking and thus violated 18 U.S.C.
§ 641, which makes it is unlawful for a person to “knowingly convert[] to
his use... any... thing of value of the United States” and that the
administrative judge properly considered the record evidence and
testimony in determining that the penalty was reasonable.
Joseph v. Merit Systems Protection Board, No. 2018-2241 (Fed. Cir.
June 7, 2019) (MSPB Docket No. PH-0841-16-0228-I-1): The court
affirmed the administrative judge’s initial decision, which became the
final decision of the Board after the appellant withdrew his previously
filed petition for review, that the Board lacked jurisdiction to consider
his challenge to an Office of Personnel Management (OPM) refund action
in the absence of any initial or final decision by OPM on the issue of his
entitlement to a refund of his retirement payments rather than a
retirement annuity.
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Case Report - June 7, 2019 | 06-07-2019 | https://www.mspb.gov/decisions/case_reports/Case_Report_June_7_2019_1624423.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_June_7_2019_1624423.pdf | Case Report for June 7, 2019
NONPRECEDENTIAL COURT DECISION
Eclarin v. Office of Personnel Management, No. 2018-2425 (Fed. Cir.
June 5, 2019) (MSPB Docket No. SF-0831-17-0672-I-1): The court affirmed the
Board’s decision, which affirmed OPM’s determination that the appellant was
not entitled to a Civil Service Retirement System (CSRS) annuity. Although the
appellant worked for the Department of Navy between 1957 and 1963 in Subic
Bay, Philippines, he served in an indefinite appointment that was not covered by
the CSRS.
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Case Report - May 31, 2019 | 05-31-2019 | https://www.mspb.gov/decisions/case_reports/Case_Report_May_31_2019_1622042.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_May_31_2019_1622042.pdf | Case Report for May 31, 2019
NONPRECEDENTIAL COURT DECISION
Borza v. Department of Commerce, No. 2018-1873 (Fed. Cir. May 29,
2019) (Arbitration Case No. 171202-51398-1): The court affirmed the
arbitrator’s decision that suspension, rather than termination, was the
appropriate penalty for the petitioner’s misconduct. However, the
court found inadequate the arbitrator’s conclusion, without explanation,
that 561 days was the appropriate length of the suspension. The court
vacated and remanded this portion of the arbitrator’s decision for an
analysis of the appropriate length of the suspension.
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Case Report - May 24, 2019 | 05-24-2019 | https://www.mspb.gov/decisions/case_reports/Case_Report_May_24_2019_1620155.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_May_24_2019_1620155.pdf | Case Report for May 24, 2019
Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the Board
itself, and are not intended to provide legal counsel or to be cited as legal
authority. Instead, they are provided only to inform and help the public locate
Board precedents.
NONPRECEDENTIAL COURT DECISION
Hollingsworth v. Department of Veterans Affairs, No. 2018-2100 (May 17,
2019) (AT-4324-17-0315-I-2, AT-4324-18-0091-I-1) (affirming, per rule 36
judgment, the administrative judge’s initial decision denying on the merits the
appellant’s requests for corrective action under the Uniformed Services
Employment and Reemployment Rights Act of 1994 (USERRA) because the
appellant failed to prove that the agency’s denials of employment and benefits
of employment were based on antimilitary animus or reprisal for prior
USERRA-related activity)
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Case Report - May 17, 2019 | 05-17-2019 | https://www.mspb.gov/decisions/case_reports/Case_Report_May_17_2019_1617860.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_May_17_2019_1617860.pdf | Case Report for May 17, 2019
NONPRECEDENTIAL COURT DECISION
Gonzalez-Pagan v. Merit Systems Protection Board, No. 2018-1572 (Fed.
Cir. May 15, 2019) (MSPB Docket No. NY-4324-17-0161-I-1): The court
affirmed, per Rule 36, the administrative judge’s initial decision
dismissing for lack of jurisdiction the appellant’s Uniformed Services
Employment and Reemployment Rights Act appeal on the ground that he
failed to nonfrivolously allege that his military service was a substantial
or motivating factor in his nonselection.
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Case Report - May 3, 2019 | 05-03-2019 | https://www.mspb.gov/decisions/case_reports/Case_Report_May_3_2019_1613377.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_May_3_2019_1613377.pdf | Case Report for May 3, 2019
COURT DECISIONS
NONPRECEDENTIAL:
Coppola v. Department of Veterans Affairs, No. 2018-1301 (Fed. Cir. Apr. 26,
2019) (MSPB Docket No. SF-1221-17-0027-W-1): The court vacated the decision
of the administrative judge that dismissed the petitioner’s individual right of
action (IRA) appeal for lack of jurisdiction as barred by a prior settlement
agreement. The court found, contrary to the administrative judge’s finding,
that the waiver contained in the settlement agreement at issue was limited to
claims that could arise from the petitioner’s equal employment opportunity
complaint and did not apply to his whistleblower retaliation claims. The court
therefore remanded the appeal for consideration of his IRA appeal.
Benton v. Merit Systems Protection Board and Nuclear Regulatory Commission,
No. 2015-3004 (Fed. Cir. Apr. 30, 2019) (MSPB Docket No. DC-1221-13-0508-W
1): The court granted in part the petitioner’s motion and ordered the Board to
transfer his appeal, which the court had previously remanded to the Board,
from the “petition for review level” to an administrative judge for review and
resolution of the remanded issues.
Mogil v. Department of Veterans Affairs, No. 2018-1673 (Fed. Cir. May 1, 2019
(MSPB Docket No. CH-0714-18-0060-I-1): The court affirmed the administrative
judge’s decision that upheld the petitioner’s removal pursuant to 38 U.S.C.
§ 714 for damaging Government property. The court assumed, without
deciding, that it may review the reasonableness of the penalty in cases brought
pursuant to section 714 and determined that the petitioner failed to show that
removal was unreasonable under the circumstances. The court did not decide
the statutory interpretation issue because any error by the Board in
interpreting section 714 here was harmless.
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Case Report - April 26, 2019 | 04-26-2019 | https://www.mspb.gov/decisions/case_reports/Case_Report_April_26_2019_1611188.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_April_26_2019_1611188.pdf | Case Report for April 26, 2019
NONPRECEDENTIAL COURT DECISIONS
Hiller v. Department of Homeland Security, No. 2018-1244 (Fed. Cir. Apr. 22,
2019) (MSPB Docket No. AT-1221-16-0687-W-1): The court affirmed the Board’s
decision in this individual right of action appeal. The court found that the
administrative judge did not abuse his discretion by denying the petitioner’s
requested witnesses or by declining to postpone the hearing. On the merits,
the court found that substantial evidence supported the administrative judge’s
finding, based on the Carr factors, that the agency showed by clear and
convincing evidence that it would have reassigned the petitioner even absent
her whistleblowing activity.
Grover v. Office of Personnel Management, No. 2018-2102 (Fed. Cir. Apr. 24,
2019) (MSPB Docket No. CH-0831-13-2586-M-1): In a 2016 decision, the court
remanded this retirement appeal to the Board to make additional findings
regarding the amount of overtime pay received by the petitioner. On remand,
the Board determined that the petitioner had failed to establish that the Office
of Personnel Management (OPM) erred in calculating his retirement annuity.
The court affirmed. The court rejected the petitioner’s argument that
regulations relating to premium pay and relocation allowances, upon which
OPM relied in calculating his annuity, were adopted contrary to statutory
authority.
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Case Report - April 19, 2019 | 04-19-2019 | https://www.mspb.gov/decisions/case_reports/Case_Report_April_19_2019_1609026.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_April_19_2019_1609026.pdf | Case Report for April 19, 2019
COURT DECISIONS
NONPRECEDENTIAL:
Denofrio v. Department of Veterans Affairs, No. 2018-1671 (April 15, 2019)
(Rule 36 affirmance).
Hayden v. Department of the Air Force, No. 2018-1589 (April 16, 2019) (Rule
36 affirmance).
Hairston v. Department of Veterans Affairs, No. 2018-2053 (April 16, 2019)
(denying the petitioner’s request for a writ of mandamus to compel the Board
to rule on his motion concerning whether the Board would have affirmed his
removal had it known of certain alleged information at the time of its
decision).
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Case Report - April 12, 2019 | 04-12-2019 | https://www.mspb.gov/decisions/case_reports/Case_Report_April_12_2019_1606757.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_April_12_2019_1606757.pdf | Case Report for April 12, 2019
NONPRECEDENTIAL COURT DECISION
Bough v. Department of the Interior, Nos. 2018-1477, 2018-1478 (Fed.
Cir. Apr. 5, 2019) (MSPB Docket Nos. DE-1221-14-0237-W-2, DE-1221-14
0394-W-2): The court affirmed, per Rule 36, the administrative judge’s
initial decisions denying on the merits the appellant’s requests for
corrective action under the Whistleblower Protection Act because the
appellant failed to show that one of his claimed personnel actions fit
the statutory definition of a “personnel action” and failed to show that
his protected activity was a contributing factor in the remaining
personnel actions.
U.S. SUPREME COURT DENIAL OF CERTIORARI
Petitioner: Derek T. Williams
Respondent: Merit Systems Protection Board, et al.
Case Number: 18-694
Decision Below: 892 F.3d 1156 (Fed. Cir. June 11, 2018)
MSPB Docket Number: DA-0752-15-0530-M-1
Issuance Date: April 1, 2019
The Supreme Court denied the appellant’s petition for writ of certiorari
of the Federal Circuit’s decision, which affirmed the Board’s dismissal
of his termination appeal for lack of jurisdiction. The denial of
certiorari made final the Federal Circuit’s decision, which found that
the Board correctly determined that the “continuing employment
contract” theory set forth in Roden v. Tennessee Valley Authority,
25 M.S.P.R. 363 (1984), was contrary to Office of Personnel
Management’s regulations, and that the appellant could not meet the
requirement of “current continuous service” by serving in a series of
temporary appointments.
The court specifically disapproved of Exum v.
Department of Veterans Affairs, 62 M.S.P.R. 344 (1991), which held that
an employee could retain appeal rights in a prior position if the agency
failed to inform him that the change in position might result in a loss of
appeal rights, and affirmed its previous holding in Carrow v. Merit
Systems Protection Board, 626 F.3d 1348, 1353 (Fed. Cir. 2010), which
held that an agency’s failure to advise an employee of the terms of his
appointment does not create appeal rights for positions that were not
given appeal rights by Congress. Finally, the Federal Circuit rejected
the appellant’s argument that the Board violated his due process rights
by overruling Roden during the pendency of his appeal.
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Case Report - March 29, 2019 | 03-29-2019 | https://www.mspb.gov/decisions/case_reports/Case_Report_March_29_2019_1602265.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_March_29_2019_1602265.pdf | Case Report for March 29, 2019
NONPRECEDENTIAL COURT DECISIONS
Patacca v. Department of the Navy, No. 2018-1882 (Fed. Cir. Mar. 27,
2019) (MSPB Docket No. SF-0752-17-0574-I-1): In an initial decision that
became the final decision of the Board after neither party filed a
petition for review, the administrative judge affirmed the agency’s
action removing the appellant for delay in carrying out her work
assignments, failure to follow supervisory instructions, and
inappropriate conduct. After the appellant waived her discrimination
claims, the court accepted jurisdiction over her appeal. The court
affirmed the initial decision, finding that the appellant did not establish
reversible error in the initial decision or show that the administrative
judge abused his discretion in denying her requests to reschedule the
hearing or to call additional witnesses.
Hickey v. Department of Homeland Security, Nos. 2018-1585, 2018-1650
(Fed. Cir. Mar. 22, 2019) (MSPB Docket Nos. 1221-15-0013-A-1, PH-1221
15-0013-P-1): After the appellant prevailed in his individual right of
action appeal, he requested damages and attorney fees. In initial
decisions that became the final decisions of the Board after neither
party petitioned for review, the administrative judge awarded the
appellant $122,132.47 in attorney fees and costs and $10,000 in
compensatory damages but found that he was not entitled to
consequential damages. On appeal, the court affirmed the
administrative judge’s compensatory and consequential damages
determinations. However, the court found that the administrative judge
abused his discretion by capping the hourly rate for the appellant’s
attorneys at a rate established in an unrelated case from a different
jurisdiction, without providing any explanation for such a
determination, rather than applying the hourly rate agreed to in the
retainer agreement. Thus, the court vacated the attorney fees
determination and remanded the matter for further adjudication.
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Case Report - March 15, 2019 | 03-15-2019 | https://www.mspb.gov/decisions/case_reports/Case_Report_March_15_2019_1597597.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_March_15_2019_1597597.pdf | Case Report for March 15, 2019
NONPRECEDENTIAL COURT DECISION
Jimenez v. Department of Justice, No. 2017-2371 (Fed. Cir. Mar. 11,
2019) (MSPB Docket No. DE-4324-15-0417-I-1): The court affirmed, per
Rule 36, the administrative judge’s decision denying the appellant’s
request for corrective action under the Uniformed Services Employment
and Reemployment Rights Act of 1994.
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Case Report - February 8, 2019 | 02-08-2019 | https://www.mspb.gov/decisions/case_reports/Case_Report_February_8_2019_1585906.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_February_8_2019_1585906.pdf | Case Report for February 8, 2019
NONPRECEDENTIAL COURT DECISION
Yandoc v. Office of Personnel Management, No. 2018-2302 (Fed. Cir.
Feb. 6, 2018) (MSPB Docket No. SF-0831-18-0341-I-1): The court
affirmed the administrative judge’s decision affirming the Office of
Personnel Management’s denial of the appellant’s request for a Civil
Service Retirement System survivor annuity based on the Federal service
of her late husband. The court agreed that the service of the
appellant’s late husband was not “covered” service subject to the Civil
Service Reform Act and, thus, that the appellant was not entitled to a
survivor annuity based on such service.
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Case Report - December 14, 2018 | 12-14-2018 | https://www.mspb.gov/decisions/case_reports/Case_Report_December_14_2018_1578537.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_December_14_2018_1578537.pdf | Case Report for December 14, 2018
NONPRECEDENTIAL COURT DECISIONS
Ramirez v. Department of Homeland Security, No. 2018-1098 (Fed. Cir. Dec. 7,
2018) (Arbitration No. FMCS 17-1168-1): Consistent with its recent decision in
Federal Education Association – Stateside Region v. Department of Defense,
the court dismissed as untimely a petition for review from an arbitrator’s
decision sustaining the petitioner’s demotion. The court determined that the
petition was untimely because the petitioner filed it more than 60 days after
the arbitrator issued notice of the decision. The court held that the delay in
filing was not subject to equitable tolling because the timeliness of the
petition for review is a jurisdictional issue.
Ahuruonye v. Department of the Interior, No. 2018-2163 (Fed. Cir. Dec. 7,
2018) (MSPB Docket No. DC-1221-15-0295-M-1): In a 2017 decision, the court
remanded this individual right of action appeal to the Board to make additional
findings regarding whether the agency proved, by clear and convincing
evidence, that it would have proposed the petitioner’s suspension in the
absence of his protected disclosures. On remand, the Board made additional
findings and determined that the agency had met its burden. It therefore
denied the petitioner’s request for corrective action. The court affirmed.
The court rejected the petitioner’s arguments that the Board applied the
wrong law and failed to give preclusive effect to a prior decision. The court
also found that any error by the Board in failing to rule on a motion to strike
did not cause the petitioner substantial harm. Finally, the court found that the
Board properly addressed the issue of the retaliatory motive of the official who
recommended the petitioner’s suspension.
Allen v. Merit Systems Protection Board, No. 2018-1649 (Fed. Cir. Dec. 11,
2018) (Per Curiam) (MSPB Docket No. SF-0752-08-0343-I-1): The court dismissed
the petition for review as untimely filed.
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Case Report - December 7, 2018 | 12-07-2018 | https://www.mspb.gov/decisions/case_reports/Case_Report_December_7_2018_1576601.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_December_7_2018_1576601.pdf | Case Report for December 7, 2018
COURT ORDER
Petitioners: Federal Education Association – Stateside Region, Karen Graviss
Respondent: Department of Defense, Domestic Dependents Elementary
and Secondary School
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2015-3173
Arbitrator’s Decision No.: 14-1024-00182-7
Issuance Date: December 3, 2018
The agency removed the respondent from her position and she sought review
of the removal by an arbitrator. The arbitrator issued a decision sustaining the
removal. The respondent then petitioned the Federal Circuit for review of the
arbitrator’s decision. The Federal Circuit initially reversed the arbitrator’s
decision in a panel decision, then the full court granted en banc review and
vacated the panel decision. Before the en banc oral argument, the Federal
Circuit discovered that the timeliness of the appeal was in question. After en
banc oral argument and supplemental briefing concerning the timeliness issue,
the en banc court dissolved the en banc status and returned the case back to
the original panel. In a panel decision, the court dismissed the appeal for lack
of jurisdiction because it found that the petition for review of the arbitrator’s
decision was untimely filed under 5 U.S.C. § 7703(b)(1).
The respondent subsequently filed a petition for rehearing en banc, which was
initially referred as a petition for rehearing to the original panel and then
referred to the circuit judges who are in regular active service. The judges
denied the petition for panel rehearing and the petition for rehearing en banc.
Circuit Judge Wallach, joined by Circuit Judges Newman and O’Malley,
dissented from the denial of the petition for rehearing en banc, submitting
that the majority’s interpretation that the filing deadline set by 5 U.S.C.
§ 7703(b)(1) is jurisdictional is inconsistent with U.S. Supreme Court
precedent.
Circuit Judge Plager issued a separate dissent from the denial of the petition
for panel rehearing, similarly submitting that the majority’s interpretation that
the filing deadline is jurisdictional is contrary to U.S. Supreme Court
precedent.
BOARD DECISION ON STAY REQUEST
NONPRECEDENTIAL:
Special Counsel ex rel.
Robert Cameron v. Department of Veterans Affairs,
MSPB Docket No. CB-1208-19-0001-U-1 (November 30, 2018). The Board
granted a request by the Office of Special Counsel (OSC) to stay for 45 days the
separation of Dr. Robert Cameron, a thoracic surgeon at the agency’s Greater
Los Angeles Healthcare System, while it completes its investigation and legal
review of the matter and determines whether to seek corrective action. The
Board found, based on OSC’s assertions in its stay request and given the
deference generally afforded to OSC in these requests, that there are
reasonable grounds to believe that the agency decided to separate and
coerced the retirement of Dr. Cameron based on his protected disclosures
regarding patient health and safety in violation of 5 U.S.C. § 2302(b)(8).
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Case Report - November 9, 2018 | 11-09-2018 | https://www.mspb.gov/decisions/case_reports/Case_Report_November_9_2018__1569377.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_November_9_2018__1569377.pdf | Case Report for November 9, 2018
NONPRECEDENTIAL COURT DECISIONS
Labio v. Office of Personnel Management, No. 2018-1796 (Fed. Cir.
Nov. 7, 2018) (MSPB Docket No. SF-0831-18-0026-I-1): The court
affirmed the administrative judge’s decision affirming the Office of
Personnel Management’s denial of the appellant’s application for
deferred annuity under the Civil Service Retirement Act (CSRS). At issue
was the appellant’s service with the Department of the Navy in Subic
Bay, Philippines.
The court relied on its precedent in Lledo v. Office of
Personnel Management, 886 F.3d 1211 (Fed. Cir. 2018), to reject the
appellant’s argument that 5 C.F.R. § 831.303(a) converted his service in
this CSRS creditable position to CSRS covered service, thereby entitling
him to a deferred annuity.
Lucchetti v. U.S. Department of the Interior, No. 17-71081 (9th Cir.
Nov. 5, 2018) (MSPB Docket No. SF-1221-16-0091-W-3): The court
affirmed the Board’s decision denying the appellant’s request for
corrective action under the Whistleblower Protection Act. The Board
found that the agency proved by clear and convincing evidence that it
would have terminated the appellant during his probationary period
absent his protected disclosures. The court agreed with the Board’s
analysis of the three factors set forth in Carr v. Social Security
Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999). In doing so, the
court stated that it “would have been aided by a more detailed
discussion from the Board” regarding the second Carr factor, which
concerns the agency’s motive to retaliate. The court also found that
the relevant inquiry for the third Carr factor, which concerns the
agency’s treatment of similarly situated employees, is not whether
other whistleblowers faced adverse personnel actions for making similar
disclosures. Although it found it instructive that the agency did not
discipline others who made similar disclosures, the court observed that
the relevant inquiry is whether the agency took action against any
similarly situated probationary employees who were not whistleblowers.
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Case Report - October 26, 2018 | 10-26-2018 | https://www.mspb.gov/decisions/case_reports/Case_Report_October_26_2018_1565237.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_October_26_2018_1565237.pdf | Case Report for October 26, 2018
COURT DECISIONS
NONPRECEDENTIAL:
MacLean v. Department of Homeland Security, No. 2018-1068 (Oct. 24, 2018)
(MSPB Docket No. SF-0752-06-0611-C-1): The Court affirmed the Board’s
rulings regarding the appellant’s request for consequential damages, a
retroactive promotion, and an evidentiary hearing following his reinstatement.
The Court held that it was not unreasonable for the Board to require the
appellant to file receipts or doctors’ notes to substantiate his claim for
consequential damages (medical and dental expenses). The Court rejected the
appellant’s request that it overrule its precedent requiring reinstated
whistleblowers to clearly establish an entitlement to a promotion and instead
rule that he need only demonstrate that it was more likely than not that he
would have been promoted had he not been wrongfully removed. To overrule
precedent, the Court must rule en banc. Finally, the Court held that the Board
did not abuse its discretion in not convening an evidentiary hearing regarding
the appellant’s petition for enforcement when it afforded the parties ample
opportunity to submit substantial information into the record.
MSPB | Case Reports | Recent Decisions | Follow us on Twitter | MSPB Listserv | 1,258 | |
Case Report - October 12, 2018 | 10-12-2018 | https://www.mspb.gov/decisions/case_reports/Case_Report_October_12_2018_1560744.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_October_12_2018_1560744.pdf | Case Report for October 12, 2018
COURT DECISIONS
NONPRECEDENTIAL:
Reboja v. Office of Personnel Management, No. 2018-1615 (Fed. Cir. Oct. 5,
2018) (MSPB Docket No. SF-0831-17-0676-I-1): The court affirmed the
administrative judge’s decision affirming the Office of Personnel
Management’s denial of the petitioner’s request for annuity benefits under the
Civil Service Retirement System (CSRS). The court found that the petitioner’s
Federal service was excluded from coverage under the Civil Service Retirement
Act and that he therefore was not eligible for CSRS annuity benefits. The court
rejected the petitioner’s argument that he was entitled to CSRS annuity
benefits because he could convert his Federal service into covered service
under 5 C.F.R. § 831.303(a).
MacLean v. Department of Homeland Security, No. 2018-1037 (Fed. Cir. Oct. 5,
2018) (MSPB Docket No. SF-0752-06-0611-A-1): The court affirmed, per Rule
36, the administrative judge’s decision that granted in part the petitioner’s
motion for attorney fees and costs.
MSPB | Case Reports | Recent Decisions | Follow us on Twitter | MSPB Listserv | 1,110 | |
Case Report - October 5, 2018 | 10-05-2018 | https://www.mspb.gov/decisions/case_reports/Case_Report_October_5_2018_1559158.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_October_5_2018_1559158.pdf | Case Report for October 5, 2018
NONPRECEDENTIAL COURT DECISIONS
Ogburn v. Merit Systems Protection Board, No. 2018-1716 (Fed. Cir.
Oct 2, 2018) (MSPB Docket No. DC-0841-18-0135-I-1): The court
affirmed the administrative judge’s decision dismissing for lack of
jurisdiction the appellant’s appeal of a rescinded final decision by the
Office of Personnel Management regarding the appellant’s disability
retirement benefits. The court also found that, insofar as the appellant
raised claims of involuntary retirement and a negative suitability
determination, the Board lacked jurisdiction because the appellant was
an employee of the Office of the Director of National Intelligence,
which is excluded from the reach of 5 U.S.C. § 7511.
Jolley v. Merit Systems Protection Board, No 2018-1538 (Fed. Cir.
Oct. 2, 2018) (MSPB Docket Nos. SF-4324-17-0728-I-1, AT-3330-18-0074
I-1): The court affirmed administrative judge’s decisions dismissing for
lack of jurisdiction the appellant’s nonselection appeals under the
Veterans Employment Opportunities Act and the Uniformed Services
Employment and Reemployment Rights Act of 1994.
MSPB | Case Reports | Recent Decisions | Follow us on Twitter | MSPB Listserv | 1,202 | |
Case Report - September 7, 2018 | 09-07-2018 | https://www.mspb.gov/decisions/case_reports/Case_Report_September_7_2018_1550768.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_September_7_2018_1550768.pdf | Case Report for September 7, 2018
COURT ORDER
Petitioner: Justin Grimsrud
Respondent: Department of Transportation
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2017-1737
MSPB Docket No.: NY-0752-14-0340-I-1.
Issuance Date: August 31, 2018
The agency removed the appellant from his position as a result of a
positive drug test. He appealed his removal to the Board. The
administrative judge issued an initial decision sustaining the removal,
which became the final decision of the Board when the two Board
members could not agree on the disposition of the petition for review.
The appellant then appealed his removal to the Federal Circuit. In a
panel decision, the court affirmed the administrative judge’s decision.
The appellant petitioned for panel rehearing and rehearing en banc.
The panel that heard the appeal denied the appellant’s petition for
panel rehearing. Thereafter, the petition for rehearing en banc was
referred to the circuit judges who are in regular active service. The
judges denied the petition for rehearing en banc by a 10-2 vote.
Circuit Judge Newman, jointed by Circuit Judge Wallach, dissented from
the denial of the petition for rehearing en banc on the ground that the
appellant’s request for rehearing en banc should be granted to
determine whether the agency violated his due process rights in refusing
to permit him to retest the urine sample that was the basis of his
removal.
Circuit Judge Wallach issued a separate dissent from the denial of the
petition for rehearing en banc to add that the “possibility of sample
contamination simply has not been eliminated on this record” and that
“to simply take [the agency’s] assurances with no other support in the
record is a direct violation of [the appellant’s] constitutional rights.”
Circuit Judge Lourie, joined by Circuit Judge Chen, concurred in the
denial of the petition for rehearing en banc on the ground that the
question identified by the dissent did not meet the standard for en banc
review under Federal Rule of Civil Procedure 35(a) because it was not
“necessary to secure or maintain the uniformity of the court’s
decisions” and did not “involve[] a question of exceptional importance.”
The concurrence also noted that the appellant did not raise this issue in
the petition for rehearing, which “underscore[d] the lack of necessity
for en banc review in this case.” The concurrence disagreed with the
dissent’s suggestion that the appellant was entitled to additional testing
of his urine specimen for drugs and DNA, noting that the agency
complied with its requirements pertaining to drug tests and that the
appellant availed himself of the opportunity to request a second test of
the sample at another laboratory. The concurrence observed that
“[d]ue process does not require unlimited testing.” The concurrence
also noted that the appellant had “alternative means of demonstrating
his innocence” and stated that the administrative judge’s rejection of
his “fact-specific challenges and credibility determinations are not an
appropriate subject for en banc review.” Lastly, the concurrence found
that due process does not require the agency to make the appellant’s
urine sample available to him for DNA testing.
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Case Report - August 17, 2018 | 08-17-2018 | https://www.mspb.gov/decisions/case_reports/Case_Report_August_17_2018_1545064.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_August_17_2018_1545064.pdf | Case Report for August 17, 2018
Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the Board
itself, and are not intended to provide legal counsel or to be cited as legal
authority. Instead, they are provided only to inform and help the public locate
Board precedents.
COURT DECISIONS
NONPRECEDENTIAL:
Hansen v. Merit Systems Protection Board, No. 2017-2025 (Aug. 15, 2018)
(MSPB Docket No. DC-1221-17-0033-W-1): The court affirmed in part, reversed
in part, and remanded an administrative judge’s decision that dismissed the
appellant’s individual right of action appeal for lack of jurisdiction. The
administrative judge found that the appellant failed to make a nonfrivolous
allegation that any of his seven claimed disclosures were protected, but the
court found that the appellant made a nonfrivolous allegation that two of them
were protected. As for the remaining disclosures, which consisted merely of
policy disputes, the court considered but rejected the appellant’s theory that
several policy disputes can, in the aggregate, demonstrate “gross
mismanagement.” | 1,150 | |
Case Report - July 20, 2018 | 07-20-2018 | https://www.mspb.gov/decisions/case_reports/Case_Report_July_20_2018_1536590.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_July_20_2018_1536590.pdf | Case Report for July 20, 2018
COURT DECISION
NONPRECEDENTIAL:
Sankey v. Merit Systems Protection Board, No. 2018-1374 (Fed. Cir.
July 13, 2018) (MSPB Docket No. AT-315H-17-0584-I-1): The court
affirmed the administrative judge’s decision dismissing for lack of
jurisdiction the appellant’s appeal of her termination from her
competitive-service position during her probationary period.
MSPB | Case Reports | Recent Decisions | Follow us on Twitter | MSPB Listserv | 464 | |
Case Report - July 13, 2018 | 07-13-2018 | https://www.mspb.gov/decisions/case_reports/Case_Report_July_13_2018_1534485.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_July_13_2018_1534485.pdf | Case Report for July 13, 2018
COURT DECISIONS
NONPRECEDENTIAL:
Searcy v. Merit Systems Protection Board, No. 2018-1370 (Fed. Cir. July 10,
2018) (MSPB Docket No. AT-4324-12-0759-C-1): The court affirmed the
administrative judge’s decision that dismissed the petitioner’s Petition for
Enforcement and/or Motion for Corrected Judgment for lack of jurisdiction.
The court found that a petitioner cannot use the Board’s enforcement
authority to overturn or otherwise challenge the merits of prior Board
decisions and that, because the Board did not issue an order in the petitioner’s
favor here, there is no order to enforce. The court also rejected the
petitioner’s argument that the Board was required to reopen its previous
decisions under McCarthy v. Merit Systems Protection Board, 809 F.3d 1365
(Fed. Cir. 2016).
MSPB | Case Reports | Recent Decisions | Follow us on Twitter | MSPB Listserv | 893 | |
Case Report - July 6, 2018 | 07-06-2018 | https://www.mspb.gov/decisions/case_reports/Case_Report_July_6_2018_1532312.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_July_6_2018_1532312.pdf | Case Report for July 6, 2018
COURT DECISIONS
NONPRECEDENTIAL:
Boyd v. Department of Veterans Affairs, No. 18-1459 (Jul. 2, 2018) (MSPB
Docket No. AT-0752-17-0412-I-1): The court affirmed the administrative
judge’s decision upholding the appellant's removal based on sustained charges
of inappropriate conduct and failure to follow a supervisor’s instructions.
Boyd v. Department of Veterans Affairs, No. 18-1460 (Jul. 2, 2018) (MSPB
Docket No. AT-1221-17-0363-W-1): The court affirmed the administrative
judge’s decision to deny corrective action in this individual right of action
appeal because the agency proved by clear and convincing evidence that the
agency would have taken the same personnel actions (conducting an
investigation into the appellant’s misconduct, issuing a notice of proposed
removal, and assigning her to an alternate work location) in the absence of the
appellant’s whistleblowing disclosures. The court also affirmed the
administrative judge’s conclusion that the agency did not subject the appellant
to a hostile work environment because she failed to prove that the agency’s
actions were sufficiently severe or pervasive to constitute a material change in
her working conditions.
MSPB | Case Reports | Recent Decisions | Follow us on Twitter | MSPB Listserv | 1,287 | |
Case Report - May 11, 2018 | 05-10-2018 | https://www.mspb.gov/decisions/case_reports/Case_Report_May_11_2018_1515280.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_May_11_2018_1515280.pdf | Case Report for May 11, 2018
COURT DECISIONS
NONPRECEDENTIAL:
Kruise v. Department of the Army, No. 2018-1312 (Fed. Cir. May 4, 2018)
(MSPB Docket No. DC-0752-17-0839-I-1) (affirming the Board’s
dismissal of an appeal based on claim preclusion and the payment
limitation of the Back Pay Act).
Danaha v. Merit Systems Protection Board, No. 2017-2309 (Fed. Cir. May
7, 2018) (MSPB Docket No. CH-0841-17-0199-I-1) (Rule 36 affirmance).
MSPB | Case Reports | Recent Decisions | Follow us on Twitter | MSPB Listserv | 511 | |
Case Report - April 20, 2018 | 04-20-2018 | https://www.mspb.gov/decisions/case_reports/Case_Report_April_20_2018_1509281.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_April_20_2018_1509281.pdf | Case Report for April 20, 2018
Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the Board
itself, and are not intended to provide legal counsel or to be cited as legal
authority. Instead, they are provided only to inform and help the public locate
Board precedents.
COURT DECISIONS
NONPRECEDENTIAL:
Wells v. Merit Systems Protection Board, No. 2017-2177 (Fed. Cir. Apr. 17,
2018) (AT-0831-16-0804-I-1) (affirming the Board’s decision that dismissed as
moot an appeal of the final decision of the Office of Personnel Management
(OPM) reducing the petitioner’s retirement annuity; OPM rescinded its decision
and granted the petitioner an opportunity to make the necessary deposit to
avoid a reduction). | 782 | |
Case Report - April 13, 2018 | 04-13-2018 | https://www.mspb.gov/decisions/case_reports/Case_Report_April_13_2018_1506898.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_April_13_2018_1506898.pdf | Case Report for April 13, 2018
COURT DECISIONS
NONPRECEDENTIAL:
Mitrano v. Department of the Air Force, No. 2017-2572 (Fed. Cir. Apr. 6, 2018)
(MSPB Docket No. DE-0752-17-0086-I-1) (affirming the Board’s decision that
sustained the petitioner’s removal based on charges of inability to perform
assigned duties and refusal to comply with proper instructions).
Grimsrud v. Department of Transportation, No. 2017-1737 (Fed. Cir. Apr. 13,
2018) (MSPB Docket No. NY-0752-14-0340-I-1) (Rule 36 affirmance).
MSPB | Case Reports | Recent Decisions | Follow us on Twitter | MSPB Listserv | 579 | |
Case Report - April 6, 2018 | 04-06-2018 | https://www.mspb.gov/decisions/case_reports/Case_Report_April_6_2018_1504743.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_April_6_2018_1504743.pdf | Case Report for April 6, 2018
COURT DECISIONS
NONPRECEDENTIAL:
Litchfield v. Merit Systems Protection Board, No. 2017-2165 (Fed. Cir. Apr. 4,
2018) (MSPB Docket No. AT-1221-15-0621-W-1) (Rule 36 affirmance).
Coulibaly v. Merit Systems Protection Board, Nos. 16-1154 and 16-1155 (D.C.
Cir. Apr. 3, 2018) (MSPB Docket Nos. DC-1221-15-0205-W-1, DC-1221-16-0211
W-1) (granting, by way of an unpublished decision under D.C. Circuit Rule 36,
the respondent’s motion for summary disposition because the petitioner did
not demonstrate any error in the Board’s dismissal of his individual right of
action appeals as barred by the doctrine of collateral estoppel).
Bal v. Department of the Navy, No. 2017-1200 (Fed. Cir. Mar. 30, 2018) (MSPB
Docket No. SF-0752-15-0442-I-1) (vacating and remanding the Board’s decision
to sustain the appellant’s removal because, in assessing the reasonableness of
his removal, the Board improperly discounted the appellant’s medical evidence
that his misconduct was due to his depression, erred in requiring the appellant
to show that his depression was so severe as to incapacitate him instead of
assessing whether it was a mitigating factor to the charged misconduct, and
failed to consider the appellant’s potential for rehabilitation as a mitigating
factor, the consistency of the penalty, and the adequacy and effectiveness of
alternative sanctions under Douglas v. Veterans Administration, 5 M.S.P.B. 313
(1981)).
Trinkl v. Merit Systems Protection Board, 2017-1378 (Fed. Cir. Mar. 30, 2018)
(MSPB Docket No. DC-0752-16-0387-I-1) (vacating and remanding the Board’s
decision to dismiss the appellant’s involuntary retirement appeal for lack of
jurisdiction because the Board erred in considering and dismissing the
appellant’s allegations of intolerable working conditions individually, rather
than viewing them collectively as a series of escalating incidents culminating in
the appellant’s retirement, and by considering the relative probative value of
the appellant’s allegations prior to a jurisdictional hearing; the appellant’s
allegations that he was threatened with violence that compounded his Post
Traumatic Stress Disorder and was forced to continue working with the
supervisors involved in the threatened violence constituted nonfrivolous
allegations that his working conditions were so intolerable that he could have
reasonably felt driven to resign, entitling him to a jurisdictional hearing).
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Case Report - March 23, 2018 | 03-23-2018 | https://www.mspb.gov/decisions/case_reports/Case_Report_March_23_2018_1500599.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_March_23_2018_1500599.pdf | Case Report for March 23, 2018
COURT DECISIONS
NONPRECEDENTIAL:
Maki v. Department of Justice, No. 2017-1201 (Mar. 16, 2018) (MSPB Docket
No. SF-4324-15-0591-I-1) (Rule 36 affirmance).
MSPB | Case Reports | Recent Decisions | Follow us on Twitter | MSPB Listserv | 263 | |
Case Report - February 23, 2018 | 02-23-2018 | https://www.mspb.gov/decisions/case_reports/Case_Report_February_23_2018_1492033.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_February_23_2018_1492033.pdf | Case Report for February 23, 2018
COURT DECISIONS
NONPRECEDENTIAL:
Lockwood v. Department of Veterans Affairs, No. 2017-1489 (Fed. Cir. Feb. 21,
2018) (FMCS No. 16-54073-7) (affirming the arbitrator’s decision to sustain the
indefinite suspension and finding that the agency properly invoked the
shortened notice period set forth in 5 U.S.C. § 7513(b)(2) based upon
reasonable cause that Mr. Lockwood committed a crime (stalking) for which a
sentence of imprisonment may be imposed).
MSPB | Case Reports | Recent Decisions | Follow us on Twitter | MSPB Listserv | 562 | |
Case Report - February 8, 2018 | 02-08-2018 | https://www.mspb.gov/decisions/case_reports/Case_Report_February_8_2018_1487814.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_February_8_2018_1487814.pdf | Case Report for February 8, 2018
COURT DECISIONS
NONPRECEDENTIAL:
Asrari v. Department of Homeland Security, No. 2017-1064 (Feb. 8, 2018)
(Rule 36 affirmance).
MSPB | Case Reports | Recent Decisions | Follow us on Twitter | MSPB Listserv | 238 | |
Case Report - December 22, 2017 | 12-20-2017 | https://www.mspb.gov/decisions/case_reports/Case_Report_December_22_2017_1474125.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_December_22_2017_1474125.pdf | Case Report for December 22, 2017
COURT DECISIONS
NONPRECEDENTIAL:
Lowenstein v. Department of Veterans Affairs, No. 2017-2358 (Dec. 18, 2017)
(MSPB Docket No. CH-1221-17-0108-W-1) (affirming the administrative judge’s
conclusion that the agency did not violate the whistleblower protection
statutes when it terminated the appellant’s appointment).
MSPB | Case Reports | Recent Decisions | Follow us on Twitter | MSPB Listserv | 427 | |
Case Report - November 22, 2017 | 11-22-2017 | https://www.mspb.gov/decisions/case_reports/Case_Report_November_22_2017_1466004.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_November_22_2017_1466004.pdf | Case Report for November 22, 2017
COURT DECISION
NONPRECEDENTIAL:
Salerno v. Department of the Interior, No. 2017-1145 (November 17,
2017) (MSPB Docket No. SF-1221-14-0756-B-1) (affirming the Board’s
denial of corrective action in this individual right of action appeal and
finding that the Board did not err in approving the administrative
judge’s decision to limit the evidence received to the 30-day suspension
at issue in the appeal).
MSPB | Case Reports | Recent Decisions | Follow us on Twitter | MSPB Listserv | 517 | |
Case Report -November 17, 2017 | 11-17-2017 | https://www.mspb.gov/decisions/case_reports/Case_Report_November_17_2017_1464537.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_November_17_2017_1464537.pdf | Case Report for November 17, 2017
COURT DECISIONS
NONPRECEDENTIAL:
Barry v. Department of Defense, No. 2017-2142 (Nov. 15, 2017) (MSPB Docket
No. PH-3330-17-0056-I-1) (affirming the Board’s decision that denied the
petitioner’s request for corrective action under the Veterans Employment
Opportunities Act of 1998 and dismissed his appeal under the Uniformed
Services Employment and Reemployment Rights Act of 1994 for lack of
jurisdiction).
Jones v. Department of Health and Human Services, No. 2017-1624 (Nov. 14,
2017) (MSPB Docket No. CH-0432-13-1527-B-1) (dismissing the petitioner’s
petition for review of the Board’s decision that sustained his removal for lack
of jurisdiction because it was untimely filed).
Standley v. Merit Systems Protection Board, No. 2017-1691 (Nov. 13, 2017)
(MSPB Docket No. DC-1221-16-0168-W-1) (affirming the Board’s decision that
dismissed the petitioner’s individual right of action appeal for lack of
jurisdiction, finding that the appellant failed to nonfrivolously allege that he
made a protected disclosure under 5 U.S.C. § 2302(b)(8) or engaged in
protected activity under 5 U.S.C. § 2302(b)(9)(D)).
Standley v. Merit Systems Protection Board, No. 2017-2082 (Nov. 13, 2017)
(MSPB Docket No. DC-1221-17-0091-W-1) (affirming the Board’s decision that
dismissed the petitioner’s individual right of action appeal for lack of
jurisdiction, finding that the appellant failed to exhaust his administrative
remedies as to certain claims and failed to nonfrivolously allege that he made
a protected disclosure under 5 U.S.C. § 2302(b)(8) as to the remaining claim).
Scott v. Department of State, No. 2017-1203 (Nov. 13, 2017) (MSPB Docket
No. DA-0752-14-0618-I-1) (affirming, per Rule 36, the Board’s decision that
sustained the petitioner’s removal).
Bowe-Connor v. Department of Veterans Affairs, No. 2017-2011 (Nov. 13,
2017) (MSPB Docket No. DC-0752-13-0668-I-1) (affirming the Board’s decision
that sustained the petitioner’s removal based on charges of causing delay in
patients receiving medications, conduct unbecoming, and disrespectful
conduct).
MSPB | Case Reports | Recent Decisions | Follow us on Twitter | MSPB Listserv | 2,169 | |
Case Report -November 9, 2017 | 11-09-2017 | https://www.mspb.gov/decisions/case_reports/Case_Report_November_9_2017_1462433.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_November_9_2017_1462433.pdf | Case Report for November 9, 2017
COURT DECISIONS
NONPRECEDENTIAL:
Moulter v. Department of Homeland Security, No. 2017-1958 (Nov. 9, 2017)
(affirming an arbitrator’s decision that dismissed the petitioner’s removal
appeal as moot and found that the petitioner failed to make a nonfrivolous
allegation that his retirement was involuntary).
MSPB | Case Reports | Recent Decisions | Follow us on Twitter | MSPB Listserv | 417 | |
Case Report - November 3, 2017 | 11-03-2017 | https://www.mspb.gov/decisions/case_reports/Case_Report_November_3_2017_1460779.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_November_3_2017_1460779.pdf | Case Report for November 3, 2017
LEGISLATION
Dr. Chris Kirkpatrick Whistleblower Protection Act of 2017, Pub. L.
No. 115-73, 131 Stat. 1235 (2017).
Enacted on October 26, 2017, this Act, among other things, does the
following:
Section 103
Amends 5 U.S.C. § 2302(b) to include subsection 2302(b)(14), which
makes it a prohibited personnel practice to “access the medical record
of another employee or an applicant for employment as part of, or
otherwise in furtherance of, [other prohibited personnel practices]
described in paragraphs (1) through (13).”
Section 104
Amends 5 U.S.C. chapter 75 to include section 7515, which requires the
head of the agency to discipline any supervisor found to have taken a
“prohibited personnel action” defined in section 2302(b)(8), (b)(9), or
(b)(14) against an employee. For the first prohibited personnel action
committed by the supervisor, the head of the agency shall propose, at a
minimum, a 3-day suspension. For the second prohibited personnel
action committed by the supervisor, the head of the agency shall
propose the supervisor’s removal. The supervisor is entitled to written
notice and an opportunity to respond to the proposed action.
Section 105
Amends 5 U.S.C § 1212, note, to require agency heads to report to the
Office of Special Counsel any instance in which an employee who made a
whistleblower disclosure commits suicide.
MSPB | Case Reports | Recent Decisions | Follow us on Twitter | MSPB Listserv | 1,459 | |
Case Report - October 6, 2017 | 10-06-2017 | https://www.mspb.gov/decisions/case_reports/Case_Report_October_6_2017_1452420.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_October_6_2017_1452420.pdf | Case Report for October 6, 2017
COURT DECISIONS
NONPRECEDENTIAL:
Weed v. Social Security Administration, No. 2017-1664 (October 5, 2017)
(MSPB Docket No. DE-1221-09-0320-P-2) (affirming the Board’s final
decision finding that, because the agency violated the appellant’s
veterans’ preference rights under the Veterans Employment
Opportunities Act of 1998, he was entitled to lost wages and benefits
from the date the agency filled the first of the four vacancies at issue
(September 5, 2006) through the date he rejected the agency’s
retroactive job offer (October 17, 2012) and that he was not entitled to
lost wages and benefits through the date the agency conceded that he
would have been selected absent its veterans preference violation
(March 29, 2013)).
Bailey v. Office of Personnel Management, No. 2017-2065 (October 4,
2017) (MSPB Docket No. DE-0845-17-0020-I-1) (affirming the Board’s
final decision finding that the Office of Personnel Management met its
burden to establish the existence and amount of an overpayment of
disability retirement benefits paid under the Federal Employees
Retirement System and that the appellant failed to show eligibility for a
waiver or further adjustment to the repayment schedule).
Bishop v. Department of Homeland Security, No. 2017-1892 (October 4,
2017) (MSPB Docket No. NY-1221-17-0092-W-1) (affirming the Board’s
final decision dismissing the appellant’s third individual right of action
appeal challenging his 2007 termination as barred by res judicata).
MSPB | Case Reports | Recent Decisions | Follow us on Twitter | MSPB Listserv | 1,586 | |
Case Report - September 15, 2017 | 09-15-2017 | https://www.mspb.gov/decisions/case_reports/Case_Report_September_15_2017_1445876.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_September_15_2017_1445876.pdf | Case Report for September 15, 2017
COURT DECISIONS
NONPRECEDENTIAL:
Olonode v. Department of Agriculture, No. 2017-1868 (September 8, 2017)
(MSPB Docket No. PH-1221-16-0352-W-1)(affirming the Board’s decision
denying corrective action in the petitioner’s individual right of action
(IRA) appeal).
Canarios v. U.S. Postal Service, No. 2017-1935 (September 11, 2017)
(MSPB Docket No. SF-0752-16-0734-I-1)(affirming the Board’s decision
upholding the petitioner’s removal).
Jolly v. Department of the Army, No. 2017-1919 (September 11, 2017)
(MSPB Docket No. AT-0752-15-0013-I-1)(affirming the Board’s decision
upholding the petitioner’s removal).
Davis v. Department of the Army, No. 2017-1740 (September 11, 2017)
(MSPB Docket Nos. DA-1221-12-0640-W-6, PH-315H-12-0551-I-1)
(affirming the Board’s decision dismissing the petitioner’s removal appeal
and denying corrective action in her IRA appeal).
Reid v. Office of Personnel Management, No. 2017-1810 (September 12,
2017)(MSPB Docket No. SF-0842-17-0039-I-1)(affirming the Board’s
decision holding that the petitioner’s military service was not creditable
towards the satisfaction of the general eligibility requirement for a
retirement annuity under the Federal Employees’ Retirement System).
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Case Report - August 18, 2017 | 08-18-2017 | https://www.mspb.gov/decisions/case_reports/Case_Report_August_18_2017_1438167.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_August_18_2017_1438167.pdf | Case Report for August 18, 2017
COURT DECISIONS
NONPRECEDENTIAL:
Rakowsky v. Office of Personnel Management, No. 2017-1742 (August 11,
2017) (MSPB Docket No. DE-0831-14-0388-I-1) (affirming the decisions of
the Board and OPM finding that the petitioner was not entitled to a
survivor’s annuity based on her late husband’s Federal service).
Licari v. Department of Transportation, No. 2017-1470 (August 11, 2017)
(FCMS 16-55055A) (affirming, as supported by substantial evidence, an
arbitration decision upholding the petitioner’s removal for unacceptable
performance).
Rose v. Department of Defense, No. 2017-1621 (August 11, 2017) (MSPB
Docket No. AT-1221-15-0538-W-1) (affirming the Board’s decision
dismissing the petitioner’s appeal as barred by res judicata).
Dale v. Department of the Navy, No. 2016-2488 (August 14, 2017) (MSPB
Docket No. PH-0752-13-1318-I-1) (affirming the Board’s decision
upholding the appellant’s furlough).
Ziegler v. Merit Systems Protection Board, No. 2017-1640 (August 15,
2017) (MSPB Docket Nos. DE-3443-02-0301-I-1, DE-3443-06-0454-M-1, DE
3443-06-0455-M-2) (affirming the Board’s decision dismissing a petition
for review as untimely filed).
Pogosyan v. Department of Homeland Security, No. 2017-1734 (August
16, 2017) (No. 171004-00014-A) (Rule 36 affirmance).
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Case Report - July 28, 2017 | 07-28-2017 | https://www.mspb.gov/decisions/case_reports/Case_Report_July_28_2017_1432161.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_July_28_2017_1432161.pdf | Case Report for July 28, 2017
COURT DECISIONS
NONPRECEDENTIAL:
Macias v. Department of the Army, No. 2016-2508 (July 24, 2017) (MSPB
Docket No. SF-0752-15-0385-I-2) (Rule 36 affirmance).
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Case Report - July 14, 2017 | 07-14-2017 | https://www.mspb.gov/decisions/case_reports/Case_Report_July_14_2017_1427935.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_July_14_2017_1427935.pdf | Case Report for July 14, 2017
NONPRECEDENTIAL BOARD DECISION OF NOTE
Appellant: Special Counsel ex rel. Dale Klein
Agency: Department of Veterans Affairs
Docket Number: CB-1208-16-0023-U-7
Issuance Date: July 13, 2017
Appeal Type: Request for Stay (OSC Filed)
Special Counsel Actions
Whistleblower Protection Act
Stays
On May 26, 2016, OSC filed a request for a 45-day stay of a decision of the
Department of Veterans Affairs (DVA) to terminate Dr. Klein during his
probationary period, effective April 28, 2016. The Board granted OSC’s stay
request, and subsequently granted several extensions of the stay, which was in
place from June 1, 2016, through May 12, 2017. On June 14, 2017, OSC filed
another stay request, seeking a 90-day stay of the removal action that DVA had
initiated on May 31, 2017 – after the previous stay’s expiration. Vice Chairman
Robbins denied the stay request without prejudice on the basis that the Board
lacked a quorum and thus had no authority to grant the stay extension under
current law. He noted, however, that Congress had recently passed legislation
amending 5 U.S.C. § 1214 to allow an individual Board member to extend a stay
granted under section 1214(b)(1)(A) during periods when the Board lacks a
quorum. Once the legislation was enacted, OSC would be allowed to file a new
request for a retroactive extension of the stay. On June 29, 2017, following the
enactment of the legislation, Vice Chairman Robbins granted OSC’s stay
request in part through July 14, 2017, retroactive to May 13, 2017. Vice
Chairman Robbins indicated that he would rule on the remaining balance of
OSC’s 90-day stay request once DVA had an opportunity to comment. DVA
timely filed an opposition to OSC’s request.
Holding: In a nonprecedential decision, Vice Chairman Robbins granted OSC’s
request to extend the stay through August 11, 2017.
1. The extension of a stay may be granted for any period that is considered
“appropriate.” 5 U.S.C. § 1214(b)(1)(B). However, the Board has recognized
congressional intent that stays not extend for “prolonged periods of time” and
that the Board thus has an obligation to press OSC to present corrective action
cases in a timely manner.
2. Vice Chairman Robbins determined that a brief extension through August 11,
2017, was appropriate to allow OSC to complete its investigation into the
proposed removal. However, he indicated that OSC was expected to complete
its investigation and determine whether to pursue corrective action within that
timeframe. Vice Chairman Robbins also stated that nothing in the Board’s
orders in this matter should be interpreted as authorizing Dr. Klein to refuse to
comply with a lawful instruction to return to work.
COURT DECISIONS
NONPRECEDENTIAL:
Solis v. Merit Systems Protection Board, No. 2016-1726 (July 12, 2017)
(MSPB Docket No. DA-3443-14-0065-B-1) (affirming the Board’s decision
dismissing the petitioner’s appeal of an alleged suitability action).
Keen v. Merit Systems Protection Board, No. 2017-1541 (July 13, 2017)
(MSPB Docket No. AT-0752-15-0473-I-1) (affirming the Board’s decision
dismissing the petitioner’s involuntary resignation appeal).
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Case Report -June 30, 2017 | 06-30-2017 | https://www.mspb.gov/decisions/case_reports/Case_Report_June_30_2017_1423882.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_June_30_2017_1423882.pdf | Case Report for June 30, 2017
Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the Board
itself, and are not intended to provide legal counsel or to be cited as legal
authority. Instead, they are provided only to inform and help the public locate
Board precedents.
SUPREME COURT DECISIONS
Petitioner: Anthony W. Perry
Respondent: Merit Systems Protection Board
Case Number: 16-339
Decision Below: 829 F.3d 760 (D.C. Cir. 2016)
MSPB Docket Number: DC-0752-12-0486-B-1, DC-0752-12-0487-B-1
Issuance Date: June 23, 2017
Appeal Type: Adverse Action by Agency
Action Type: Constructive Suspension; Constructive Removal
Constructive Adverse Actions
Mixed Cases
Judicial Review
The Department of Commerce proposed the petitioner’s removal for
attendance-related reasons, and the petitioner filed an equal employment
opportunity (EEO) complaint. During proceedings before the Equal
Employment Opportunity Commission, the parties entered into a universal
settlement agreement, in which they agreed that the petitioner would serve a
30-day suspension and then retire.
The petitioner filed a Board appeal, claiming that his suspension and his
retirement were involuntary. The administrative judge dismissed the appeal
for lack of jurisdiction. Ultimately, the Board affirmed, issuing a
nonprecedential final order finding that the petitioner failed to establish
jurisdiction over his appeal. The Board explained that, although the petitioner
raised issues of discrimination in his appeal, it was not a mixed case because
the Board lacked jurisdiction over it. The Board therefore gave the petitioner
notice of non-mixed case appeal rights and directed him to the U.S. Court of
Appeals for the Federal Circuit for judicial review.
The petitioner filed a petition for review with the U.S. Court of Appeals for the
D.C. Circuit instead. Although it was clear that the D.C. Circuit lacked
jurisdiction over the case, it was less clear whether the case should be
transferred to the Federal Circuit or to a Federal district court. The Federal
Circuit has jurisdiction over non-mixed cases, whereas mixed cases go to the
appropriate district court. The D.C. Circuit held that a “mixed case” is, by
statutory definition, a case that both involves discrimination and is within the
Board’s jurisdiction. 5 U.S.C. § 7702(a)(1)(A). Because the Board found that
this case was not within its jurisdiction, it was not a mixed case, and therefore
the court ordered the case transferred to the Federal Circuit.
The Supreme Court granted certiorari to determine the proper forum of
judicial review.
Holding: Justice Ginsburg delivered the opinion of the Court, reversing the
D.C. Circuit and finding that district court is the proper forum for judicial
review of a case involving discrimination that is dismissed for lack of
jurisdiction by the Board. Justices Gorsuch and Thomas joined in a dissent.
1.
In Kloeckner v. Solis, 568 U.S. 41 (2012), the Court held that district
court is the proper forum for judicial review of a mixed case whether the
Board decides it on the merits or dismisses it on procedural grounds. The
question in this case is what the proper forum is when the Board dismisses
such a case on jurisdictional grounds.
2. The Court rejected the distinction between procedural and
jurisdictional dismissals in this context, explaining that the key to district
court review is the employee’s claim that an action appealable to the Board
violated an antidiscrimination statute listed in 5 U.S.C. § 7702(a)(1).
Because the petitioner complained of a personnel action serious enough to
appeal to the Board and alleged that it was based on discrimination, he
brought a mixed case.
3. The Court’s reading of the statute is supported by policy reasons. First,
the distinction between dispositions on merits, jurisdictional, and
procedural grounds is “not inevitably sharp” and may in some cases be
unworkable. Second, allowing cases such as this one to be appealed to
district court avoids the problem of bifurcated review when an employee’s
claims under civil-service law and antidiscrimination statutes pertaining to
a single agency action must be reviewed separately by the Federal Circuit
and district court respectively.
4. The dissent would have affirmed the D.C. Circuit on the basis that the
plain language of the statute places this case within the Federal Circuit’s
jurisdiction. The dissent also expressed doubts about whether the majority
decision would promote judicial economy and uniformity.
NON-PRECEDENTIAL BOARD DECISION OF NOTE
Appellant: Special Counsel ex rel. Dale Klein
Agency: Department of Veterans Affairs
Docket Number: CB-1208-16-0023-U-7
Issuance Date: June 29, 2017
Appeal Type: Request for Stay (OSC Filed)
Special Counsel Actions
Whistleblower Protection Act
Stays
On May 26, 2016, OSC filed a request for a 45-day stay of a decision of the
Department of Veterans Affairs (DVA) to terminate Dr. Klein during his
probationary period, effective April 28, 2016. The Board granted OSC’s stay
request, and subsequently granted several extensions of the stay, which
was in place from June 1, 2016, through May 12, 2017. On June 14, 2017,
OSC filed another stay request, seeking a 90-day stay of the removal action
that DVA had initiated on May 31, 2017 – after the previous stay’s
expiration. Vice Chairman Robbins denied the stay request without
prejudice on the basis that the Board lacked a quorum and thus had no
authority to grant the stay extension under current law. He noted,
however, that Congress had recently passed legislation amending 5 U.S.C. §
1214 to allow an individual Board member to extend a stay granted under
section 1214(b)(1)(A) during periods when the Board lacks a quorum. Once
the legislation was enacted, OSC would be allowed to file a new request for
a retroactive extension of the stay. Following the enactment of the
legislation, OSC filed such a request
Holding: In a nonprecedential decision, Vice Chairman Robbins granted
OSC’s request stay in part through July 14, 2017, retroactive to May 13,
2017.
1. On May 25, 2017, and June 14, 2017, respectively, the House and the
Senate passed a bill to add the following language to 5 U.S.C. §
1214(b)(1)(B): “(ii) If the Board lacks the number of members appointed
under section 1201 required to constitute a quorum, any remaining
member of the Board who was appointed, by and with the advice and
consent of the Senate, may, upon request by the Special Counsel, extend
the period of any stay granted under subparagraph (A).” S. 1083, 115th
Cong.
2. On June 27, 2017, President Trump signed the bill into law. Pub. L. No.
115-42, 131 Stat 883. Thus, despite the lack of a quorum, Vice Chairman
Robbins was now able to act on OSC’s stay request.
3. Under the unusual circumstances of this case, Vice Chairman Robbins
found it appropriate to grant OSC’s request through July 14, 2017,
retroactive to May 13, 2017. The Board’s regulations require that the DVA
be given an opportunity to comment on any request for an extension, which
it would be permitted to do on or before July 6, 2017. Vice Chairman
Robbins will rule on the remaining balance of OSC’s 90-day stay request at
that time.
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Case Report - June 23, 2017 | 06-26-2017 | https://www.mspb.gov/decisions/case_reports/Case_Report_June_23_2017_1422016.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_June_23_2017_1422016.pdf | Case Report for June 23, 2017
BOARD DECISIONS
Appellant: Special Counsel ex rel. Dale Klein
Agency: Department of Veterans Affairs
Decision Number: 2017 MSPB 6
Docket Number: CB-1208-17-0019-U-1
Issuance Date: June 19, 2017
Appeal Type: Request for Stay (OSC Filed)
Special Counsel Actions
Whistleblower Protection Act
- Stays
On May 26, 2016, OSC filed a request for a 45-day stay of a decision of the
Department of Veterans Affairs (DVA) to terminate Dr. Klein during his
probationary period, effective April 28, 2016. The Board granted OSC’s stay
request, and subsequently granted several extensions of the stay, which was in
place from June 1, 2016, through May 12, 2017. In this current stay request,
OSC asserts that, following the expiration of the stay on May 12, 2017, DVA
proposed Dr. Klein’s removal on May 31, 2017.
Holding: Vice Chairman Robbins denied OSC’s stay request without
prejudice.
1. The stay expired on May 12, 2017, at which point the Board lacked a
quorum, and thus the Board did not have the authority to grant an
extension of the previous stay had OSC requested one.
2. Under the unusual circumstances of this case, Vice Chairman Robbins
viewed OSC’s request as a request for an extension of the stay
previously granted through May 12, 2017.
3. Congress recently passed legislation amending 5 U.S.C. § 1214 to
allow an individual Board member to extend a stay granted under
section 1214(b)(1)(A) during periods when the Board lacks a quorum.
4. Following the enactment of this legislation, OSC again can petition
the Board for an extension of the previously granted stay.
5. Should OSC request an extension of the stay following enactment of
the pending legislation, OSC also may include a request that the stay
be granted retroactive to May 13, 2017.
COURT DECISIONS
NONPRECEDENTIAL:
Pope v. Department of the Navy, No. 2016-2106, (June 19, 2017) (MSPB Docket
No. AT-0752-15-0206-I-1) (affirming, pursuant to Rule 36, the Board’s decision
sustaining the petitioner’s removal).
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Case Report - June 16 2017 | 06-16-2017 | https://www.mspb.gov/decisions/case_reports/Case_Report_June_16_2017_1419551.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_June_16_2017_1419551.pdf | Case Report for June 16, 2017
COURT DECISIONS
NONPRECEDENTIAL:
Johnson v. Merit Systems Protection Board, 2017-1022 (June 9, 2017) (MSPB
Docket No. DE-0353-16-0041-I-1) (affirming the Board’s decision, which found
that the appellant’s involuntary retirement and restoration claims were barred
by collateral estoppel).
Whittaker v. Department of Veterans Affairs, 2017-1656, (June 12, 2017)
(MSPB Docket No. DA-0752-15-0157-I-1) (affirming the Board’s dismissal, which
found that the Board lacked jurisdiction over the appellant’s removal pursuant
to a last chance agreement in which she waived her appeal rights).
Nuri v. Merit Systems Protection Board, 2017-1462, (June 12, 2017) (MSPB
Docket No. SF-1221-16-0293-W-1) (affirming the Board’s dismissal, which found
that the Board lacked jurisdiction over the agency’s decision not to renew the
appellant’s term appointment as an adverse action appeal or as an individual
right of action whistleblower reprisal appeal).
McDermott v. U.S. Postal Service, 2017-1258, (June 13, 2017) (MSPB Docket
Nos. SF-3330-15-0432-I-1, SF-3330-15-0432-I-2) (affirming the Board’s decision,
which denied the appellant’s request for corrective action under the
Uniformed Services Employment and Reemployment Rights Act of 1994).
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Case Report - May 19, 2017 | 05-19-2017 | https://www.mspb.gov/decisions/case_reports/Case_Report_May_19_2017_1411658.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_May_19_2017_1411658.pdf | Case Report for May 19, 2017
COURT DECISIONS
NONPRECEDENTIAL:
Prasad v. Office of Personnel Management, No. 2016-2267 (May 15, 2017) (Rule
36 affirmance).
Shu v. Merit Systems Protection Board, No. 2017-1440 (May 12, 2017)
(affirming the Board’s dismissal for lack of jurisdiction because the appellant
did not meet the definition of an employee entitled to appeal his removal to
the Board and the Board lacked jurisdiction over the appellant’s claims as a
restoration appeal because the appellant’s removal was unrelated to his prior
compensable injury).
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Case Report - May 5, 2017 | 05-05-2017 | https://www.mspb.gov/decisions/case_reports/Case_Report_May_5_2017_1407389.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_May_5_2017_1407389.pdf | Case Report for May 5, 2017
COURT DECISIONS
NONPRECEDENTIAL:
Wallace v. Department of the Army, No. 2016-2295 (May 3, 2017) (affirming
the Board’s decision that upheld the appellant’s 6-day furlough because
substantial evidence supported the Board’s finding that it was taken for such
cause as to promote the efficiency of the service, and rejecting the appellant’s
argument that he should have been exempt from furlough because, although
his position had a military unit identification code, the majority of the work he
performed in 2012 and 2013 was on civil works projects).
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Case Report - April 7, 2017 | 04-07-2017 | https://www.mspb.gov/decisions/case_reports/Case_Report_April_7_2017_1398676.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_April_7_2017_1398676.pdf | Case Report for April 7, 2017
COURT DECISIONS
NONPRECEDENTIAL:
Rodriguez v. Merit Systems Protection Board, No. 2016-2682 (Apr. 6, 2017)
(MSPB Docket No. AT-0752-16-0065-I-1)(affirming the Board’s decision that
dismissed the petitioner’s termination appeal for lack of jurisdiction, finding
that, as a reemployed annuitant, the petitioner has no right to appeal his
termination to the Board).
Jones v. Department of Health and Human Services, No. 2017-1055 (Apr. 6,
2017) (MSPB Docket Nos. DE-4324-15-0469-I-1, DE-4324-15-0475-I-1)(affirming
the Board’s decision that denied the petitioner’s request for corrective action,
finding that the petitioner failed to establish that his nonselections violated
either the Uniformed Services Employment and Reemployment Rights Act
of 1994 or the Veterans Employment Opportunities Act of 1998).
Scott v. Merit Systems Protection Board, No. 2015-3210 (Apr. 6, 2017) (MSPB
Docket No. AT-0752-15-0097-I-1)(affirming, per Rule 36, the Board’s decision
that dismissed the petitioner’s alleged constructive suspension appeal for lack
of jurisdiction).
McDell v. Department of the Army, No. 2017-1345 (Apr. 6, 2017) (MSPB Docket
No. DA-1221-14-0341-B-2)(affirming the Board’s decision that dismissed the
petitioner’s individual right of action appeal as settled, finding that, because
the settlement agreement was entered into “freely and in good faith” and
resolved all disputed issues, the Board did not abuse its discretion in dismissing
the appeal).
Thompson v. Merit Systems Protection Board, No. 2017-1038 (Apr. 5, 2017)
(MSPB Docket No. PH-0831-15-0076-I-2)(affirming the Board’s decision that
dismissed the petitioner’s appeal for lack of jurisdiction, finding that, because
the Office of Personnel Management had rescinded its final decision that
formed the basis of the appeal, the Board no longer retained jurisdiction over
the matter).
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Case Report -March 17,2017 | 03-17-2017 | https://www.mspb.gov/decisions/case_reports/Case_Report_March_172017_1392388.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_March_172017_1392388.pdf | Case Report for March 17, 2017
COURT DECISIONS
NONPRECEDENTIAL:
Mitskog v. Merit Systems Protection Board, No. 2016-2359 (Mar. 13,
2017) (MSPB Docket No. DC-1221-14-1035-W-1) (affirming the Board’s
dismissal for lack of jurisdiction based upon the petitioner’s failure
to provide sufficient information about her allegations to exhaust her
administrative remedy with the Office of Special Counsel).
Turner v. Merit Systems Protection Board, No. 2017-1080 (Mar. 10,
2017) (MSPB Docket Nos. AT-0353-14-0838-B-1, AT-0752-15-0199-I-1)
(affirming the Board’s decision that the administrative judge properly
dismissed the appeals for failure to prosecute because the petitioner
had failed to call in to the scheduled status conference, did not
explain his failure to do so, and did not respond to orders in each of
his appeals; his financial difficulties did not excuse his failure to
respond to repeated orders, and he did not raise his medical
difficulties until his reply to the agency’s petition for review at which
point he did not provide documentary evidence that he lacked the
capacity to respond to the administrative judge’s orders).
Generette v. Merit Systems Protection Board, No. 2017-1074
(Mar. 10, 2017) (MSPB Docket No. PH-3443-16-0060-I-1) (affirming
the Board’s dismissal for lack of jurisdiction; the agency’s failure to
hire the petitioner in 2015 was not reviewable as an improper denial
of her restoration rights because her absence was due to her removal
in 1998 rather than any compensable injury; she was not an
“employee” with Board appeal rights over her claims of an alleged
constructive suspension in 1992 and her removal in 1998; the Board
lacks authority to enforce the terms of a settlement agreement
reached in another forum).
Payton v. Merit Systems Protection Board, No. 2017-1068 (Mar. 10,
2017) (MSPB Docket No. AT-0353-16-0369-I-1) (affirming the Board’s
dismissal for lack of jurisdiction based upon collateral estoppel
because the issue of jurisdiction over the petitioner’s claim was
identical to that in prior proceedings in which the appellant was a
party, had been actually litigated, and was necessary to the
judgement).
Thorne v. Merit Systems Protection Board, No. 2017-1040 (Mar. 10,
2017) (MSPB Docket No. DC-3443-16-0089-I-1) (affirming the Board’s
dismissal for lack of jurisdiction based upon the petitioner’s failure
to nonfrivolously allege that he was actually or constructively
suspended because placement on paid administrative leave does not
constitute a suspension and the agency’s decision to transfer the
petitioner from paid administrative leave to absence without leave
was caused by his failure to comply with the agency’s instructions
and communicate with his supervisors).
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Case Report - March 17, 2017 | 03-17-2017 | https://www.mspb.gov/decisions/case_reports/Case_Report_March_17_2017_1392390.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_March_17_2017_1392390.pdf | Case Report for March 17, 2017
COURT DECISIONS
NONPRECEDENTIAL:
Mitskog v. Merit Systems Protection Board, No. 2016-2359 (Mar. 13,
2017) (MSPB Docket No. DC-1221-14-1035-W-1) (affirming the Board’s
dismissal for lack of jurisdiction based upon the petitioner’s failure
to provide sufficient information about her allegations to exhaust her
administrative remedy with the Office of Special Counsel).
Turner v. Merit Systems Protection Board, No. 2017-1080 (Mar. 10,
2017) (MSPB Docket Nos. AT-0353-14-0838-B-1, AT-0752-15-0199-I-1)
(affirming the Board’s decision that the administrative judge properly
dismissed the appeals for failure to prosecute because the petitioner
had failed to call in to the scheduled status conference, did not
explain his failure to do so, and did not respond to orders in each of
his appeals; his financial difficulties did not excuse his failure to
respond to repeated orders, and he did not raise his medical
difficulties until his reply to the agency’s petition for review at which
point he did not provide documentary evidence that he lacked the
capacity to respond to the administrative judge’s orders).
Generette v. Merit Systems Protection Board, No. 2017-1074
(Mar. 10, 2017) (MSPB Docket No. PH-3443-16-0060-I-1) (affirming
the Board’s dismissal for lack of jurisdiction; the agency’s failure to
hire the petitioner in 2015 was not reviewable as an improper denial
of her restoration rights because her absence was due to her removal
in 1998 rather than any compensable injury; she was not an
“employee” with Board appeal rights over her claims of an alleged
constructive suspension in 1992 and her removal in 1998; the Board
lacks authority to enforce the terms of a settlement agreement
reached in another forum).
Payton v. Merit Systems Protection Board, No. 2017-1068 (Mar. 10,
2017) (MSPB Docket No. AT-0353-16-0369-I-1) (affirming the Board’s
dismissal for lack of jurisdiction based upon collateral estoppel
because the issue of jurisdiction over the petitioner’s claim was
identical to that in prior proceedings in which the appellant was a
party, had been actually litigated, and was necessary to the
judgement).
Thorne v. Merit Systems Protection Board, No. 2017-1040 (Mar. 10,
2017) (MSPB Docket No. DC-3443-16-0089-I-1) (affirming the Board’s
dismissal for lack of jurisdiction based upon the petitioner’s failure
to nonfrivolously allege that he was actually or constructively
suspended because placement on paid administrative leave does not
constitute a suspension and the agency’s decision to transfer the
petitioner from paid administrative leave to absence without leave
was caused by his failure to comply with the agency’s instructions
and communicate with his supervisors).
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Case Report - March 10, 2017 | 03-10-2017 | https://www.mspb.gov/decisions/case_reports/Case_Report_March_10_2017_1390177.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_March_10_2017_1390177.pdf | Case Report for March 10, 2017
COURT DECISIONS
NONPRECEDENTIAL:
Jarmin v. Office of Personnel Management, No. 2017-1088 (Mar. 9, 2017)
(MSPB Docket No. SF-0831-16-0161-I-1) (dismissing the petitioner’s appeal of
the Board’s decision to deny his request for service credit under the Civil
Service Retirement Act for lack of jurisdiction because it was untimely filed
after the 60-day statutory period for appeal to the court).
Wilborn v. Merit Systems Protection Board, No. 2016-2533 (Mar. 9, 2017)
(MSPB Docket No. SF-0752-16-0033-I-1) (affirming the Board’s dismissal for lack
of jurisdiction because the appellant failed to nonfrivolously allege that his
retirement was involuntary or that the Board had jurisdiction over the appeal
as an Individual Right of Action appeal or an appeal under the Uniformed
Services Employment and Reemployment Rights Act of 1994).
Lamb v. Office of Personnel Management, No. 2016-2161 (Mar. 7, 2017) (MSPB
Docket No. SF-844E-15-0348-I-1) (affirming the Board’s decision to uphold
OPM’s denial of the appellant’s application for disability retirement; the
petitioner challenged the factual underpinnings of the Board’s decision, which
the court is precluded from addressing in a disability retirement appeal).
MSPB | Case Reports | Recent Decisions | Follow us on Twitter | MSPB Listserv | 1,323 | |
Case Report - March 3, 2017 | 03-03-2017 | https://www.mspb.gov/decisions/case_reports/Case_Report_March_3_2017_1387802.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_March_3_2017_1387802.pdf | Case Report for March 3, 2017
COURT DECISIONS
NONPRECEDENTIAL:
Howard v. Department of the Air Force, No. 2016-1364 (Feb. 27, 2017) (MSPB
Docket No. DA-0752-13-0290-I-3) (affirming the Board’s decision that sustained
the petitioner’s removal, which was the second removal action brought by the
agency after its first removal action was reversed on due process grounds; the
petitioner’s arguments that his removal violated the law of the case doctrine
and judicial estoppel were unpersuasive, and substantial evidence supported
the charges, the aggravating factor of poor performance, and the nexus
requirement).
MSPB | Case Reports | Recent Decisions | Follow us on Twitter | MSPB Listserv | 690 | |
Case Report - February 24, 2017 | 02-24-2017 | https://www.mspb.gov/decisions/case_reports/Case_Report_February_24_2017_1385392.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_February_24_2017_1385392.pdf | Case Report for February 24, 2017
COURT DECISIONS
NONPRECEDENTIAL:
Vocke v. Merit Systems Protection Board, No. 16-2390 (Feb. 17,
2017) (MSPB Docket No. DC-1221-13-1266-W-1) (dismissing Vocke’s
petition for lack of jurisdiction based upon untimeliness because it
was due within 60 days after the Board filed its decision and not, as
Vocke asserted, within 60 days of his receipt of the decision).
MSPB | Case Reports | Recent Decisions | Follow us on Twitter | MSPB Listserv | 475 | |
Case Report - February 10, 2017 | 02-10-2017 | https://www.mspb.gov/decisions/case_reports/Case_Report_February_10_2017_1381519.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_February_10_2017_1381519.pdf | Case Report for February 10, 2017
COURT DECISIONS
NONPRECEDENTIAL:
Clark v. Merit Systems Protection Board, No. 2016-2648 (Feb. 9, 2017) (MSPB
Docket No. AT-0353-16-0120-I-1) (affirming the Board’s dismissal of the
appellant’s restoration appeal because she failed to nonfrivolously allege that
the U.S. Postal Service’s denial of restoration was arbitrary and capricious).
Currie v. Merit Systems Protection Board, No. 2016-2585 (Feb. 8, 2017) (MSPB
Docket No. PH-315I-16-0106-I-1) (affirming the Board’s dismissal of the
appellant’s appeal of his demotion from a supervisory position to his previous
nonsupervisory position for failure to satisfactorily complete a 1-year
probationary period because 5 C.F.R. § 315.908(a) precludes a Board appeal of
a demotion effected pursuant to 5 U.S.C. § 3321 and 5 C.F.R. § 315.907(a)).
McInnis v. Department of Education, No. 2016-2652 (Feb. 8, 2017) (MSPB
Docket No. CH-0752-14-0518-I-1) (affirming the Board’s decision sustaining the
appellant’s removal based on charges of absent without leave, failure to follow
established leave procedures, and failure to follow instructions, and finding
that the appellant failed to prove his affirmative defense of whistleblower
reprisal).
Stevens v. Merit Systems Protection Board, No. 2016-2567 (Feb. 7, 2017) (MSPB
Docket No. AT-1221-15-0481-W-1) (affirming the Board’s dismissal of the
appellant’s individual right of action appeal for lack of jurisdiction because his
vague and conclusory allegations were insufficient to establish nonfrivolous
allegations that he made a protected disclosure under the Whistleblower
Protection Enhancement Act).
MSPB | Case Reports | Recent Decisions | Follow us on Twitter | MSPB Listserv | 1,713 | |
Case Report - February 3, 2017 | 02-03-2017 | https://www.mspb.gov/decisions/case_reports/Case_Report_February_3_2017_1379353.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_February_3_2017_1379353.pdf | Case Report for February 3, 2017
COURT DECISIONS
NONPRECEDENTIAL:
Schnell v. Merit Systems Protection Board, No. 16-2496 (Jan. 27,
2017) (MSPB Docket Nos. CH-1221-12-0770-W-3, CH-0752-13-0056-I
3) (finding that the Board abused its authority in dismissing the
appeals as untimely filed; vacating the Board’s final order; and
remanding for adjudication on the merits).
MSPB | Case Reports | Recent Decisions | Follow us on Twitter | MSPB Listserv | 447 | |
Case Report - January 27, 2017 | 01-27-2017 | https://www.mspb.gov/decisions/case_reports/Case_Report_January_27_2017_1377349.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_January_27_2017_1377349.pdf | Case Report for January 27, 2017
COURT DECISIONS
NONPRECEDENTIAL:
Tialino v. Merit Systems Protection Board, No. 2016-1995 (Jan. 25, 2017)
(MSPB Docket No. SF-0752-14-0513-I-2) (affirming the Board’s dismissal of the
appellant’s involuntary resignation appeal for lack of jurisdiction because he
failed to prove by preponderant evidence that he was misled about his
retirement options, his resignation was coerced, or that the Department of the
Army knew that it could not sustain the removal charges against him).
MSPB | Case Reports | Recent Decisions | Follow us on Twitter | MSPB Listserv | 593 | |
Case Report - January 19, 2017 | 01-19-2017 | https://www.mspb.gov/decisions/case_reports/Case_Report_January_19_2017_1374750.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_January_19_2017_1374750.pdf | Case Report for January 19, 2017
COURT DECISIONS
NONPRECEDENTIAL:
Mosteller v. Merit Systems Protection Board, No. 16-2590 (Jan. 17,
2017) (MSPB Docket No. DC-0752-16-0108-I-1) (affirming the Board’s
dismissal of the appellant’s appeal of her 14-day suspension for lack
of jurisdiction).
Petersen v. Merit Systems Protection Board, No. 16-1690 (Jan. 13,
2017) (MSPB Docket No. DC-1221-15-0945-W-1) (Rule 36 affirmance).
Morrison v. Department of Veterans Affairs, No. 16-2490 (Jan. 13,
2017) (MSPB Docket No. NY-0752-15-0043-C-1) (affirming the Board’s
denial of the appellant’s petition for enforcement of a settlement
agreement).
Nasuti v. Department of State, No. 16-2479 (Jan. 13, 2017) (MSPB
Docket No. DC-1221-12-0321-B-1) (affirming the Board’s denial of the
appellant’s request for corrective action in his individual right of
action appeal).
MSPB | Case Reports | Recent Decisions | Follow us on Twitter | MSPB Listserv | 929 | |
Case Report - January 6, 2017 | 01-06-2017 | https://www.mspb.gov/decisions/case_reports/Case_Report_January_6_2017_1370551.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_January_6_2017_1370551.pdf | Case Report for January 6, 2017
Note: These summaries are descriptions prepared by individual MSPB employees.
They do not represent official summaries approved by the Board itself, and are not
intended to provide legal counsel or to be cited as legal authority. Instead, they are
provided only to inform and help the public locate Board precedents.
BOARD DECISIONS
Appellant: Harris L. Winns
Agency: United States Postal Service
Decision Number: 2017 MSPB 1
Docket Number: SF-0752-15-0165-M-1
Issuance Date: January 4, 2017
Appeal Type: Adverse Action by Agency
Action Type: Removal
Current Continuous Service
Continuing Contract Theory
The agency employed the preference-eligible appellant in a series of four temporary,
time-limited appointments. Each appointment was for less than a year and each was
separated by a break in service of at least several days. Most recently, following a
5-day break in service, the agency appointed the appellant to a temporary Postal
Support Employee position. Approximately 9 months later, before that appointment
expired, the agency terminated the appellant’s employment for alleged misconduct. The
appellant appealed his termination to the Board. The administrative judge dismissed
the appeal for lack of jurisdiction, finding, in pertinent part, that the appellant failed to
nonfrivolously allege that he was an employee with Board appeal rights pursuant to
5 U.S.C. § 7511(a)(1)(B) because he had not completed 1 year of current continuous
service at the time of his termination.
The appellant filed a petition for review of the initial decision. In relevant part, the
appellant argued, for the first time on review, that he had Board appeal rights under the
“continuing employment contract” theory set forth in Roden v. Tennessee Valley
Authority, 25 M.S.P.R. 363, 367-68 (1984), in which the Board found that a
preference-eligible employee who held a series of five temporary appointments to the
same position, separated by short breaks in service, established jurisdiction over his
termination appeal, even though he held the appointment from which he was terminated
for less than a year. The Board denied the appellant’s petition for review without
addressing his arguments regarding Roden. The appellant appealed the Board’s final
order to the U.S. Court of Appeals for Federal Circuit, which subsequently granted the
2
Board’s request to remand the case to the Board for further consideration of the
appellant’s arguments regarding Roden.
Holding: The Board affirmed the initial decision, except as modified by the
opinion and order to supplement the administrative judge’s jurisdictional analysis
and to find that Roden and subsequent decisions relying on the “continuing
employment contract” theory articulated in Roden are no longer good law.
1. The Board explained that OPM’s regulation, 5 C.F.R. § 752.402, which
defines “current continuous employment” for purposes of 5 U.S.C.
§ 7511(a)(1)(B) as a “period of employment or service immediately preceding
an adverse action without a break in Federal civilian employment of a
workday,” does not provide for an exception to the requirement that the
service be without a break of a workday in the cases of a “continuing
employment contract” or any other circumstances.
2. The Board held that, under 5 C.F.R. § 752.402, neither the employee’s
service in Roden, nor the appellant’s service at issue in the current appeal,
qualified as “current continuous service.”
3. The Board further found that OPM’s definition of “current continuous
service” is entitled to Chevron deference because it is in accordance with the
plain meaning of “continuous” and the legislative history of the Civil Service
Reform Act of 1978, Pub. L. No. 95-454, 92 Stat. 1111, and it is both
reasonable and consistent with the statute.
4. The Board observed that Roden was incorrectly decided to the extent that it
found that an appellant could establish Board jurisdiction on the basis of a
“continuing employment contract” theory regardless of whether he fell
within the definition of an employee with Board appeal rights because
parties cannot confer jurisdiction by a contract or agreement where none
otherwise exists.
5. The Board overruled Roden and its progeny to the extent that they held that
an appellant may establish “current continuous service” for the purposes of
5 U.S.C. § 7511(a)(1)(B) under a “continuing employment contract” theory,
despite a break in service of a workday.
Appellant: Joyce M. Delorme
Agency: Department of the Interior
Decision Number: 2017 MSPB 2
Docket Number: DE-3443-12-0472-C-1
Issuance Date: January 4, 2017
Appeal Type: Miscellaneous
Action Type: Miscellaneous “3443” Action
Settlement Agreements
Enforcement
Citing regulations pertaining to the termination of probationary employees, the agency
separated the appellant from her excepted-service position. The appellant filed a Board
3
appeal, and the administrative judge dismissed the appeal for lack of jurisdiction
because the appellant did not meet the definition of an employee with Board appeal
rights under 5 U.S.C. § 7511(a)(1). The appellant filed a petition for review of the
initial decision, and the Board remanded the matter for further adjudication on the issue
of jurisdiction. On remand, while the issue of jurisdiction was still unresolved, the
parties entered into a settlement agreement. In relevant part, the settlement agreement
provided that the agreement was “submitted for enforcement by the [Board].” In the
remand initial decision dismissing the appeal as withdrawn, the administrative judge
found that the agreement was lawful and freely reached but that, because the issue of
jurisdiction over the underlying matter was unresolved, the Board could accept the
agreement into the record only for the limited purpose of memorializing that the appeal
was withdrawn as part of an agreement.
The appellant filed a petition for enforcement of the remand initial decision. The
administrative judge dismissed the petition for enforcement, concluding that the
settlement agreement was not enforceable by the Board because the question of whether
the Board had jurisdiction over the underlying matter appealed had not been
determined. The appellant filed a petition for review of the compliance initial decision.
Holding: The Board vacated the compliance initial decision and remanded the
compliance appeal to the field office for further adjudication in accordance with
the opinion and order.
1. The Board found that the plain language of 5 U.S.C. §§ 1204(a)(1)-(2) and
7701(h), as well as public policy considerations, support the exercise of
enforcement authority over settlement agreements that have been entered
into the record, independent of any prior finding of Board jurisdiction over
the underlying matter being settled.
2.
The Board overruled Shaw v. Department of the Navy, 39 M.S.P.R. 586,
590-91 (1989), and its progeny to the extent that they required that
jurisdiction be established over the underlying matter appealed before a
settlement agreement could be accepted into the record and enforced by the
Board.
COURT DECISIONS
NONPRECEDENTIAL:
Corkery v. Department of Homeland Security, No. 2015-3216 (Jan. 4, 2017) (No.
FMCS 13-02672-6) (affirming arbitration decision, which upheld the appellant’s
removal and denying the union’s motion for sanctions). | 7,354 | |
Case Report - December 23, 2016 | 12-23-2016 | https://www.mspb.gov/decisions/case_reports/Case_Report_December_23_2016_1368028.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_December_23_2016_1368028.pdf | Case Report for December 23, 2016
Note: These summaries are descriptions prepared by individual MSPB employees. They
do not represent official summaries approved by the Board itself, and are not intended
to provide legal counsel or to be cited as legal authority. Instead, they are provided
only to inform and help the public locate Board precedents.
BOARD DECISIONS
Appellant: Michael R. Palafox
Agency: Department of the Navy
Decision Number: 2016 MSPB 43
Docket Number: SF-0752-16-0219-I-1
Issuance Date: December 20, 2016
Appeal Type: Adverse Action by Agency
Action Type: Indefinite Suspension
Adverse Action Charges
- Failure to Meet a Condition of Employment
National Security Determinations
- Access to Classified Information
Due Process
2
The appellant occupied a Shipfitter Supervisor position that required access to
classified information. Following an investigation into illegal drug use by shipyard
employees, the Shipyard Commander suspended the appellant’s access to classified
information, based on allegations that he had falsely denied using marijuana during his
employment. The agency then indefinitely suspended the appellant for failure to meet
a condition of employment based on the suspension of his access to classified
information. In the decision letter, the deciding official stated that he concurred with
the proposing official’s finding that carrying the appellant on administrative leave or
reassigning him to a position not requiring access to classified information were not
viable alternatives. On appeal, the appellant conceded that his position required access
to classified information, and that his access had been suspended, but argued that the
agency denied him due process. The administrative judge sustained the indefinite
suspension, and the appellant petitioned for review.
Holding: The Board affirmed the initial decision and sustained the indefinite
suspension action.
1. Due process requires, at a minimum, that an employee being deprived of his
property interest be given the opportunity to be heard at a meaningful time and in a
meaningful manner. The opportunity to respond is important for two reasons. First,
an adverse action will often in involve factual disputes and consideration of the
employee’s response may clarify such disputes. Second, even where the facts are
clear, the appropriateness of the penalty might not be, and in such cases the
employee must receive a meaningful opportunity to invoke the discretion of the
decision maker.
2. As to the facts underlying the proposed action, the agency provided due process
by informing the appellant of the basis for the indefinite suspension, i.e., that his
position required access to classified information and that his access had been
suspended. The agency further complied with 5 U.S.C. § 7513 by informing the
appellant of the specific reasons for the suspension of his access to classified
information.
3. Regarding the penalty, the appellant argued that he was denied a meaningful
opportunity to persuade the deciding official to reassign him instead of imposing the
proposed indefinite suspension, because reassignment would have been inconsistent
with agency policy. However, assuming the agency did have such a policy (which the
agency denied), due process does not require that a deciding official consider
alternatives that are prohibited, impracticable, or outside management’s purview.
The Board further found that the deciding official had discretion to carry the
appellant on administrative leave if he believed the allegations underlying the
suspension of his access to classified information were not well founded, and the
appellant received a fair opportunity to present rebuttal evidence before the final
3
penalty determination.
4. Finally, the Board found no merit the appellant’s argument that he was denied
due process with respect to the suspension of his access to classified information. It
is well settled that employees do not have a liberty or property interest in access to
classified information, and that the termination of that access therefore does not
implicate any due process concerns.
Appellant: Richard L. Miller
Agency: Office of Personnel Management
Decision Number: 2016 MSPB 44
Docket Number: DE-0831-14-0340-I-1
Issuance Date: December 20, 2016
Appeal Type: Retirement
Retirement – CSRS
- Creditable Service
The appellant had a long and complicated history of civilian and military service, of
which two periods are of particular relevance to this appeal. During the first relevant
period, from August 27 to October 25, 1990, the appellant was both a civilian employee
with the Defense Intelligence Agency (DIA) and an Air Force reservist. He was called to
active duty effective August 27, 1990, entered LWOP status with the DIA effective that
same date, and was separated from the DIA the following year.
The next pertinent period began August 22, 1994, when the appellant was reinstated
to a civilian position with the DIA, and ended December 22, 1995, when he retired from
the DIA under a Voluntary Early Retirement Authority (VERA). In the interim, effective
September 1, 1994, he also retired from active duty with the Air Force under a
Temporary Early Retirement Authority (TERA). However, the Air Force Board for
Correction of Military Records (AFBCMR) later corrected the appellant’s records to
retroactively designate the period beginning September 1, 1994, as active military duty.
As a result of this correction, he no longer met the requirements of his VERA and TERA
retirements, and they were cancelled. He eventually returned to civilian service with
the DIA until his final retirement in 2012.
Following his final retirement, OPM issued a reconsideration decision finding that the
appellant had 15 years, 3 months, and 29 days of creditable service for purposes of his
CSRS annuity. In making that calculation, OPM excluded certain periods of civilian
service, including both August 27 to October 25, 1990, and August 22, 1994, to
December 22, 1995. This appeal followed.
Relying on OPM’s CSRS and FERS Handbook for Personnel and Payroll Officers
(Handbook), the administrative judge found that the appellant was potentially entitled
to civilian service credit for August 27 through October 25, 1990, if he was required to
make, and did make, a military service deposit for that period. The administrative judge
4
further found that the appellant was entitled to civilian service credit from August 22,
1994, through December 22, 1995. OPM petitioned for review.
Holding: The Board reversed the initial decision and affirmed OPM’s reconsideration
decision.
1. Under 5 U.S.C. § 8332(c)(1)(A), a Federal employee covered under the CSRS who,
like the appellant, first became an employee before October 1, 1982, is generally
entitled to have active-duty military service performed before his separation
included as creditable service for purpose of calculating a CSRS annuity. However,
section 8332(c)(2) provides that an employee usually cannot receive both military
and civilian service retirement credit for the same periods:
If an employee or Member is awarded retired pay based on any period of
military service, the service of the employee or Member may not include
credit for such period of military service unless the retired pay is awarded—
(A) based on a service-connected disability—
(i) incurred in combat with an enemy of the United States; or
(ii) caused by an instrumentality of war and incurred in line of duty
during a period of war as defined by section 1101 of title 38; or
(B) under chapter 1223 of title 10 (or under chapter 67 of that title as in
effect before the effective date of the Reserve Officer Personnel
Management Act).
5 U.S.C. § 8332(c)(2); see also 5 C.F.R. § 831.302(a)(2). In addition, section 8332(j)
provides that, absent a deposit, post-1956 military service is excluded from civilian
service credit once an employee becomes eligible for Social Security old-age
benefits.
2. During the period from August 27 to October 25, 1990, the appellant was
simultaneously employed as a civilian at DIA and performing active-duty military
service for the Air Force. Relying on section 22A6.1-2(A) of the Handbook, the
administrative judge found that, because the appellant was on leave of absence from
his civilian position, he was entitled to CSRS service credit if he was required to
make, and did make, a military service deposit for that period. However, the Board
agreed with OPM that awarding the appellant CSRS credit for this period was
contrary to the plain language of 5 U.S.C. § 8332(c)(2), which precludes the award of
double credit for overlapping periods of civilian and military service, except under
circumstances not applicable here. Thus, in the absence of proof that the appellant
waived his military retirement service credit, he could not receive CSRS credit for
the same period, regardless of whether he made or could have made a deposit. The
Board noted that the Handbook is entitled to deference in proportion to its “power
to persuade,” but found that it was not persuasive because it did not explain why
the general prohibition against an individual receiving both civilian and military
5
service for the same period, as delineated in 5 U.S.C. § 8332(c)(2) and its
implementing regulation, would not apply in this situation.
3. During the period from August 22, 1994, to December 22, 1995, the appellant
was employed as a civilian at DIA. However, as a result of AFBCMR correcting his
military service dates, his military records were corrected to reflect continuous
military service during this period. The administrative judge found that the
appellant was entitled to civilian service credit for this period based on section
22A6.1-4(B) of the Handbook, which provides for CSRS service credit when a court
awards a former service member retroactive military reinstatement with back pay
and allowances. Section 22A6.1-4(B) further provides that neither a deposit for
military service, nor waiver of military service, is required. The Board again found
that the Handbook was not persuasive, because it did not explain why the general
prohibition against an individual receiving both civilian and military service credit
for the same period would not apply in this situation. The Board further found that,
in the absence of proof that the appellant waived his military retirement service
credit, he was not entitled to CSRS credit for the relevant period.
Appellant: Alvern C. Weed
Agency: Social Security Administration
Decision Number: 2016 MSPB 45
Docket Number: DE-1221-09-0320-P-2
Issuance Date: December 21, 2016
Appeal Type: Motion for Damages
VEOA/Veterans’ Rights
- Damages
Statutory Interpretation
In 2008, the appellant, a 10-point compensable preference-eligible veteran, filed
appeals in which he alleged, inter alia, that the agency violated his veterans’ preference
rights and discriminated against him in violation of USERRA. Specifically, he alleged
that, between 2006 and 2007, the agency filled four vacancies in its Kalispell, Montana
office under the noncompetitive authority of the Federal Career Intern Program without
providing public notice of the vacancies or otherwise providing him with an opportunity
to compete for the vacancies. The administrative judge initially dismissed the VEOA and
USERRA appeals for lack of jurisdiction. The Board reversed and remanded, and the
appeals were later joined with an individual right of action (IRA) appeal.
In a remand initial decision, the administrative judge granted corrective action in the
VEOA appeal, but denied corrective action in the USERRA and IRA appeals. On petition
for review, the Board affirmed the remand initial decision, and ordered the agency to
reconstruct the hiring process for the four vacancies. The agency did not reconstruct
6
the hiring process, but within 30 days of the Board’s order it made a job offer
retroactive to September 5, 2006, the date on which it filled the first of the positions in
question. The appellant, who had already retired in 2008, did not accept the offered
position.
The appellant then filed a petition for damages seeking compensation for lost wages
and benefits, expenses he incurred as a result of the violation, and liquidated damages
based on his assertion that the agency’s violation was willful. In an addendum initial
decision, the administrative judge found that the appellant was entitled to lost wages—
but not benefits—from September 5, 2006, the selection date of the first of the four
positions, until such time as he was placed in the position or declined the position at
issue, i.e., October 17, 2012. The administrative judge further found that the
appellant’s request for retirement service credit for that period was premature, because
OPM had not issued a final determination on that issue. Regarding the appellant’s claim
for liquidated damages, the administrative judge found that the agency did not willfully
violate the appellant’s veterans’ preference rights, because it had a good faith belief
that it was not necessary to reconstruct the hiring process when it had promptly offered
the appellant a position. The administrative judge also found that the Board was not
authorized to award the appellant consequential damages or front pay as remedies
under VEOA. The appellant petitioned for review.
Holding: The Board granted the appellant’s petition for review and affirmed the
addendum initial decision as modified by the Opinion and Order, awarding the
appellant compensation for lost benefits as well as lost wages.
1. Regarding the claim for liquidated damages, the Board agreed with the
administrative judge that the agency did not willfully violate the appellant’s
veterans’ preference rights by failing to comply with the Board’s order to
reconstruct the hiring process. A violation is willful under 5 U.S.C. § 3330c(a) when
the agency either knew or showed reckless disregard for whether its conduct was
prohibited. Reconstruction of the selection process may be appropriate when it is
unknown whether a veteran would have been selected for a position. However,
reconstruction is not required when it is clear that the agency would have selected
the veteran absent the VEOA violation. Here, the agency determined that it would
have been obligated to select the appellant for any of the four positions at issue, and
it made him an offer of a position within 30 days of the Board’s order. Under these
circumstances, the record did not establish that the agency knew or showed a
reckless disregard of whether its offer of one of the positions at issue, as opposed to
reconstructing the selection process, could be considered a violation of a statute or
regulation relating to veterans’ preference.
2. The Board agreed with the appellant that he was entitled to full status quo ante
relief, including both lost wages and benefits. Under 5 U.S.C. § 3330c(a), if the
Board determines that an agency has violated VEOA, it “shall... award
7
compensation for any loss of wages or benefits suffered by the individual by reason
of the violation involved.” Relying on a footnote in Williams v. Department of the
Air Force, 116 M.S.P.R. 245, ¶ 1 n.1 (2011), the administrative judge found that the
statutory language permits an award of lost wages or lost benefits, but not both, and
he awarded lost wages only. However, the Board noted, the word “or” has both an
inclusive sense (i.e., A or B [or both]), and an exclusive sense (i.e., A or B [but not
both]). The Board concluded that, when read as a whole, the phrase “any loss of
wages or benefits” requires the Board to award compensation for both wages and
benefits if both types of losses have occurred. The Board found that this broad
interpretation is consistent with VEOA’s remedial purpose and legislative history. In
addition, the Board observed that similar statutes, including VEOA’s predecessor
statute, the Veterans’ Reemployment Rights Act, as well as USERRA, have been
interpreted as authorizing an award of both lost wages and benefits. Accordingly,
the Board overruled the footnote in Williams and found that the appellant was
entitled to be compensated for any loss of wages and benefits he suffered from
September 4, 2006, until October 17, 2012. The Board further found that the term
“benefit” should be construed to include CSRS service credit and Social Security
credit for the period at issue.
3. Finally, the Board agreed with the administrative judge that the Board is not
authorized under VEOA to award consequential damages or front pay as remedies.
Nothing in the statute indicates that the Board is authorized to award out-of-pocket
expenses, and the Board may not create new remedies that Congress may have
overlooked.
MSPB | Case Reports | Recent Decisions | Follow us on Twitter | MSPB Listserv | 16,846 | |
Case Report - December 16, 2016 | 12-16-2016 | https://www.mspb.gov/decisions/case_reports/Case_Report_December_16_2016_1366072.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_December_16_2016_1366072.pdf | Case Report for December 16, 2016
Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the Board
itself, and are not intended to provide legal counsel or to be cited as legal
authority. Instead, they are provided only to inform and help the public locate
Board precedents.
COURT DECISIONS
NONPRECEDENTIAL:
Howard v. Department of the Air Force, No. 2015-3233 (Dec. 16, 2016) (DA
0752-09-01742-A-3) (vacating the Board’s attorney fees decision and remanding
for further proceedings; the methodology that the Board used arrive at an
attorney fee award was not in accordance with recent Supreme Court
precedent because it reduced the lodestar figure without explaining how this is
a “rare and exceptional case.”
Mocny v. Office of Personnel Management, No. 2016-2534 (Dec. 14, 2016)
(MSPB No. CH-831E-15-0295-I-1) (dismissing for lack of jurisdiction the
petitioner’s appeal of the Board’s final decision to uphold OPM’s denial of her
disability retirement application; the petitioner challenged only the factual
underpinnings of the Board’s decision, and the court is precluded by statute
from entertaining such issues in a disability retirement appeal).
Harvin v. Merit Systems Protection Board, No. 2016-2016 (Dec. 13, 2016)
(MSPB No. DC-0432-14-0154-B-1) (affirming the Board’s decision that dismissed
the appellant’s constructive removal appeal for lack of jurisdiction; substantial
evidence supported the Board’s finding that the petitioner did not attempt to
rescind her resignation before its effective date).
Midyett v. Department of Veterans Affairs, No. 2016-2225 (Dec. 9, 2016)
(MSPB No. DA-1221-12-0554-W-2) (affirming the Board’s decision that denied
corrective action in this IRA appeal; the Board did not err in refusing to
address the appellant’s harmful error and due process claims, which are
beyond the scope of review in an IRA appeal).
Jones v. Merit Systems Protection Board, No. 2016-2381 (Dec. 9, 2016) (MSPB
No. DE-3443-16-0099-I-1) (affirming the Board’s decision that dismissed for
lack of jurisdiction an appeal concerning the denial of VA disability
compensation benefits; the proper avenue of appeal was to Board of Veterans’
Appeals – not to the MSPB).
Isaiah v. Merit Systems Protection Board, No. 2016-2357 (Dec. 9, 2016)
(affirming the Board’s decision that dismissed the appellant’s petition for
review as untimely by 6 days without good cause shown for the delay).
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Case Report - November 25, 2016 | 11-25-2016 | https://www.mspb.gov/decisions/case_reports/Case_Report_November_25_2016_1359343.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_November_25_2016_1359343.pdf | Case Report for November 25, 2016
BOARD DECISIONS
Appellant: Richard Bruhn
Agency: Department of Agriculture
Decision Number: 2016 MSPB 42
Docket Number: SF-0752-16-0156-I-1
Issuance Date: November 22, 2016
Appeal Type: Adverse Action by Agency
Action Type: Removal
Jurisdiction
-Last-chance Agreement
The appellant petitioned for review of an initial decision, which dismissed his
removal appeal for lack of jurisdiction. In November 2014, the agency
removed the appellant from his Lead Forestry Technician position for conduct
unbecoming a Federal employee after he admitted that 20 marijuana plants
were being grown on his personal property and that he possessed a State of
California medical marijuana card. Following his removal, the agency offered,
and the appellant agreed to enter into a last-chance agreement (LCA). Under
the terms of the LCA, the appellant agreed to serve a 45-day suspension for
the charged misconduct. The agency agreed to hold the appellant’s removal in
abeyance for 2 years pending his satisfactory completion of the LCA, during
which time the appellant agreed to refrain from engaging in any misconduct
and to abide by all agency and Federal Government rules, regulations, and
policies, and Federal and state laws. The LCA also stated that the appellant
agreed and understood that the agency could remove him immediately upon
discovering that he had engaged in any misconduct during the 2-year period,
and that he waived his right to appeal or contest any such removal pursuant to
the LCA. Effective November 10, 2015, the agency removed the appellant
pursuant to the LCA after learning from local law enforcement that marijuana
plants were again being grown on his property in May 2015.
The appellant filed a Board appeal arguing that he had involuntarily signed the
LCA under time pressure and without any input from his representative. He
argued that his removal was double punishment because he had served a
45-day suspension for the same misconduct. He also argued that he did not
breach the LCA because any marijuana found growing on the property that he
jointly owned with his wife was for his wife’s medical use to mitigate the
effects of her cancer treatment pursuant to California Law. Without holding
the appellant’s requested hearing, the administrative judge dismissed the
appeal for lack of jurisdiction. The administrative judge determined that the
appellant had voluntarily entered into the LCA, had violated the LCA by
growing marijuana on his property, and the Board lacked jurisdiction over his
removal because he had waived his appeal rights in the LCA.
Holdings: The Board denied the appellant’s petition for review and
affirmed the initial decision.
1. The administrative judge properly found that the appellant failed to
nonfrivolously allege that he had complied with the terms of the LCA
because there was no genuine dispute that, as of May 2015,
marijuana plants were being grown on the appellant’s property,
which he jointly owned with his wife.
a. The Board rejected the appellant’s argument that he did not
breach the LCA because the marijuana on the property was for
his wife’s medical use pursuant to California law. The Board
determined that the appellant had agreed in the LCA that any
violation of Federal law would result in his removal. Under
Federal law, it is illegal to manufacture or possess a Schedule I
controlled substance, which includes marijuana. The fact that
the appellant’s conduct was permissible under state law could
not insulate him because his conduct remains illegal under
Federal law, which preempts state law.
2. The Board rejected the appellant’s argument that the LCA was
invalid and his removal was impermissible because he had already
served a 45-day suspension for the same misconduct. The Board has
declined to invalidate an LCA that imposed a suspension for an
appellant’s misconduct and also provided that future misconduct
would lead to the reimposition of the removal that led to the LCA.
LCAs serve an important public policy of avoiding unnecessary
litigation and the imposition of some discipline into an LCA makes it
more likely that an agency will agree to enter into the agreement
Appellant: Christopher L. Elder
Agency: Department of the Air Force
Decision Number: 2016 MPSB 41
Docket Number: DA-0752-15-0171-I-1
Issuance Date: November 22, 2016
Appeal Type: Adverse Action by Agency
Action Type: Removal
Adverse Action Charges
-Leaving the job site without permission/unauthorized absence
-Inappropriate conduct
Reprisal under 5 U.S.C. § 2302(b)(9)(A)(i)
The agency petitioned for review of the initial decision, which reversed the
appellant’s removal and granted corrective action. Effective December 19,
2014, the agency removed the appellant based on two charges of leaving the
job site without permission/unauthorized absence and inappropriate conduct.
Regarding the first charge, the agency alleged that the appellant was absent
from his worksite for 1.5 hours on October 22, 2014, and 5 hours on October
28, 2014, and his whereabouts could not be accounted for. Regarding the
second charge, the agency alleged that the appellant acted inappropriately on
October 21 and 22, 2014.
The appellant filed a Board appeal challenging his removal, but did not request
a hearing. The appellant also raised an affirmative defense of retaliation for
his prior protected activity, which included his filing of a Board appeal
concerning his prior removal in 2013, and two subsequent petitions for
enforcement of the settlement agreement resolving his 2013 removal appeal.
Based on the written record, the administrative judge issued an initial decision
reversing the removal action and finding that the agency had retaliated against
the appellant for his prior Board activity. The administrative judge did not
sustain either of the removal charges. The administrative judge granted
corrective action on the appellant’s affirmative defense of reprisal.
Applying
the standard in Warren v. Department of the Army, 804 F.2d 654 (Fed. Cir.
1986), the administrative judge determined that it was more likely true than
untrue that, but for the appellant’s prior protected activity, he would not have
been removed. The agency filed a petition for review.
Holdings: The Board denied the agency’s petition for review and affirmed
the initial decision as modified to analyze the appellant’s affirmative
defense of reprisal under Alarid v. Department of the Army, 122 M.S.P.R.
600 (2015).
1. The administrative judge properly found that the agency failed to
prove its charges. Because a hearing was not held, the
administrative judge properly applied the relevant factors in
weighing the parties’ hearsay evidence.
a. Regarding charge 1, the agency failed to prove that the
appellant’s alleged absences were unauthorized. The
appellant had been granted permission for his alleged absence
on October 22, 2014, when he met with the agency’s
representative in the legal office to seek compliance with the
settlement agreement in his prior Board appeal. The appellant
had also advised his work leader that on October 28, 2014 he
would be unavailable because he was responding to a
discussion of incident he had received concerning, among
other things, his behavior on October 22, 2014.
b. Regarding charge 2, the administrative judge properly found
that the agency failed to prove that the appellant had engaged
in improper conduct.
2.
The standard set forth in Warren v. Department of the Army, 804
F.2d 654 (Fed. Cir. 1986) is inapplicable to claims alleging reprisal
for filing a Board appeal under 5 U.S.C. § 2302(b)(9)(A)(i). Instead,
the reprisal claim must be analyzed under the burden-shifting
standard set forth in 5 U.S.C. § 1221(e). In such cases, the appellant
first must establish by preponderant evidence that he engaged in
protected activity that was a contributing factor in the personnel
action at issue. If he does, the burden shifts to the agency to prove
by clear and convincing evidence that it would have taken the same
action absent the appellant’s protected activity.
3. Applying the standard in section 1221(e), the Board determined that
the administrative judge’s finding that the deciding official was
aware of the appellant’s 2013 and 2014 protected activity when he
made his removal decision in 2014 was sufficient to satisfy the
appellant’s burden of proving that his protected activity was a
contributing factor in his removal.
4.
The Board found that the agency failed to meet its burden of
establishing by clear and convincing evidence that it would have
removed the appellant absent his protected activity, considering the
factors set forth in Carr v. Social Security Administration, 185 F.3d
1318, 1323 (Fed. Cir. 1999).
a. Regarding the first factor, the Board found that the agency’s
evidence in support of its action was weak because the agency
failed to prove either of its charges.
b. Regarding the second factor, the Board found that the
proposing and deciding officials had a strong motive to
retaliate. The proposing official was aware of the compliance
issues that arose from the appellant’s prior Board appeal and
his inability to prevent the appellant from visiting the legal
office to discuss these issues, which formed the basis of charge
2, reflected on his capacity as a supervisor. Additionally, the
proposing official’s retaliatory motive was reflected in his
statement that the appellant acted out both on the job and in
the legal office, in such a manner so as to undermine the
morale and discipline of the unit and bring discredit to the
organization. The deciding official was also the deciding
official in the removal action that was the subject of the
appellant’s prior Board settlement agreement. He was aware
that the appellant’s presence in the legal office on October 22,
2014 was to seek compliance with the settlement agreement
in his prior Board appeal.
c. The Board found that the third Carr factor was insignificant
due to the lack of evidence regarding how the agency treated
similarly situated employees who were not whistleblowers.
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Case Report - November 22, 2016 | 11-22-2016 | https://www.mspb.gov/decisions/case_reports/Case_Report_November_22_2016_1358788.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_November_22_2016_1358788.pdf | Case Report for November 18, 2016
Note: These summaries are descriptions prepared by individual MSPB employees. They do
not represent official summaries approved by the Board itself, and are not intended to
provide legal counsel or to be cited as legal authority. Instead, they are provided only to
inform and help the public locate Board precedents.
BOARD DECISIONS
Appellant: Lisa Hess
Agency: U.S. Postal Service
Decision Number: 2016 MSPB 40
Docket Number: AT-0752-14-0058-B-1
Issuance Date: November 18, 2016
Appeal Type: Adverse Action by Agency
Action Type: Removal
Board Procedures
- Interlocutory Review
- Mootness
Discrimination
- Compensatory Damages
The appellant filed an appeal of her removal, raising affirmative defenses of sex and
disability discrimination, reprisal for equal employment opportunity (EEO) activity, and
whistleblower reprisal. While the appeal was pending in the regional office, the agency
rescinded the removal action. The administrative judge dismissed the appeal as moot,
2
and the appellant petitioned for review.
Relying on its recently issued decision in Savage
v. Department of the Army, 122 M.S.P.R. 612 (2015), the full Board remanded the appeal,
finding that the administrative judge erred in dismissing the appellant’s discrimination and
EEO retaliation defenses.
Hess v. U.S. Postal Service, 123 M.S.P.R. 183 (2016). On
remand, the administrative judge again dismissed the appeal as moot, finding that,
pursuant to its decision in Savage, the Board lacks the authority to order compensatory
damages. The administrative judge then certified his ruling to the full Board for
interlocutory review.
Holding: The Board reversed the administrative judge’s ruling that the Board lacks
authority to award compensatory damages, vacated the order that stayed the
proceedings below, and returned the appeal to the regional office for further
adjudication.
1. In light of the lack of guidance regarding the impact of Savage on the Board’s
authority to award compensatory damages, certification for interlocutory review
under 5 C.F.R. § 1201.92 was proper.
2. The Board has authority to award compensatory damages resulting from a
discriminatory or retaliatory adverse action.
a. The Civil Rights Act of 1991, which introduced the compensatory damages
provision of 42 U.S.C. § 1981a, does not directly address the Board’s authority
to award such damages. However, the Board’s longstanding practice of
awarding compensatory damages is consistent with the structure of the Civil
Service Reform Act of 1978 (CSRA), which sets out complementary roles for the
Board and the Equal Employment Opportunity Commission (EEOC) under the
mixed-case procedures of 5 U.S.C. § 7702. The legislative history of the CSRA
indicates that the mixed-case procedures were intended to avoid “forum
shopping and inconsistent decisions,” and that the Board’s decision in a mixed
case appeal should “include[] any remedial order the [EEOC]... may impose
under law.”
b.
In West v. Gibson, 527 U.S. 212 (1999), the Supreme Court held that the EEOC
has authority award compensatory damages under the Civil Rights Act of 1991,
reasoning that such authority is consistent with a remedial scheme that requires
exhaustion of administrative remedies to “encourage[] quicker, less formal, and
less expensive resolution of disputes within the Federal Government outside of
the court.” The reasoning of West applies equally well to Board proceedings.
c. The EEOC has expressed the view that the Board is required to adjudicate an
appellant’s claim for compensatory damages, and the Board generally defers to
the EEOC on issues of substantive discrimination law unless the EEOC’s decision
rests on civil service law for its support or is so unreasonable that it amounts to
3
a violation of civil service law. Although the Board stated in Savage that mixed
case appeals are decided using the Board’s appellate procedures, which are a
matter of civil service law, the Board has found that the right to compensatory
damages under the Civil Rights Act of 1991 is a matter of substantive
discrimination law.
Crosby v. U.S. Postal Service, 78 M.S.P.R. 263 (1998).
Consequently, the Board will continue to defer to the EEOC’s position, which is
not so unreasonable as to amount to a violation of civil service law.
3. In light of the Board’s finding that Savage does not alter the Board’s practice of
awarding compensatory damages, the appeal is not moot, because the agency’s
complete rescission of the removal action did not afford the appellant all of the relief
available before the Board.
COURT DECISIONS
Petitioner: John Acha
Respondent: Department of Agriculture
Tribunal: U.S. Court of Appeals for the 10th Circuit
Docket Number: 2015-9581
Issuance Date: November 14, 2016
Whistleblowing Reprisal
- Exhaustion of Remedies
In January 2012, Acha filed a report with his supervisor alleging that another employee
violated the Federal Acquisition Regulation (FAR) by making an unauthorized deposit on a
rental apartment. In April 2012, Acha reported the alleged FAR violation to the agency’s
Inspector General, and further reported that his supervisor had instructed him to cover up
the violation. Following his probationary termination, Acha filed a complaint with the
Office of Special Counsel (OSC), alleging that he was terminated because of his April
disclosure to the Inspector General.
After OSC terminated its investigation, Acha filed an individual right of action appeal,
in which he alleged that he was terminated not only because of his April disclosure to the
Inspector General, but also because of the January disclosure to his supervisor. He
explained that he did not raise the latter claim before OSC, because at the time he could
not have received corrective action based on the January disclosure, which was made in
the normal course of duties. That barrier was subsequently removed by the passage of the
Whistleblower Protection Enhancement Act of 2012 (WPEA), which clarified that
employees may obtain corrective action for disclosures made in the normal course of
duties, and the Board’s decision in Day v. Department of Homeland Security, 119 M.S.P.R.
4
58 (2013), which held that the protections given to such disclosures apply retroactively to
pending cases before the Board. He further argued that, even though he did not allege
before OSC that he was terminated because of the January disclosure, he included
information about that disclosure that gave OSC sufficient basis to pursue an investigation.
The Board agreed with Acha that he had met the exhaustion requirement with respect to
the January disclosure, but found on the merits that he was not entitled to corrective
action based on either disclosure.
Holding: On appeal, the court ruled sua sponte that the Board lacked jurisdiction over
the appellant’s claim that he was terminated for the January disclosure. The court
vacated the Board’s decision insofar as it found on the merits that disclosure was not
protected.
1. To satisfy the exhaustion requirement under 5 U.S.C. § 1214(a)(3), an employee
must give OSC a sufficient basis to pursue an investigation which might lead to
corrective action. The court disagreed with the Board that Acha raised his January
disclosure with OSC in a way that would allow OSC to sufficiently pursue an
investigation. Citing the Federal Circuit’s decision in McCarthy v. Merit Systems
Protection Board, 809 F.3d 1365 (Fed. Cir. 2016), the court found that even though
Acha had provided information about the January disclosure in his complaint, his
failure to explicitly allege that he was terminated due to this disclosure was fatal to
the exhaustion issue and thus to the MSPB’s jurisdiction.
2. The court further found that, while it would have been futile for Acha to seek
corrective action with OSC concerning the January disclosure, the futility doctrine
could not be applied to permit an exception to the exhaustion requirement mandated
by Congress. He was strictly required to present the claim to OSC first.
Petitioners: Federal Education Association – Stateside Region, Karen Graviss
Respondent: Department of Defense, Domestic Dependents Elementary and Secondary
School
Tribunal: U.S. Court of Appeals for the Federal Circuit
Docket Number: 2015-3173
Issuance Date: November 18, 2016
Due Process
- Ex Parte Communications
Following an incident in which Ms. Graviss, an elementary school special education
teacher, physically restrained a student, the school principal, Ms. McClain, filed a Serious
Incident Report which she forwarded to the community superintendent, Mr. Curkendall,
5
and his supervisor, Dr. Calvano. In a March 26, 2010 email to McClain and Curkendall,
Calvano stated that “we need to try and terminate [Graviss] for repeated use of corporeal
[sic] punishment and for insubordination.” By notice dated April 12, 2010, McClain
proposed to remove Graviss on a single charge of “inappropriate physical contact with a
student.” Neither Graviss nor her union representative was informed the time of the
March 26 email. After considering Graviss’s responses, Curkendall issued a decision letter
removing her from her position.
The union filed a grievance, which proceeded to arbitration. During discovery
proceedings, Graviss learned for the first time of the March 26 email. In his final decision,
the arbitrator sustained the removal action and rejected Graviss’s argument that the
agency violated her due process rights by failing to disclose the March 26 email at an
earlier stage of the proceedings. Graviss petitioned for review with the Federal Circuit.
Holding: In a 2-1 panel decision, the court reversed the arbitrator’s decision, finding
that Graviss’s due process rights were violated by an impermissible ex parte
communication.
1.
In Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368 (Fed. Cir. 1999),
the court identified three factors that are relevant in determine whether an ex parte
contact is constitutionally impermissible: (1) whether the ex parte communication
merely introduces "cumulative" information or new information; (2) whether the
employee knew of the error and had a chance to respond to it; and (3) whether the ex
parte communications were of the type likely to result in undue pressure upon the
deciding official to rule in a particular manner.
2. The court rejected the agency’s argument that the Stone factors do not apply
because the communication occurred before removal proceedings had been brought
against Graviss. The court found no basis for a distinction between pre- and post
initiation communications when the ex parte communications occurred at a time when
an adjudicatory proceeding was contemplated. The risk of creating undue pressure in
such circumstances is just as great when ex parte contact occurs before the
proceeding begins as when it occurs after the proceeding begins.
3. The court found that all three Stone factors were satisfied, and that Graviss’s due
process rights were violated.
a. The March 26 email clearly introduced new information to deciding official
Curkendall, because it informed him for the first time that his supervisor
wanted Graviss removed for insubordination and repeated use of corporal
punishment.
b. As to the second factor, it is undisputed that Graviss did not learn of the March
26 email until long after her opportunity to respond to the proposed removal
had passed. Her opportunity to address the email during arbitration did not
cure the defective pretermination process.
6
c. The court clarified that the third Stone factor, whether the communications
were “of the type likely to result in undue pressure upon the deciding official
to rule in a particular manner,” does not require proof of actual subjective
influence. Although the arbitrator found that Curkendall believed he was not
unduly influenced by the March 26 email from his supervisor, the
communication was nonetheless of the type likely to result in undue pressure.
4. In his dissent, Judge Plager argued that the Stone factors did not support a finding
of a due process violation, and expressed concern that the majority opinion “has the
potential to chill important discussions regarding personnel matters among responsible
supervisors, discussions that are essential to well-functioning agency administration.”
The U.S. Court of Appeals for the Federal Circuit issued nonprecedential decisions in
the following cases:
Jones v. Armed Forces Retirement Home, No. 2016-2265 (Nov. 10, 2016) (MSPB Docket No.
DE-4324-15-0275-I-1) (affirming the Board’s decision, which denied Jones’s request for
relief under the Uniformed Services Employment and Reemployment Rights Act (USERRA)
because he did not show that his military service or prior USERRA litigation was a
motivating factor in his non-selection).
Oplinger v. Department of Homeland Security, No. 2016-1076 (Nov. 10, 2016) (Rule 36
affirmance of arbitrator’s decision).
Parkinson v. Department of Justice, No. 2016-1667 (Nov. 8, 2016) (MSPB Docket No. SF
0752-13-0032-I-2) (scheduling oral argument en banc).
Jefferson v. Merit Systems Protection Board, No. 2015-3190 (Nov. 8, 2016) (MSPB Docket
No. CB-7121-15-0010-V-1) (Rule 36 affirmance).
Jimenez Department of Veterans Affairs, No. 2016-1832 (Nov. 7, 2016) (MSPB Docket No.
DA-1221-13-0323-W-2) (affirming the Board’s decision, which denied Jimenez’s individual
right of action appeal because the agency proved by clear and convincing evidence it
would have taken employment action in the absence of the appellant’s protected
disclosure).
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Case Report - November 4, 2016 | 11-04-2016 | https://www.mspb.gov/decisions/case_reports/Case_Report_November_4_2016_1353409.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_November_4_2016_1353409.pdf | Case Report for November 4, 2016
BOARD DECISIONS
Appellant: Scott Holton
Agency: Department of the Navy
Decision Number: 2016 MSPB 39
Docket Number: PH-0752-15-0475-I-1
Issuance Date: November 2, 2016
Appeal Type: Adverse Action by Agency
Action Type: Removal
Adverse Action Charge
-Illegal Drug Use
Harmful Error
The appellant petitioned for review of an initial decision, which sustained his
removal for use of an illegal drug, marijuana. The appellant was a Rigger
Supervisor who oversaw a crane team when an accident occurred in which a
crane struck a building, causing approximately $30,000 in damage. On the
evening of the accident, the agency drug tested the entire crane team. The
appellant tested positive for marijuana. Two days after the appellant provided
his urine sample for the drug test, the agency issued a written notice informing
him that the reason for the drug test was the accident. The appellant filed a
Board appeal disputing the charge and raising an affirmative defense of
harmful error. After holding a hearing, the administrative judge found that
the agency proved its charge. The administrative judge also found that the
appellant failed to prove his affirmative defense of harmful error for two
reasons: (1) the agency had properly selected him for a drug test based on his
role as the first-line supervisor of the employees operating the crane at the
time of the accident; and (2) the agency’s failure to provide advance written
notice of why he was being drug tested, as required by its drug-testing
program, was harmless because it did not affect the outcome of the drug test.
Holdings: The Board denied the appellant’s petition for review and
affirmed the initial decision as modified to address the appellant’s claims
that the agency violated his constitutional rights.
1. The administrative judge properly found that the agency proved its
charge of illegal drug use. When an agency relies on a positive drug
test to take an adverse action, it must prove by preponderant
evidence that the test was valid and must establish that the urine
sample that tested positive was the appellant’s. An alleged violation
of the agency’s drug testing procedures is reviewed under the
harmful error standard. The agency proved that the drug test was
valid. The appellant’s challenges to the sample collection procedures
were unpersuasive because he had signed a checklist attesting to the
fact that all of the steps on the specimen checklist form had been
completed and certified that the specimen bottle was sealed in his
presence.
2. The administrative judge correctly found that the appellant failed to
prove harmful error because he did not prove that the agency’s
notice deficiency would have changed the results of his drug test.
3. The Board addressed the appellant’s argument that the agency
violated his constitutional rights because it lacked reasonable
suspicion that he either caused or contributed to the accident. The
Board determined that the agency’s drug testing procedures, which
allowed it to drug test employees reasonably suspected of having
caused or contributed to certain accidents, were similar to drug
testing regulations and requirements upheld by the Supreme Court as
permissible under the Fourth Amendment. It also found that it was
reasonable for the agency to suspect that the appellant could have
caused or contributed to the accident and to drug test him.
Appellant: William R. Campbell
Agency: Department of the Army
Decision Number: 2016 MSPB 38
Docket Number: DA-0752-14-0353-I-1
Issuance Date: November 2, 2016
Appeal Type: Adverse Action by Agency
Action Type: Demotion
Adverse Action Charge
-Negligent Performance of Duty
Whistleblower Protection Act
-Clear and Convincing Evidence
The appellant petitioned for review of the initial decision, which affirmed his
demotion. The appellant was a GS-15 Director of the agency’s Directorate of
Plans, Training, Mobilization, and Security, which included the Range
Operations Branch. He was responsible for establishing and maintaining
effective internal controls for protecting agency resources. In May 2012,
several employees of the Range Operations Branch were arrested and charged
with theft of Government property. An agency investigation ensued, during
which the appellant was suspected of wrongdoing related to Government
purchase cards (GPC). The appellant requested an external audit of the GPC
program. The results of the agency’s investigation concluded that the
appellant did not adequately monitor the GPC program, he did not clearly
understand or communicate agency policy regarding the GPC program, and the
lack of management controls for the GPC program had led to misuse of the
program. Based on the results of the investigation, the agency proposed the
appellant’s removal based on a charge of negligent performance of duty. The
deciding official mitigated the penalty to a demotion to a GS-12 Workforce
Development Specialist position.
The appellant filed a Board appeal disputing the charges and raising an
affirmative defense of whistleblower reprisal. The appellant alleged that the
agency demoted him for reporting his suspicion that employees were stealing
Government property and seeking an external investigation of the GPC
program. After holding a hearing, the administrative judge affirmed the
appellant’s demotion, finding that the agency proved its charge and the
appellant failed to prove his affirmative defense.
Holdings: The Board denied the appellant’s petition for review and
affirmed the initial decision as modified to supplement the administrative
judge’s analysis of the appellant’s whistleblower reprisal claim.
1. The appellant’s arguments on review did not provide a basis for
disturbing the administrative judge’s well-reasoned findings that the
agency proved its charge of negligent performance of duty.
2.
The administrative judge properly found that the agency met its
burden of establishing by clear and convincing evidence that it would
have demoted the appellant absent his protected disclosure under
the standard set forth in Carr v. Social Security Administration, 185
F.3d 1318, 1323 (Fed. Cir. 1999). The Board affirmed the
administrative judge’s findings concerning the second Carr factor,
that the proposing and deciding officials had no motive to retaliate
against the appellant based on his whistleblowing.
3. The Board supplemented the administrative judge’s analysis to
address the remaining Carr factors. Regarding the first factor, the
Board found that the agency’s evidence in support of its action was
strong based on testimony of agency officials concerning how the
details of the investigation showed that the appellant failed to
perform his duties of ensuring that management controls were in
place to prevent misuse of the GPC program and theft of Government
property. The Board found that the third Carr factor was
insignificant due to the lack of evidence regarding how the agency
treated similarly situated employees who were not whistleblowers.
The appellant alleged that the proposing official was similarly
situated because he was also aware of property accountability issues
within his own directorate, but no action was taken against him. The
Board rejected this argument finding that, unlike the appellant, the
proposing official had addressed the accountability issues in his
directorate immediately upon becoming aware of them.
4.
The administrative judge properly found that the deciding official
had considered all of the relevant factors articulated in Douglas v.
Veterans Administration, 5 M.S.P.R. 280, 305 (1981) in determining
that demotion was an appropriate penalty in this case.
Appellant: Derek J. Morris
Agency: Department of the Navy
Decision Number: 2016 MSPB 37
Docket Number: SF-0752-13-1476-I-1
Issuance Date: October 31, 2016
Appeal Type: Adverse Action by Agency
Action Type: Removal
Dismissal - Failure to prosecute
The appellant petitioned for review of the initial decision, which sustained his
removal. The Clerk’s Office rejected and returned the appellant’s petition for
failure to comply with 5 C.F.R. § 1201.114(h), which limits a petition for
review to 30 pages, exclusive of a table of contents, table of authorities,
attachments, and certificate of service. The appellant’s petition consisted of
20 pages of analysis and argument, a 59-page “table of contents,” and a
214-page “table of authorities.” The Clerk’s Office rejected the appellant’s
petition and notified him that, based on its review of his petition, it
considered the table of contents and table of authorities to be part of his
petition for review because they consisted of legal argument regarding the
merits of his appeal. The Clerk’s Office afforded the appellant an opportunity
to perfect his appeal by submitting a petition that complied with the 30-page
limitation. The appellant subsequently filed noncompliant pleadings on three
separate occasions. The Board afforded the appellant three additional
opportunities to perfect his petition. In affording the appellant a final
opportunity to perfect his petition, the Clerk’s Office notified the appellant
that if he failed to do so, the Board could impose appropriate sanctions,
including dismissing his petition for review with prejudice.
Holdings: The Board dismissed the appellant’s petition for review with
prejudice for failure to prosecute due to his repeated failure to comply
with the Board’s regulations concerning the page limit for a petition for
review.
1. The appellant failed to exercise due diligence by failing to comply
with the clear directions provided by the Clerk’s Office. His failure
to comply was not accidental, but rather defiant, because on four
occasions he exceeded the regulatory page limit for a petition for
review by approximately 200 pages.
2. The appellant’s inappropriate and misogynistic comments in his
pleadings regarding his dealings with the Board’s female staff showed
bad faith.
3. Although dismissal with prejudice is a severe sanction, the Board
found persuasive several decisions of Federal circuit courts of
appeal, which dismissed appeals under similar circumstances relating
to noncompliant pleadings.
COURT DECISIONS
The U.S. Court of Appeals for the Federal Circuit issued nonprecedential
decisions in the following cases:
Johnson v. Office of Personnel Management, No. 16-2005 (Nov. 3, 2016)
(affirming the Board’s decision, which affirmed OPM’s denial of Johnson’s
application for disability retirement as untimely).
Melton v. Department of the Army, No. 16-1780 (Nov. 3, 2016) (vacating the
Board’s order finding the Army in compliance with the terms of a settlement
agreement and remanding for further consideration of whether the Army
violated the settlement agreement by deducting money otherwise due to
Melton after the effective date of the agreement in payment of pre-settlement
related debts).
Brasch v. Merit Systems Protection Board, No. 16-1923 (Nov. 3, 2016)
(affirming the Board’s decision, which dismissed Brasch’s USERRA appeals for
lack of jurisdiction due to his failure to nonfrivolously allege that his military
status was at least a motivating factor in the agency’s alleged actions).
Stussy v. Office of Personnel Management, No. 14-3149 (Oct. 31, 2016)
(affirming the Board’s decision, which affirmed OPM’s denial of Stussy’s
application for disability retirement as untimely).
English v. Small Business Administration, No. 16-2119 (Oct. 26, 2016)
(affirming the Board’s decision, which denied English’s request for corrective
action in an IRA appeal).
Evans v. Merit Systems Protection Board, No. 16-2041 (Oct. 25, 2016)
(affirming the Board’s dismissal of Evans’ appeal for lack of jurisdiction
because she failed to identify any legal authority establishing Board
jurisdiction over her claims).
Scrivens v. Office of Personnel Management, No. 16-1910 (Oct. 18, 2016)
(affirming the Board’s decision, which denied Scrivens’ claim for a disability
retirement annuity).
Hernandez v. Merit Systems Protection Board, No. 16-1933 (Oct. 14, 2016)
(affirming the Board’s decision, which dismissed Hernandez’s probationary
termination appeal for lack of jurisdiction).
Hernandez v. Merit Systems Protection Board, No. 16-1934 (Oct. 14, 2016)
(affirming the Board’s decision, which dismissed Hernandez’s USSERA appeal
for lack of jurisdiction finding that he could not bring a USSERA complaint
against the FBI, which is excluded from the definition of “Federal executive
agency” under 38 U.S.C. § 4303(5)).
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Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the Board
itself, and are not intended to provide legal counsel or to be cited as legal
authority. Instead, they are provided only to inform and help the public
locate Board precedents.
BOARD DECISIONS
Appellant: Donald Kenneth Goodin
Agency: Department of the Army
Decision Number: 2016 MSPB 18
Docket Number: CH-3330-14-0733-I-1
Issuance Date: May 2, 2016
Appeal Type: Veterans Employment Opportunities Act (VEOA)
Veterans’ Rights – VEOA
The appellant petitioned for review of an initial decision that denied his request
for corrective action in this VEOA appeal. The appellant, a 10-point preference
eligible veteran, applied for a Clinical Social Worker position. The vacancy
announcement provided that, “[i]f selected, official college or university transcripts
must be submitted,” and that a selectee “must provide documents for credentialing.”
The agency selected the appellant for the position, made a tentative job offer to him,
and sent him a letter informing him to provide documentation for the credentialing
process. The agency then determined that the appellant did not meet the credentialing
requirements “to work in the fully independent role that is expected,” and had not
worked in the field “for the last five years and has not done the type of work that was
advertised (performing diagnostic assessments or therapy as a primary therapist) for
this position in 16 years.” The agency filed a passover request with OPM, which OPM
denied, informing the agency that it could challenge the negative passover decision or
consider/select the preference-eligible appellant for the job. During its further
consideration of the appellant for the position, the agency notified him that he had
failed to provide the required documentation for the credentialing process pursuant to
Army regulations. The appellant did not provide the required documentation, and the
agency ultimately withdrew the tentative job offer due to his failure to provide a
complete package for credentialing.
2
On appeal to the Board, the administrative judge denied corrective action,
finding that the appellant failed to prove that the agency violated a statute or regulation
related to veterans’ preference. On review, the appellant relied on the fact that OPM
considered the same information that he submitted with his application to find that he
possessed the specialized experience required for the Social Worker position.
Holding: The Board denied the appellant’s petition for review and affirmed the
initial decision:
1. OPM’s passover decision did not preclude the agency from requiring the
appellant to provide the mandated documentation for the credentialing process
pursuant to Army regulations because, as set forth in the vacancy announcement, it
was a requirement imposed on all selectees for the Clinical Social Worker position.
2. Having met its obligation to offer the appellant the position he sought, the Board
discerned no reason that the agency could not subject him to the same
preappointment process as other employees.
___________________________________________________
Appellant: David A. Fargnoli
Agency: Department of Commerce
Decision Number: 2016 MSPB 19
Docket Number: DC-0752-15-0266-I-1
Issuance Date: May 6, 2016
Appeal Type: Adverse Action by Agency
Action Type: Removal
Adverse Action Charges
- Lack of Candor
The appellant petitioned for review of an initial decision that sustained his
removal. The appellant was a Criminal Investigator who had previously been employed
by the Department of Labor (DOL). His removal was proposed based on three charges:
(1) Unauthorized Possession of Equipment (a firearm acquired while employed by
DOL); (2) Conduct Unbecoming a Law Enforcement Officer (4 specifications); and
(3) Lack of Candor (6 specifications). The appellant’s second-level supervisor issued a
decision letter sustaining the removal, finding that the evidence supported all three
charges, but only 3 of the 6 specifications of Lack of Candor. On appeal to the Board,
the administrative judge sustained all three charges, but did not sustain one of the
specifications of the conduct unbecoming charge. On review, the appellant contested
all of the judge’s findings except for one specification of the conduct unbecoming
charge.
Holdings: The Board granted the appellant’s petition for review and remanded the
appeal to the regional office for further adjudication of the lack of candor charge:
1. Although the judge did not correctly construe the charge of Unauthorized
Possession of Equipment, the charge is nonetheless supported by preponderant
evidence, which showed that the firearm in question was provided by the
manufacturer to the appellant in his official capacity with the Department of
3
Labor, and he was not entitled to keep the firearm when he left DOL to take a job
with the Department of Commerce.
2. The judge correctly sustained specification 2 of the conduct unbecoming charge
(improperly carrying a firearm in a government-owned vehicle), but not
specification 3 (improperly storing a firearm in an unoccupied government-owned
vehicle).
3. The lack of candor charge must be remanded for further adjudication. The
Board clarified that a lack of candor charge requires proof of two elements: (1)
that the employee gave incorrect or incomplete information; and (2) that he did so
knowingly. Here, the judge made no finding whether the appellant knowingly gave
incorrect or incomplete information. That matter is in dispute, and the judge did
not make the credibility determinations needed to resolve.
_______________________________________________
COURT DECISIONS
Petitioner: Matt Cahill
Respondent: Merit Systems Protection Board
Tribunal: U.S. Court of Appeals for the Federal Circuit
Docket Number: 2015-3152
Issuance Date: May 10, 2016
Whistleblower Protection Act
– Contributing Factor
This was an appeal from a Board decision that dismissed an IRA appeal for lack
of jurisdiction on the ground that Cahill failed to make a nonfrivolous allegation that
his whistleblowing disclosures were a contributing factor in the personnel actions he
alleged were retaliatory. Cahill was an employee of the Centers for Disease Control
who did information-technology work in the Behavioral and Clinical Surveillance
Branch (BCSB) of the Quantitative Science and Data Management Branch (QSDM).
Among other things, the BCSB conducts studies for which its field workers use hand
held devices called “Pocket PCs” to collect data. Cahill alleged that he suffered
retaliation as a result of disclosures he made at a March 22, 2012 meeting with BCSB
management, team leads, project leads, and QSDM management. Specifically, he said
he voiced concerns about some of the agency’s data-collection instruments and
procedures, including that the Pocket PCs were outdated, had bad batteries, and
generally did not work properly. Cahill contended that his supervisors began treating
him differently after that meeting and suffered several covered personnel actions as a
result. The Board determined that Cahill had made nonfrivolous allegations that he
reasonably believed he disclosed gross mismanagement and presented a substantial and
specific danger to public safety. The Board also determined that Cahill had alleged at
least one covered personnel action (placement on a performance plan) and that more
such actions may exist. Nevertheless, the Board dismissed the appeal for lack of
4
jurisdiction on the ground that Cahill failed to nonfrivolously allege that any of the
officials involved in the personnel actions knew of his March 2012 disclosures.
Holding: The court reversed the Board’s finding that Cahill failed to make a
nonfrivolous allegation that his protected disclosures were a contributing factor in
covered personnel actions and remanded the case for adjudication on the merits:
1. Under 5 5 U.S.C. § 1221(e), the contributing factor element of a whistleblowing
claim can be established “through circumstantial evidence, such as evidence that
(A) the official taking the personnel action knew of the disclosure...; and (B) the
personnel action occurred within a period of time such that a reasonable person
could conclude that the disclosure... was a contributing factor in the personnel
action.”
2. When read in context, Cahill’s allegations that he made his disclosures in a
“group meeting with BCSB management team leads, project leads, and QSDM
management” were sufficiently specific and plausible to constitute nonfrivolous
assertions that at least one, and perhaps three, of the officials charged with the
personnel actions at issued attended the March 2012 meeting or at least knew what
Cahill disclosed there.
a. One such official, Ms. Gnesda, served as Assistant Branch Chief of the BCSB,
and hence was “BCSB management.” The record includes notes made by Ms.
Gnesda about the March 22, 2012 meeting.
b. A second alleged retaliating official, Mr. Green, was Chief, Quantitative
Sciences and Data Management Branch, and was therefore “QSDM
management.”
c. A third alleged retaliating official, Dr. Skarbinski, was “Team Lead, Clinical
Outcomes Team, Behavioral and Surveillance Branch.” “Team leads” was one
of the categories of asserted participants in the March 2012 meeting.
3. In determining that Cahill made nonfrivolous allegations of the contributing
factor element, the court found it notable that in the proceedings before the
administrative judge and the Board, the agency did not contend that Cahill had
inadequately alleged that any of the officials charged with the personnel actions
knew of Cahill’s disclosures. This silence suggests that, read in context, Cahill’s
allegations adequately communicated that Ms. Gnesda, Mr. Green, and Dr.
Skarbinski or all three attended the March 2012 meeting or knew what was said
there. The agency’s silence on this point is significant in a second way: it deprived
Cahill of notice that his allegations might require greater specificity—which he
might well have provided if the need had been identified.
____________________________________________
The Federal Circuit issued nonprecedential decisions in the following cases:
Newsome v. Department of the Treasury, No. 2015-3167 (May 4, 2016) (MSPB Docket
No. AT-0752-15-0179-I-1.) (affirming per Rule 36 the Board’s final decision, which
sustained Newsome’s removal)
5
Haynes v. Merit Systems Protection Board, No. 2016-1312 (May 4, 2016) (MSPB
Docket No. DC-315H-15-0871-I-1.) (affirming the Board’s decision, which dismissed the
appeal for lack of jurisdiction)
Cobb v. Merit Systems Protection Board, No. 2015-3195 (May 5, 2016) (MSPB Docket
No. DC-0353-14-1117-I-1.) (affirming per Rule 36 the Board’s decision, which dismissed
Cobb’s restoration appeal for lack of jurisdiction)
Williams v. Office of Personnel Management, No. 2016-1196) (May 5, 2016) (MSPB
Docket No. DC-0831-14-1065-I-1) (affirming the Board’s decision, which denied
Williams’ request for survivor benefits)
Nguyen v. Merit Systems Protection Board, No. 2015-3144 (May 6, 2016) (MSPB
Docket No. DC-0752-14-0767-I-1) (affirming the Board’s decision, which dismissed
Nguyen’s claim of an involuntary retirement for lack of jurisdiction)
Stovall v. Department of Defense, No. 2016-1261 (May 6, 2016) (MSPB Docket No.
CH-0752-15-0245-I-1) (affirming the Board’s decision, which dismissed Stovall’s appeal
for lack of jurisdiction)
Bidnick v. Department of Justice, No. 2015-3169 (May 6, 2016) (MSPB Docket No. AT
0752-14-0060-I-1) (affirming per Rule 36 the Board’s decision, which sustained
Bidnick’s removal)
Davis v. Merit Systems Protection Board, No. 2016-1331 (May 6, 2016) (MSPB Docket
No. DC-3443-15-0969-I-1) (affirming the Board’s decision, which dismissed Davis’
appeal for lack of jurisdiction on the ground that she was not an “employee”)
Fleming v. Department of the Interior, No. 2016-1247 (May 9, 2016) (MSPB Docket
No. AT-1221-11-0460-B-2) (affirming the Board’s decision, which denied corrective
action in this IRA appeal)
Brown v. Department of Defense, No. 2015-3036 (May 9, 2016) (MSPB Docket No. CH
0752-10-0294-I-2) (vacating and remanding the Board’s decision, which sustained
Brown’s removal)
Hayden v Merit Systems Protection Board, No. 2016-1291 (May 10, 2016) (MSPB
Docket No. NY-0752-15-0025-I-1) (affirming the Board’s decision, which dismissed
Hayden’s appeal for lack of jurisdiction because Hayden was not a manager or a
confidential employee within the meaning of 39 U.S.C. § 1005(a)(4)(A)(ii)
Brewer v. Merit Systems Protection Board, No. 2016-1471 (May 10, 2016) (MSPB
Docket No. SF-0752-15-0216-B-1) (affirming the Board’s decision, which dismissed
Brewer’s appeal as untimely filed without good cause shown for the delay) | 12,846 | |
Case Report - February 26, 2016 | 02-26-2016 | https://www.mspb.gov/decisions/case_reports/Case_Report_February_26_2016__1274857.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_February_26_2016__1274857.pdf | Case Report for February 26, 2016
Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the Board
itself, and are not intended to provide legal counsel or to be cited as legal
authority. Instead, they are provided only to inform and help the public locate
Board precedents.
BOARD DECISIONS
Appellant: Rick D. Salerno
Agency: Department of the Interior
Decision Number: 2016 MSPB 10
Docket Number: SF-1221-14-0756-W-1
Issuance Date: February 22, 2016
Appeal Type: Individual Right of Action (IRA)
IRA Jurisdiction
Knowledge/Timing Test
The appellant alleged that the agency took a variety of personnel actions against
him in retaliation for disclosures he made to OSC concerning the adequacy of
the agency’s law enforcement communication security system. The
administrative judge dismissed the appeal for lack of jurisdiction.
Holding: The Board found that the appellant met his jurisdictional burden
with respect to his claim that a 30-day suspension was reprisal for
disclosures to OSC. Accordingly, the Board remanded for further
adjudication.
1. The Board has jurisdiction over an IRA appeal if the appellant has
exhausted his administrative remedies before OSC and makes
nonfrivolous allegations that (1) he made a protected disclosure
described under 5 U.S.C. § 2302(b)(8) or engaged in protected activity
described under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D), and (2)
the disclosure or protected activity was a contributing factor in the
agency's decision to take or fail to take a personnel action as defined
by 5 U.S.C. § 2302(a).
2. A nonfrivolous allegation of a protected whistleblowing disclosure is
an allegation of facts that, if proven, would show that the appellant
disclosed a matter that a reasonable person in his position would
believe evidenced one of the categories listed in 5 U.S.C. § 2302(b)(8).
The disclosure must be specific and detailed, not vague allegations of
wrongdoing. The appellant’s disclosure failed to meet that standard
because it constituted no more than a general philosophical or policy
disagreement with the agency regarding law enforcement
communication security issues.
3. Although the appellant’s disclosures were insufficient under 5 U.S.C.
§ 2302(b)(8), his disclosure to OSC constituted protected activity
under 5 U.S.C. § 2302(b)(9)(C), which guards against reprisal for
disclosing information to OSC “in accordance with applicable
provisions of law.” Further, the appellant nonfrivolously alleged that
this protected activity was a contributing factor in his 30-day
suspension. The record established that the deciding official was
aware of the protected activity and issued the suspension within 15
months of that activity, satisfying the knowledge/timing test.
Accordingly, with respect to his suspension and § 2302(b)(9), the
appellant met his jurisdictional burden.
4. The Board lacks the jurisdiction to hear the appellant’s allegation
that OSC committed harmful error by not further investigating his
claims.
Appellant: Angela Campbell
Agency: Office of Personnel Management
Decision Number: 2016 MSPB 11
Docket Number: CH-0845-15-0605-I-1
Issuance Date: February 25, 2016
Appeal Type: FERS - Collection of Overpay. Debts
Action Type: Retirement/Benefit Matter
OPM Overpayment
Status Quo Ante
The appellant challenged OPM’s reconsideration decision, which declined to
waive or otherwise modify an overpayment that reportedly stemmed from the
agency having neglected to reduce the annuity of the appellant’s late husband to
account for a survivor benefit election. While the appeal was pending, OPM
indicated that it had rescinded its decision and the administrative judge
dismissed for lack of jurisdiction.
Holding: The Board granted the petition for review, vacated the initial
decision, and remanded the appeal for further adjudication.
1. If OPM completely rescinds its final decision, the Board no longer has
jurisdiction over the appeal in which that decision is at issue.
However, complete rescission requires that OPM return the appellant
to the status quo ante.
2. OPM withheld $1,122.30 from the appellant’s late husband’s basic
annuity based upon the purported overpayment, pursuant to exigent
collection provisions. OPM has never refunded that money. On
remand, the administrative judge must determine whether the
appellant is the proper beneficiary of that accrued but unpaid
annuity, pursuant to 5 U.S.C. §§ 8424(d), (g). If so, the appellant has
not been returned to status quo ante.
COURT DECISIONS
NONPRECEDENTIAL:
Petitioner: Phillip Steffen, Lara Beasley, Samir George Zakhem
Respondent: Department of the Army
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2015-3205
MSPB Docket No. Nos. DC-0752-14-0432-I-1, DC-0752-13-3391-I-1, DC-0752-13
1004-I-1, DC-0752-13-1838-I-1
Issuance Date: February 22, 2016
Holding: The Court affirmed the initial decision of the Board, which
became the final decision after a split vote by the Board members,
upholding the appellants’ furloughs over objections that Unit Identification
Codes (UIC) were an improper basis for deciding which employees to
furlough.
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Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the Board
itself, and are not intended to provide legal counsel or to be cited as legal
authority. Instead, they are provided only to inform and help the public locate
Board precedents.
BOARD DECISIONS
Appellant: Thomas V. Montgomery III
Agency: Department of Health & Human Services
Decision Number: 2016 MSPB 8
Docket Number: DC-3330-14-0993-I-1
Issuance Date: February 5, 2016
Appeal Type: Veterans Employment Opportunities Act of 1998 (VEOA)
Right to Compete
Internal Agency Policy
Close of the Record
The appellant alleged that he was denied the right to compete when the
agency transferred an employee from outside its workforce into a GS-1701-15
Supervisory Organizational Development Specialist position in the competitive
service without advertising the vacancy. The administrative judge denied his
request for corrective action on the merits without a hearing, finding that
there was no genuine dispute of material fact, the agency had discretion to fill
the vacancy by any authorized method, and the appellant had not shown that
he was qualified for the position..
Holding: The Board granted the petition for review, vacated the initial
decision, and remanded the appeal to the regional office for further
adjudication.
1. Jurisdiction – The appellant established jurisdiction over his appeal
by showing that he exhausted his administrative remedies with the
Department of Labor and making nonfrivolous allegations that he was a
veteran within the meaning of 5 U.S.C. § 3304(f)(1).
2. Announcement Required – Although the selectee for the position was
a federal employee, he was an employee of a different agency. Thus, he
was “outside [the agency’s] own workforce,” and under 5 C.F.R.
§ 330.706(c), the agency was required to announce the vacancy before
filling it. It was immaterial that the vacancy was filled using open
competitive procedures because 5 U.S.C. § 3304(f)(1) applies to both merit
promotion and open competitive examining procedures.
3. Internal Agency Standard Operating Procedure – The agency claimed
that it did not announce the position at issue separately because, pursuant
to an internal standard operating procedure, it made its selection from a
“shared” a selection certificate for another advertised vacancy for an
allegedly comparable position. However, an internal agency policy may not
override applicable statutes, including 5 U.S.C. § 3304(f)(1). Moreover, it
was unclear that the two positions were comparable for purposes of the
standard operating procedure, or whether the agency complied with the
other relevant provisions of its standard operating procedure. It was also
unclear what consideration, if any, was given to the appellant (who applied
for the other position on the shared certificate) or any other candidate
apart from the selectee.
4. Qualification for the Position – There was a genuine dispute of
material fact regarding the appellant’s qualification for the position at
issue, especially since the agency found the appellant qualified for the
other position on the shared certificate.
5. Close of the Record – The administrative judge closed the record
without giving the appellant proper notice. Given the genuine disputes of
material fact described above, the appeal must be remanded for further
adjudication.
COURT DECISIONS
The U.S. Court of Appeals for the Federal Circuit issued nonprecedential
decisions in the following cases:
Dixon v. Department of Homeland Security, No. 2015-3157 (Feb. 5, 2016) (No.
14-02610-3) (affirming an arbitrator’s decision per Rule 36).
Campos v. Office of Personnel Management, No. 2015-3146 (Feb. 8, 2016)
(MSPB No. DC-831E-14-0903-I-1) (affirming the Board’s dismissal of the
appellant’s basic retirement annuity appeal under the doctrine of res
judicata).
McMillon v. Department of Justice, No. 2016-1012 (Feb. 10, 2016) (MSPB No.
DC-3330-15-0409-I-1) (affirming the Board’s decision that denied on the merits
the appellant’s request for corrective action under VEOA).
Abou-Hussein v. Department of the Navy, No. 2015-3057 (Feb. 11, 2016) (MSPB
No. AT-0752-13-6851-I-1) (affirming the Board’s decision that upheld the
appellant’s removal for misconduct).
LEGISLATION
S. 2450, The Administrative Leave Act of 2016. Introduced January 20, 2016
by Senator Jon Tester (D-MT). The intent of this bill to curb agencies’ use of
administrative leave.
The Act would apply to executive agencies under 5 U.S.C. § 105, and would
limit the use of discipline-related administrative leave to situations in which
temporary reassignment, transfer, telework, and other alternative measures to
keep the employee working are not feasible. It would also limit such
administrative leave to situations in which the employee’s continued presence
would pose a danger to person, property, the integrity of the pending
disciplinary action, or other government interests.
The Act would limit the duration of administrative leave to no more than 5
consecutive days unless otherwise permitted by law. Agencies may place
employees under investigation on administrative leave for no more than 10
days, with the ability to make 30-day extensions, but not more than 110 days
in total. Employees may also be placed on administrative leave for the
duration of the notice period for a proposed personnel action.
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Note: These summaries are descriptions prepared by individual MSPB
employees. They do not represent official summaries approved by the Board
itself, and are not intended to provide legal counsel or to be cited as legal
authority. Instead, they are provided only to inform and help the public locate
Board precedents.
BOARD DECISIONS
Appellant: Patrick W. Ryan
Agency: Department of Homeland Security
Decision Number: 2016 MSPB 7
Docket Number: DA-0752-15-0054-I-1
Issuance Date: February 4, 2016
Appeal Type: Adverse Action by Agency
Action Type: Suspension – 30 Days
Government Ethics
Due Process – Adequacy of Notice
The appellant is a Program Analyst whose duties for the agency included
conducting market research for FEMA-contracted call centers. Outside the
agency, the appellant was president of a private company, Texas Based
Acquisitions (TBA), which was considering competing for a call center contract
and working on a joint venture with another company that intended to
compete for a contract. On September 4, 2013, the appellant sent emails to
his supervisor and to an agency ethics officer to inform them of the situation
and ask whether a conflict of interest existed and how to avoid such a conflict.
After learning of the situation, the agency proposed to remove the appellant
based on five charges. The deciding official sustained only two of the five and
mitigated to a 30-day suspension. The sustained charges were (1) “Ethics
Violations, including Apparent Conflict of Interest” and (2) failure to report an
offense, status, or relationship. The first charge pertained to the appellant’s
ability to use inside information from his federal job to further his private
interests with TBA. The second charge pertained to the appellant’s failure to
inform the agency of his role with TBA and to recuse himself from call center
market research work prior to September 4, 2013. On appeal to the Board, the
administrative judge sustained both charges and upheld the suspension.
Holding: The Board granted the petition for review, reversed the initial
decision, and reversed the suspension because the agency did not prove
either charge.
1. Due Process: The appellant had adequate notice of the charges
against him. The notice of proposed removal was sufficiently detailed to
allow for a meaningful response because it specified both the appellant’s
relevant conduct and types of ethical violations. Moreover, the appellant
filed a thorough reply to the proposed removal.
2. Charge 1: To prove the existence of an appearance of a conflict of
interest, an agency must show that the employee’s interests or duties in
one capacity would “reasonably create an appearance” of having an effect
on his interests or duties in the other capacity. Although the appellant had
inside information about call centers that he might have used to TBA’s
advantage in a joint venture or contract bid, the appellant did not actually
do so but instead sought ethics advice before proceeding. Cause under
5 U.S.C. § 7513 generally connotes some action or omission on the part of
an employee. The appellant’s personal contemplations and the internal
deliberations of TBA officers about pursuing call center contracting business
were insufficient to create the appearance of a conflict of interest.
3. Charge 2: Under 5 C.F.R. § 2635.402(c)(1), an employee who
becomes aware of the need to be disqualified from participating in a matter
due to a financial conflict of interest should notify the person responsible
for assigning him to the matter. However, the appellant’s plan to involve
TBA in bidding for call center contracts had not progressed to the point that
it triggered an obligation to disqualify himself from the market research
project and notify his supervisor prior to September 4, 2013, at which time
he notified his supervisor and fulfilled his ethical obligation under the
regulation.
COURT DECISIONS
The U.S. Court of Appeals for the Federal Circuit issued nonprecedential
decisions in the following cases:
Seda v. Merit Systems Protection Board, No. 2015-3221 (Feb. 3, 2016) (MSPB
No. PH-0330-14-0719-I-1) (affirming the Board’s decision dismissing this
Veterans Employment Opportunities Act of 1998 appeal for lack of jurisdiction
on the basis that the appellant did not exhaust his administrative remedies
with the Department of Labor).
Ohnstad v. Merit Systems Protection Board, No. 2015-3220 (Feb 3, 2016) (MSPB
No. SF-315H-15-0101-I-1) (affirming the Board’s dismissal of the appellant’s
probationary termination appeal on the bases that the appellant lacked appeal
rights under chapter 75 and did not raise a protected disclosure to the Office
of Special Counsel that would support jurisdiction over an individual right of
action appeal).
Terwilliger v. Merit Systems Protection Board, No. 2015-3203 (Feb. 4, 2016)
(MSPB No. AT-3443-15-0037-I-1) (affirming the Board’s decision dismissing the
appeal for lack of jurisdiction where the appellant failed to identify any law,
rule, or regulation that would permit her file an appeal seeking to require the
agency to redeposit retirement contributions on her behalf).
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Case Report - September 18, 2015 | 09-18-2015 | https://www.mspb.gov/decisions/case_reports/Case_Report_September_18_2015_1222754.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_September_18_2015_1222754.pdf | Case Report for September 18, 2015
BOARD DECISIONS
Appellant: Arthur E. Sherman
Agency: Department of Homeland Security
Decision Number: 2015 MSPB 52
MSPB Docket No.: PH-1221-15-0086-W-1
Issuance Date: September 11, 2015
Appeal Type: Individual Right of Action (IRA) Appeal
Action Type: Retaliation
Contributing Factor
Election of Remedies
Remand for Additional Evidence
The appellant filed a series of three grievances alleging that his 2013
performance evaluation was lowered in retaliation for him disclosing federal
contracting violations to his supervisor in 2012. The appellant subsequently
filed a complaint with the Office of Special Counsel (“OSC”) alleging that the
agency retaliated against him for the disclosure by lowering his 2013
performance evaluation and not granting him a cash award. When the OSC
declined to take corrective action, the appellant filed an IRA appeal. The
Administrative Judge (“AJ”) dismissed the appeal for lack of jurisdiction based
on findings that: (1) the appellant made an election of remedies by grieving
the performance evaluation before he filed his complaint with the OSC; and (2)
he failed to make a nonfrivolous allegation that his disclosure was a
contributing factor in the performance evaluation.
Holding: The Board remanded the case to the regional office for
further adjudication.
1. The Board found that the appellant made a nonfrivolous allegation that
his disclosure was a contributing factor in his 2013 performance evaluation
under the knowledge/timing test based on the timing of performance
evaluation in relation to the appellant’s second-line supervisor learning
about the appellant’s disclosure.
2. The appellant’s election to grieve his 2013 performance evaluation
under 5 U.S.C. § 7121(g) divested the Board of jurisdiction over that
personnel action notwithstanding whether he raised whistleblower
retaliation in the initial grievance file. An employee may be deemed to
have elected a remedy regardless of whether he raised a prohibited
personnel practice in his initial grievance filing.
3. Because neither the parties nor the AJ addressed the issue of whether
the appellant properly challenged the denial of a cash award through the
negotiated grievance process, a remand was required to determine if the
appellant made a binding election to grieve the cash award decision and, if
not, whether his disclosure was protected and if it was a contributing factor
to the cash award denial.
The U.S. Court of Appeals for the Federal Circuit
issued the following nonprecedential decisions
this week:
Petitioner: Ricardo Dominico
Respondent: Office of Personnel Management
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2015-3100
MSPB Docket No. SF-0831-14-0294-I-1
Issuance Date: September 11, 2015
Holding: The court affirmed the Board’s final order finding that the petitioner
did not qualify for a Civil Service Retirement System annuity because his service
was not covered as creditable service.
Petitioner: Shawnte’ L. Aaron
Respondent: Merit Systems Protection Board
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2015-3088
MSPB Docket No. DR-0845-14-0503-I-1
Issuance Date: September 14, 2015
Holding: The court affirmed the Board’s dismissal of the appellant’s retirement
appeal because it was untimely filed and the appellant failed to show good cause
for the delay.
Petitioner: Allan W. Carter
Respondent: Office of Personnel Management
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2015-3137
MSPB Docket No. CH-0831-14-0619-I-1
Issuance Date: September 15, 2015
Holding: The court affirmed the Board’s final order that OPM was barred from
processing the appellant’s survivor annuity change request based on an amended
domestic relations order because the order modified an order that was issued
after the appellant had already retired.
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Case Report - September 11, 2015 | 09-11-2015 | https://www.mspb.gov/decisions/case_reports/Case_Report_September_11_2015_1220318.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_September_11_2015_1220318.pdf | Case Report for September 11, 2015
BOARD DECISIONS
Appellant: Tommie G. Savage
Agency: Department of the Army
Decision Number: 2015 MSPB 51
MSPB Docket Nos.: AT-0752-11-0634-I-2, AT-1221-12-0591-W-1
Issuance Date: September 3, 2015
Appeal Type: Adverse Action/Individual Right of Action
Action Type: Removal/Constructive Suspension/Hostile Work
Environment
Constructive Action IRA Appeal Jurisdictional Requirements
Involuntary Absence Due to Medical Condition
Hostile Work Environment Under the WPA
AWOL Requirement
Excessive Absence Charge
Title VII Federal Sector Bases of Discrimination
Causation in Federal Sector Discrimination
Burden of Proof in Federal Sector Discrimination
Circumstantial Evidence in Federal Sector Discrimination
Background
The appellant served as the contracting officer for the agency’s “Ranges
Program”. In 2006 and 2007, the appellant reported alleged illegal and
improper contracting activity in the program. In 2007, the appellant filed an
EEO complaint alleging that she had been subjected to a hostile work
environment based on her race and sex, which she later settled in exchange
for receiving a reassignment to a position comparable to her then-current
grade and salary at the agency’s Small Business Office in Huntsville. Pursuant
to the agreement, the appellant was reassigned, with no reduction in pay,
from her Supervisory Contract Specialist position to a nonsupervisory Contract
Specialist position, which had a lower cap on her salary. In December 2007,
the appellant received a performance appraisal rating of 3 out of 5, which was
much lower than the performance appraisal ratings she had received over the
previous 13 years.
In June 2008, the appellant made additional disclosures regarding the agency’s
failure to use a required form, which led to an argument between the
appellant and her supervisor. The next day, the appellant’s psychologist
recommended that she take an 8-week leave of absence until October 20,
2008, due to depression, anxiety, and stress, and the appellant’s supervisor
granted the request. On October 18, 2008, the appellant’s psychologist
recommended that the appellant’s leave of absence be extended to December
22, 2008, but the appellant’s supervisor only granted the request until
December 5, 2008. The appellant then requested leave under the Family and
Medical Leave Act (“FMLA”) until March 5, 2009, and the appellant’s supervisor
granted the request. During December 2008, the appellant’s supervisor also
issued the appellant a performance rating of 3 out of 5. On March 4, 2009, the
appellant requested that her return to work date be changed to May 4, 2009,
pursuant to her psychologist’s recommendation. The appellant’s supervisor
denied the request, citing to the appellant’s previous inability to return to
work based on her psychologist’s estimates, and subsequently ordered the
appellant to return to work by March 26, 2009, the date on which her accrued
leave would expire. The appellant responded by requesting either advanced
sick leave or leave without pay for the same time period, and her supervisor
rejected the request.
On April 3, 2009, the appellant’s supervisor informed the appellant that her
leave had expired and she was being placed on AWOL status. On the same day,
the appellant filed another EEO complaint, alleging that she was subjected to
a hostile work environment as reprisal for her 2007 EEO complaint and for
another EEO complaint she filed in 2008. On May 4, 2009, the appellant
attempted to return to work, but quickly became ill and left work. On May 6,
2009, the appellant’s psychologist recommended that the appellant return to
work on September 1, 2009. The appellant then requested that her AWOL
status be changed to leave without pay status, and in response, the appellant’s
supervisor requested that the appellant provide additional medical
information, as well as meet with a second psychologist. The appellant met
with the second psychologist in July 2009, and the second psychologist stated
that it was unlikely that the appellant would return to work in the next 6 to 12
months, and there was considerable doubt as to whether she would ever return
to her then-currently assigned workplace.
Proposed Removal
On September 14, 2009, the appellant’s supervisor proposed to remove the
appellant based on three charges: (1) AWOL; (2) Excessive Absences; and (3)
Unavailability to Report for Duty with No Foreseeable End. The appellant did
not respond to the notice, and on November 3, 2009, the deciding official
removed the appellant. The appellant filed another EEO complaint regarding
her removal, and on April 8, 2011, the agency issued a final agency decision
finding no discrimination in her removal.
Appeal to MSPB and Complaint at OSC
On May 6, 2011, the appellant appealed her removal to the MSPB, alleging that
her removal was the result of the agency’s hostile work environment, which
created the need for her excessive absences. In September 2011, the
appellant requested that her appeal be voluntarily dismissed without prejudice
to allow her to file a whistleblowing retaliation complaint with the Office of
Special Counsel (“OSC”), and the MSPB administrative judge (“AJ”) granted the
request. In October 2011, the appellant filed a complaint with OSC, alleging
that the agency retaliated against her through various personnel actions due to
her reporting contract fraud and participating in the agency’s internal
investigation. In May 2012, OSC informed the appellant it had closed its
investigation, at which point the appellant filed an IRA appeal and refiled her
removal appeal.
MSPB AJ’s Initial Decision
At the MSPB, the AJ joined the appellant’s two appeals for hearing. In the IRA
appeal, the AJ determined the appellant established jurisdiction over 8
personnel actions: (1) the November 2007 reassignment; (2) the December
2007 performance appraisal; (3) the failure to confer a monetary award to her
in 2008; (4) the December 2008 performance appraisal; (5) the refusal to
extend her return-to-work date in March 2009; (6) the denial of her advanced
sick leave request in March 2009; (7) the denial of her leave without pay
request in March 2009; and (8) an alleged constructive suspension based on the
creation of a hostile work environment that forced her to be absent from
August 2008 through November 2009. In the removal appeal, the appellant
raised affirmative defenses of retaliation based on both whistleblowing and
EEO activity, and discrimination based on race, gender, and disability.
After the hearing, the AJ issued separate decisions in the IRA and removal
appeals. In the IRA appeal, the AJ determined that the appellant’s protected
disclosures were a contributing factor in all of the personnel actions at issue
except for the constructive suspension. The AJ also found that the appellant
did not exhaust her administrative remedies regarding her June 2008 disclosure
regarding the agency’s failure to use the proper form. The AJ then held that
the agency failed to prove by clear and convincing evidence that it would have
taken the actions regarding the two performance ratings and the performance
award in the absence of the protected disclosure, but did prove that it would
have taken the remaining personnel actions. The AJ further held that the
appellant failed to establish she had been constructively suspended. In the
removal appeal, the AJ sustained the action, finding that the agency met its
burden of proof for all three charges, and that the appellant failed to establish
her affirmative defenses.
Holding: The Board joined the two appeals and remanded the joined
appeal for further adjudication.
1. When an appellant files an OSC complaint regarding a constructive
adverse action, the jurisdictional requirements of an IRA appeal apply, even
if the adverse action would otherwise be directly appealable to the Board.
Thus, the Board found that the appellant was required to exhaust her
administrative remedies with respect to her constructive suspension claim.
However, the Board remanded the constructive suspension claim for
further adjudication as a Chapter 75 adverse action appeal because the
appellant expressly indicated that she wished for her constructive
suspension claim to be adjudicated as a Chapter 75 adverse action appeal,
the Board precedent at the time of her appeal did not require her to
adhere to the IRA jurisdictional requirements, and neither the agency nor
the AJ informed the appellant that filing a claim with OSC regarding the
constructive suspension would preclude her from filing a Chapter 75 appeal
of that action with the MSPB.
2. To establish involuntary absence from duty due to a medical condition,
an employee need only notify the agency that she is medically incapable of
returning to duty in her current work environment. Her failure to first
request reassignment as a reasonable accommodation will not preclude the
employee from establishing that her absence was involuntary.
3. The Board held that a hostile work environment can be considered a
personnel action for purposes of the Whistleblower Protection Act, and
remanded the matter for a determination of whether the appellant
established that the agency created a retaliatory hostile work environment.
4. With respect to the AWOL charge, the Board found that it would have
been unreasonable for the agency to deny leave without pay for absences
for which the agency was culpable, and remanded the matter for a
determination of whether the appellant was constructively suspended
during the period she was on AWOL status.
5. The Board did not sustain the Excessive Absences charge regarding the
appellant’s use of approved leave because the agency did not provide
proper notice to the appellant that her use of approved leave may lead to
an adverse action. The Board further held that the period in which she was
AWOL should not be considered as part of an Excessive Absences charge,
but instead should be viewed as an AWOL charge.
6. The Board held that the federal sector provision of Title VII does not
incorporate the anti-retaliation provision applicable to private sector
employment located at 42 U.S.C. § 2000e-3(a), but also held, based on the
Supreme Court’s decision in Gomez-Perez v. Potter, 553 U.S. 474, 487-88
(2008), that retaliation for EEO activity is still prohibited in the federal
sector, and is included within the discrimination prohibited by 42 U.S.C. §
2000e-16.
7. The Board held that a Title VII violation in the federal sector is
established if an employee shows that discrimination or retaliation was a
motivating factor for a personnel action. However, the Board will not
reverse the action unless the employee can show that the action would not
have occurred “but for” the discrimination or retaliation.
8. The Board will apply the Mt. Healthy test in appeals alleging an adverse
action was discriminatory. Under this test, the employee must first prove
that discrimination was a substantial or motivating factor in the adverse
action. If the employee carries that burden, the burden shifts to the
employer to prove that the action would have taken place even if no
discrimination had occurred.
9.
The Board overruled its prior decision, FitzGerald v. Department of
Homeland Security, 107 M.S.P.R. 666 (2008), in which it held that to
establish an EEO reprisal claim using circumstantial evidence, it must
provide evidence showing a “convincing mosaic” of retaliation. The Board
held that any of three types of circumstantial evidence may be used to
establish a Title VII violation: (1) “convincing mosaic”; (2) comparator; or
(3) pretext.
The U.S. Court of Appeals for the Federal
Circuit did not issue any MSPB decisions this
week.
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Case Report - August 14, 2015 | 08-14-2015 | https://www.mspb.gov/decisions/case_reports/Case_Report_August_14_2015_1210867.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_August_14_2015_1210867.pdf | Case Report for August 14, 2015
BOARD DECISIONS
Appellant: Timothy Allen Rainey
Agency: Department of State
Decision Number: 2015 MSPB 49
MSPB Docket No.: DC-1221-14-0898-W-1
Issuance Date: August 6, 2015
Appeal Type: Individual Right of Action
Action Type: Retaliation
Whistleblower Protection Act Jurisdiction
The appellant filed an Individual Right of Action appeal alleging that the
agency stripped him of certain job duties and gave him a poor performance
rating after he refused to follow an order that would have required him to
violate federal acquisition regulations and training certification procedures.
The administrative judge dismissed the appeal for lack of jurisdiction, finding
that the appellant’s claim of retaliation based on refusal to violate acquisition
regulations and training procedures did not amount to a nonfrivolous allegation
that he refused to obey an order that would require him to violate a law.
Holding: The Board affirmed the initial decision.
1. While employees are protected from whistleblower retaliation for
refusing to obey an order that would require a violation of the law under 5
U.S.C. § 2302(b)(9)(D), the Supreme Court made clear in Department of
Homeland Security v. MacLean,135 S. Ct. 913 (2015) that this protection
does not extend to violations of an agency regulation or policy.
The U.S. Court of Appeals for the Federal Circuit
issued the following nonprecedential decisions
this week:
Petitioner: Harroll Ingram
Respondent: Department of the Army
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2015-3110
MSPB Docket No. AT-1221-14-0725-W-1
Issuance Date: August 10, 2015
Holding: The court affirmed the Board’s final order denying the appellant’s
petition for review based on the appellant’s failure to show that he suffered a
personnel action within the meaning of the Whistleblower Protection Act.
Petitioner: Kenneth M. Pedeleose
Respondent: Department of Defense
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2015-3090
MSPB Docket No. AT-1221-14-0260-W-1
Issuance Date: August 10, 2015
Holding: The court affirmed the Board’s final decision holding that, although the
appellant established that some of his disclosures were a contributing factor in his
14 day suspension under the “knowledge timing test,” the agency would
nonetheless have taken the same action absent the protected disclosures.
Petitioner: Horace Lee Wilson
Respondent: Department of the Army
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2015-3077
MSPB Docket No. AT-0752-13-0551-I-1
Issuance Date: August 11, 2015
Holding: The court affirmed the Board’s final order sustaining the appellant’s
removal from the position of Administrative Assistant based on numerous charges
of misconduct.
Petitioner: Jaime Gumbs
Respondent: Department of Health and Human Services
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2015-3194
MSPB Docket No. DA-0752-13-0648-I-1
Issuance Date: August 12, 2015
Holding: The court affirmed the Board’s final order sustaining the appellant’s
removal from the position of Medical Officer based on charges of failure to
maintain a valid medical license and practicing medicine without a valid license as
a condition of employment. In a dissenting opinion, Judge Dyk stated that he
would have remanded the case for additional proceedings on the issue of what was
required to complete a medical license renewal application, and for determination
of a more appropriate penalty.
Petitioner: Ty K. Sanders
Respondent: Department of Homeland Security
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2015-3080
MSPB Docket No. DA-0752-13-0313-I-1
Issuance Date: August 13, 2015
Holding: The court affirmed the Board’s final order sustaining the appellant’s
removal based on a charge that he was not fit for duty in the position because the
action was supported by the conclusions of the first set of medical examiners,
even though they had reached a result opposite to another set of medical
examiners.
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Case Report - August 7, 2015 | 08-07-2015 | https://www.mspb.gov/decisions/case_reports/Case_Report_August_7_2015_1208570.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_August_7_2015_1208570.pdf | Case Report for August 7, 2015
BOARD DECISIONS
Appellant: Nicholas Jay Wilson
Agency: Department of the Navy
Decision Number: 2015 MSPB 48
MSPB Docket No.: DC-0752-15-0038-I-1
Issuance Date: August 5, 2015
Appeal Type: Adverse Action
Action Type: Removal
Applicability of Egan to USERRA Claims
The appellant was removed from the position of Resource Analyst, GS-14,
based on the revocation of his security clearance. The appellant asserted on
appeal that his removal amounted to a violation of the Uniformed Services
Employment and Reemployment Rights Act (USERRA). The administrative
judge affirmed the agency’s removal action pursuant to Department of the
Navy v. Egan, 484 U.S. 519 (1988). The appellant asserted on petition for
review that the revocation of his security clearance violated USERRA, and that
Egan is inapplicable to USERRA claims, thus giving the Board jurisdiction to
review the merits of the revocation.
Holding: The Board affirmed the initial decision.
1. The Supreme Court’s holding in Egan applies to USERRA claims. The
Board does not have authority under USERRA to review security clearance
determinations.
The U.S. Court of Appeals for the Federal Circuit
issued the following nonprecedential decisions
this week:
Petitioner: Calvin Donnel Hardison
Respondent: Office of Personnel Management
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2015-3082
MSPB Docket No. DC-0731-14-0552-I-1
Issuance Date: August 5, 2015
Holding: The court affirmed the Board’s final order upholding the petitioner’s
removal because substantial evidence supported the Board’s finding that the
petitioner made material, intentional false statements in his Form OF 306.
Petitioner: Robert Michael Miller
Respondent: Merit Systems Protection Board
Intervenor: Federal Deposit Insurance Corporation
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2015-3054
MSPB Docket No. SF-1221-13-0574-W-2
Issuance Date: August 6, 2015
Holding: The court affirmed the Board’s final order dismissing the petitioner’s
Individual Right of Action (“IRA”) appeal because the petitioner's disclosures
raised in his grievance were covered by 5 U.S.C. § 2302(b)(9), not 5 U.S.C. §
2302(b)(8), and because the petitioner failed to exhaust his administrative
remedies with respect to the disclosures he raised outside of the grievance
process.
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Case Report - July 31, 2015 | 07-31-2015 | https://www.mspb.gov/decisions/case_reports/Case_Report_July_31_2015_1205794.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_July_31_2015_1205794.pdf | Case Report for July 31, 2015
BOARD DECISIONS
Appellant: Stephen M. Rodgers
Agency: Department of the Navy
Consolidation: Navy Munitions Command I v. Department of the
Navy
Decision Number: 2015 MSPB 45
Docket No. DC-0752-13-0799-I-1
Consolidation Docket No. DC-0752-14-0383-I-1
Issuance Date: July 23, 2015
Appeal Type: Adverse Action
Action Type: Furlough
Due Process
The appellant was furloughed for six days from his position as an Attorney
Advisor with the Navy Munitions Command (NMC). The deciding official
previously requested that the entire NMC be subject to an exception to the
proposed furlough, but the request was denied. In a consolidated initial
decision, the administrative judge (AJ) affirmed the furlough. The appellant
argued in his petition for review that: (1) he was denied due process when the
agency effectuated the furlough; (2) the agency committed harmful procedural
error in processing the furlough; (3) the agency treated the appellant
differently than other similarly situated employees; (4) the agency did not
apply its exception properly; and (5) the AJ committed certain adjudicatory
errors.
Holding: The Board affirmed the initial decision.
1. The appellant was provided a meaningful opportunity to respond
because even though the deciding official did not have the ability to issue
an organization-wide exemption, he was empowered to determine whether
the appellant fit within one of the categorical exemptions to the furlough.
Appellant: Sandra Epley
Agency: Inter-American Foundation
Decision Number: 2015 MSPB 46
MSPB Docket No.: DC-0432-15-0032-I-1
Issuance Date: July 24, 2015
Appeal Type: Adverse Action
Action Type: Removal
Statutory Construction
Board Appeal Rights
The appellant was removed from the position of Program Administrator for
failing to meet performance standards. The agency disputed the Board’s
jurisdiction over the appellant’s appeal because the Inter-American Foundation
is a government corporation statutorily exempted from Board jurisdiction. The
AJ dismissed the appeal for lack of jurisdiction based on findings that the
agency is statutorily exempt from Chapter 43, and that the appellant failed to
otherwise make a non-frivolous allegation that she had Board appeal rights
under Chapter 75.
Holding: The Board granted the petition for review, reversed the
finding of no jurisdiction, and remanded the case to the regional
office for further proceedings.
1. The Inter-American Foundation is a government corporation statutorily
excluded from Chapter 43.
2. The Board found that there is nothing in the agency’s statute or history
to support a conclusion that Congress intended the agency to be excluded
from Chapter 75.
Appellant: Michael A. Murphy Boston
Agency: Department of the Army
Decision Number: 2015 MSPB 47
MSPB Docket No.: DC-3330-14-1058-I-1
Issuance Date: July 28, 2015
Appeal Type: Veterans Employment Opportunities Act (VEOA)
Action Type: Nonselection
VEOA
Veterans’ Preference Hiring Authority
The appellant, a preference-eligible veteran, filed a VEOA appeal requesting
corrective action when he was not selected for the position of Intelligence
Specialist, GS-13. The agency asserted that the appellant was not entitled to
veterans’ preference, that it properly placed him only on the status candidate
list as an applicant with prior federal service, and that the Title 5 provisions
relating to veterans’ preference rights did not apply here because the position
for which the appellant applied was governed by 10 U.S.C. § 1601, which
permits excepted service hiring for defense intelligence positions. The AJ
found that the appellant was not entitled to a hearing because there were no
genuine issues of material fact and the appellant otherwise failed to show that
the agency violated his veterans’ preference rights.
Holding: The Board denied the petition for review, but affirmed the
initial decision as modified to find that the agency was not required to
apply Title 5 veterans’ preference rights and the appellant was not
entitled to veterans’ preference.
1. Because Title 10 appointments are made without regard to provisions of
any other law relating to the appointment of employees, Title 5 veterans’
preference rules do not apply to positions filled under Title 10.
2. The agency’s implementing regulations were found reasonable and
consistent with the statute to the extent that they require the application
of veterans’ preference as a tie-breaker for the agency’s external new
employee hiring for national intelligence positions.
The U.S. Court of Appeals for the Federal
Circuit did not issue any MSPB decisions this
week.
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Case Report - June 19, 2015 | 06-19-2015 | https://www.mspb.gov/decisions/case_reports/Case_Report_June_19_2015_1189650.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_June_19_2015_1189650.pdf | Case Report for June 19, 2015
BOARD DECISIONS
Appellant: Philip J. Kerrigan
Agency: Department of Labor
Decision Number: 2015 MSPB 42
MSPB Docket No.: SF-1221-14-0742-W-1
Issuance Date: June 11, 2015
Appeal Type: Individual Right of Action (IRA) Appeal
Action Type: Denial of OWCP Benefits
Jurisdiction - FECA Claims
The appellant was awarded Office of Workers’ Compensation Programs (OWCP)
Benefits after being injured during the performance of his duties while working
for the Department of Defense. The benefits were later terminated based on
the appellant’s refusal to participate in vocational rehabilitation. The
appellant subsequently filed a complaint with the Office of Special Counsel
(“OSC”), alleging that OWCP terminated his compensation in retaliation for his
making a protected disclosure that OWCP employees engaged in illegal
activity. After OSC closed its investigation, the appellant filed an IRA appeal
with the Board. The administrative judge dismissed the appeal for lack of
jurisdiction, finding that the appellant’s disclosure was not protected because
he was not employed by OWCP, and because the filing of an OWCP claim was
not protected activity under 5 U.S.C. § 2302(b)(9). The administrative judge
further found that the termination of the OWCP benefits was not a “personnel
action” as construed by 5 U.S.C. § 2302(a)(1) because the term “personnel
action” was intended to cover actions taken by agencies against their own
employees. The appellant filed a petition for review, and the agency filed a
response. In the agency’s response, it contended that the administrative judge
erred by not addressing the issue of whether the Board has jurisdiction over
FECA claims.
Holding: The Board denied the appellant’s petition for review,
vacated the initial decision, and dismissed the appeal for lack of
jurisdiction on other grounds.
1.
The Board found that the AJ erred under Spithaler v. Office of
Personnel Management in not addressing the agency’s contention that the
Board lacked jurisdiction over Federal Employees’ Compensation Act
(“FECA”) claims.
2. The Board does not have jurisdiction over a claim that the Department
of Labor committed whistleblower reprisal by terminating FECA benefits
because 5 U.S.C. § 8128(b) precludes Board jurisdiction over cases where
consideration of a claim would entail reviewing OWCP’s decision to pay or
deny benefits.
The U.S. Court of Appeals for the Federal
Circuit issued no MSPB decisions this week.
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Case Report - June 5, 2015 | 06-05-2015 | https://www.mspb.gov/decisions/case_reports/Case_Report_June_5_2015_1182885.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_June_5_2015_1182885.pdf | Case Report for June 5, 2015
BOARD DECISIONS
Appellant: Francis A. Mithen
Agency: Department of Veterans Affairs
Decision Number: 2015 MSPB 38
MSPB Docket No.: CH-1221-11-0498-B-1
Issuance Date: May 28, 2015
Appeal Type: Individual Right of Action (IRA) Appeal
Action Type: Detail
Credibility Findings
Reasonable Belief of Protected Disclosure
In this remanded individual right of action (IRA) appeal, the appellant
originally served in the positions of Program Manager of Neurology at the St.
Louis Veterans Administration Medical Center (VAMC) and VAMC Residency
Program Coordinator, which supervised medical residents from St. Louis
University (SLU). The Chairman of Neurology and Psychiatry at SLU conveyed
to the agency that several medical residents complained about the appellant’s
conduct in administering the neurology residency program, and noted that SLU
would not continue participating in the VAMC neurology residents program if
the appellant continued as coordinator. The agency then convened an
Administrative Investigative Board (AIB), which concluded that the appellant
was responsible for creating a hostile work environment with respect to his
communication and interactions with the medical residents. Thereafter, the
agency approved a reorganization which created new positions, including a
Chief of Neurology position that conducted the duties of the appellant’s
positions. The appellant was informed that he could apply for this position,
and allegedly was also told that the SLU chairman would have veto power over
the selection for the position. The appellant then sent a letter to VAMC
authorities alleging that the SLU Chairman caused an unsubstantiated AIB
investigation, and that the SLU Chairman improperly held veto authority over
the selection of the new Chief of Neurology position. Shortly thereafter, the
SLU chairman notified the agency that it was officially restricting its residents’
activities at the agency. Approximately one week later, the agency
indefinitely detailed the appellant to a Staff Neurologist position and relieved
him of any responsibility related to the residency program.
The appellant filed an IRA appeal with the Board, alleging that his detail to the
Staff Neurologist position was retaliation for protected whistleblowing activity.
In an initial decision, the administrative judge (AJ) found that the appellant
failed to show that he made a protected disclosure, but found in the
alternative that, assuming the appellant did make a protected disclosure, he
established through the knowledge/timing test that the disclosure was a
contributing factor in the agency’s actions. The AJ concluded, however, that
the agency showed through clear and convincing evidence that it still would
have detailed the appellant in the absence of the disclosure. The appellant
filed a petition for review with the Board, and the Board remanded the matter
for further consideration. In its remand order, the Board instructed the AJ to
make credibility findings to determine whether the appellant made a
protected disclosure, and whether the agency proved by clear and convincing
evidence that it would have detailed the appellant absent his disclosure. In a
remand initial decision, the AJ concluded that the appellant failed to show
that he reasonably believed his disclosure evidenced an abuse of authority.
Holding: The Board granted the appellant’s petition for review,
vacated the AJ’s finding on an abandoned claim, reversed the
finding that the appellant did not make a protected disclosure,
found that the agency proved by clear and convincing evidence
that it would have taken the same action absent the appellant’s
protected disclosure, and denied the appellant’s request for
corrective action.
1. The AJ made proper credibility findings consistent with Hillen because
the AJ took particular care in observing each witness as they testified via
video conference, there was no indication that the AJ relied on demeanor
as the sole deciding factor in making her credibility determinations, and
there was no showing by the appellant that the AJ’s credibility findings
were incomplete, inconsistent, or not otherwise supported by the record as
a whole. The Board further held that not specifically discussing every
evidentiary matter or Hillen factor did not establish that the AJ failed to
consider them.
2. The appellant established through preponderant evidence that he
reasonably believed that he was disclosing an abuse of authority because an
individual making a disclosure may be protected from retaliation for
whistleblowing based on his belief that his disclosure evidenced one of the
categories of wrongdoing listed in 5 U.S.C. § 2302(b)(8), even when his
belief is mistaken. Here, the appellant’s belief that the SLU Chairman
would have a dispositive role in selecting the newly reconstituted position
of Chief of Neurology was reasonable.
3. The agency established by clear and convincing evidence that it would
have detailed the appellant from his position even in the absence of his
protected disclosure because the evidence showed that the agency was
motivated to detail the appellant to preserve the existing residency
program with SLU.
The U.S. Court of Appeals for the Federal
Circuit issued the following nonprecedential
decisions this week:
Petitioner: Cesar A. Delarosa
Respondent: Office of Personnel Management
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Numbers: 2015-3074
MSPB Docket No. SF-0831-14-0602-I-1
Issuance Date: June 4, 2015
Holding: The Court affirmed the Board’s decision denying the petitioner the
opportunity to redeposit his refunded retirement deductions because the
petitioner was not an employee eligible to redeposit retirement deductions.
Petitioner: Eric Vaughan
Respondent: United States Postal Service
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Numbers: 2015-3056
MSPB Docket No. NY-0752-14-0377-I-1
Issuance Date: June 4, 2015
Holding: The Court affirmed the Board’s decision dismissing the petitioner’s
appeal for lack of jurisdiction because the petitioner waived his appeal rights via
settlement agreement.
Petitioner: Robert Henderson
Respondent: Merit Systems Protection Board
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Numbers: 2015-3055
MSPB Docket No. SF-0752-14-0474-I-1
Issuance Date: June 4, 2015
Holding: The Court affirmed the Board’s dismissal of the appellant’s petition for
review as untimely because he did not initially respond to the administrative
judge’s orders on timeliness and later failed to explain how his disability caused
his delay in filing.
Petitioner: Lawrence W. Passiatore
Respondent: Merit Systems Protection Board
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Numbers: 2015-3015
MSPB Docket No. NY-0752-09-0124-I-1
Issuance Date: June 4, 2015
Holding: The Court affirmed the Board’s dismissal of the appellant’s appeal as
untimely because he did not provide any explanation as to why his illness caused
his delay in filing.
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Case Report - May 29, 2015 | 05-29-2015 | https://www.mspb.gov/decisions/case_reports/Case_Report_May_29_2015_1179834.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_May_29_2015_1179834.pdf | Case Report for May 29, 2015
BOARD DECISIONS
Appellant: Ilan Fouks
Agency: Department of Veterans Affairs
Decision Number: 2015 MSPB 37
MSPB Docket No.: NY-3443-14-0380-I-1
Issuance Date: May 22, 2015
Appeal Type: Adverse Action
Action Type: Demotion
Employee Appeal Rights for Reductions in Grade and Pay
Involuntary Acceptance of Reduction in Grade and Pay
After the appellant was selected for a Supervisory General Engineer position at
the GS-13(8) level, the agency notified him that that an error had been made
in setting his grade and pay and that he was only entitled to be paid at the GS
12(10) level. The appellant filed an appeal alleging that his grade and pay
were reduced. The administrative judge (AJ) dismissed the appeal for lack of
jurisdiction because the agency was authorized under 5 C.F.R. § 752.401(b)(15)
to reduce the appellant’s grade and pay to correct a rate of pay contrary to
law or regulation.
Holding: The Board remanded the case for further adjudication.
1. While an employee’s appeal rights are limited when an agency acts
pursuant to 5 C.F.R. § 752.401(b)(15) to correct an error in an employee’s
rate of pay, the administrative judge erred in relying on this provision to
dismiss the appeal for lack of jurisdiction because the appellant was not
appealing a correction in his basic rate of pay but instead was appealing a
reduction in pay and grade.
2. Because there was an issue of whether the appellant relied on agency
supplied misinformation to his detriment in his decision to voluntarily
accept a reduction in grade, a remand was required to determine whether
he voluntary accepted a reduction in grade.
The U.S. Court of Appeals for the Tenth Circuit
issued the following nonprecedential decision
this week:
Petitioner: Fred Johnson
Respondent: Department of Veterans Affairs
Tribunal: U.S. Court of Appeals for the Tenth Circuit
Case Numbers: 14-9619
MSPB Docket No. DE-1221-14-0012-W-1
Issuance Date: May 22, 2015
Holding: The Court affirmed the Board’s final decision dismissing the
petitioner’s IRA appeal for res judicata because the petitioner’s reprisal claim
could have been brought in his prior arbitration over his removal. Section 108 of
the Whistleblower Protection Enhancement Act included the so-called “all circuit
review” provision, under which an individual – for a period of two years – could
appeal certain final orders or decisions of the Board to the United States Court of
Appeals for the Federal Circuit or “any other court of appeals of competent
jurisdiction.” 5 U.S.C. § 7703(b)(1)(B). On September 26, 2014, Congress
extended this provision for three additional years. PL 113-170, 128 Stat. 1894
(2014). Petitioner appealed the final decision of the Board in this matter to the
United States Court of Appeals for the Tenth Circuit under that provision of law.
The U.S. Court of Appeals for the Federal
Circuit issued no MSPB decisions this week.
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Case Report - May 22, 2015 | 05-22-2015 | https://www.mspb.gov/decisions/case_reports/Case_Report_May_22_2015_1177406.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_May_22_2015_1177406.pdf | Case Report for May 22, 2015
The U.S. Court of Appeals for the Federal
Circuit issued the following nonprecedential
decision this week:
Petitioner: Angela D. McCurry
Respondent: Department of Justice
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Numbers: 2014-3214
MSPB Docket No. AT-4324-13-0506-I-1
Issuance Date: May 15, 2015
Holding: The Court affirmed the Board’s final decision denying the petitioner’s
request for corrective action under USERRA because the administrative judge
sufficiently notified the petitioner of her burdens of proof and correctly held that
the Board did not have jurisdiction over her non-USERRA prohibited personnel
practice claims.
The MSPB did not issue any precedential
decisions this week
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Case Report - May 8, 2015 | 05-08-2015 | https://www.mspb.gov/decisions/case_reports/Case_Report_May_8_2015_1171346.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_May_8_2015_1171346.pdf | Case Report for May 8, 2015
BOARD DECISIONS
Appellant: Constance A. West
Agency: Department of Health and Human Services
Decision Number: 2015 MSPB 34
MSPB Docket No.: AT-315H-15-0196-I-1
Issuance Date: April 30, 2015
Appeal Type: Adverse Action
Action Type: Probationary Termination
Consideration of Pre-appointment Conditions for Probationary
Termination
The appellant appealed her termination during her probationary period from
the position of Health Scientist. The termination was based on her failure to
demonstrate an acceptable level of performance. The appellant alleged that
she was terminated based on conditions arising prior to her appointment
because a memorandum from her supervisor recommending her termination
referred to concerns the supervisor had over the appellant’s perceived
limitations prior to the appellant’s appointment. The administrative judge
(“AJ”) upheld the removal, holding that the agency’s reference to the
appellant’s prior experience was only background information that put her
performance-based termination in context.
Holding: The Board denied the petition for review and affirmed
the initial decision.
1. The Board found that the agency’s reference to its pre-appointment
concerns about the appellant’s prior experience was insufficient to
establish that the agency terminated her based on pre-appointment
conditions.
Appellant: Defense Intelligence Agency
Agency: Department of Defense
Decision Number: 2015 MSPB 35
MSPB Docket Nos.: DC-0752-13-6407-I-1, DC-0752-13-6613-I-1
Consolidation Docket No.: DC-0752-14-0632-I-1
Issuance Date: May 4, 2015
Appeal Type: Adverse Action
Action Type: Furlough
Furlough Exemptions
Furlough Due Process Considerations
The appellants, Assistant General Counsels in the agency Office of General
Counsel (“OGC”), appealed their furlough for no more than 11 workdays due to
sequestration. The furloughs were issued only to employees in the OGC whose
funding came from Military Intelligence Program (“MIP”) funds. OGC employees
whose funding came from National Intelligence Program (“NIP”) funds were
exempted from the furlough. The appellants argued that the furloughs were
improperly implemented because the billets providing funding for the positions
within the OGC were misaligned and did not correspond to actual duties, which
led to disparate treatment and the wrong employees being furloughed. One of
the appellants, Kenneth Miller, also argued that the agency committed harmful
procedural error because the proposing and deciding officials were not in his
supervisory chain. The AJ affirmed the furloughs, holding that the furloughs
were implemented in a fair and even manner because they were based on
funding sources. The AJ also found that the agency did not commit harmful
procedural error.
Holding: The Board denied the petition for review and affirmed
the initial decision.
1. The Board affirmed the furlough, holding that it was implemented in a
fair and even manner because it was based on the funding source of the
position and not meant to target the appellants for personal reasons.
2. The Board held that appellant Miller did not prove harmful procedural
error because he provided only speculation as to what his proposed
deciding official would have decided had the proper procedures been used.
Appellant: Paul D. Jonson
Agency: Federal Deposit Insurance Corporation
Decision Number: 2015 MSPB 36
MSPB Docket No.: PH-0752-13-0236-I-1
Issuance Date: May 4, 2015
Appeal Type: Adverse Action
Action Type: Removal
Board Authority to Review Agency Regulations
Agency Authority to Issue Regulations and Definitions
The appellant appealed the agency’s decision to remove him based on his
failure to satisfy eight separate debts to agency-insured institutions. The
agency found that this conduct violated the prohibition in its minimum fitness
regulations against a pattern or practice of defalcation. The agency’s
regulations provided that employees who violated its minimum fitness
regulations would be terminated. Upon initial consideration of the appeal, the
AJ certified multiple rulings regarding the agency’s authority to issue its
minimum fitness regulations for interlocutory review by the Board. The Board,
in an Opinion and Order, heretofore referred to as Jonson I, 121 M.S.P.R. 56
(2014), found that the agency improperly issued its minimum fitness
regulations because it did not first obtain concurrence with the regulations
from the Office of Government Ethics (“OGE”) as required by statute.
Accordingly, the Board reversed the appellant’s removal and remanded the
appeal for further adjudication of the appellant’s prohibited personnel
practice claims. Upon remand, the appellant withdrew his prohibited
personnel practice claims, and the AJ issued an initial decision adopting the
Board’s reversal of the appellant’s removal. The agency then filed a petition
for review, and submitted with it a declaration from OGE, provided to the
agency after the issuance of the Board’s interlocutory ruling, stating that OGE
concurrence was not required prior to the promulgation of the agency’s
minimum fitness regulations.
Holding: The Board reversed its prior ruling from Jonson I and
addressed additional rulings certified for interlocutory review by
the AJ.
1. The Board has authority under its appellate jurisdiction to review
whether an agency other than the Office of Personnel Management (“OPM”)
has properly promulgated a regulation when determining whether to
sustain an adverse action.
2. The Board’s statement from Jonson I that the agency’s minimum fitness
regulations were invalidly promulgated did not mean that the Board was
invalidating the minimum fitness regulations.
3. The Board deferred to OGE’s determination that its concurrence was not
required by statute for the agency to promulgate its minimum fitness
regulations, and therefore reversed its ruling from Jonson I stating that the
regulations were invalidly issued.
4. The Board held that the agency was allowed to use its own definition of
“defalcation,” which was broader than the definition used in the
bankruptcy code.
5. The Board stated that, pursuant to the agency’s regulations, removal
was the mandatory penalty for a pattern or practice of defalcation.
The U.S. Court of Appeals for the Federal
Circuit issued the following nonprecedential
decisions this week:
Petitioner: Dora L. Williams
Respondent: Office of Personnel Management
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Numbers: 2015-3021
MSPB Docket No. SF-0831-14-0631-I-1
Issuance Date: May 6, 2015
Holding: The Court affirmed the Board’s decision finding that the respondent
properly denied the petitioner survivor benefits because the petitioner’s deceased
spouse failed to elect a survivor benefit for the petitioner within two years of
their marriage.
Petitioner: Rodney Haith
Respondent: Department of Veterans Affairs
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Numbers: 2014-3219
MSPB Docket No. NY-0752-13-0239-C-1
Issuance Date: May 6, 2015
Holding: The Court affirmed the Board’s decision finding that the respondent
complied with its settlement agreement with the petitioner because the
respondent indicated in the petitioner’s SF-50 that he was separated for medical
disability.
Petitioner: Larry L. Price
Respondent: Department of Housing and Urban Development
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Numbers: 2015-3014
MSPB Docket No. CH-4324-12-0740-I-1
Issuance Date: May 7, 2015
Holding: The Court affirmed the Board’s decision finding that the respondent’s
failure to select the petitioner for either of two vacant positions did not violate
VEOA or USERRA because the respondent’s announcement process was authorized
by VEOA, and because the petitioner did not show under USERRA that his military
service was a substantial or motivating factor in the decision to not hire him.
Petitioner: Daniel Thibeault
Respondent: Merit Systems Protection Board
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Numbers: 2014-3200
MSPB Docket No. SF-0752-13-0646-I-1
Issuance Date: May 7, 2015
Holding: The Court affirmed the Board’s decision dismissing the petitioner’s
appeal for lack of jurisdiction based on its finding that the petitioner voluntarily
retired.
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Case Report - May 1, 2015 | 05-01-2015 | https://www.mspb.gov/decisions/case_reports/Case_Report_May_1_2015_1168859.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_May_1_2015_1168859.pdf | Case Report for May 1, 2015
The U.S. Court of Appeals for the Federal
Circuit issued the following nonprecedential
decision this week:
Petitioner: Sean P. O’Hara
Respondent: Department of Homeland Security
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Numbers: 2015-3044
MSPB Docket No. SF-0752-13-4800-I-1
Issuance Date: April 24, 2015
Holding: The Court affirmed the Board’s decision sustaining the appellant’s
removal based on charges of lack of candor and misuse of government property
stemming from the petitioner viewing sexually explicit images on his government
computer.
The U.S. Supreme Court granted certiorari in
the following case:
Petitioner: Marvin Green
Respondent: Patrick R. Donohoe, Postmaster General, United
States Postal Service
Tribunal: U.S. Supreme Court
Case Number: No. 14-613
Decision Below: 13-1096 (10th Cir. 2014)
Issuance Date: April 27, 2015
Question Presented:
Whether, under federal employment discrimination law, the filing
period for a constructive discharge claim begins to run when an
employee resigns, as five circuits have held, or at the time of an
employee’s last allegedly discriminatory act giving rise to the
resignation, as three other circuits have held.
The MSPB did not issue any precedential
decisions this week
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Case Report - April 24, 2015 | 04-24-2015 | https://www.mspb.gov/decisions/case_reports/Case_Report_April_24_2015_1165744.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_April_24_2015_1165744.pdf | Case Report for April 24, 2015
The U.S. Court of Appeals for the Federal
Circuit issued the following nonprecedential
decision this week:
Petitioner: Mark Alexander
Respondent: Merit Systems Protection Board
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Numbers: 2014-3215
MSPB Docket No. CH-1221-14-0111-W-1
Issuance Date: April 20, 2015
Holding: The Court affirmed the Board’s dismissal of the petitioner’s IRA appeal
for untimeliness because the petitioner filed his appeal several months after the
statutory deadline and provided no evidence that his appeal was timely filed.
The MSPB did not issue any precedential
decisions this week
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Case Report - April 17, 2015 | 04-17-2015 | https://www.mspb.gov/decisions/case_reports/Case_Report_April_17_2015_1163376.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_April_17_2015_1163376.pdf | Case Report for April 17, 2015
BOARD DECISIONS
Appellant: Lee Ronso
Agency: Department of the Navy
Decision Number: 2015 MSPB 32
MSPB Docket No.: AT-0752-13-4332-I-1
Issuance Date: April 14, 2015
Appeal Type: Adverse Action
Action Type: Furlough
Exceptions to Furlough for Cause
The appellant appealed the agency’s decision to furlough him for up to eleven
days from the position of Rehabilitation Program Manager. The administrative
judge (AJ) affirmed, finding the agency established that the appellant met the
criteria for being subject to, and not excepted from, the furlough in his
position as an outpatient services medical employee, and that the government
shutdown and sequestration required separate assessments of staffing needs.
Holding: The Board denied the petition for review and affirmed
the initial decision as modified.
1. The Board modified the initial decision to state that the issue of
whether the appellant fell within the exception to the furlough was more
appropriately analyzed as one of cause, and not an issue of the efficiency of
the service. The agency’s burden of proof to establish “cause” for the
furlough is whether the appellant met the criteria established by the
agency for being subject to, and not excepted from, the furlough.
2. The Board concluded that the AJ was correct in determining that the
exception for those employees necessary to protect safety of life and
property was limited to medical staff providing emergency and in-patient
services. Here, the appellant did not fall within this exception because he
provided out-patient services.
3. The Board agreed with the AJ that the government shutdown and
sequestration each required a unique assessment of staffing needs, and
therefore rejected the appellant’s argument that his “exempt” status
during the government shutdown meant that the agency could not prove it
had cause to furlough him as a result of sequestration.
Appellant: Rachel K. Angel
Agency: Office of Personnel Management
Decision Number: 2015 MSPB 33
MSPB Docket No.: CH-844E-14-0283-I-1
Issuance Date: April 15, 2015
Appeal Type: Disability Retirement
Disability Retirement
Application of Bruner Presumption
The appellant was removed from her position as a Biological Science
Laboratory Technician based on a charge of inability to perform the essential
functions of her position. Prior to her removal, the appellant filed an
application for disability retirement based on a condition of migraine
headaches. OPM denied the application and asserted: (1) that the appellant
failed to establish a prima facie case of entitlement to a disability retirement
annuity because she was removed from her position for inability to perform the
essential functions of her position; (2) that the appellant failed to prove her
qualification for a disability retirement annuity because she applied for other
full-time positions, and was employed in various part-time positions after she
allegedly became disabled from her position; and (3) that the medical
evidence the appellant produced was insufficient to meet her burden of
proving that she was unable to render useful and efficient service in her
position. The AJ reversed OPM’s determination, finding: (1) the appellant
was not required to submit an SF-50 or a proposal and decision notice with her
application as long as she met the preponderance of the evidence standard by
through other relevant evidence; (2) the employing agency provided the
appellant with a temporary accommodation on a part-time schedule but could
not permanently accommodate her under this schedule indefinitely; and (3)
under the totality of the circumstances there was sufficient medical evidence
of the appellant’s disabling condition based on both objective and subjective
evidence.
Holding: The Board denied the petition for review and affirmed
the initial decision.
1. For disability retirement, an appellant is not required to show that her
disability rendered her incapable of working in all positions. The relevant
position for determining the appellant’s qualification for disability
retirement is the position last held before filing her application. Thus, the
fact that the appellant had been able to work part-time positions with
duties and responsibilities different from the position she held at the
employing agency was to her application.
2. The appellant is not required to present any specific documentary
evidence before the Bruner presumption applies. Here, the Board found
that the appellant was not required to submit removal documents – the SF
50 and proposal and decision letters – in order for the burden of proof to
shift to the agency. She only needed to provide preponderant relevant
evidence that she was removed for inability to perform the essential
functions of her position.
The U.S. Court of Appeals for the Federal
Circuit issued the following nonprecedential
decisions this week
Petitioner: Jean Terrill
Respondent: Merit Systems Protection Board
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Numbers: 2014-3185
MSPB Docket No. DC-0752-13-0486-I-1
Issuance Date: April 10, 2015
Holding: The Court affirmed the Board’s dismissal of the petitioner’s removal
appeal for lack of jurisdiction because the appellant was a reemployed annuitant
with no Board appeal rights.
Petitioner: Robert J. Sarhan
Respondent: Department of Justice
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2014-3197
MSPB Docket No. AT-0752-13-2702-I-1
Issuance Date: April 10, 2015
Holding: The Court affirmed the Board’s dismissal of the petitioner’s removal
appeal based on a finding of res judicata because the Board decided the same
appeal in 2007.
Petitioner: Joel R. Mueller
Respondent: Office of Personnel Management
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2014-3213
MSPB Docket No. DE-831E-13-0269-I-1
Issuance Date: April 13, 2015
Holding: The Court affirmed the Board’s dismissal of the petitioner’s appeal as
withdrawn because the petitioner was advised that the withdrawal of his appeal
was an act of finality.
Petitioner: Charles Edwards
Respondent: Merit Systems Protection Board
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2015-3020
MSPB Docket No. PH-0752-13-0303-I-1
Issuance Date: April 14, 2015
Holding: The Court affirmed the Board’s dismissal of the petitioner’s petition for
review as untimely because the petitioner did not show why the new medical
evidence he submitted with his petition for review warranted an outcome
different from the initial decision.
Petitioner: Derrick L. Scott
Respondent: Department of Agriculture
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2015-3049
MSPB Docket No. PH-0752-13-0303-I-1
Issuance Date: April 15, 2015
Holding: The Court affirmed the Board’s decision upholding the petitioner’s
removal from his law enforcement position based on a charge of lack of candor by
making a false statement on an agency form.
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BOARD DECISIONS
Appellant: Kevin M. Hawes
Agency: Office of Personnel Management
Decision Number: 2015 MSPB 29
MSPB Docket No.: DE-0731-14-0059-I-1
Issuance Date: April 2, 2015
Appeal Type: Suitability Determination
Action Type: Removal/Debarment
Suitability Burden of Proof
Suitability Consideration of Mitigating Factors
Following the appellant’s appointment to the position of Field Examiner with
the Department of Veterans Affairs, the Office of Personnel Management (OPM)
issued a negative background and suitability determination and ordered the
agency to remove the appellant from his position, cancel his eligibility for
reinstatement and appointment, and debar him from federal employment for a
period of three years. The negative suitability determination was based on
three charges: (1) misconduct or negligence in employment; (2) criminal or
dishonest conduct; and (3) material, intentional false statements in
examination or appointment. The administrative judge (AJ) affirmed OPM’s
decision. In sustaining the first two charges pertaining to allegations that the
appellant abused time and attendance requirements in a prior position, the AJ
found that the appellant failed to present sufficient evidence rebutting this
charge and there was otherwise sufficient independent evidence to support the
charge.
Holding: The Board granted the appellant’s petition for review,
vacated the initial decision, and remanded the appeal to OPM to
determine whether the suitability action taken was appropriate
based on the sustained charge.
1. The Board found here that OPM failed to establish the first two charges
by a preponderance of the evidence because the AJ improperly shifted the
burden of proof to the appellant, and there was sufficient evidence to show
that the appellant was not engaging in time and attendance abuse.
2. The Board also found that the AJ erred by failing to consider relevant
mitigating factors, including the circumstances surrounding the conduct and
the absence or presence of rehabilitation or efforts toward rehabilitation.
Appellant: Zoe V. Parker
Agency: Department of Veterans Affairs
Decision Number: 2015 MSPB 30
MSPB Docket No.: CH-1221-14-0827-W-1
Issuance Date: April 6, 2015
Appeal Type: Adverse Action
Action Type: Removal
Falsification
The appellant was removed from the position of Social Work Associate, based
on charges of: (1) violation of agency policy regarding patient abuse and
employee/patient boundaries; (2) filing false reports/statements; (3) violation
of agency directives regarding misuse of government equipment; and (4) lack
of candor. The AJ sustained the first three charges, but found that the agency
failed to prove the fourth charge. In sustaining the second charge, the AJ
found that the appellant made a false statement by providing incorrect
information in agency investigative reports and an EEO complaint.
Holding: The Board affirmed the initial decision but modified the
analysis as to the falsification charge.
1. The Board found that the AJ did not fully and correctly analyze the
intent element of the charge of filing false reports/statements because
there was no analysis beyond the issue of whether the appellant provided
incorrect information in a sworn statement. The Board noted that the
appellant made a false statement in an agency investigative report but
there was no evidence that the appellant intended to defraud, deceive, or
mislead the agency for her own personal material gain when she made the
statement underlying the second specification of the falsification charge.
Thus, the Board concluded that the second specification could not be
sustained.
Appellant: Valerie Ann Thompson
Agency: Department of the Army
Decision Number: 2015 MSPB 31
MSPB Docket No.: AT-0432-13-7724-I-2
Issuance Date: April 8, 2015
Appeal Type: Adverse Action
Action Type: Performance Based Removal
Performance Based Removal Under CCSA System
Assessment of Credibility Findings
The appellant was removed from the position of Program Analyst, under the
“Contribution-based Compensation and Appraisal System (CCSA),” an Office of
Personnel Management (OPM) based personnel demonstration project used by
some federal agencies. The intent of this system is to implement a
“contribution based” appraisal system as opposed to the “performance based”
systems normally contemplated under 5 U.S.C. § Chapter 43. The procedures
and burdens of proof followed under the CCSA are significantly similar to a
Chapter 43 performance based proceeding. The appellant was removed from
her position based on unsatisfactory work performance in two critical work
factors following her unsuccessful completion of a 60 day “contribution
improvement period (CIP). The administrative judge reversed the removal
action based on findings that the agency failed to show by substantial evidence
that the appellant’s contribution under the CIP was unacceptable, or that the
agency provided her a reasonable opportunity to improve.
Holding: The Board affirmed the initial decision.
1. The Board found that the agency failed to prove by substantial evidence
that the appellant’s contribution during the CIP was unacceptable. Here,
the Board noted that although the agency submitted voluminous
documentary and testimonial evidence regarding the appellant’s
performance, the agency could point to “almost no evidence” that the
appellant’s performance was unacceptable. In this regard, the Board noted
that much of the agency’s submissions consisted of unsworn statements and
documents couched in generalities that did not specifically address the
allegations set forth in the proposed removal and thus did not reach the
substantial evidence threshold of proof.
2. The Board also found that the agency failed to establish by substantial
evidence that the CIP provided the appellant a reasonable opportunity to
improve.
The U.S. Court of Appeals for the Federal
Circuit issued the following nonprecedential
decisions this week:
Petitioner: Quincy D. Hall
Respondent: Department of Transportation
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Numbers: 2015-3011
MSPB Docket No. DA-0752-12-0006-B-1
Issuance Date: April 8, 2015
Holding: The Court affirmed the Board’s decision upholding the petitioner’s
removal based on its finding that the petitioner failed to complete the required
training program.
Petitioner: Nicholas S. Trobovic
Respondents: General Services Administration, Merit Systems
Protection Board
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Numbers: 2014-3212, 2015-3025
MSPB Docket No. NY-0353-07-0004-C-2, PH-831E-12-00241-I-3
Issuance Date: April 8, 2015
Holding: The Court consolidated the petitioner’s two separate appeals and
affirmed the Board’s decisions in both matters. In the first matter, the Court
affirmed the Board’s decision denying the petitioner’s petition to enforce his
settlement agreement based on its finding that the petitioner materially breached
the settlement agreement. In the second matter, the Court affirmed the Board’s
decision dismissing the petitioner’s appeal for lack of jurisdiction based on its
finding that OPM rescinded its denial of his retirement benefits.
Petitioner: Desiree M. Brown
Respondent: Office of Personnel Management
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Numbers: 2015-3008
MSPB Docket No. SF-0843-14-0470-I-1
Issuance Date: April 9, 2015
Holding: The Court affirmed the Board’s decision upholding the respondent’s
denial of the petitioner’s application for a retirement annuity based on its finding
that the petitioner had withdrawn all of her retirement deductions from her
retirement fund.
Petitioner: Rosalie M. Cieslinski
Respondent: Office of Personnel Management
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Numbers: 2015-3030
MSPB Docket No. SF-0843-14-0515-I-1
Issuance Date: April 9, 2015
Holding: The Court affirmed the Board’s decision upholding the respondent’s
denial of the petitioner’s application for survivor benefits based on its finding that
the petitioner’s husband was not qualified for annuity payments.
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Case Report - April 3, 2015 | 04-03-2015 | https://www.mspb.gov/decisions/case_reports/Case_Report_April_3_2015_1157886.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_April_3_2015_1157886.pdf | Case Report for April 3, 2015
BOARD DECISIONS
Appellant: Chih-Wei (Scott) Lu
Agency: Department of Homeland Security
Decision Number: 2015 MSPB 28
MSPB Docket No.: CH-1221-14-0827-W-1
Issuance Date: April 1, 2015
Appeal Type: Individual Right of Action (IRA) appeal
Action Type: Interlocutory Appeal
Interlocutory Appeal
Application of Bolling Standard to IRA appeals
The appellant filed an IRA appeal alleging that his removal from the position of
Supervisory Transportation Security Officer was issued as reprisal for
whistleblowing. During prehearing discussions, the appellant requested the
approval of witnesses that would disprove the merits of a 2012 suspension
relied upon by the agency in the issuance of the removal. The administrative
judge (AJ) issued a prehearing order in which he found that the Bolling
standard (the Board's review of a prior disciplinary action is limited to a
determination of whether that action was clearly erroneous) regarding prior
discipline was “not entirely applicable” in an IRA appeal. The AJ then issued
an order certifying for interlocutory review his ruling that the Board’s review
of the appellant’s 2012 suspension was not subject to the Bolling standard.
Holding: The Board affirmed the administrative judge’s ruling as
modified, vacated portions of the order, and returned the case to
the regional office for further adjudication.
1. The Bolling standard does not apply in IRA appeals. However, given that
the 2012 suspension occurred two years prior to the protected disclosures
in this matter, the AJ should exercise his discretion on remand to
determine whether, and to what extent, evidence regarding the 2012
suspension relates to the Board’s analysis of the appellant’s claim of
whistleblower reprisal.
The U.S. Court of Appeals for the Federal
Circuit did not issue any decisions this
week
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The U.S. Supreme Court Issued a Decision in the
Following Case:
Petitioner: Peggy Young
Respondent: United Parcel Service, Inc.
Tribunal: U.S. Supreme Court
Case Number: No. 12-1226
Decision Below: 707 F.3d 437 (Fed. Cir. 2013)
Issuance Date: March 25, 2015
Disparate Treatment of Pregnant Women
Pretext Analysis in Pregnancy Discrimination Claims
The petitioner worked for the respondent United Parcel Service (UPS) as a
driver, and her responsibilities included pickup and delivery of packages. In
2006, she became pregnant and was given instructions by her doctor that she
should not lift more than 20 lbs. during the first 20 weeks of her pregnancy,
and no more than 10 lbs. for the remainder of her pregnancy. UPS required
drivers such as the petitioner to be able to lift parcels weighing up to 70 lbs.
(and up to 150 lbs. with assistance). After the petitioner notified UPS of her
restrictions, UPS informed her that she could not work while under the lifting
restriction. As a result, the petitioner was forced to stay home without pay for
the majority of the time she was pregnant, and eventually lost her employee
medical coverage.
The petitioner filed a lawsuit in federal court alleging that UPS unlawfully
discriminated against her due to her pregnancy by refusing to accommodate
her lifting restriction. As part of her claim, the petitioner alleged that UPS
accommodated other drivers who were similar in their inability to work. UPS
responded that, pursuant to its internal policy, the other drivers it
accommodated were: (1) drivers who became disabled on the job; (2) drivers
who had lost their Department of Transportation certification; and (3) drivers
who suffered from a disability covered by the Americans with Disabilities Act.
Because the petitioner did not fit any of those three categories, UPS claimed
that it was not obligated to accommodate her restrictions. UPS moved for
summary judgment, and the District Court granted the motion. The court held
that the petitioner could not show intentional discrimination through direct
evidence, nor could she make out a prima facie case of discrimination under
the McDonnell Douglas test. The court stated that the employees covered by
UPS’s accommodation policy were not similarly situated comparators to the
petitioner, and that UPS’s reliance on its policy was a legitimate,
nondiscriminatory reason for failing to accommodate pregnant women.
On appeal, the Fourth Circuit affirmed. It held that UPS crafted a pregnancy
blind policy that was facially neutral and a legitimate business practice, and
that the policy was not evidence of a discriminatory animus toward pregnant
workers. The court further stated that the petitioner was not similarly
situated to any of the types of employees covered by the policy.
The petitioner appealed the Fourth Circuit’s ruling to the Supreme Court, and
the Court granted certiorari to determine whether, and in what circumstances,
an employer that provides work accommodations to nonpregnant employees
with work limitations must provide work accommodations to pregnant
employees who are “similar in their ability or inability to work.”
Holding: The Court vacated the Fourth Circuit and remanded the
matter for further consideration. Justice Alito concurred in the
judgment only, Justices Scalia, Thomas, and Kennedy joined in
dissent, and Justice Kennedy issued a separate dissent.
1. The Court held that an individual pregnant worker who seeks to show
disparate treatment may make a prima facie case under the McDonnell
Douglas test by showing that she belongs to the protected class, that she
sought accommodation, that the employer did not accommodate her, and
that the employer did accommodate others “similar in their ability or
inability to work.” The employer can then attempt to justify its refusal to
accommodate the employee by producing a “legitimate, nondiscriminatory”
reason for the denial of the accommodation. This reason, however, cannot
consist simply of a claim that it is more expensive or less convenient to
include pregnant women to the group of employees the employer will
accommodate. If the employer produces such a reason, the employee can
show that the proffered reason is actually pretext for discrimination by
providing sufficient evidence that the employer’s policy imposes a
significant burden on pregnant workers, and that the employer’s proffered
reason is not sufficiently strong to justify the burden. Additionally, the
employee can create a genuine issue of material fact regarding whether a
significant burden on pregnant workers exists by providing evidence that
the employer accommodates a large percentage of nonpregnant workers
while failing to accommodate a large percentage of pregnant workers.
2. The Court remanded the matter to the District Court because the record
showed that the petitioner created a genuine issue of material fact
regarding whether UPS provided more favorable treatment to employees
whose situations could not reasonably be distinguished from hers.
3. Justice Alito concurred in the judgment, but stated that he did not
believe that the Pregnancy Discrimination Act authorized the courts to
evaluate the justification for a truly neutral policy.
4. Justice Scalia, joined by Justices Kennedy and Thomas, dissented,
stating that he believed the majority’s standard for establishing pretext was
not derived from the pregnancy discrimination act.
5. Justice Kennedy issued a separate dissent to recognize the importance of
issues facing pregnant women in the workplace.
The U.S. Court of Appeals for the Federal
Circuit issued the following nonprecedential
decisions this week:
Petitioner: Gary S. Schnell
Respondent: Department of the Army
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Numbers: 2015-3006
MSPB Docket No. CH-1221-07-0700-X-2
Issuance Date: March 25, 2015
Holding: The Court affirmed the Board’s dismissal of the petitioner’s petition
for enforcement based on its finding that the respondent complied with its order
regarding the appropriateness of the petitioner’s job placement and the
sufficiency of the interest payments.
The MSPB did not issue any precedential
decisions this week
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The U.S. Court of Appeals for the Federal
Circuit issued the following nonprecedential
decisions this week:
Petitioner: Kendra S. Vanderlee
Respondent: Merit Systems Protection Board
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Numbers: 2014-3203
MSPB Docket No. CH-0353-06-0658-I-2
Issuance Date: March 6, 2015
Holding: The Court affirmed the Board’s dismissal of the appellant’s restoration
claim for lack of jurisdiction because the appellant stipulated that she could only
refile her appeal if the agency refused to participate in arbitration.
Petitioner: F. Jimmy R. Hill
Respondent: Merit Systems Protection Board
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2014-3216
MSPB Docket No. AT-3443-14-0778-I-1
Issuance Date: March 6, 2015
Holding: The Court affirmed the Board’s dismissal for lack of jurisdiction based
on its finding that it lacked jurisdiction over a 14-day suspension.
Petitioner: Shirley A. Varnado
Respondent: Merit Systems Protection Board
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2014-3107
MSPB Docket No. AT-0752-13-0039-I-1
Issuance Date: March 6, 2015
Holding: The Court affirmed the Board’s findings that it lacked jurisdiction over
the appellant’s numerous claims stemming from her removal and that the
appellant failed to establish good cause for her untimely filing, but remanded the
case for additional proceedings on the issue of whether the appellant was properly
advised as to how she could establish jurisdiction over her denial of within-grade
increase claim.
Petitioner: Richard D. Montgomery
Respondent: Merit Systems Protection Board
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2014-3196
MSPB Docket No. DA-0752-14-0098-I-1
Issuance Date: March 9, 2015
Holding: The Court affirmed the Board’s decision finding that the appellant
failed to establish jurisdiction over his involuntary resignation because there was
insufficient evidence that his written notice to agency officials that he would not
return to work at present or in the foreseeable future was involuntary.
Petitioner: Clinton L. Kelly, Jr.
Respondent: Merit Systems Protection Board
Intervenor Department of Transportation
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2014-3144
MSPB Docket No. AT-0752-13-0043-I-1
Issuance Date: March 9, 2015
Holding: The Court affirmed the Board’s decision finding that the appellant
failed to establish jurisdiction over his assertion that his reassignment was
involuntary.
Petitioner: Harry J. Conner
Respondent: Office of Personnel Management
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2014-3129
MSPB Docket No. AT-0831-12-0138-I-2
Issuance Date: March 12, 2015
Holding: The Court affirmed the Board’s decision finding that OPM correctly
denied the appellant’s claim for additional lump sum survivor benefits based on
the employing agency’s certification of the decedent’s employment record.
Petitioner: Elmer E. Campbell, Jr.
Respondent: Merit Systems Protection Board
Intervenor: U.S. Postal Service
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2013-3166
MSPB Docket No. SF-0752-10-0331-M-1
Issuance Date: March 12, 2015
Holding: The Court affirmed the Board’s remand decision based on the Board’s
finding that the underlying settlement agreement provided full relief to the
appellant and the appellant did not establish that any controversy remained.
The MSPB did not issue any precedential
decisions this week
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BOARD DECISIONS
Appellant: David Dean
Agency: Department of Labor
Decision Number: 2015 MSPB 22
MSPB Docket No.: AT-3330-13-0235-I-1
Issuance Date: February 26, 2015
Appeal Type: VEOA
Action Type: Non-Selection
Prohibition of Educational Requirements for Federal Employment
Pursuant to 5 U.S.C. § 3308
The appellant filed an appeal under the Veterans Employment Opportunities
Act of 1998 (VEOA) alleging that his non-selection for the position of “Recent
Graduate” Wage and Hour Specialist was discriminatory because it imposed a
minimum requirement of a college degree under the Pathways Recent
Graduates Program. The appellant argued that the qualification criteria in the
vacancy announcement violated his veterans’ preference rights because there
was no showing of a rational basis for the college graduate criterion to justify
deviating from the norm of competitive examination. The administrative
judge (AJ) found that the appellant established jurisdiction over his VEOA
appeal but denied his request for corrective action on the merits. Following
the filing of the appellant’s petition for review, the Board requested an
advisory opinion from the Office of Personnel Management (OPM) concerning
its regulations governing the Pathways Recent Graduates Program.
Holding: The Board denied the petition for review and affirmed
the initial decision.
1.
The Board overruled its prior precedent in Burroughs v. Department of
the Army, 115 M.S.P.R. 656, aff’d F. App’x 347 (Fed. Cir. 2011), that 5
U.S.C. § 3308, a provision pertaining to OPM’s authority to determine
minimum educational requirements, and 49 U.S.C. § 40122(g)(2)(B), a
provision relating to laws governing appeal rights of employees of the
Federal Aviation Administration, do not constitute independent statutory
authority implicating veterans’ preference rights. The Board’s reliance on
these two provisions in Burroughs and subsequent precedent were
overruled because there was insufficient legislative history and other
evidence to conclude that either are related statutory authority for
purposes of determining veterans’ preference employment claims.
2. Even if the OPM authority under 5 U.S.C. § 3308 was construed to relate
to veterans preference, the Pathways Recent Graduates Program comports
with this statute because OPM is in the best position to determine whether
the duties of a scientific or technical position can be performed by an
individual who does not have a prescribed minimum education.
3. The position of “Recent Graduate” Wage and Hour Specialist is
specifically designed to provide a first step in a formal career development
and advancement program. There was ample justification in the record
evidence to show a rational basis for a minimum education requirement for
this position. Thus, the Board concluded that the appellant’s claim that the
Pathways Recent Graduates program’s minimum educational eligibility
requirement inherently violated his and other veteran’s preference rights is
unsupported.
Appellant: Jeffrey L. Hamley
Agency: Department of the Interior
Decision Number: 2015 MSPB 23
MSPB Docket No.: DE-1221-14-0041-W-1
Issuance Date: February 27, 2015
Appeal Type: Individual Right of Action (IRA) Appeal
Action Type: Retaliation for Whistleblowing
Mootness
Continuing Violation Doctrine
Compensatory Damages
Before the appellant filed his IRA appeal, and at the conclusion of the Office of
Special Counsel’s investigation into the appellant’s allegation of whistleblower
retaliation, the agency agreed to provide corrective action to the appellant.
The appellant then filed an IRA appeal and later stipulated that the only issue
for adjudication was whether he was entitled to compensatory damages for
conduct occurring in the seven month period between the effective date of the
Whistleblower Protection Enhancement Act of 2012 (WPEA) and the date he
received relief. In support of this contention, the appellant argued that the
agency’s action in significantly changing his duties began before passage of the
WPEA, and was thus a “continuing action” that included the seven month
period following passage of the WPEA. The AJ ruled that the appellant was not
entitled to compensatory damages because the conduct and actions at issue in
the appeal preceded the WPEA’s enactment and the appeal was therefore
moot. The appellant argued on petition for review that the significant change
to his duties was not a “discrete act” but constituted “continuing conduct”
that included the period following passage of the WPEA.
Holding: The Board denied the petition for review and affirmed
the initial decision.
1. The continuing violation doctrine is inapplicable in this appeal because
the doctrine relates to a determination regarding the timeliness of a claim
rather than the availability of damages associated with that claim. Here,
the AJ properly dismissed the appeal as moot because the conduct and
actions at issue in this appeal all took place before the effective date of the
WPEA, and an award of compensatory damages would have an
impermissible retroactive effect.
Appellant: Alesteve Cleaton
Agency: Department of Justice
Decision Number: 2015 MSPB 24
MSPB Docket No.: DC-0752-14-0760-I-1
Issuance Date: February 27, 2015
Appeal Type: Adverse Action
Action Type: Removal
Felony Convictions for Law Enforcement Officers
The appellant was removed from his position as correctional officer with the
Bureau of Prisons for pleading guilty to a felony charge of possession of
marijuana with intent to distribute. In May 2014, the court accepted the
appellant’s plea and found him guilty of possession with intent, and the agency
removed the appellant shortly thereafter. The appellant appealed his removal
to the Board, asserting that he was not convicted of the charge, and submitted
evidence showing that he was scheduled to appear in court in June 2014 for a
hearing on a charge of contempt. The AJ affirmed the removal, finding that
the appellant’s documentation did not relate to his criminal conviction on the
charge of possession with intent. The appellant filed a petition for review and
included with it a document issued after the close of the record before the AJ
that showed in September 2014, the appellant entered a no-contest plea to
the charges of Possession with Intent and Contempt, and a stipulation that the
evidence was sufficient to convict him of both charges. The documentation
further showed that in November 2014 the court stated it would withhold its
finding of guilt for two years on the condition that the appellant comply with
the terms of the plea agreement, including two years of supervised probation,
and if the appellant violated the agreement, he would be found guilty as
originally charged.
Holding: The Board affirmed the decision as modified by the
opinion and order to address new evidence submitted on review.
1. An employee appealing his removal under 5 U.S.C. § 7371 can only
contest: (1) whether he is a law enforcement officer; (2) whether he was
convicted of a felony; or (3) whether the conviction was overturned on
appeal.
2. The Board affirmed the removal because the appellant did not submit
any evidence showing that his prior felony conviction was overturned, and
even if the prior conviction was no longer in effect, the reason it was no
longer was in effect was because of his new plea agreement, and not
because it was overturned on appeal.
Appellant: Felicia Bills
Agency: Department of the Air Force
Decision Number: 2015 MSPB 25
MSPB Docket No.: DA-0752-13-0170-X-1
Issuance Date: February 27, 2015
Appeal Type: Adverse Action
Action Type: Compliance
Back Pay Requirements
The appellant’s removal was reversed by the Board based on its finding that
the agency failed to prove any of its charges by preponderant evidence. The
administrative judge ordered the agency to cancel the removal, retroactively
restore the appellant to her position, and pay her back pay with interest and
benefits in accordance with the regulations of the Office of Personnel
Management (OPM). The appellant subsequently filed a petition for
enforcement, alleging that the agency failed to: (1) pay interest on the back
pay; (2) either reimburse her for amounts withheld for health insurance
premiums or pay her for amounts paid for continuation coverage; (3) pay
interest on the amounts withdrawn from her retirement accounts; and (4)
reimburse her for the penalties she paid based on her early withdrawals from
her retirement accounts. The administrative judge found that the agency was
not in compliance because it failed to demonstrate that it afforded the
appellant the opportunity to make an election of health benefits and failed to
show that it complied with the Federal Retirement Thrift Investment Board’s
(FRTIB) regulations regarding back pay awards, and referred the matter to the
Board.
Holding: The Board found the agency to be in compliance and
dismissed the petition for enforcement.
1. The Board vacated the initial decision to the extent that it required that
the agency show that it informed the TSP record keeper of the back pay
award and that it requested FRTIB to provide a computation of interest and
lost earnings in accord with applicable regulations.
These requirements
were based on Shobert v. Department of the Air Force, 90 M.S.P.R. 262
(2001), which derived the requirements from 5 C.F.R. §§ 1606.3 and
1606.11, both of which were no longer valid after August 31, 2003. The
new governing regulation, 5 C.F.R. § 1605.13, no longer imposes such
requirements, and thus, the Board overruled Shobert to the extent it
requires agencies to comply with 5 C.F.R. §§ 1606.3 and 1606.11.
Appellant: Gregory Einboden
Agency: Department of the Navy
Decision Number: 2015 MSPB 26
MSPB Docket No.: DC-0752-13-0959-I-1
Consolidation No. DC-0752-14-0267-I-1 (Naval Sea Systems
Command Dahlgren v. Department of the Navy)
Issuance Date: February 27, 2015
Appeal Type: Adverse Action
Action Type: Furlough
Proof of Efficiency of the Service Standard In Furlough Action
The appellant was furloughed for budgetary reasons. The appellant asserted
on appeal that the agency should not have furloughed him because his salary
was paid out of working capital funds (WCF), not an account using
appropriated funds. The appellant also alleged that intergovernmental funds
are generally exempt from sequestration by statute and that no money was
sequestered from the agency’s WCF. The AJ found that the furloughs
promoted the efficiency of the service in that the furlough was a reasonable
management solution to the financial restrictions placed on the agency. The
agency offered unrebutted evidence that it had to make significant spending
cuts due to a sequestration order and that the furloughs helped to avoid a
deficit. He also held that the agency offered sufficient evidence that it
imposed the furloughs uniformly with exceptions for limited categories of
employees. The AJ further held that the appellants were provided with
requisite due process despite the appellants’ affirmative defenses that the
agency was precluded by a WCF from furloughing them. Finally, the AJ found
that even assuming the WCF was exempt from the sequester order there was
no proof that the funds were derived from a source other than direct
appropriations.
Holding: The Board denied the petition for review and affirmed
the agency’s furlough action to clarify the AJ’s nexus analysis.
1. Although the appellants asserted that the agency had adequate funding
to avoid furloughs, it was reasonable for the Department of Defense to
consider its budget situation holistically, rather than to isolate each
individual military department’s situation within the Department of the
Navy.
2. Vice Chair Wagner dissented, noting that in order for the agency to show
that the furlough will promote the efficiency of the service, there must be
some indication that it was reasonably foreseeable that the savings from
the furlough would address the budgetary challenges.
Appellant: Socorro Thome
Agency: Department of Homeland Security
Decision Number: 2015 MSPB 27
MSPB Docket No.: DA-0752-12-0339-I-1
Issuance Date: February 27, 2015
Appeal Type: Adverse Action
Action Type: Removal
Due Process Violation Based on Misrepresentation of Charge
Sex Discrimination
Right to Light Duty Under the Pregnancy Discrimination Act
In her position as a Customs and Border Protection Officer (CPBO), the
appellant was required to be available for rotating shifts and overtime
assignments and to carry and maintain proficiency in the use of a firearm.
Following a period of approved leave due to pregnancy, the appellant’s
physician released her to work without restrictions with the exception that she
be provided frequent breaks for breastfeeding. Thereafter, the appellant
submitted a request from her son’s pediatrician requesting the following
accommodations in her work: that she be assigned to light duty while
breastfeeding and until her son was one-year-old due to a concern that she
might be exposed to contaminants which could be transmitted to her son
through breast milk, that she be relieved from alternating shifts in order to
avoid disruption of breast milk production tied to sleep and circadian rhythm,
and that she avoid the indoor gun range due to the presence of vaporized lead.
Several months later, the agency issued the appellant an “option letter”
directing her to return to full duty or resign because it could not accommodate
her light duty restrictions with certainty. The agency then issued a notice
proposing her “non-disciplinary removal” based on a charge of unavailability
for duty inasmuch as her presence was needed to carry out the agency’s
mission and that her decision to breastfeed was a personal choice. The
deciding official affirmed the removal noting that the appellant was medically
able to perform her duties but chose to make herself unavailable and that the
appellant’s accommodation requests were “literally impossible to fulfill.” In
her appeal before the Board, the appellant alleged that the agency violated
her due process rights, that the agency unlawfully disciplined her for taking
approved leave, and that the agency engaged in sex and disability
discrimination, and retaliated against her. The AJ reversed the removal of
due process grounds because the agency deciding official considered evidence
not cited in the proposal notice nor included in accompanying materials to the
appellant. The AJ did not sustain the appellant’s other claims.
Holding: The Board denied the agency’s petition for review,
granted the appellant’s cross-petition, affirmed the reversal of the
removal and the AJ’s rulings on the appellant’s affirmative
defenses of disability discrimination and reprisal, vacated the AJ’s
finding on sex discrimination in violation of the Pregnancy
Discrimination Act of 1978, and remanded the case for further
adjudication on that claim.
1. The Board affirmed the AJ’s finding that the agency violated the
appellant’s due process rights by failing to provide adequate notice of the
charges against her because the agency erroneously characterized the
action as non-disciplinary when the appellant’s removal was, in fact, a
disciplinary action based on a charge of misconduct due to her alleged
refusal to return to duty. Here, the “options letter” was essentially an
order to return to full duty and was indistinguishable from a charge of
failure to follow instructions.
2. The Board found that the appellant’s claim of disability discrimination
fails because neither pregnancy nor lactation are impairments covered
under the Americans with Disabilities Act.
3. The Board remanded the appellant’s Pregnancy Discrimination Act claim
for further adjudication pending issuance of the Supreme Court’s opinion in
Young v. United Parcel Service on the issue of whether the PDA permits a
“pregnancy neutral” policy of granting light duty exclusively to employees
who have on-the-job injuries and/or disabilities under the ADA.
The U.S. Court of Appeals for the Federal
Circuit issued the following nonprecedential
decisions this week:
Petitioner: Diane King
Respondent: Department of the Army
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2015-3005
MSPB Docket No. AT-1221-12-0143-W-3
Issuance Date: March 4, 2015
Holding: The Court affirmed the Board’s denial of the petitioner’s request for
corrective action based on its finding that the respondent proved by clear and
convincing evidence that it would have removed the petitioner even if she had not
made protected disclosures due to her conduct within the workplace.
Petitioner: Corazon McDonald
Respondent: Department of the Army
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2014-3220
MSPB Docket No. DA-0752-12-0344-C-1
Issuance Date: March 4, 2015
Holding: The Court affirmed the Board’s denial of the petitioner’s petition for
enforcement based on its finding that the agency made all reasonable efforts to
restore the petitioner to her original position.
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Case Report - February 13, 2015 | 02-13-2015 | https://www.mspb.gov/decisions/case_reports/Case_Report_February_13_2015_1138795.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_February_13_2015_1138795.pdf | Case Report for February 13, 2015
BOARD DECISIONS
Appellant: Robert Frederick
Agency: Department of Homeland Security
Decision Number: 2015 MSPB 11
MSPB Docket No.: AT-0752-11-0620-B-2
Issuance Date: February 10, 2015
Appeal Type: Adverse Action
Action Type: Indefinite Suspension
Use of Same Factual Specification for Multiple Adverse Actions
On March 4, 2010, the appellant was issued a notice of proposed indefinite
suspension based on its Office of Professional Responsibility’s (OPR)
investigation into allegations that the appellant tape recorded a conversation
in the workplace, and the fact that an arrest warrant had been issued for his
arrest due to his alleged violation of Florida’s wiretap laws. On June 10, 2010,
the agency issued the indefinite suspension, and in doing so stated that its only
factual support for the suspension was the issuance of the arrest warrant.
Shortly after the agency imposed the suspension, the Board issued its decision
in Gonzalez v. Department of Homeland Security, 114 M.S.P.R. 318, which
held that an internal agency investigation cannot be the basis for an
indefinite suspension. Due to Gonzalez, the agency issued a second notice of
proposed suspension to the appellant, again citing to the issuance of the arrest
warrant as the supporting specification for the suspension. The agency
subsequently imposed the suspension, effective March 24, 2011, and stated
that the suspension was based solely on the charge and specification outlined
in the second proposed suspension, and not based on the charges and
specification from the first suspension. The appellant appealed the second
indefinite suspension to the Board, and after multiple procedural issues
regarding his appeal were addressed by the administrative judge (AJ) and the
Board, the AJ upheld the suspension. The AJ found that, even though the two
suspensions relied on the same factual specification, the second suspension
was allowed because the indefinite suspensions covered different periods of
time.
Holding: The Board granted the appellant’s petition for review,
reversed the remand initial decision, and did not sustain the
appellant’s second indefinite suspension.
1. Agencies cannot rely on the same factual specification in effecting
separate disciplinary or adverse actions. Here, although the charges
supporting the first and second suspensions were different, both
suspensions still were issued based on the same factual specification, which
was the appellant’s arrest warrant. Accordingly, the Board did not sustain
the second suspension.
Appellant: Troy S. Piirainen
Agency: Department of the Army
Decision Number: 2015 MSPB 12
MSPB Docket No.: DE-3330-14-0057-I-1
Issuance Date: February 11, 2015
Appeal Type: Veterans Employment Opportunity Act
Action Type: Non-Selection
Right to be Considered Under Veterans’ Readjustment Act
The agency opened a senior training instructor position and decided to hire for
the position internally. The appellant’s second-line supervisor informed the
appellant and his co-worker, both of whom were preference-eligible veterans,
that the position was going to become available and encouraged them to
apply. The appellant’s co-worker applied for the position, but the appellant
only sent e-mails to his second-line supervisor seeking advice on how to
proceed and did not actually apply. The second-level supervisor did not
respond to his inquiries. The agency then selected the appellant’s co-worker
for the position via its Veterans’ Readjustment Act (VRA) authority, which
allowed it to appoint an employee to the position without announcing the job
or rating and ranking applicants. The appellant appealed his non-selection to
the Board, asserting that the agency violated his veterans’ preference rights
under the Veterans Employment Opportunity Act of 1998 (VEOA). The AJ
denied his request for corrective action based on a finding that the appellant
was not “on file,” for purposes of the VRA because the appellant did not
submit an application for the position.
Holding: The Board denied the petition for review.
1. The appellant was not “on file” for purposes of the VRA because he did
not actually submit an application for the position. Accordingly, his rights
under VEOA were not violated.
The U.S. Court of Appeals for the Federal
Circuit issued the following nonprecedential
decisions this week:
Petitioner: Sandra E. Simmons
Respondent: Merit Systems Protection Board
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2014-3142
MSPB Docket No. DC-0432-13-1309-I-1
Issuance Date: February 6, 2015
Holding: The Court affirmed the Board’s decision dismissing the petitioner’s
appeal as untimely based on its finding that the petitioner did not show good
cause for her untimely filing.
Petitioner: Ann Marie Duncan
Respondent: Merit Systems Protection Board
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2014-3187
MSPB Docket No. DC-752S-14-0506-I-1
Issuance Date: February 6, 2015
Holding: The Court affirmed the Board’s decision dismissing the petitioner’s
appeal of her 5-day suspension for lack of jurisdiction based on its finding that the
Board does not have jurisdiction over suspensions lasting 14 days or less.
Petitioner: Diane King
Respondent: Department of Veterans Affairs
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2014-3208
MSPB Docket Nos. AT-0330-12-0737-C-1, AT-0330-12-0739-C-1, AT
0330-12-0741-C-1
Issuance Date: February 6, 2015
Holding: The Court affirmed the Board’s decision denying the petitioner’s three
petitions for enforcement of final Board orders requiring the agency to reconstruct
its hiring decisions, in accordance with veterans’ preference procedures, based on
its finding that the respondent lawfully exercised its pass-over authority.
Petitioner: Peter Agoranos
Respondent: Department of Justice
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2014-3209
MSPB Docket Nos. CH-0432-11-0182-B-1, CH-1221-0466-B-1
Issuance Date: February 9, 2015
Holding: The Court affirmed the Board’s decision in an Individual Right of Action
appeal upholding the petitioner’s personnel actions based on its finding that the
respondent proved by clear and convincing evidence that it would have taken the
personnel actions even if the petitioner had not made protected disclosures.
Petitioner: William B. Jolley
Respondent: Department of Justice
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2014-3202
MSPB Docket No. SF-4324-14-0405-I-1
Issuance Date: February 10, 2015
Holding: The Court affirmed the Board’s decision denying the petitioner’s request
for corrective action under the Uniformed Services Employment and
Reemployment Rights Act based on its finding that the respondent was not the
petitioner’s employer for purposes of the statute.
Petitioner: Robin Weiss
Respondent: Merit Systems Protection Board
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2014-3105
MSPB Docket No. DC-315H-10-0671-B-1
Issuance Date: February 10, 2015
Holding: The Court affirmed the Board’s decision dismissing the petitioner’s
appeal as untimely based on its finding that the petitioner did not show that her
medical illness and technical issues prevented her from timely filing her appeal.
Petitioner: Corey Demond Stoglin
Respondent: Merit Systems Protection Board
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2014-3099
MSPB Docket No. CH-0752-12-0357-I-1
Issuance Date: February 11, 2015
Holding: The Court affirmed the Board’s decision dismissing the petitioner’s
petition for review as untimely based on its finding that the petitioner did not
show good cause for his untimely filing.
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Case Report - February 6, 2015 | 02-09-2015 | https://www.mspb.gov/decisions/case_reports/Case_Report_February_6_2015_1136579.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_February_6_2015_1136579.pdf | Case Report for February 6, 2015
BOARD DECISIONS
Appellant: William Ralph Pumphrey
Agency: Department of Defense
Consolidation: Pentagon Force Protection Agency v. Department of
Defense
Decision Number: 2015 MSPB 10
MSPB Docket No.: DC-0752-13-1077-I-1 and consolidation DC-0752
14-0222-I-1
Issuance Date: January 30, 2015
Appeal Type: Adverse Action
Action Type: Furlough
Pre-Decisional Due Process
The appellant was furloughed for three days from his Police Officer position
due to sequestration. After receiving his notice of proposed furlough, the
appellant requested that the agency grant him 4 hours of official time and a 14
day extension of time to help him respond to the notice. The agency denied
both requests. The appellant appealed his furlough to the Board, and in his
appeal alleged that the agency’s failure to grant his requests constituted a due
process violation and harmful error. He also requested a protective order from
the Board because the agency would not allow him to choose the days of the
week on which he served his furlough. The administrative judge affirmed the
furlough, found that the appellant did not establish harmful error, and denied
the request for the protective order because the agency’s denial of the
appellant’s requests did not constitute harassment or retaliation necessitating
protection from the Board.
Holding: The Board affirmed the initial decision, and
supplemented the analysis to address the appellant’s due process
argument and to deny the request for a protective order.
1. The agency’s denial of additional time to respond to the furlough notice
did not violate due process because the 14-day reply period provided a
meaningful opportunity, and reasonable time, to respond.
2. The Board denied the appellant’s request for a protective order because
it did not contain sufficient information establishing that he was, or could
be, subjected to the type of harassment a protective order is meant to
address.
The U.S. Court of Appeals for the Federal
Circuit issued the following nonprecedential
decisions this week:
Petitioner: Manuel Losada
Respondent: Department of Defense
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2014-3047
MSPB Docket No. DC-0752-10-0800-M-1
Issuance Date: February 4, 2015
Holding: The Court affirmed the Board’s decision upholding the petitioner’s
removal based on a finding that the agency demonstrated by clear and convincing
evidence that it would have removed the petitioner even if he did not make a
protected disclosure.
Petitioner: Ralph M. Malone
Respondent: Merit Systems Protection Board
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2014-3211
MSPB Docket No. DE-0831-14-0311-I-1
Issuance Date: February 4, 2015
Holding: The Court affirmed the Board’s dismissal of the petitioner’s appeal for
lack of jurisdiction based on a finding that OPM had not issued an appealable final
decision, nor had it constructively denied the petitioner a final decision.
Petitioner: Jimmy Tyler Rebish
Respondent: Merit Systems Protection Board
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2014-3085, 2014-3087
MSPB Docket No. SF-1221-13-0494-W-1 & SF-0752-13-0362-I-1
Issuance Date: February 4, 2015
Holding: The Court affirmed the Board’s decisions to dismiss both of the
petitioner’s appeals for lack of jurisdiction. In the first appeal, the petitioner
failed to make a non-frivolous allegation that his deciding official knew of his
disclosure. In the second appeal, the petitioner failed to make a non-frivolous
allegation that his retirement was voluntary.
Petitioner: Yong I. Fenlon
Respondent: Department of the Navy
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2014-3145
MSPB Docket No. SF-0432-04-0076-X-1
Issuance Date: February 5, 2015
Holding: The Court affirmed the Board’s dismissal of the agency’s petition for
enforcement due to a settlement agreement between the parties.
Petitioner: Richie Leon Hall
Respondent: Merit Systems Protection Board
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2014-3170
MSPB Docket No. DC-3443-14-0725-I-1
Issuance Date: February 5, 2015
Holding: The Court affirmed the Board’s dismissal of the petitioner’s appeal for
lack of jurisdiction based on a finding that the agency’s decisions to reassign the
petitioner and deny him a Living Quarter Allowance were not actions over which
the Board has jurisdiction.
Federal Register Notices:
The Board issued its final rule on jurisdiction on January 28, 2015.
http://www.gpo.gov/fdsys/pkg/FR-2015-01-28/pdf/2015-01575.pdf
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Case Report - January 30, 2015 | 01-30-2015 | https://www.mspb.gov/decisions/case_reports/Case_Report_January_30_2015_1133046.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_January_30_2015_1133046.pdf | Case Report for January 30, 2015
BOARD DECISIONS
Appellant: Douglas W. Freeze
Agency: Department of the Navy
Decision Number: 2015 MSPB 9
MSPB Docket No.: DC-0752-14-0495-I-1
Issuance Date: January 27, 2015
Appeal Type: Adverse Action
Action Type: Indefinite Suspension
Conditions Subsequent In Security Clearance Indefinite Suspensions
The appellant was indefinitely suspended from his position as an Intelligence
Specialist after the agency suspended his security clearance. Before the
agency finalized its decision on the revocation of his security clearance, the
appellant appealed the imposition of his suspension to the Board. After the
appellant requested to withdraw his appeal, the Board dismissed it with
prejudice. Following the agency’s final decision to revoke his clearance, the
appellant filed a second appeal, this time alleging that the indefinite
suspension was illegally imposed and had continued for an excessive length of
time. The administrative judge dismissed the appeal based on a finding that
the appellant’s previous appeal of the same indefinite suspension had been
dismissed, but made no findings on the allegation that the indefinite
suspension continued for an excessive length of time. The appellant filed a
petition for review, and while the petition was pending, the Department of
Defense Personnel Security Appeals Board (PSAB) upheld the revocation of his
security clearance. The appellant resigned from his position immediately
thereafter while his petition for review was still pending.
Holding: The Board affirmed the AJ’s dismissal of the appeal from
the indefinite suspension, found that the Board had jurisdiction
over his appeal of the improper continuation of his indefinite
suspension, and affirmed the agency’s action.
1.
The Board overruled a portion of its decision in Ryan v. Department of
Homeland Security, 121 M.S.P.R. 460 (2014), to the extent it held that the
Board could impose the restoration of an appellant’s security clearance as a
condition subsequent to trigger the end of an indefinite suspension where
the suspension letter identifies a different condition subsequent. The Board
cannot impose a condition subsequent different from the one identified by
the agency in its decision imposing the indefinite suspension.
2. Here, the condition subsequent triggering the cessation of the
appellant’s indefinite suspension was the completion and disposition of all
issues regarding his security clearance and the completion of the notice
period of any possible subsequent adverse actions. Because the appellant
resigned the day after he was notified that the PSAB upheld his security
clearance revocation, there was no subsequent adverse action and the
condition subsequent was therefore met by the agency. However, because
the appellant did not show that the agency failed to act within a reasonable
amount of time to terminate his suspension following the satisfaction of the
condition subsequent, the Board affirmed the action.
The U.S. Court of Appeals for the Federal
Circuit did not issue any decisions this
week
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Case Report - January 16, 2015 | 01-16-2015 | https://www.mspb.gov/decisions/case_reports/Case_Report_January_16_2015_1127544.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_January_16_2015_1127544.pdf | Case Report for January 16, 2015
BOARD DECISIONS
Appellant: Jackie Leseman
Agency: Department of the Army
Consolidation: Corps of Engineers/Pacific Ocean v. Department of
the Army
Decision Number: 2015 MSPB 5
Docket No.: SF-0752-13-1722-I-1 and consolidation SF-0752-14
0290-I-1
Issuance Date: January 9, 2015
Appeal Type: Adverse Action
Action Type: Furlough
Dismissal for Failure to Prosecute
The appellant appealed the agency’s decision to furlough her from her
Supervisory Project Officer position. The appeal was later consolidated and
the administrative judge (AJ) advised the appellant and other consolidated
parties of a scheduled telephonic status conference, a prehearing conference,
and the close of record date. The appellant failed to appear at the status
conference or prehearing conference, and then failed to respond to the AJ’s
show cause order directing those appellants who did not respond to prehearing
or hearing instructions that their appeal would be dismissed for failure to
prosecute if no response was received by a certain date. The AJ then
dismissed the appeal with prejudice for failure to prosecute based on a finding
that the appellant failed to exercise due diligence in prosecuting her appeal.
Holding: The Board affirmed the AJ’s dismissal of the petition for
appeal for failure to prosecute.
1. The sanction of dismissal with prejudice may be imposed based on a
finding of failure to prosecute only when: (1) a party has failed to exercise
basic due diligence in complying with Board orders; or (2) the party has
exhibited negligence or bad faith in its efforts to comply. Here, the
appellant took no steps to pursue her appeal until she filed her petition for
review notwithstanding the warnings that her failure to participate in the
appeal could result in the dismissal.
Appellant: James Webb
Agency: Department of the Interior
Decision Number: 2015 MSPB 6
MSPB Docket No.: DA-1221-14-0006-W-1
Issuance Date: January 13, 2015
Appeal Type: Individual Right of Action (IRA) appeal
Action Type: Adverse Action
Protected Disclosures and Policy Disagreements
Reasonable Belief Gross Mismanagement
The appellant alleged that he was subjected to several adverse personnel
actions based on two protected disclosures he made: (1) a position paper he
prepared advocating for a different proposed agency organizational
restructuring; and (2) his sending of two separate e-mails expressing concern
with certain proposed agency changes. In an initial decision denying the
appellant’s request for corrective action, the administrative judge found the
appellant failed to nonfrivolously allege that his first disclosure was a
protected disclosure because it consisted of a policy dispute. With respect to
the second alleged protected disclosure the AJ found that, while this
disclosure amounted to a nonfrivolous allegation of a protected disclosure
because his objection to the proposed change in fees for certain permit
applications constituted an allegation of wrongdoing, the appellant failed to
establish that he “reasonably believed” that his emails amounted to a
protected disclosure because his subsequent emails indicated that he
understood the reason for the proposed change and had no problem with the
policy.
Holding: The Board denied the petition for review and affirmed the
initial decision as modified.
1. The Board clarified its decision in O’Donnell v. Department of
Agriculture, 120 M.S.P.R. 94 (2013), by holding that general philosophical
or policy disagreements with agency decisions or actions do not constitute
protected disclosures unless there is a reasonable belief that the disclosure
evidences one of the categories of wrongdoing set forth in 5 U.S.C. §
2302(b)(8)(A).
2. The Board modified the AJ’s finding that the appellant made a
nonfrivolous disclosure. The Board held that the appellant’s e-mail was a
discussion about proposed policy, and therefore just a policy discussion,
and not a disclosure of any of the situations specified in 5 U.S.C. §
2302(b)(8)(A). The Board vacated the part of the initial decision regarding
the appellant’s subsequent statements in emails that he now understood
and supported the proposed policy change because the test is whether the
appellant had a reasonable belief at the time he made the disclosure, not in
light of events or conversations occurring thereafter.
Appellant: Ty K. Sanders
Agency: Department of Homeland Security
Decision Number: 2015 MSPB 7
MSPB Docket No.: DA-0752-13-0313-I-1
Issuance Date: January 15, 2015
Appeal Type: Adverse Action
Action Type: Removal
Interim Relief Effective Date
Post-Removal Medical Evidence
Weight of Medical Evidence
The appellant appealed his removal as a Customs and Border Protection Officer
(CBPO) based on a charge of inability to perform the essential duties of his
position. The removal was issued based on two separate psychiatrists finding
the appellant unable to continue working for the agency following an incident
with the appellant’s supervisors. The appellant appealed his removal, and
while his appeal was pending before the administrative judge (AJ), the
appellant was evaluated by two other psychiatrists of his choosing, who both
found him fit for duty. After conducting a hearing, the AJ reversed the
removal, finding that new medical evidence showed the appellant had
recovered from the condition that prevented him from performing his duties.
In issuing this ruling, the AJ gave more weight to the appellant’s chosen
psychiatrists over the agency’s chosen psychiatrists. The AJ ordered the
agency to provide interim relief to the appellant, and the appellant filed a
petition for enforcement, alleging that the agency only provided back pay
retroactive to a date near the date of the initial decision, and not all the way
back to the date of his removal.
Holding: The Board affirmed the initial decision in part and reversed
the initial decision insofar as it reversed the agency’s removal action.
1. An order for interim relief is effective only as of the date of the issuance
of the initial decision.
2. The Board will consider post-removal medical evidence regarding
whether, while the appeal is pending, the appellant continues to suffer
from the medical condition that makes him unfit for duty.
3. The Board reversed the initial decision based primarily on its finding
that the assessments by the agency’s chosen psychiatrists held greater
weight than the appellant’s chosen psychiatrists’ assessments. The Board
made this finding based on the fact the agency’s chosen psychiatrists had
significant experience evaluating the psychiatric conditions of CBPOs, while
the record did not reflect the same for the appellant’s chosen psychiatrists.
Appellant: Ross Vasallo
Agency: Department of Defense
Petitioner: Office of Personnel Management
Decision Number: 2015 MSPB 8
MSPB Docket No.: PH-3330-13-0049-R-1
Issuance Date: January 15, 2015
Appeal Type: Request for Reconsideration
Action Type: Non-Selection
Definition of “Agency”
The appellant applied for a position within a different component of the
Defense Contract Management Agency (DCMA) than where he was employed,
but his application was rejected due to his failure to submit an SF-50 as part of
his application package. The appellant appealed his non-selection, alleging
that his VEOA rights were violated because the agency denied him the
opportunity to compete for a vacant position for which the agency making the
announcement would accept applications outside its own workforce. On
appeal, the AJ concluded that because the vacancy announcement specified
that it was applicable only to certain DOD components, the agency did not
violate the appellant’s VEOA rights because it did not accept applications from
individuals outside of DOD. The Board reversed the AJ and found that the
agency did violate VEOA. It held that the term “agency,” as used in the
statute, referred only to DCMA, and not to DOD at large, and therefore the
agency did allow applications from persons outside its workforce. OPM then
filed a petition for reconsideration, arguing that the Board’s interpretation of
the term, “agency,” was incorrect.
Holding: The Board granted the petition for reconsideration and
reversed its prior decision.
1. The Board reversed its prior decision based on OPM’s definition of
“agency,” as found in 5 C.F.R. § 315.611 and 5 U.S.C. § 105. OPM’s
definition of the term, as used by VEOA, referred to all of DOD, and not just
DCMA.
The U.S. Court of Appeals for the Federal
Circuit issued the following nonprecedential
decisions this week:
Petitioner: Larry A. Griswold
Respondent: Office of Personnel Management
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2014-3186
MSPB Docket No. DE-0842-13-0232-I-1
Issuance Date: January 12, 2015
Holding: The Court affirmed the Board’s decision affirming OPM’s decision to
exclude the appellant’s military service from the calculation of his annuity
supplement because under controlling statutory authority the calculation of an
annuity supplement specifically exempts military service.
Petitioner: Velma Ruth Thomas
Respondent: Office of Personnel Management
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2014-3143
MSPB Docket No. AT-0841-13-0546-I-1
Issuance Date: January 13, 2015
Holding: The Court affirmed the Board’s decision finding that the appellant was
entitled to a supplemental annuity based on her period of reemployment but not a
redetermination of annuity rights upon her retirement.
Petitioner: Denise L. Robinson
Respondent: Merit Systems Protection Board
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2014-3176
MSPB Docket No. DC-0752-13-0580-I-1
Issuance Date: January 15, 2015
Holding: The Court affirmed the Board’s decision dismissing the underlying appeal
for lack of jurisdiction based on a finding that the appellant failed to
nonfrivolously allege that her resignation was the product of coercion, duress, or
misrepresentation.
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BOARD DECISIONS
Appellants: James A. Goeke & Joseph W. Bottini
Agency: Department of Justice
Decision Number: 2015 MSPB 1
MSPB Docket Numbers: SF-0752-12-0598-I-1, SF-0752-12-0600-I-1
Consolidation Docket Number: CB-0752-15-0228-I-1
Issuance Date: January 2, 2015
Appeal Type: Adverse Action
Action Type: Suspension
Agency Disciplinary Procedure
Harmful Procedural Error
The appellants appealed their suspensions based on allegations that they
committed professional misconduct during the criminal prosecution of a United
States Senator. The agency’s disciplinary process called for a Professional
Misconduct Review Unit (PMRU) attorney to review an employee’s record to
determine whether discipline was warranted, and if so, to serve as the
proposing official for the disciplinary process. The Chief of the PMRU (Chief)
would then act as the deciding official for the proposed discipline. Here, the
PMRU attorney reviewed the appellants’ actions and made a determination
that discipline was not warranted. The Chief disagreed with the PMRU
attorney’s assessment, personally substituted himself into the role of proposing
official, and proposed suspensions for both appellants. The new deciding
official, an Associate Deputy Attorney General, upheld the charges and
imposed the suspensions. On appeal, the administrative judge (AJ) reversed
the suspensions. The AJ found that the agency violated its internal disciplinary
process by allowing the Chief to substitute himself into the role of proposing
official, and that this error was harmful procedural error because
it likely led to stronger discipline than the agency otherwise would have
issued.
Holding: The Board affirmed the initial decision as modified by the
opinion and order.
1. When issuing discipline, an agency is required to follow its internal
disciplinary procedure, and the Board is obligated to enforce that
procedure. Here, the agency’s decisions to replace the PMRU attorney as
designated proposing official because the PMRU attorney concluded that the
appellants should not be disciplined, and to appoint a member of
management, rather than a rank-and-file attorney, to serve as the new
proposing official, were violations of the agency’s internal disciplinary
procedure and therefore were errors.
2. The agency’s procedural violations constituted harmful procedural
errors justifying a reversal of the penalty because the errors led to a
harsher penalty than otherwise would have been imposed.
Appellant: Margaret M. Reed
Agency: Department of Veterans Affairs
Decision Number: 2015 MSPB 2
MSPB Docket No.: CH-1221-13-1557-R-1
Issuance Date: January 6, 2015
Appeal Type: Individual Right of Action
Action Type: Suspension
Protected Disclosures Under the WPEA
Personnel Actions Under the WPEA
Contributing Factors Under the WPEA
Perceived Whistleblower Claims Under the WPEA
After the appellant’s grievance of an official admonishment was denied, she
requested to meet with her facility Director because she believed the
grievance process was futile. The appellant’s supervisors threatened to
discipline her if she went through with the meeting. She subsequently met
with the Director to discuss the grievance process, and also alleged that her
supervisors retaliated against her by failing to follow grievance procedures.
After that meeting, the appellant’s supervisor proposed to suspend her for
three days based on complaints from various agency officials. The suspension
was effectuated, and the admonishment was considered in the decision to
suspend her. The admonishment was eligible to be removed from the
appellant’s personnel file three months prior to the suspension, but her
supervisor elected to not remove it. The appellant filed an IRA with the Board,
alleging that the suspension was issued as reprisal for her complaints about the
grievance. At the Board, the administrative judge dismissed the appeal for
lack of jurisdiction, finding that the appellant failed to make a nonfrivolous
allegation that she made a protected disclosure, and that the appellant’s
grievance was not protected activity under the Whistleblower Protection
Enhancement Act (WPEA).
Holding: The Board reopened the appeal, vacated its November 25,
2014 Opinion and Order in its entirety (2014 MSPR 85), and replaced it
with the present decision.
1. The Board clarified in this Opinion and Order that the administrative
judge properly gave the appellant explicit notice of how to establish
jurisdiction over her appeal as a perceived whistleblower. But the Board
also concluded that the appellant had not made a nonfrivolous allegation
that the agency perceived her as a whistleblower, and thus vacated its
earlier Opinion and Order based on its conclusion that there was no basis
for a remand.
2. The filing of a grievance that does not itself seek to remedy
whistleblower reprisal is not a protected disclosure under the WPEA.
3. The proposed three-day suspension, the decision effectuating the
suspension, the Assistant Chief’s alleged refusal to remove the
admonishment from the appellant’s personnel file, and the Chief and
Assistant Chief’s threats of discipline were all personnel actions under the
WPEA.
4. The Board did not have jurisdiction over the appellant’s allegations of
irregularities in the grievance process because she did not allege that these
irregularities occurred as reprisal for any disclosure.
5. The Board held that the appellant failed to nonfrivolously allege that
any of her claimed protected disclosures were a contributing factor to her
personnel actions.
6. The Board stated that nothing in the WPEA precludes the Board from
considering, at the jurisdictional stage, whether the appellant made a
nonfrivolous allegation that a disclosure was a contributing factor to an
agency decision.
Appellant: Charles V. Neighoff
Agency: Department of Homeland Security
Decision Number: 2015 MSPB 3
MSPB Docket No.: CH-0731-14-0365-I-1
Issuance Date: January 6, 2015
Appeal Type: Adverse Action
Action Type: Removal
Timeliness
Servicemembers Civil Relief Act of 2003 Tolling
The appellant appealed his suitability-based removal 8 months after the
regulatory deadline. He asserted that the period of untimeliness was tolled by
the Servicemembers Civil Relief Act of 2003 (SCRA), inasmuch as he was on
active duty in Afghanistan for the majority of the 8 month period, and was
otherwise on active duty for a remainder of the period after he returned from
Afghanistan. The administrative judge (AJ) found that the SCRA’s tolling
provision was terminated when the appellant returned from Afghanistan, and
the appellant failed to show good cause for waiver of the remainder of the
period of untimeliness following his return from Afghanistan.
Holding: The Board granted the appellant’s petition for review,
reversed the initial decision on the threshold issue of timeliness and
remanded the case for further adjudication.
1. Under the tolling provision of the SCRA, the period of active duty
reflected on the appellant’s DD-214 form determines the period excused
for purposes of determining the timeliness of a petition for appeal. Here,
although the appellant returned from Afghanistan on February 10, 2014,
his DD-214 reflected that his active duty status ended on April 9, 2014.
Thus, his petition for appeal filed on March 20, 2014, was timely.
Appellant: Johnny L. Ringo
Agency: Department of Defense
Decision Number: 2015 MSPB 4
MSPB Docket Number: SF-0752-13-1823-I-1
Issuance Date: January 6, 2015
Appeal Type: Adverse Action
Action Type: Removal
Leave Accrual
The appellant was removed pursuant to a last chance agreement (LCA), which
stated that any absence from work that occurred while the appellant’s leave
balance was zero would be grounds for removal. The LCA also stated that if he
were removed, he would not initiate any civil litigation against the agency
concerning his removal. The appellant was absent for six hours and did not
have any leave to cover his absence, and therefore was removed pursuant to
the LCA. On appeal, the appellant argued that he was due to earn six hours of
leave at the end of the pay period during which he was absent. The AJ
dismissed the appeal for lack of jurisdiction based on the LCA. The AJ found
that the appellant did not have sufficient leave to cover his absence, and
therefore did not make a nonfrivolous allegation that he complied with the
LCA.
Holding: The Board affirmed the initial decision.
1. Accrued annual and sick leave are available for use only after the
completion of the full biweekly pay period in which they are earned. Here,
the Board held that because he had yet not completed the pay period when
he took his leave, he could not use the leave he claimed would have
covered his absence.
The U.S. Court of Appeals for the Federal
Circuit issued the following nonprecedential
decisions this week:
Petitioner: Raymanda Preacely
Respondent: Department of the Treasury
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2014-3190
MSPB Docket No. CH-4324-12-0521-B-1
Issuance Date: January 7, 2015
Holding: The Court affirmed the Board’s decision to uphold the petitioner’s
removal because she failed to show that her veteran status was a substantial or
motivating factor in her removal.
Petitioner: Stephan Evans
Respondent: United States Postal Service
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2012-3190
MSPB Docket No. SF-0752-10-0966-I-2
Issuance Date: January 8, 2015
Holding: The Court affirmed the Board’s decision to uphold the petitioner’s
removal because there was substantial evidence supporting the government’s
charges of misconduct.
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BOARD DECISIONS
Appellant: Robert Southerland
Agency: Department of Defense
Decision Number: 2014 MSPB 88
MSPB Docket Number: SF-0752-09-0864-A-1
Issuance Date: December 18, 2014
Appeal Type: Adverse Action
Action Type: Attorney Fees
Prevailing Party Definition
Deference to EEOC Decisions
EEOC Attorney Fee Decisions
The appellant appealed a suspension and removal based on charges stemming
from leave related infractions. Following a remand, the AJ sustained the
charged misconduct and found that the appellant did not prove his affirmative
defense of disability discrimination. The Board affirmed the AJ’s findings,
including that the appellant was “regarded as” disabled. The Board further
held that the deciding official in this case made a statement constituting
direct evidence of a discriminatory motive. The Board concluded, however,
that the appellant did not ultimately prove his affirmative defense of disability
discrimination because the agency would have taken the same action against
the appellant absent the discriminatory motive. The AJ then denied the
appellant’s attorney fee petition based on an overall finding that the appellant
was not the prevailing party for purposes of an award of attorney fees pursuant
to 5 U.S.C. § 7701(g)(2) because the agency was the prevailing party, and the
appellant obtained no relief whatsoever altering the parties’ legal relationship.
Holding: The Board denied the petition for review, but affirmed the
addendum initial decision as modified to further discuss the EEOC
cases cited by the appellant, and denied the fee petition.
1. An appellant is considered to have prevailed in a case and to be entitled
to attorney fees only if he obtains an “enforceable order” resulting in a
material alteration of the legal relationship of the parties. Here, the
appellant obtained only a finding that the deciding official’s statements
constituted direct evidence of disability discrimination, but because the AJ
ultimately concluded that there was no finding of disability discrimination,
the appellant could not be considered a prevailing party for purposes of
establishing an entitlement to attorney fees.
2. As a matter of law, the Board generally defers to the EEOC on issues of
substantive discrimination law unless the decision rests on civil service law
for its support, or is so unreasonable that it amounts to a violation of civil
service law. The Board has repeatedly declined to find that the EEOC’s
interpretive guidelines have the force of law or to give those guidelines
Chevron deference in instances where controlling court precedent declines
to follow the EEOC’s interpretation. Instead, it will look to the EEOC’s
administrative precedent as merely instructive, rather than controlling.
3. An EEOC decision regarding an attorney fees award does not constitute a
decision on an issue of substantive discrimination law. An attorney fees
award is a remedy that could be available to individuals in a case, but only
after a decision on the merits, or after the substantive issues have been
resolved.
Appellant: Eric S. Powell
Agency: U.S. Postal Service
Decision Number: 2014 MSPB 89
MSPB Docket Number: DA-0752-14-0021-I-1
Issuance Date: December 18, 2014
Appeal Type: Adverse Action
Action Type: Removal
Merger of Charges
The appellant was removed from his positon of Supervisor, Customer Service,
based on charges of failure to follow instructions and delay of mail. The
charges were based on an incident in which the appellant was held responsible
for failing to dispatch registered mail packages on time. The administrative
judge sustained the charged misconduct and concluded that removal was
within the tolerable limits of reasonableness.
Holding: The Board denied the petition for review, and affirmed the
initial decision as modified.
1. The Board modified the initial decision by finding that the charges of
failure to follow instructions and delay of mail should be merged into one
charge. The charges were based on the same conduct, and proof of one
charge automatically constitutes proof of the other charge.
Appellants: Paul Prouty & James Weller
Agency: General Services Administration
Decision Number: 2014 MSPB 90
MSPB Docket Numbers: DE-0752-12-0396-I-1, DA-0752-12-0519-I-1
Consolidation Docket Number: CB-0752-15-0112-I-1
Issuance Date: December 24, 2014
Appeal Type: Adverse Action
Action Type: Removal
Agency Burden of Proof
Supervisory Responsibility for Employee Misconduct
Standard of Conduct for SES Members
The appellants, Regional Commissioners within the agency’s Public Buildings
Service, appealed their removal for Conduct Unbecoming a Federal Employee.
The removals were issued after the agency’s OIG issued a report finding
excessive spending occurred at the agency’s 2010 Western Regional
Conference. The agency asserted that the appellants knew, or should have
known, that both the planning for the conference, and the money spent on the
conference, were excessive. Separate hearings were conducted for the
appellants, and the removals were reversed. The AJs held that the agency
failed to introduce sufficient evidence into the record proving that either
appellant had knowledge, or any reason to have knowledge, of the excessive
spending associated with the conference. The AJ in appellant Prouty’s case
noted that the agency failed to introduce the majority of the evidence
underlying the OIG’s findings into the record. The agency appealed the
decisions and the Board consolidated the appeals.
Holding: The Board affirmed the initial decisions as modified.
1. The Board affirmed the initial decisions reversing the removals because
the initial decisions were fully supported by the record. The Board stated
that the decisions made in planning and carrying out the conference
reflected “a level of extravagance that [has] no place in government,” but
the agency failed to prove that either appellant knew, or had reason to
know, of the planning decisions.
2. A supervisor will be responsible for the misconduct of a subordinate
employee if the supervisor actually directed the employee to commit the
misconduct, or had knowledge and acquiesced in the employee’s
misconduct.
3. Members of the Senior Executive Service (SES) are held to a higher
standard of conduct than non-SES government employees.
NONPRECEDENTIAL FINAL DECISION BY AN MSPB ADMINISTRATIVE
JUDGE ISSUED PURSUANT TO THE VETERANS ACCESS, CHOICE, AND
ACCOUNTABILITY ACT OF 2014
Appellant: Sharon Helman
Agency: Department of Veterans Affairs
MSPB Docket No.: DE-0707-15-0091-I-1
Issuance Date: December 22, 2014
Appeal Type: Adverse Action/VA SES
Action Type: Removal
Expedited Review of Removal of VA SES Employee
The appellant, a member of the Senior Executive Service at the Department of
Veterans Affairs, appealed her removal from the position of Director of the
Phoenix, Arizona, Medical Center. The removal was based on three charges of
misconduct pertaining to lack of oversight related to the administration of
medical center electronic patient wait lists, the acceptance of gifts from a
contractor, and the failure to report the gifts received from a contractor. The
AJ found that the VA failed to prove its charge related to the administration of
an electronic wait list, but sustained the second and third charges regarding
her acceptance of, and failure to report gifts, and concluded that removal was
a reasonable penalty.
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BOARD DECISIONS
Appellant: Rommel Boo
Agency: Department of Homeland Security
Decision Number: 2014 MSPB 86
MSPB Docket Number: SF-0752-13-3302-I-1
Issuance Date: December 3, 2014
Appeal Type: Adverse Action
Action Type: Removal
Required Element of Misrepresentation Charge
Penalty Analysis for Charge of Undermining Required Security
Procedures
The appellant, a financial specialist with the Transportation Security
Administration (TSA), appealed his removal based on charges of undermining
required security procedures and misrepresentation. The appellant had been
tasked with escorting a representative from the General Services
Administration (GSA) through an area of an airport beyond the TSA security
screening checkpoint. The appellant was authorized to escort the GSA
representative to the area through a Security Identification Designated Area
(SIDA) controlled door without the representative being screened, but not
authorized to do so through a TSA security screening checkpoint. On one
occasion, the appellant attempted to escort the representative through the
security screening checkpoint without screening, because it provided a more
direct route to their destination. The appellant was stopped by a
Transportation Security Officer (TSO) and Supervisory Transportation Security
Officer (STSO), who questioned whether the appellant had authority to escort
the representative through the checkpoint without screening. The appellant
incorrectly informed them that the Federal Security Director (FSD) had
authorized the appellant to escort the representative through the checkpoint
without screening. Based on the appellant’s statement, the representative
was allowed to pass through the checkpoint without screening. The STSO then
reported the incident to agency management, and the agency responded by
issuing the appellant a notice of proposed removal. In response to the
proposal, the appellant expressed remorse for his actions, and explained that
he misunderstood the scope of his authority to escort individuals through TSA
checkpoints. The agency nevertheless imposed his removal, and he appealed
to the Board. After a hearing, the administrative judge (AJ) sustained both
charges and upheld the removal. The AJ sustained the charge of undermining
required security procedures because the representative passed through the
checkpoint unscreened, and because the TSO and STSO were forced to expend
additional effort and resources to respond to the incident. The AJ sustained
the misrepresentation charge based on her finding that the appellant acted
with the intent to deceive the TSO and STSO.
Holding: The Board granted the appellant’s petition for review,
vacated the AJ’s initial decision in part, declined to sustain the
misrepresentation charge, and mitigated the appellant’s removal.
1.
In accordance with Leatherbury v. Department of the Army, 524 F.3d
1293 (Fed. Cir. 2008), the Board held that to sustain a charge of
misrepresentation, an agency must prove that the appellant intended to
defraud, deceive, or mislead the agency “for his own private material
gain.” Here, there was no evidence in the record that the appellant made
his statement to the TSO and STSO for his own private material gain.
Therefore, the Board did not sustain the charge of misrepresentation.
2. The Board’s prior decisions in Seas v. U.S. Postal Service, 73 M.S.P.R.
422, 427 (1997), and Schoeffler v. Department of Agriculture, 47 M.S.P.R.
80, 84, vacated in part, 50 M.S.P.R. 143, enforcement dismissed, 51
M.S.P.R. 20 (1991), are modified to the extent that they suggest that an
agency does not need to establish that an employee personally benefited
from the misrepresentation.
3. “Private material gain” with respect to a misrepresentation charge is to
be construed broadly, and is not limited to financial gain.
4. Because the charge of misrepresentation was not sustained, and
because the deciding official did not express whether the same penalty
would have been imposed for just the charge of undermining required
security procedures, the Board analyzed the penalty under the Douglas
factors to determine the maximum reasonable penalty. Pursuant to this
analysis, the Board determined that the maximum reasonable penalty for
the sustained charge was a 30-day suspension, and mitigated the penalty to
the same.
The U.S. Court of Appeals for the Federal
Circuit issued the following nonprecedential
decisions this week
Petitioner: Rakhmatulla Asatov
Respondent: Merit Systems Protection Board
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2013-3124
MSPB Docket No. PH-4324-13-0227-I-1
Issuance Date: December 18, 2014
Holding: The Court affirmed the Board’s dismissal of the appellant’s USERRA
appeal for failure to state a claim upon which relief can be granted because Board
orders are not enforceable against the National Guard Adjutants General.
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The U.S. Court of Appeals for the Federal
Circuit issued the following nonprecedential
decision this week:
Petitioner: Kenneth B. Beyers
Respondent: Department of State
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Numbers: 2014-3071 and 2014-3096
MSPB Docket No. DC-3330-11-0538-M-1 and DC-4324-11-0661-I-4
Issuance Date: December 3, 2014
Holding: The Court affirmed the Board’s decisions to deny the petitioner’s
requests for corrective action under VEOA and USERRA because the appellant
failed to prove his claim under either law.
Petitioner: F. Allan Midyett
Respondent: Merit Systems Protection Board
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2014-3131
MSPB Docket No. DA-3330-12-0569-I-1
Issuance Date: December 3, 2014
Holding: The Court affirmed the Board’s jurisdictional dismissal of the
petitioner’s VEOA claim because he failed to exhaust his administrative remedies.
Petitioner: Wilma C. Smith
Respondent: Office of Personnel Management
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2014-3167
MSPB Docket No. SF-0831-13-0545-I-1
Issuance Date: December 4, 2014
Holding: The Court affirmed the Board’s denial of the petitioner’s request for a
survivor annuity because service in the Merchant Marine is generally not covered
by the CSRS or FERS.
Petitioner: Marcus Lewis
Respondent: Merit Systems Protection Board
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2014-3148
MSPB Docket No. CB-1216-13-0063-T-1
Issuance Date: December 4, 2014
Holding: The Court affirmed the Board’s decision to remove the petitioner from
the federal service for violating the Hatch Act by running for political office.
Petitioner: Artemio E. Caja
Respondent: Merit Systems Protection Board
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2014-3169
MSPB Docket No. SF-083-13-0312-I-1
Issuance Date: December 5, 2014
Holding: The Court affirmed the Board’s decision that the petitioner was not
eligible for a CSRS annuity because his position was not covered by the Civil
Service Retirement Act.
Petitioner: Saswata Basu
Respondent: Merit Systems Protection Board
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2014-3164
MSPB Docket No. CH-315H-13-0039-I-1
Issuance Date: December 5, 2014
Holding: The Court affirmed the Board’s dismissal of the petitioner’s petition
for review for untimeliness because he failed to establish due diligence or good
cause for the over eight-month delay in filing the petition for review.
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BOARD DECISIONS
A Board Chief Administrative Judge issued the following
Nonprecedential Final Decision pursuant to the Board’s VA SES
expedited review procedures:
Appellant: James R. Talton
Agency: Department of Veterans Affairs
MSPB Docket No.: AT-0707-15-0094-I-1
Issuance Date: November 19, 2014
Appeal Type: Adverse Action/VA SES
Action Type: Removal
Expedited Review of Removal of VA SES Employee
The appellant, a member of the Senior Executive Service at the Department of
Veterans Affairs, was Director of the Central Alabama Veterans Administration
Healthcare System, and appealed his removal for failure to timely take
disciplinary action against two employees who committed significant
misconduct. In both instances, the appellant was extensively and regularly
briefed concerning the alleged misconduct of these two employees, but took
no action against either employee until well over one year following the
occurrence of the incidents. When interviewed by the agency, the appellant
initially denied knowledge of the specifics of the employees’ misconduct, and
then later gave conflicting accounts of how he handled these two matters.
Based on the appellant’s inaction in timely addressing these two incidents of
employee misconduct, and his inconsistent statements to investigators about
the misconduct, the agency removed the appellant under the VA SES expedited
adverse action procedures.
In a decision issued following the MSPB’s expedited hearing process for VA SES
employees, the Administrative Judge sustained the charged misconduct based
on the hearsay evidence contained in the agency’s investigative report, and
found the appellant’s claims that he was unaware of the severity of the
underlying actions not credible. The Administrative Judge further held that the
appellant failed to prove his affirmative defenses, and concluded that the
penalty of removal was reasonable and within the narrowly prescribed
authority set forth in 38 U.S.C. § 713(a)(1). The Administrative Judge’s
decision is final pursuant to 38 U.S.C. § 713(e)(2).
The U.S. Court of Appeals for the Federal Circuit
issued a precedential decision in the following
case:
Petitioner: Steven B. Berlin, et al.
Respondent: Department of Labor
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2014-3031
MSPB Docket No.: CB-7521-13-0072-T-1, et al.
Issuance Date: November 20, 2014
Determination of Good Cause for ALJ Furloughs
The appellants, who served as administrative law judges (ALJs), appealed the
agency’s decision to furlough them for 5.5 days under the Budget Control Act
of 2011 (Act). The Act required that the same percentage sequestration
applied to all programs, projects, and activities within a budget account. To
fulfill its responsibilities under the act, the agency applied a 5% cut to all of
the subaccounts within its “Management Salaries and Expenses” account,
including the adjudication subaccount, which covered the Office of
Administrative Law Judges. The agency calculated that to make the required
cuts, it needed to furlough the ALJs for 5.5 days. The ALJs appealed the
furloughs, arguing that other employees not covered by the adjudication
subaccount had shorter furloughs. At the Board, the matter was first heard by
an administrative law judge from the United States Coast Guard, who held that
the agency met the “good cause” standard required to furlough ALJs.
However, the administrative law judge also held that the furloughs should be
reduced to 4 days because the “special status” of the ALJs required the agency
to reallocate funds in such a manner such that the ALJs did not receive a
longer furlough than other employees covered by the “Management Salaries
and Expenses” account. The agency petitioned the full Board for review, and
the Board vacated the initial decision. The Board held that the agency had
good cause to furlough the ALJs for the full 5.5 day period, because the agency
had sound business reasons for its decision, and that there was no evidence
that the decision was made for an improper reason or to interfere with the
ALJs’ qualified judicial independence.
Holding: The Court affirmed.
1. When assessing the propriety of an ALJ furlough, “good cause” is
defined on a case-by-case basis. Potential factors in a determination of
“good cause” include: (1) whether the reason for the furlough is one that
interferes with the ALJs’ judicial independence; (2) any disparate
treatment; and (3) whether the agency had sound business reasons for
issuing the furlough.
2. Here, the furloughs represented a sound business decision by the
agency because the agency made a neutral decision to apply the cuts
equally to each subaccount. The difference in furlough lengths did not
mean that the agency did not meet the “good cause” standard because
there was no evidence that the difference existed because of the
employees’ ALJ status.
The U.S. Court of Appeals for the Federal
Circuit issued the following nonprecedential
decision this week:
Petitioner: Herbert Russell
Respondent: Department of Health and Human Services
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2014-3130
MSPB Docket No. DC-3330-11-0405-B-1
Issuance Date: November 18, 2014
Holding: The Court vacated and remanded the Board’s final decision for a
determination of whether the appellant received a Board Order providing for the
submission of new evidence on the reconstructed selection process.
The MSPB did not issue any precedential
decisions this week
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Case Report - November 14, 2014 | 11-14-2014 | https://www.mspb.gov/decisions/case_reports/Case_Report_November_14_2014_1106755.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_November_14_2014_1106755.pdf | Case Report for November 14, 2014
BOARD DECISIONS
Appellant: Stephen B. Linder
Agency: Department of Justice
Decision Number: 2014 MSPB 84
MSPB Docket Number: CH-1221-14-0058-W-1
Issuance Date: November 7, 2014
Appeal Type: Individual Right of Action Appeal
Action Type: Retaliatory Reassignment
Interpretation of 5 U.S.C. § 2302(b)(9) under the WPEA
Allegation of Abuse of Authority under 5 U.S.C. § 2302(b)(8)
In a criminal proceeding in U.S. District Court, the appellant disclosed that
agency employees were performing misconduct by interfering with his ability
to defend himself against the charges. The court dismissed the indictment
against the appellant based on his disclosures. After the dismissal, the agency
reassigned him, at which point the appellant filed an individual right of action
appeal alleging that his reassignment was in retaliation for the disclosures to
the court. At the Board, the administrative judge dismissed the appeal for
lack of jurisdiction based on a finding that the appellant’s disclosure did not
constitute protected activity within the scope of 5 U.S.C. § 2302(b)(9)
pertaining to the exercise of any appeal, complaint, or grievance.
Holding: The Board granted the appellant’s petition for review,
vacated the initial decision, and remanded the case to the regional
office for additional proceedings.
1. Nothing in the WPEA changed the Board’s long established precedent
concerning the meaning of the terms “appeal, complaint, or grievance” in
the statutory language. Filing a motion to dismiss an indictment does not
constitute an initial step toward taking legal action against an employer for
a perceived violation of employment rights. Thus, the appellant’s
disclosure to the court did not fall within the protections of 5 U.S.C.
§ 2302(b)(9).
2. The appellant’s disclosure to a federal judge of threats by agency
officials of criminal charges and adverse employment actions toward
potential witnesses for the appellant in his criminal trial was covered by 5
U.S.C. § 2302(b)(8) as an allegation of an abuse of authority.
The U.S. Court of Appeals for the Federal
Circuit issued the following nonprecedential
decision this week
Petitioner: Yong I. Fenlon
Respondent: Department of the Navy
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2014-3088
MSPB Docket No. SF-0752-11-0459-I-4
Issuance Date: November 7, 2014
Holding: The Court affirmed the Board’s dismissal of the petition for review
pursuant to the terms of a settlement agreement.
Petitioner: Maria Havrilla
Respondent: Merit Systems Protection Board
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2014-3122
MSPB Docket No. PH-844E-14-0473-I-1
Issuance Date: November 7, 2014
Holding: The Court affirmed the Board’s dismissal for lack of jurisdiction
because the Board lost jurisdiction when OPM rescinded its reconsideration
decision.
Petitioner: Juanito Izon
Respondent: Office of Personnel Management
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2014-3094
MSPB Docket No. SF-0831-13-4901-I-1
Issuance Date: November 7, 2014
Holding: The Court affirmed the Board’s denial of the petitioner’s application
for a deferred retirement annuity under the Civil Service Retirement System
because he did not establish that any of his any of his employment was “covered
service” under the Civil Service Reform Act.
Petitioner: Charles G. Johnson
Respondent: Merit Systems Protection Board
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2014-3074
MSPB Docket No. DE-0353-10-0501-B-1
Issuance Date: November 7, 2014
Holding: The Court affirmed the Board’s dismissal for lack of jurisdiction
because the petitioner did not establish that he had fully or partially recovered
from his original work related injury.
Petitioner: Peggy Ann Wishneski
Respondent: Office of Personnel Management
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2014-3128
MSPB Docket No. AT-0831-13-0194-I-1
Issuance Date: November 7, 2014
Holding: The Court affirmed the Board’s finding that the petitioner was not
entitled to elect a survivor annuity for her husband because she did not timely
exercise her right of election.
Petitioner: Renee Priscilla Cothron-Mallett
Respondent: Merit Systems Protection Board
Intervenor: Equal Employment Opportunity Commission
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2014-3035
MSPB Docket No. DC-0752-12-0828-I-1
Issuance Date: November 10, 2014
Holding: The Court affirmed the Board’s dismissal for lack of jurisdiction
because the petitioner did not establish that her disability retirement was
involuntary.
Petitioner: Deonne R. New-Howard
Respondent: Department of Veterans Affairs
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2013-3180
MSPB Docket No. PH-0752-07-0319
Issuance Date: November 10, 2014
Holding: The Court affirmed the Board’s decision to uphold the petitioner’s
removal based on a finding that the agency properly denied her request for sick
leave.
Petitioner: Anthony J. Boddie
Respondent: Department of the Treasury
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2014-3125
MSPB Docket No. DA-0752-13-0139-I-1
Issuance Date: November 12, 2014
Holding: The Court affirmed the Board’s decision to uphold the petitioner’s
removal based on a finding that the petitioner’s failure to timely pay federal
income taxes was established.
Petitioner: Rochester Holmes
Respondent: Office of Personnel Management
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2014-3127
MSPB Docket No. AT-0831-13-0622-I-3
Issuance Date: November 12, 2014
Holding: The Court affirmed the Board’s findings that OPM properly reduced the
petitioner’s retirement annuity and that two prior settlement agreements had no
bearing on the Board’s decision.
Petitioner: Eugene D. Johnson
Respondent: Merit Systems Protection Board
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2014-3104
MSPB Docket No. DC-3443-14-0150-I-1
Issuance Date: November 12, 2014
Holding: The Court affirmed the Board’s jurisdictional dismissal because the
petitioner failed to articulate a specific claim of Board jurisdiction.
Petitioner: Shawntai T. Jones
Respondent: Department of the Army
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2014-3065
MSPB Docket No. AT-0752-12-0426-A-1
Issuance Date: November 7, 2014
Holding: The Court affirmed the Board’s denial of the petitioner’s motion for
attorney fees based on the Board’s findings that none of the legal work for which
she was billed contributed to the outcome of the case, and the Equal Access to
Justice Act does not authorize the award of attorney fees for legal services
rendered before the Board.
Petitioner: Victoria Miller
Respondent: Merit Systems Protection Board
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2014-3132
MSPB Docket No. AT-3330-13-0715-I-1
Issuance Date: November 12, 2014
Holding: The Court affirmed the Board’s dismissal of the petitioner’s appeal for
lack of jurisdiction because she failed to exhaust her administrative remedies
before the Department of Labor.
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BOARD DECISIONS
Appellant: Fred Johnson
Agency: Department of Veterans Affairs
Decision Number: 2014 MSPB 82
MSPB Docket Number: DE-1221-14-0012-W-1
Issuance Date: October 30, 2014
Appeal Type: Individual Right of Action Appeal
Action Type: Removal
Knowing and Informed Election of Remedies
Res Judicata
The appellant alleged in an individual right of action (IRA) appeal that his 2009
removal was predicated on reprisal for whistleblowing. The administrative
judge (AJ) dismissed the appeal for lack of jurisdiction because the appellant
had filed a prior Board appeal of his removal and that the initial decision
issued in that case dismissed the appeal because the appellant had made an
election under 5 U.S.C. § 7121 to pursue his claims through the negotiated
grievance procedure. The AJ noted that the agency’s decision effecting the
removal provided adequate notice to the appellant of his election rights under
5 U.S.C. § 7121(g)(2) and that he was thus precluded from filing a Board
appeal. The appellant argued on petition for review (1) that he should not be
collaterally estopped from pursuing his whistleblowing claim because this claim
not actually litigated; and (2) that the choice of forum rule is inapplicable
because he lacked the ability to make a knowing, binding, and informed
election of remedies.
Holding: The Board vacated the initial decision and dismissed the IRA
appeal based on the doctrine of res judicata.
1. An employee’s election of remedies under 5 U.S.C. § 7121(g) must be
knowing and informed, and, if it is not, it will not be binding upon the
employee. Here, this notice standard was not met because the agency
removed the appellant without specifically notifying him of his right to file
a request for corrective action with OSC, and because the agency did not
notify him of the effect that the grievance would have on his right to file an
appeal before the Board.
2. The appeal is barred by the doctrine of res judicata because the prior
judgment of the arbitrator was rendered by a forum with competent
jurisdiction, the prior judgment was a final judgment on the merits, and the
same cause of action and parties were involved in both cases.
Appellant: Robert Miller
Agency: Federal Deposit Insurance Corporation
Decision Number: 2014 MSPB 83
MSPB Docket Number: SF-1221-13-0574-W-2
Issuance Date: November 6, 2014
Appeal Type: Individual Right of Action Appeal
Action Type: Prohibited Personnel Practice
WPEA Exhaustion of Administrative Remedies
Categories of Actions Under WPEA
Retroactivity of WPEA
The appellant filed an Individual Right of Action (IRA) appeal, alleging that the
agency retaliated against him for disclosures he made during his grievance. All
of the material events in the matter took place prior to the December 27,
2012, effective date of the Whistleblower Protection Enhancement Act
(WPEA). The administrative judge initially dismissed the matter without
prejudice pending the Board’s decision in Hooker v. Department of Veterans
Affairs, which addressed the retroactivity of the WPEA. After the Board issued
Hooker, which held that the new IRA appeal rights granted through 5 U.S.C. §
2301(b)(9)(B) in the WPEA did not apply retroactively to prior-filed appeals,
the administrative judge ordered the appellant to show why the matter should
not be similarly dismissed. The appellant responded and the administrative
judge subsequently dismissed the appeal. The administrative judge held that,
pursuant to Hooker, the WPEA did not retroactively apply to his appeal,
depriving him of Board jurisdiction. The administrative judge further held that
even if the WPEA applied retroactively, his claims would still not be covered by
the WPEA. Finally, the administrative judge held that, to the extent the
appellant was raising allegations of reprisal for separate whistleblowing
disclosures not mentioned in his OSC complaint, he did not prove he exhausted
his administrative remedies before filing the IRA.
Holding: The Board affirmed the initial decision as modified.
1. The appellant failed to exhaust his administrative remedies on his claims
related to his additional disclosures because he did not first make a
reasonably clear and precise claim with OSC about the disclosures. The
additional disclosures did not just provide more detail of the claims he
brought to OSC; they were actually new allegations of protected activity.
2. Reprisal for filing a grievance is covered by 5 U.S.C. § 2302(b)(9), even if
the disclosures in the grievance satisfy 5 U.S.C. § 2302(b)(8).
3. Pursuant to Hooker, the WPEA will not apply retroactively to include 5
U.S.C. § 2302(b)(i)(A)(i) actions.
The U.S. Court of Appeals for the Federal Circuit
issued a nonprecedential decision in the following
case:
Petitioner: Althea Poe-Henderson
Respondent: Merit Systems Protection Board
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2014-3138
MSPB Docket No.: PH-0752-13-0037-I-1
Issuance Date: November 6, 2014
Timeliness
On October 10, 1990, the petitioner was separated from her employment with
the Department of Defense. On October 18, 2012, she filed an appeal with the
Board challenging her removal. The administrative judge ordered her to show
good cause for her late filing, and she responded only by stating that she did
not learn of her termination until sometime during the 1990’s, and that she
had been under a psychiatrist’s care since 1980 due to a nervous breakdown.
The administrative judge then ordered the petitioner to submit evidence of the
year she was terminated, along with any medical information she wished to
provide, but she did not respond. Accordingly, the administrative judge then
dismissed her case. One year after the dismissal became a final decision, the
petitioner filed a petition for review with the Board. She was instructed to
show good cause for the untimely filing, but she did not respond, and the
Board dismissed the petition.
Holding: The Court affirmed the Board’s decision.
1. The petitioner presented no evidence to show that she suffered from an
illness during the time she could have filed a petition for review, and
therefore she did not show good cause for the untimely filing of her
petition for review.
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BOARD DECISIONS
Appellant: Corinne S. Yee
Agency: Department of the Navy
Consolidation: NAVFAC Employees-Hawaii v. Department of the
Navy
Decision Number: 2014 MSPB 81
MSPB Docket Number: SF-0752-13-3562-I-1 and Consolidation Docket
Number SF-0752-14-0265-I-1
Issuance Date: October 30, 2014
Appeal Type: Adverse Action
Action Type: Furlough
Definition of “Service” in 5 U.S.C. § 7513(a)
The appellant appealed her furlough for no more than 11 days from the
position of General Attorney. She asserted that the furlough was illegal
because the Department of Defense (DOD) was not authorized to order the
Department of the Navy (Navy) to furlough its employees as the Navy, not
DOD, was her employing agency. The appellant also alleged that the Navy had
sufficient funding to avoid a furlough and did not prove that the furlough
promoted the efficiency of the service. She also claimed that the majority of
her work was not funded by appropriated funds, and the Navy should not have
furloughed her to the extent of her position’s non-appropriated funding.
Finally, she asserted that the agency did not implement the furlough in a fair
and even manner because other civilians working at her shipyard, including
other attorneys, were not furloughed. The administrative judge affirmed the
furlough, holding that: (1) it was reasonable for DOD to consider its budget
situation holistically, instead of isolating each military department; (2) the
agency did not need to prove an actual deficit in funding to justify the
furlough, it only needed to show that the furloughs were a reasonable response
to the financial situation; (3) the appellant’s working capital funds status did
not exempt her from a furlough; (4) the agency’s decision to risk forgoing
reimbursement for the work she would have done was a resource-allocation
issue beyond the scope of the Board’s review; (5) the agency decided which
employees to furlough in a fair and even manner, and had legitimate
management reasons for declining to furlough other employees; and (6) the
appellant did not prove any harmful error, discrimination, or violation of due
process.
Holding: The Board affirmed the initial decision as modified by the
Opinion and Order.
1. The Board held that the “agency” taking the action against the appellant
was the Navy, but that the Navy was not required to prove that the
furlough promoted the efficiency of the service solely as it related to the
Navy. With respect to the “efficiency of the service” standard, the term
“service” should be interpreted as the civil, or federal, service, including
both the competitive and excepted services, and not be limited to the
service of a particular agency.
2. The Board declined to decide whether this definition of “service”
applied outside the context of the special relationship that exists between
a military department and DOD.
The U.S. Court of Appeals for the Federal
Circuit did not issue any decisions this
week
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Case Report - October 17, 2014 | 10-17-2014 | https://www.mspb.gov/decisions/case_reports/Case_Report_October_17_2014_1096273.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_October_17_2014_1096273.pdf | Case Report for October 17, 2014
BOARD DECISIONS
Appellant: Frederick J. Colbert
Agency: Department of Veterans Affairs
Decision Number: 2014 MSPB 80
MSPB Docket Number: DA-1221-13-0382-W-1
Issuance Date: October 16, 2014
Appeal Type: IRA
Action Type: Involuntary Resignation
Retroactivity of WPEA
Protected Disclosure Analysis under WPA
Knowledge-Timing Test Application
Definition of Personnel Action Under WPEA
The appellant filed a complaint with OSC alleging activity at his agency that he
believed to be a violation of a law, rule, or regulation. He claimed that, as
reprisal for his complaint, he was subjected to car vandalism, patient
complaints, a hostile work environment, a poor performance evaluation, and a
“double bind” proficiency review and summary review notice. The appellant
then resigned from his position, and claimed on appeal that the resignation
was involuntary due to his intolerable working conditions. The administrative
judge found that the appellant did not make a nonfrivolous allegation of a
protected disclosure under 5 U.S.C. § 2302(b)(9)(A)(i), and that the appellant
failed to make a nonfrivolous allegation of involuntary resignation.
Holding: The Board affirmed the initial decision with respect to the
finding that the appellant exhausted his administrative remedies, but
vacated the finding that the appellant did not make a nonfrivolous
allegation of a protected disclosure. The Board found that the
appellant did make a nonfrivolous allegation of a protected
disclosure, and remanded the appeal for further adjudication.
1. The Board vacated the administrative judge’s analysis of the protected
disclosure issue.
Pursuant to Hooker v. Dep’t of Veterans Affairs, 120
M.S.P.R. 629 (2014), Section 101(b)(1)(A) of the Whistleblower Protection
Enhancement Act (WPEA) does not have retroactive effect as applied to the
prohibited personnel practices described in 5 U.S.C. § 2302(b)(9)(A)(i) and
(b)(9)(C).
2. In its new analysis, the Board held that the appellant’s complaint to OSC
should have been considered a protected disclosure under the version of 5
U.S.C. § 2302(b)(8)(B)(i) in existence prior to the passage of the WPEA.
3. The appellant nonfrivolously alleged that his OSC complaint was a
contributing factor in his personnel actions. The Board applied the
“knowledge-timing” test, and found that because the appellant informed
two officials who participated in the complained about personnel actions,
and because all of the complained about personnel actions took place
within 8 months of his disclosures, he satisfied both prongs of the test.
4. The appellant’s claim of a hostile work environment, a poor
performance evaluation, and his supervisor’s request for a summary review
board all constituted potential retaliatory personnel actions.
5. In light of its decisions regarding the appellant’s protected disclosure
and his allegations that his disclosures were contributing factors in his
personnel actions, the Board remanded the matter for further adjudication
of how these allegations affect his involuntary resignation claim.
6.
The Board overruled Covarrubias v. Social Security Administration, 113
M.S.P.R. 583 (2010), to the extent it conflicts with the Board’s decision
that an involuntary resignation claim is cognizable in an IRA appeal.
The U.S. Court of Appeals for the Federal Circuit
issued nonprecedential decisions in the following
case:
Petitioner: Brenda Woods
Respondent: Merit Systems Protection Board
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2014-3098
MSPB Docket No.: AT-0353-12-0684-I-1
Issuance Date: October 14, 2014
Jurisdiction – Partial Restoration
In 1989, the appellant left her position with the U.S. Postal Service (USPS) due
to stress stemming from alleged harassment and discrimination. In 1991, the
Office of Workers Compensation Program (OWCP) declared her totally disabled
for any employment with the USPS, but still capable of employment with a new
employer. In 1992, she was offered a new position with the U.S. Army Corps of
Engineers (USACE), which OWCP stated was within her work restrictions.
However, she refused to accept the position because she considered the offer
defective. Five months later, she attempted to accept the offer, but USACE
refused to allow her to commence work based on her prior failure to accept
the position. In 2012, the appellant filed an appeal with the Board, claiming
that USPS failed to restore her to employment following her partial recovery
from a compensable injury. The administrative judge dismissed her appeal for
lack of jurisdiction because she did not provide evidence sufficient to prove
she had partially recovered for purposes of Board jurisdiction. The Board
affirmed the administrative judge’s decision.
Holding: The Court affirmed.
1. To establish Board jurisdiction over a partial recovery claim, an
employee must prove that she had partially recovered from a compensable
injury. Here, the appellant failed to provide sufficient evidence that she
had partially recovered.
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BOARD DECISIONS
Appellant: Sean McNab
Agency: Department of the Army
Decision Number: 2014 MSPB 79
MSPB Docket Number: CH-0752-13-4643-I-1
Issuance Date: October 7, 2014
Appeal Type: Removal
Action Type: AWOL
Definition of Individual With a Disability
Disparate Penalty Analysis
The appellant was removed from his position based on leave related
infractions. The appellant challenged the removal and asserted that the
action was motivated by disability discrimination stemming from his diagnosed
conditions of generalized anxiety disorder, major depressive disorder, and
alcohol dependence. The appellant further asserted that the agency did not
provide him with all of the materials relating to the underlying appeal. The
administrative judge sustained the charged misconduct, found the appellant’s
affirmative defenses unproven, and affirmed the appellant’s removal.
Holding: The Board affirmed the initial decision as modified to find
that the appellant met the definition of an individual with a disability,
but did not prove that he was the subjected to a disparate penalty.
1. The Board modified the initial decision to reflect that the appellant
established that he was an individual with a disability. The appellant’s
condition of major depressive disorder was a disability as defined by the
ADAAA, and the agency’s knowledge of the severity of his condition was not
relevant to the determination of whether he was disabled. However, the
agency did not breach its obligation to provide the appellant with a
reasonable accommodation, and there was no evidence that the appellant’s
disability was a motivating factor in the removal.
2. To trigger the agency’s evidentiary burden on disparate penalty
analysis, the appellant first meet an initial burden of showing there is
enough similarity between the nature of the misconduct and other factors
to lead a reasonable person to conclude that the agency treated similarly
situated employees differently. Here, the Board held the appellant did not
make such a showing.
3. The agency did not violate the appellant’s due process rights, because
the record supported the administrative judge’s conclusion that the
appellant’s claim that he requested the underlying materials supporting his
proposed removal was not credible.
4. Vice Chair Anne Wagner dissented in part. She agreed with the
majority’s conclusion that the agency proved its charges and that the
appellant failed to prove his affirmative defense, but disagreed with the
analysis of the disparate penalties issue. She stated that the appellant did
meet his burden of establishing he was sufficiently similarly situated to
trigger the agency’s evidentiary burden, and that the matter should have
been remanded for further development of the record with respect to
penalty analysis.
The U.S. Court of Appeals for the Federal Circuit
issued nonprecedential decisions in the following
case:
Petitioner: Maria Lavinia Jones
Respondent: Merit Systems Protection Board
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Numbers: 2014-3072 and 2014-3081
MSPB Docket No. CB-7121-13-0111-V-1 and DC-0752-13-0168-I-1
Issuance Date: October 8, 2014
Jurisdiction – Election of Remedies
Jurisdiction – Discrimination Claims
Joint Retirement and Removal Claims
The appellant was removed from her position, and filed a grievance of that
action through the agency’s negotiated grievance procedure. The appellant
lost her grievance at arbitration, and followed that decision by filing an appeal
to the Board. At the Board, the administrative judge questioned whether the
Board held jurisdiction over the appeal, because the petitioner elected to
pursue her negotiated grievance procedure instead of a Board appeal, and
because she retired one day prior to the effectuation of her removal. The
appellant responded that her appeal was based on discrimination and legal
errors by the arbitrator. On those grounds, the administrative judge
transferred part of her appeal to the Board for review of the arbitrator’s
decision on her discrimination allegations. However, the administrative judge
retained jurisdiction over what he perceived to be a claim of involuntary
resignation by the appellant, and created a second appeal with just that claim.
The administrative judge then held that the appellant did not satisfy the
standard to establish Board jurisdiction over her involuntary retirement claim,
and dismissed the second appeal. At the Board, the appellant’s first appeal
related to her grievance was dismissed for lack of jurisdiction because the
petitioner did not raise any allegations of discrimination in the grievance. For
her second appeal regarding her involuntary retirement, the Board held that
the administrative judge improperly construed the claim as a separate claim,
and instead should have viewed the claim as a removal. The Board then denied
that appeal for lack of jurisdiction, due to her electing to file a grievance
through her negotiated grievance procedure.
Holding: The Court affirmed.
1. Federal employees can challenge an eligible adverse action through
either a negotiated grievance procedure or at the Board, but cannot do
both.
2. The Board only has jurisdiction to review discrimination claims in an
appeal from a decision of an arbitrator in a negotiated grievance procedure.
Here, there were no discrimination claims in the record.
3. In an appeal in which an employee elects to retire concurrently with her
removal, or shortly before her removal, the Board will consider the appeal
to be a removal appeal, not an involuntary retirement appeal.
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Case Report - September 12, 2014 | 09-12-2014 | https://www.mspb.gov/decisions/case_reports/Case_Report_September_12_2014_1082479.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_September_12_2014_1082479.pdf | Case Report for September 12, 2014
BOARD DECISIONS
Appellant: Andrew C. Eller, Jr.
Agency: Office of Personnel Management
Decision Number: 2014 MSPB 72
MSPB Docket Number: CH-0841-13-0334-R-1
Issuance Date: September 5, 2014
Appeal Type: Petition for Reconsideration
Action Type: Discontinued Service Retirement
Standard of Review for OPM Petitions for Reconsideration
Consideration of Extended Term Appointments for DSR Annuity
Scope of Review for Application for DSR Annuity
Eligibility for DSR Annuity After Term Appointment
The agency agreed to settle the appellant’s appeal of his performance based
removal by reinstating the appellant in a term position for a period of 4 years.
At the end of the 4-year term, the agency extended his appointment for 1
more year. The purpose of the term appointment was to allow him to meet
the age and service requirements of a discontinued service retirement (DSR)
annuity. After the expiration of his term, the appellant applied for a DSR, but
OPM denied his application based on its conclusion that the settlement
agreement was designed to evade statutory requirements for receiving a DSR
annuity. The appellant appealed OPM’s decision, and the administrative judge
reversed. The Board upheld the administrative judge’s decision, holding that
because the appellant objectively met the statutory requirements for a DSR
annuity, OPM did not have the authority to deny his application. OPM filed a
petition for reconsideration, arguing that it has an obligation to determine
whether separation from service is involuntary, and that the appellant’s 5-year
term should not count toward his service requirement because term positions
may not last more than 4 years.
Holding: The Board affirmed as modified its prior Opinion and Order.
1. The Board will consider de novo arguments made by OPM on a petition
for reconsideration, even if OPM was previously a party in the proceeding.
2. The appellant’s ultra vires extension of his term appointment beyond
the 4-year limit did not negate the entire period of his term appointment
for purposes of eligibility for a DSR annuity.
3. Neither the Board nor OPM should engage in a merits-based review of
why an agency appointed an employee to a term position after the
employee serves in the position and objectively qualifies for a DSR annuity.
4.
The Board declined to apply its holding in Parker v. Office of Personnel
Management, 93 M.S.P.R. 529 (2003), aff’d, 91 F.App’x 660 (Fed. Cir.
2004), to this case, because in this case the appellant actually served in the
position designated by the settlement agreement.
5. The Board declined to apply OPM’s “general rule” that an applicant does
not qualify for a DSR annuity if he voluntarily leaves long-term employment
to accept a short-term appointment. Here, the appellant did not actually
voluntarily take this action; his action was initiated by the removal.
6. The Board modified its prior factual holding that the appellant served 5
full years in his term position after his removal, but stated that the
modification did not change the end result because the amount of time he
did serve still qualified him for a DSR annuity.
Appellant: David R. Ellis
Agency: United States Postal Service
Decision Number: 2014 MSPB 73
MSPB Docket Number: SF-0752-13-0283-I-1
Issuance Date: September 9, 2014
Appeal Type: Adverse Action
Action Type: Demotion
Disparate Penalty Analysis
The appellant was demoted based on a charge of unacceptable conduct
relating to an allegation that he misrepresented mail volume reports. The
administrative judge found that the appellant intentionally misrepresented
mail volumes and that the penalty of a demotion was reasonable.
Holding: The Board affirmed the AJ’s finding as to proof of the
charge but mitigated the penalty to a letter of warning and a
geographic reassignment.
1. If an appellant shows that there is enough similarity between both the
nature of the misconduct and other factors to lead a reasonable person to
conclude that the agency treated similarly-situated employees differently,
then the agency must present a legitimate reason for the difference in
treatment by a preponderance of the evidence before the penalty can be
upheld. Here, the penalty was mitigated because the appellant established
that he was punished more harshly than a similarly situated employee.
The U.S. Court of Appeals for the Federal Circuit
issued nonprecedential decisions in the following
cases:
Petitioner: Darlene M. Broughton
Respondent: Merit Systems Protection Board
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2014-3063
MSPB Docket No. SF-0752-13-0101-I-1
Issuance Date: September 11, 2014
Jurisdiction - Involuntary Resignation
Jurisdiction – Involuntary Disability Retirement
Applicability of Unemployment Board Decision
Standard for Coercion/Involuntary Resignation
The appellant filed an untimely appeal by three years, alleging that her
resignation and subsequent retirement from the position of Program Support
Assistant was involuntary and due to duress. The appellant asserted that she
was left with no choice but to resign because she developed asthma as a result
of “noxious chemicals or bio hazardous waste” close to her desk, and that she
was otherwise coerced into resignation because coworkers deliberately placed
poisonous substances near her workplace in an effort to cause asthmatic
reactions. The administrative judge dismissed the appeal for lack of
jurisdiction based on a finding that her resignation was voluntary and did not
address the underlying timeliness issue.
Holding: The Court affirmed.
1. An employee initiated resignation is presumed voluntary unless the
employee rebuts this presumption by establishing, by a preponderance of
the evidence, that a self-initiated action was actually coerced by the
agency or otherwise involuntary because the decision was based on the
agency’s misinformation or deception, or the result of coercion by the
agency through the creation of working conditions so intolerable for the
employee that she is driven to involuntarily resign or retire.
2. An involuntary disability retirement is established by showing that there
was an accommodation available on the date of the separation that would
have allowed the employee to continue their employment, and that the
agency did not provide that accommodation. Here, the appellant did not
provide such evidence.
3. A state unemployment decision finding involuntary resignation is not
binding on the Board.
4. Under the totality of the circumstances, the appellant failed to establish
she was coerced into involuntarily resigning because she failed to provide
any evidence that her coworkers were deliberately exposing her to
dangerous substances or trying to kill her.
Petitioner: Ronald Neal Batdorf
Respondent: Merit Systems Protection Board
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2014-3080
MSPB Docket No. DC-0752-11-0461-I-1
Issuance Date: September 11, 2014
Untimely Filed Petition for Review
Withdrawal of Appeal
In May 2011, the appellant withdrew his appeal alleging that he was subjected
to a reduction in pay and grade, and the AJ dismissed the appeal as
withdrawn. Two years later, the appellant filed a petition for review of the
dismissal. The Board dismissed the petition for review as untimely and found
that the appellant had not established diligence or ordinary prudence to show
good cause for the untimely filing or support for his request for a reopening.
Holding: The Court affirmed.
1. To establish good cause for an untimely filing, the petitioner need not
show that it was impossible to file timely, only that the delay was excusable
under the circumstances where diligence or ordinary prudence had been
exercised. Here, the court found that the appellant did not exercise due
diligence from the period he asserts he obtained new and material
evidence.
2. The appellant’s assertion that he would never have withdrawn his
original petition for appeal in 2011 had the AJ not advised him in pre
decisional discussions that he was likely to find that the Board did not have
jurisdiction over his appeal did not fit into the category of unusual
circumstances sufficient to reinstate the appellant’s withdrawn appeal.
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Case Report - September 5, 2014 | 09-05-2014 | https://www.mspb.gov/decisions/case_reports/Case_Report_September_5_2014_1079877.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_September_5_2014_1079877.pdf | Case Report for September 5, 2014
BOARD DECISIONS
Appellant: Trent D. Engler
Agency: Department of the Army
Decision Number: 2014 MSPB 71
MSPB Docket Number: CH-0752S-14-0077-I-1
Issuance Date: September 3, 2014
Appeal Type: Jurisdiction
Action Type: Suspension of Less than 14 Days
Jurisdiction Over Suspension of 14 days or Less
Enforced Leave
The appellant was suspended for a period of ten working days based on a
charge of conduct unbecoming a federal employee. In effectuating the
suspension action, the agency ordered the appellant to move back his regular
day off in order for the agency to schedule the ten suspension days in
sequence. The appellant asserted that because the decision letter indicated
that the appellant was in a suspension status for a period of 15 days, the Board
had jurisdiction over the appeal. The administrative judge dismissed the
appeal for lack of jurisdiction based on a finding that the agency suspended
the appellant for only ten consecutive working days.
Holding: The Board affirmed the initial decision.
1. Rescheduling of an optional day off under a compressed work schedule
does not equate to involuntarily placing the employee in a leave status
because the appellant did not lose any pay or benefit. Inasmuch as the
appellant was only subjected to a ten working day unpaid suspension, the
Board had no jurisdiction over the appeal.
The U.S. Court of Appeals for the Federal
Circuit did not issue any decisions this
week
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Case Report - August 29, 2014 | 08-29-2014 | https://www.mspb.gov/decisions/case_reports/Case_Report_August_29_2014_1077412.pdf | https://www.mspb.gov/decisions/case_reports/Case_Report_August_29_2014_1077412.pdf | Case Report for August 29, 2014
BOARD DECISIONS
Appellant: David Rassenfoss
Agency: Department of the Treasury
Decision Number: 2014 MSPB 68
Docket Number: CH-4324-13-0386-I-1
Issuance Date: August 22, 2014
Appeal Type: USERRA
Action Type: Corrective Action
USERRA Proof of Discrimination
USERRA Regulation Requirements
USERRA Benefit Analysis
The appellant took an extended period of leave to serve on active duty in the
military, and did not return to his position until more than one year later.
Pursuant to agency policy, for the year he was gone, the agency designated
him as “not ratable.” As a result of this designation, he did not receive a
quality step increase (QSI) for the year. The appellant appealed the lack of
QSI, alleging that it was a violation of his rights under USERRA. The
administrative judge held that the Board had jurisdiction over the appeal, but
denied the appellant’s request for corrective action in the form of a QSI.
Holding: The Board affirmed the initial decision in part, but
remanded the case for further adjudication on the appellant’s USERRA
reemployment rights claim.
1. The appellant failed to prove that the agency discriminated against him
based on military service, because the agency’s policies concerning “not
ratable” designations and eligibility for QSIs were applied consistently to all
employees, regardless of military service.
2. Under USERRA, the regulations implemented by OPM regarding federal
employees must be consistent with the regulations issued by the Secretary
of Labor relating to State and private employers.
3. USERRA requires agencies to consider employees absent on military duty
for any incident or advantage of employment that they may have been
entitled to had they not been absent. This is achieved by, inter alia,
determining whether it is reasonably certain that the benefit would have
accrued to the employee but for the service.
4. Application of the reasonable certainty test applies to both discretionary
and nondiscretionary benefits and personnel actions.
Prior cases holding
that the test applied only to nondiscretionary benefits and actions such as
West v. Dep’t of the Air Force, 117 M.S.P.R. 24 (2011) and Leite v. Dep’t
of the Army, 109 M.S.P.R. 229 (2008), are overruled.
5. The administrative judge failed to address the question of whether the
agency met its reemployment obligations, necessitating a remand for
further adjudication on whether the appellant was entitled to a QSI as part
of his restoration to duty.
6. Member Mark Robbins dissented, stating that he did not believe the
appellant was entitled to a QSI based on statute or regulation.
Appellant: Christopher Vincent Kroll
Agency: Department of Homeland Security
Decision Number: 2014 MSPB 69
Docket Number: NY-0842-13-0139-I-1
Issuance Date: August 26, 2014
Appeal Type: Federal Employees Retirement System (FERS)
Action Type: Reconsideration Request
Enhanced Retirement Benefit Eligibility
The appellant served as a Customs Inspector from 1986 through 2004; then
served as a Customs and Border Patrol Officer (CBPO) from 2004 through 2007.
He was then selected for an Automated Commercial Systems (ACS) Specialist
position. In 2008, the agency made a final determination that the ACS
Specialist position was not a covered position for purposes of enhanced CBPO
retirement coverage. The appellant requested reconsideration of the agency’s
determination, and the agency denied the request. The agency stated that
although the Customs Inspector and CBPO positions were covered positions, the
ACS Specialist position was not, and therefore his service in the ACS Specialist
position constituted a break in service, which disqualified him from enhanced
retirement coverage. The appellant appealed the denial, and the
administrative judge affirmed. The administrative judge determined that the
appellant did not establish he was entitled to enhanced retirement benefits
because prior experience as a CBPO was not required for his position.
Holding: The Board affirmed the initial decision.
1. An employee’s service in both “primary” and “secondary” CBPO
positions count toward eligibility for enhanced retirement benefits.
2. The appellant did not establish that his position met the regulatory
definition of a “secondary” position because the record was devoid of any
evidence that experience as a CBPO was a prerequisite for the ACS
specialist position.
Appellant: Kristi L. Putnam
Agency: Department of Homeland Security
Decision Number: 2014 MSPB 70
Docket Numbers: DE-0752-12-0039-I-3 and DE-0752-12-0040-I-3
Issuance Date: August 22, 2014
Appeal Type: Adverse Action
Action Type: Indefinite Suspension/Involuntary Retirement
Due Process Analysis in Security Clearance Adverse Actions
Ward/Stone Analysis in Security Clearance Adverse Actions
Procedure in Discrimination/Security Clearance Cases
Constructive Adverse Action Based on Security Clearance
The appellant served as an Assistant Federal Security Director, and was
required to maintain a security clearance for her position. The agency
suspended the appellant’s clearance based on statements she made to local
police, and then indefinitely suspended her due to the suspension of her
clearance “based on allegations regarding [her] mental health and personal
conduct… [.]” In the process of issuing the suspension, the agency stated that
it relied only on the notice it received that the appellant’s clearance had been
suspended. The appellant appealed the suspension, and her appeal included a
claim of disability discrimination and a claim of involuntary retirement. The
administrative judge upheld the action, holding that the agency complied with
the appellant’s due process rights. The administrative judge also held that he
would not address the appellant’s discrimination claim because it was
intertwined with the clearance determination, and that the Board did not have
jurisdiction over the involuntary resignation claim because the appellant did
not make a nonfrivolous allegation that her working conditions were so
intolerable she had no choice but to retire.
Holding: The Board affirmed the initial decision regarding the
indefinite suspension as modified, and affirmed the initial decision
regarding the involuntary retirement.
1.
The Board modified the initial decision based on its decision in Buelna v.
Dep’t of Homeland Security, 121 M.S.P.R. 262, which was issued
subsequent to the initial decision. Pursuant to Buelna, the deciding official
not having unfettered discretion to take any action he believed to be
appropriate was not a violation of the appellant’s due process.
2. The agency’s consideration of the information for which the appellant’s
security clearance was suspended did not constitute a violation of her due
process rights. Under the Ward/Stone line of cases, only ex parte
communications introducing new and material information violate
constitutional due process. Here, the details of the suspension of the
appellant’s security clearance were mentioned in the proposal notice and
in the appellant’s response.
3. The Board is precluded from reviewing allegations of discrimination and
reprisal when such affirmative defenses relate to the revocation of a
security clearance.
4. A suspension of a clearance, by itself, does not rise to the level of
coercion necessary to prove constructive adverse action.
• The U.S. Court of Appeals for the Federal
Circuit did not issue any decisions this
week
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