U.S. Merit Systems Protection Board 
Case Report for April 5, 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.  

BOARD DECISIONS

Appellant:  Junior F. Whetzel, III.
Agency:  Office of Personnel Management
Decision Number:  2014 MSPB 23
Docket Number:  DC-0843-12-0529-I-2
Issuance Date:  April 1, 2014
Appeal Type:  Retirement 
Action Type:  Survivor Annuity

FERS Lump Sum Death Benefits
 
  
    Michael Cross was a FERS covered federal employee who designated his then wife, Susan Orndorff, as the sole beneficiary for any contributions to his retirement account upon this death.  Mr. Cross murdered his wife and later took his own life.  The appellant (Whetzell) and intervenors (Cross) are children from previous relationships of Mr. Cross and his Ms. Orndorff. Ms. Orndorff's son, the appellant, and Mr. Cross' sons, the intervenors, both claimed entitlement to the death benefits.  OPM determined that since Ms. Orndorff predeceased Mr. Cross, the intervenors were entitled to the lump sum benefits in accordance with the applicable statutory order of precedence.   The appellant argued that under the relevant state slayer statute, there was a presumption that Mr. Cross predeceased Ms. Orndorff and was thus entitled to the lump sum benefit.  The AJ found that the Virginia Slayer Statute creates a presumption that the slayer, Mr. Cross, predeceased the decedent, Ms. Orndorff, and that, accordinly, Mr. Whetzel, was entitled to the death benefits through his mother's estate.  

Holding:  The Board granted OPM's petition for review, reversed the initial decision, and affirmed OPM's final decision denying the application for death benefits to the appellant and granting the benefits to intervenors.        

1.  Because the statute and regulations implementing the payment of FERS death benefits do not address whether such a benefit can be paid to a person who became entitled to the benefit through an individual who intentionally killed another person, the Board will rely on principles in the law of the state where the presumed felony occurred to determine eligibility for federal benefits.

2.  The AJ correctly referred to the Virginia Slayer Statute because both decedents were residents of Virginia, but erred in applying this statute.  While the common law principle of attainder dictates that a felon forfeits his estate, and the attained party's heirs cannot inherit his property, this rule was expressly abolished by the Virginia Slayer Statute so that the right of a person to take, hold, and dispose of his own property is not affected by his attainder of felony.  Thus, under the Virginia Slayer Statute, a slayer's heirs cannot be deprived of the right to inherit property belonging to him. The Slayer statute does not deprive the murderer of any property rights but prevents his acquisition of additional rights by unlawful or unauthorized means.  

3.  Because Mr. Cross did not acquire any additional property rights in his FERS contributions as a result of killing Ms. Orndorff,  he continued to own them at his death, and if the named beneficiary predeceased him, his heirs - the intervenors in this case - were entitled to the benefits under the order of precedence set forth in 5 USC  8424(d).


Appellant:  Ross Vassallo 
Agency:  Department of Defense
Decision Number:  2014 MSPB 24
Docket Number:  PH-3330-13-0049-I-1
Issuance Date:  April 1, 2014
Appeal Type:  Veterans Employment Opportunities Act (VEOA)
Action Type:  Opportunity to Compete for Vacant Position

    The appellant applied for a position within a different component of the Defense Contract Management Agency (DCMA) 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 brought a VEOA claim under 5 USC 3330a(a)(1)(B) as a veteran. He alleged that the agency violated 3304(f)(1) in rejecting his application because it denied him the opportunity to compete for vacant positions, for which the agency making the announcement would accept applications outside its own workforce under merit promotion procedures.  

   
The AJ found first that the agency improperly rejected the appellant's application because the appellant's submission of a copy of an SF-52 with his application to verify his continued employment contained the same information in the SF-50.   With respect to the issue of whether the agency was required to accept applications from individuals outside its own workforce under merit promotion procedures, the AJ relied on language from the OPM "Vet Guide" to conclude that because the vacancy announcement specified that it was applicable only to certain DOD components, the agency was not required to accept applications from individuals outside of its own workforce.  

Holdings:  The Board granted the appellant's PFR, affirmed the initial decision in part, reversed the initial decision in part, and granted the appellant's request for corrective action.        

1.  Although OPM's reliance on the Vet Guide was entitled to "some weight," depending on factors such as consistency of the agency's position, its formality, and its persuasiveness, this internal OPM guidance is not entitled to the same level of deference accorded to the statute and implementing regulations.  

2.  In defining an "agency" in a VEOA claim
for purposes of determining eligibility to apply for a position under a vacancy announcement, the Board rejected OPM's narrower interpretation derived from the Vet Guide, and held, citing to Washburn v. Department of the Air Force, 119 MSPR 265 (2013) and Willingham v. Department of the Navy, 118 MSPR 21 (2012), that "the agency making the announcement" within the meaning of 5 USC 3304(f)(1) was the larger DOD component and concluded that this agency was the proper agency to accept applications from individuals outside of its own workforce under merit promotion procedures.  In light of the ambiguity of the term "agency" for purposes of VEOA, the Board relies on the remedial purpose of the VEOA statute to conclude that the term "agency" should be interpreted in a manner that best effectuates the underlying purposes of the Act.   Thus, while not all subcomponents of the Department of Defense are agencies for purposes of VEOA, the underlying purposes of the Act are effectuated with a broader reading.  

3.  Because the agency issuing the Vacancy Announcement, here DCMA, accepted applications from outside its own workforce under merit promotion procedures, the appellant was denied the opportunity to compete for the position at issue because of the agency's erroneous conclusion that he had failed to verify his current employment status through submission of the SF-50.  

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

Petitioners:  Dawn S. Hall
Respondent:  Merit Systems Protection Board
Tribunal:  U.S. Court of Appeals for the Federal Circuit
Docket Number:  2013-3151
Issuance Date:  March 31, 2014

Timeliness in Filing Refiled Appeal
 

    The appellant accepted a transfer from the agency's facility in Point Mugu, California to Washington, DC in 2002 and later asked for and was granted a one year delay in the transfer due to her mother's health.  In 2003, the appellant was voluntarily selected for a one year grand jury assignment and was paid her full salary during the 2003-04 grand jury term.   In May 2004, the agency notified the appellant that she could not accept another jury assignment and that she was to report to duty in Washington by July, 2004.   After the appellant notified the agency that she would be serving another one year grand jury term for the 2004-05 term, the agency placed the appellant in an AWOL status.   The appellant filed an appeal with the Board challenging her placement on AWOL status and the AJ dismissed the appeal for lack of jurisdiction.  

    The appellant then filed a complaint with the OSC, which determined that there was no statutory right to paid leave when jury duty is voluntary, and that the agency did not violate the law by placing her in an AWOL status. The agency then proposed the appellant's removal based on charges relating to the absences and the appellant appealed to OPM for an advisory opinion on her entitlement to court leave.  The agency effected her removal on June 22, 2005 and the appellant filed a second appeal with the Board regarding the removal.   At the appellant's request, the AJ dismissed the appeal without prejudice pending a determination by OPM  on the court leave advisory, stating that the appellant was required to refile her appeal within 40 days after the date of the final OPM decision, "but in no event...later than December 2, 2005." On January 12, 2006, OPM issued its advisory providing that being summoned for jury service does not include paid leave for voluntary jury service. The appellant did not refile her appeal by the December 2, 2005 deadline; nor did she refile the removal appeal after receiving the January 12, 2006 notice from OPM.      

    The appellant retained legal counsel in November 2008, and filed an action in April 2009 in the U.S. Court of Federal Claims for relief regarding both the AWOL appeal and the removal appeal. The Court of Claims dismissed all of the appellant's claims for lack of jurisdiction on the basis that the Civil Service Reform Act required all disputes regarding removal to be brought before the MSPB.  

    The appellant appealed this decision to the Federal Circuit which found in a 2010 opinion ("Hall I") that the appellant's removal was a separate personnel action from her pre-removal placement in an AWOL status, and that the Court of Federal Claims had jurisdiction over her pre-removal claims.  The court agreed with the Court of Claims that it had no jurisdiction over the appellant's removal claim and that the appropriate venue for filing an appeal of the removal was with the MSPB.  

    On remand, the Court of Federal Claims issued a 2011 ruling that the appellant was not statutorily entitled to paid leave for service as a voluntary grand juror, even if she received a summons to appear. The Court also adopted the Hall I findings that the removal and court leave questions were not "inextricably intertwined" and that jurisdiction over the removal was exclusive to the MSPB.  

    The appellant then appealed this ruling to the Federal Circuit and, in Hall II, the Federal Circuit in 2012 reversed the lower court on the pre-removal back pay claims based on a finding that the relevant statute authorizing paid jury service applies to a grand juror who voluntarily applied for grand jury service and was subsequently summoned to serve by the court.   The Court also affirmed its previous ruling that jurisdiction over the appellant' post-removal claim is properly before the MSPB.

Within 30 days of the Hall II ruling, on May 24, 2012, but well over six years following expiration of the refiling deadline, the appellant refiled her removal appeal with the MSPB.  The AJ dismissed the appeal as untimely, noting that specific, clearly worded instructions required the appellant to refile her appeal no later than December 2, 2005 and that the appellant failed to show good cause for the delay.  The full Board denied the appellant's PFR and the appellant filed an appeal with the Federal Circuit.   

Holdings: The court affirmed the Board's timeliness dismissal that the appellant did not establish good cause for the over six year delay in refiling her appeal from a removal action.  

1.  The order of proof in analyzing a timeliness issue moves first to the appellant to demonstrate good cause for the delay in accordance with certain factors established by the Board and the Court.  Only if the appellant has met his or her initial burden of demonstrating that there was good cause for the untimely filing must the agency then come forward with evidence that it would be prejudiced by having to proceed with the untimely appeal.

2.  While noting that the factors for determining whether the petitioner has established good cause for the delay are set forth in its opinion in Walls v. Merit Systems Protection Board, 29 F.3d 1578, 1582 (Fed. Cir. 1994), quoting Alonzo v. Department of the Air Force, 4 MSPR 180, 184 (1980), the Court adopts and refers to the factors set forth by the Board in the more recent case of Nelson v. United States Postal Service, 113 MSPR 644 (2010), because they are consistent with Alonzo and Walls, and the parties have relied upon the Nelson factors to determine whether the appellant exercised due diligence and ordinary prudence in the circumstances of refiling her case.  These factors include:
  
the appellant's pro se status; the timeliness of the initial appeal; the appellant's demonstrated intent throughout the proceeding to refile the appeal; the length of the delay in refiling; confusion surrounding and arbitrariness of the refiling deadline; the number of prior dismissals without prejudice; the agency's failure to object to the dismissal without prejudice; and the lack of prejudice to the agency in allowing the refiled appeal.  

3.  The period of delay and the interests of finality weigh against reopening the original appeal.   Even if there was good cause for some period of delay in the years following the December 2, 2005 refiling deadline, the appellant's May 24, 2012 appeal was not excused by good cause because the Court's 2010 Hall I opinion clearly advised the appellant, while she was represented by counsel, that the Court of Federal Claims lacked jurisdiction over the appellant's post removal claims, and the appellant was on clear notice that she would have to seek redress for her reinstatement and backpay claims exclusively through the MSPB.

4.  The Court's holding rests on procedural matters left to the discretion of an administrative body and not on any judgment regarding the importance of grand jury service; nothing in the opinion should be read to detract from the importance of voluntary jury service, or of the need for government agencies to accommodate it.     
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