U.S. Merit Systems Protection Board 
Case Report for March 21, 2014

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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.


Appellant:  Kimberly Jones
Agency:  Small Business Administration
Decision Number:  2014 MSPB 17
Docket Number:  SF-1221-11-0237-W-6
Issuance Date:  March 18, 2014
Appeal Type:  Interlocutory Appeal
Action Type:  Disqualification of Agency Counsel

Interlocutory Appeal
  -Criteria for certification
Disqualification of Designated Representative
  -Timeliness for filing challenges to designated representative
  -Disqualifying conflict of interest under California bar rules.

    During the adjudication of this IRA appeal, the appellant made a motion to disqualify the agency's designated representative, as well as the imputed work of the entire general counsel's office.  She asserted that the designated representative and the general counsel's office had a conflict of interest under California attorney ethics rules because he previously represented the appellant as one of the management officials named in EEO complaints filed by other agency employees against the agency.   The AJ denied the motion based on a finding that under the California Rules of Professional Conduct, the agency's designated representative did not create a conflict of interest because the appellant never retained the designated representative as her personal representative and did not consult him about becoming his client.   The AJ then denied the appellant's motion to reconsider the motion to disqualify and the appellant then moved for certification of this issue in  an interlocutory appeal.  

Holdings:  The Board affirmed the administrative judges' ruling as modified, vacated the stay order, and returned the appeal to the regional office for further adjudication.    

1.  An appeal may be certified for interlocutory review where: (a) the ruling involves an important question of law or policy about which there is substantial ground for difference of opinion; and, (b) an immediate ruling will materially advance the completion of the proceeding, or the denial of an immediate ruling will cause undue harm to a party or the public.   5 C.F.R. 1201.91-92.   The issue of the standard for disqualification of an agency counsel and/or general counsel's office based on a conflict of interest is viewed as an important question of law about which there is substantial ground for difference of opinion, and an immediate ruling regarding the appellant's request to disqualify the agency counsel will materially advance the completion of the proceeding here.

2. The appellant's claim of conflict of interest by the agency's designated representative and the entire general counsel's office based on her assertion of prior representation of the appellant in an agency EEO matter is untimely because it was filed almost 2 and 1/2 years beyond the regulatory 15 day time limit after a party becomes aware of the conflict.  5 C.F.R. 1201.31(b).  

3.  The appellant did not establish that the agency representative had a disqualifying conflict of interest under California attorney ethics rules because such disqualifications can result in increased public expenditure for legal representation, and the potential deprivation to the client of the services of a highly skilled attorney in a specialized legal area.   In analogizing the issue presented as a case similar to the relationship between corporate counsel and a corporation against a former director of the corporation, there was no attorney-client relationship between the appellant and the designated agency representative that would have prevented him from representing the agency in the appellant's Board appeal. Even if the appellant believed that she had such an attorney-client relationship with the designated agency representative in her Board IRA appeal, the belief was not reasonable  because the representative  told her that he was representing both the appellant and the agency in the EEO matter and there was no indication that the interests of the agency and the appellant were ever in conflict.  

Appellant:  Debra A. Heimberger
Agency:  Department of Commerce
Decision Number:  2014 MSPB 18
Docket Number:  CH-1221-13-0007-W-1
Issuance Date:  March 19, 2014
Appeal Type:  Individual Right of Action Appeal
Action Type:  Filing Outside Statutory Filing Period

-Timeliness of Filing Request for Reconsideration to OSC distinguished from Preliminary Determination to Close Inquiry Without Corrective Action
-Calculation of time limit for filing IRA appeal following receipt of OSC close-out letter
-Equitable Tolling
-Dismissal for lack of jurisdiction versus dismissal as untimely.

    The appellant filed a complaint with the OSC alleging that her termination
before expiration of her term appointment was in retaliation for whistleblowing. OSC issued the appellant a March 18, 2011 letter notifying her that it made a preliminary determination to close out its inquiry in her case without corrective action.   The OSC then issued the appellant a close-out letter on April 7, 2011 informing the appellant of her right to file an IRA appeal with the Board  and also informed her that she could request reconsideration of the OSC final determination not to pursue corrective action.   More than one year later, on July 9, 2012, the appellant filed a request to reopen with OSC on the ground that she had new evidence to support her retaliation claim. The OSC denied the reopening request on August 2, 2012 and the appellant filed her IRA appeal on October 1, 2012.  The AJ dismissed the IRA appeal as untimely, based on findings that the appellant filed her appeal outside the 60 day statutory time limit and the Board's 65 regulatory time limit following receipt of the OSC close out letter, and that there was no basis for equitably tolling the filing deadline.      

Holdings:   The Board denied the appellant's PFR and affirmed the initial decision as modified.  

1.   There was no basis to support the appellant's assertion that the timeliness of her IRA appeal should be calculated from the date of OSC's denial of her request to reopen, and not from the date she received the OSC close-out letter because the April 7, 2011 close-out letter constituted sufficient notice that OSC was terminating its investigation; the appellant's belated request to OSC for reconsideration filed one year following receipt of the close out letter did not operate to restart the statutory period to file an IRA appeal with the Board.  

2.   Unlike the Board's regulatory time limits for filing an appeal under 5 U.S.C. 7701, the statutory time limit for filing an IRA appeal cannot be waived under the good cause standard because there is no statutory mechanism authorizing such waivers.  

3.  Filing deadlines may be subject to waiver for equitable reasons, such as when the complainant has been induced or tricked by her adversary's misconduct into allowing the deadline to pass.  Equitable tolling is a rare remedy that is to be applied in unusual circumstances, not generally including the discovery of new evidence, requiring a showing that the litigant has been pursuing her rights diligently but that some extraordinary circumstance prevented a timely filing.  

4.  Although the OSC close-out letter appears to give the appellant two options for further action, and did not inform the appellant of the consequences of her electing one versus the other, this does not provide a basis for waiving filing requirements based on the principles of equitable tolling.  Here, the appellant did not diligently pursue her whistleblower claim during the period to be tolled but instead waited over a year until she decided to request reconsideration of OSC's April 7, 2011 close out decision letter.  

5.  Although the AJ dismissed this appeal for lack of jurisdiction, the correct disposition of this type of case is dismissal as untimely filed because time prescriptions are not jurisdictional.

 Appellant:  Andrew C. Eller, Jr.
Agency:  Office of Personnel Management

Decision Number:  2014 MSPB 19
Docket Number:  CH-0841-13-0334-I-1
Issuance Date:  March 21, 2014
Appeal Type:  Retirement
Action Type:  Discontinued Service Annuity

-Settlement Agreement
-Discontinued Service Annuity
-Authority of OPM to Determine Entitlement to Annuity

    The appellant appealed his performance based removal from his position as Biologist.  The parties later settled the appeal by reinstating the appellant to his position for a period of time that would make him eligible for the age and service requirements of a discontinued service retirement (DSR) annuity.  The appellant subsequently served as a Biologist in a term position for a period of four years and the agency extended the appointment for one additional year.  When the appellant applied for a DSR based on the performance based termination, he met the age and service requirements with over 23 years of federal service and was 51 years of age.  OPM subsequently denied his application for a DSR because it reasoned that when the appellant was originally removed, he failed to satisfy the age and service requirements for a discontinued service annuity, and that it would not credit him with the additional 5 years of service because the settlement agreement granted him a retirement right where none existed.  OPM stated further that its policies prohibit agencies through a settlement agreement to grant a DSR to employees who have had a career in a long term appointment, and then move to a short term appointment with the expectation of receiving a discontinued service retirement annuity.   In reversing the OPM denial of the appellant's application for a DSR, the AJ rejected OPM's argument that the settlement agreement was an artifice designed to evade the statutory DSR requirements.  The AJ also rejected OPM's argument that the term appointment created under the settlement agreement made the appellant's subsequent separation voluntary, when the DSR requires not only that the employee meet the age and service requirements, but also that the subsequent performance based separation is involuntary.  

Holdings:   The Board affirmed the AJ's findings and concluded that OPM's reconsideration decision is not sustained.  

1.  While OPM does not have general statutory authority to permit it to exercise its discretion in determining an individual's entitlement to a DSR annuity, the Board has recognized under Parker v. Office of Personnel Management, 93 M.S.P.R. 529 (2003), that OPM does have authority to determine whether any separation date established by a settlement agreement is an artifice designed to evade the statutory requirements for entitlement to an annuity when OPM is not a signatory to the agreement.  

2.   The present case is distinguishable from the Parker settlement agreement which only created an impression of an employee's right to receive a retirement annuity on paper.  The settlement agreement here actually returned the appellant to employment with his employing agency and the appellant actually served in the position for 5 years.    

3.  OPM is required to apply the retirement annuity computation formula objectively, and it may not reject an application for a DSR annuity either because it believes that the employee's federal service should not be counted toward his DSR annuity eligibility or because it disagrees with the motivation for returning the employee to actual federal service.  

4.  The appellant's separation was involuntary, thus making him eligible for a DSR at the end of his term position because it was the agency and not the appellant that initiated the separation for unacceptable performance in accordance with the settlement agreement.  

The U.S. Court of Appeals for the Federal Circuit issued precedential decisions in the following cases:

Biggers v. Department of the Navy,
No. 2013-3059 (Mar. 21, 2014) (MSPB Docket No. SF-0752-10-0268-I-1)

-Jurisdiction over merits of security clearance determinations
-Non availability of back pay for period of indefinite suspension
-Suspension and Removal under 5 U.S.C.  7532 permitting backpay for reinstatement pursuant to 5 U.S.C. 3571 compared to action taken under 5 U.S.C. 7513

The appellant's top secret security clearance was suspended pending a final determination by the Navy Central Adjudication Facility (DONCAF).  The agency followed with a proposed suspension and DONCAF issued a decision imposing an indefinite suspension pending a final determination regarding the appellant's continued security clearance eligibility.   DONCAF later concluded that there were extenuating circumstances regarding the basis for the indefinite suspension and ordered the appellant be returned to his position with a top secret security clearance restored.  The appellant appealed the indefinite suspension and sought back pay for the nine months he was in an indefinite suspension status.  The AJ determined, on the authority of Department of Navy v. Egan, 484 U.S. 518, 530 (1988), that the Board lacked jurisdiction to review the merits of a security clearance determination or suspension with very limited exceptions that the appellant stipulated he did not fall within.   The AJ also held, under the authority of Jones v. Department of the Navy, 978 F.2d 1223, 1227 (Fed. Cir. 1992), that an employee is not entitled to back pay for the period of the suspension when an agency terminates an indefinite suspension.  The Board denied the appellant's petition for review based on the same findings as the AJ.         

Holding:     The court affirmed the Board's findings.

1.  Under Egan, the Board's jurisdiction to review the merits of an indefinite suspension based on a security clearance determinations is limited to:  (1) whether a clearance was a requisite for the employee's petition; (2) whether, in fact, the clearance was denied; (3) whether it was feasible to transfer the employee to a non-sensitive position; and (4) whether the employee was afforded the procedural protections of 5 U.S.C. 7513.

2.   Under Jones, an employee is not entitled to receive back pay for a period of a lawful indefinite suspension just as an employee criminally indicted on job related charges is not entitled to back pay upon his acquittal and reinstatement by the agency.  

3.  The appellant was not entitled to back pay under the alternative theory that an agency regulation required as much because the appellant was not suspended under the statutory authority implementing this regulation.   The appellant was not suspended under 5 U.S.C.    7532 (suspensions and removals in the interest of national security) upon which the agency regulation is based, but under 5 U.S.C. 7513 (cause and procedure for agency action) where there is no provision for back pay.  

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