U.S. Merit Systems Protection Board
Case Report for June 13, 2014

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Appellant:  Paul G. Miranne
Agency:  Department of the Navy
Decision Number:  2014 MSPB 42
Docket Number:  AT-3443-13-0527-I-1
Issuance Date:  June 12, 2014
Appeal Type:  Employment Practices
Action Type:  Non-Selection

Time to File Appeal from Agency Decision on Mixed-Case Processing
Authority to Determine Mixed-Case Processing
Calculation of Filing Date

The Appellant timely filed an EEO complaint alleging reprisal for prior protected activity, based on the agency's failure to select him for a supervisory position, and failure to follow proper selection criteria in evaluating who to select for promotion. The Agency accepted his claims as a non-mixed-case complaint, and the Appellant responded by stating that his claims should be viewed as a mixed-case complaint. The Agency rejected his argument, stating that he did not allege facts that warranted mixed-case processing.  The Agency further informed him that if he disagreed with the decision, he was required to appeal the decision to the Board within 30 days of his receipt of the notification.  He did not appeal at that time. Twelve months later, the Agency issued a Final Agency Decision finding no discrimination, which was received by the Appellant on March 16, 2013. On April 15, 2013, the Appellant appealed the FAD to the Board via mail. On appeal, the AJ dismissed his appeal for untimeliness, holding that he was required to file his Board appeal within 30 days of the date the Agency notified him that his case was not going to be processed as a mixed-case.

Holding: The Board reversed the AJ's initial decision and remanded for further assessment on jurisdiction.

1.    The Board relied on Montalvo v. U.S. Postal Service, 91 M.S.P.R. 671 (2002), and Moody v. U.S. Postal Service, 93 M.S.P.R. 151 (2002), in holding that the period to appeal a decision by an agency to not process a complaint of discrimination as a mixed-case does not commence until he receives the agency's resolution or final decision on the discrimination issue, or if the agency has not resolved the employee's discrimination claim or issued its FAD on the discrimination issue within 120 days, any time thereafter.   

2.    The Agency does not have authority to question whether an employee has filed a mixed-case complaint.  The employee's election of forum governs the processing of the complaint, not the Agency's choice.  If the Board subsequently determines the case is not a mixed-case, it will return it to the Agency for further processing.

3.    The Appellant timely filed his appeal when he mailed the appeal on the 30th day after receipt.  

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

Petitioner: Floyd C. Mitchell
Respondent: Office of Personnel Management
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2014-3043
MSPB Docket Number: AT-844E-12-0679-I-1
Issuance Date: June 9, 2014
Appeal Type: Timeliness
Action Type: Disability Retirement

Timeliness Application for Disability Retirement
Proof of Mental Incapacity as Basis for Waiver

Approximately twelve years after he resigned from his position as medical clerk with the Department of Veterans Affairs, the appellant filed an application for disability retirement with the Office of Personnel Management (OPM) under the Federal Employees' Retirement System (FERS). OPM denied the application as untimely and the appellant filed an appeal with the Board alleging that the one year time requirement should be waived based on his mental incapacity.  The AJ affirmed the OPM timeliness determination based on a finding that the appellant failed to prove that his application was filed within one year after his competency was restored.   

Holding: The court affirmed the Board's timeliness dismissal.

1.    The requirement under 5 U.S.C. 8453 that a claim for disability retirement be filed within one year after separation from service may be waived for an employee who is mentally incompetent at separation from service or within one year thereafter, so long as the application is filed within one year from the date competency is restored or a fiduciary is appointed, whichever is earlier.

2.    The court affirmed the Board's holding that the appellant's mental competency had been sufficiently restored more than one year prior to his filing his application. The court stated that substantial evidence, including evidence of reports from social workers and other medical personnel, as well as other record evidence, such as the appellant's Global Assessment Functioning Score (GAF), supported the Board's finding.    

Petitioner: Peter C. Thurman
Respondent: Merit Systems Protection Board
Tribunal U.S. Court of Appeals for the Federal Circuit
Case Number: 2014-3045
MSPB Docket Number: SF-3443-12-0737-I-1
Issuance Date: June 9, 2014
Appeal Type: Timeliness
Action Type: Indefinite Suspension

Federal Circuit Jurisdiction under Kloeckner
Proof of deteriorated mental state as basis for untimely filing

The appellant was indefinitely suspended from his position following his arrest based on a charge of simple assault and possession of a loaded weapon.  The appellant asserted that his appeal was filed 25 days late due to his compromised mental state. The AJ dismissed the appeal as untimely based on a finding that the appellant did not prove that his mental state established good cause for the untimely filing.  The Board affirmed.

Holding:  The court found that it had jurisdiction over this appeal and affirmed the Board's timeliness dismissal.

1.  The court raised a threshold concern that Kloeckner v. Solis, 133 S. Ct. 596 (2012) may preclude the court from accepting jurisdiction over the appellant's indefinite suspension appeal as a potential mixed case inasmuch as the Board record indicated that the appellant may have raised an affirmative defense of race discrimination in his petition for review, but the Board did not address this issue in its final order.  The court concluded this was not a mixed case in the context of a procedural/jurisdictional Kloeckner distinction because the appellant had effectively abandoned his discrimination claim.

2.  The court agreed with the Board in rejecting the appellant's claim.  The record evidence established that the appellant continued to engage agency officials about matters relating to his indefinite suspension in the weeks following his arrest.  

Petitioner: Patrick Takeuchi
Respondent: Merit Systems Protection Board
Tribunal U.S. Court of Appeals for the Federal Circuit
Case Number: 2014-3051
MSPB Docket Number: SF-0752-12-0687-I-1
Issuance Date: June 9, 2014
Appeal Type:  Timeliness
Action Type: Removal

Waiver of 30 Day Time Period for Filing Petition for Appeal

The appellant was removed from his position as a medical technician and filed an appeal ten days beyond the thirty-day deadline.  The AJ issued two timeliness show cause orders but the appellant did not respond, so the AJ dismissed the appeal as untimely filed. In his petition for review, the appellant acknowledged that his appeal was untimely but asserted that he was advised by a union representative that he had an additional 60 days before filing the appeal while the union attempted to resolve the appeal, that he experienced technical difficulties with the Board's e-Appeal Online Website, and was otherwise unable to secure legal counsel after the union refused to represent him.  The Board affirmed the timeliness dismissal based on findings that the appellant lacked proof that he was allowed the additional 60 days to participate in an alternative dispute resolution with the agency, that as an electric filer, the appellant accepted electronic service and was responsible for monitoring it, and that his difficulty in securing legal counsel did not establish good cause for waiver.

Holding:  The court affirmed the Board's timeliness dismissal.

1.    The court found that the Board's timeliness determination was supported by substantial evidence. The court noted that the appellant provided no explanation for the untimely filing, despite the AJ giving him two opportunities to do so. The court further
noted that even though the appellant did not present reasons for the untimely filing until he filed his petition for review, and the Board was not required to consider these belated arguments, the Board reasonably determined that the appellant's arguments in favor of waiver made in the petition for review did not establish good cause for the delay. The appellant was responsible as an e-filer for monitoring the electronic filing system for notices from the Board, and the appellant's status as a pro se litigant did not overcome the Board's careful consideration of the other factors relevant to a timeliness analysis.

Petitioner: Carter Eugene Linn
Respondent: Office of Personnel Management
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2013-3059
MSPB Docket Number: AT-0831-13-0193-I-1
Issuance Date: June 11, 2014
Appeal Type: Retirement
Action Type:  Credit for Post 1956 Military Service

OPM Calculation Methodology of CSRS Annuity at Age 62 Without Redeposit
Issues Not Raised in the Initial Appeal Need Not be Considered

The appellant retired under the Civil Service Retirement System with approximately 30 years of service, 20 from the civil service and 10 from military.  OPM initially calculated his annuity based on a total of 30 years of service, even though the appellant noted on his retirement application that he had not redeposited an amount equal to proportionate contributions to the retirement fund for his military service credit. When the appellant reached age 62, OPM recalculated the annuity to exclude both basic benefits -- 2% per year for each of the ten years of military service pay -- and cost of living adjustments resulting from this service pay. The recalculation resulted in a total of a 28.4 % percent reduction in his monthly annuity.   The appellant appealed, asserting that OPM was only authorized to reduce his annuity by 20%, and not the additional 8% representing cost of living increases during his military service.  In his appeal, which was actually his second appeal due to a prior Board remand, the appellant also argued for the first time that OPM's recalculation methodology violated the Administrative Procedures Act (APA). The AJ found that OPM properly reduced the annuity pursuant to 5 U.S.C. 8339(d)(1) and found that the additional reduction for cost-of-living adjustments was consistent with the statutory requirement to "exclude" any benefits associated with the military service. The appellant appealed this decision to the Board, and the Board affirmed the AJ's finding. The Board also noted that the appellant's APA claim need not be addressed because the appellant did not properly raise the issue before the AJ in his first appeal.    

Holding:   The Court affirmed the Board's findings regarding the correctness of the OPM annuity computation.

1.  Under 5 U.S.C. 8332(j), where a civil service annuitant fails to make a deposit for military service credit into the Civil Service Retirement Fund, OPM is required to make an adjustment in the calculation of the annuity when the annuitant first becomes eligible for Social Security Benefits at age 62 that excludes any benefits associated with military service credit. This recalculation requires OPM "to exclude" the entirety of the benefit under 5 U.S.C. 8332(j)(1), including a reduction for every year of military service, and the elimination of cost-of-living increases accruing from that service.  

2.   The court affirmed the Board finding that the appellant's APA argument need not be addressed because the appellant did not avail himself of the opportunity to raise the issue in his first appeal.

Petitioner: Jean A. Montgomery
Respondent: United States Postal Service
Tribunal: U.S. Court of Appeals for the Federal Circuit
Case Number: 2014-3049
MSPB Docket Number: CH-0752-13-0029-I-1
Issuance Date: June 12, 2014
Appeal Type: Adverse Action
Action Type: Removal

New Evidence Submitted After the Record Closes

The petitioner was removed from her supervisory position with the Postal Service for failure to report an injury of one of her subordinates and for multiple failures to perform assigned duties, such as ensuring the mail was scanned properly, delivered on time, and that attendance reviews and disciplinary records were properly submitted.  The petitioner appealed the removal to the Board.  On appeal, the AJ found that the charges were supported by preponderant evidence, and found the penalty of removal to be reasonable based on the charges and based on her prior disciplinary history. The Board agreed, holding that agencies are entitled to hold supervisors to higher standards of conduct.  

Holding:    The Court affirmed the Board's finding.

Federal Register Notices

Invitation to Interested Attorneys In Providing Pro Bono Representation:
The Board issued a notice on June 13, 2014 to all attorneys interested in providing pro bono representation to pro se appellants in their appeals of Board decisions to the the U.S. Court of Appeals for the Federal Circuit to submit their names and contact information to the Board for later posting as a list on the Board's public website.   Invitation to Interested Attorneys

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