U.S. Merit Systems Protection Board 
Case Report for December 18, 2015

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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:  Jeffrey Hawker
Agency:  Department of Veterans Affairs
Decision Number:  2015 MSPB 62
Docket Number:  DC-1221-14-0802-W-1
Issuance Date:  December 10, 2015
Appeal Type:  Individual Right of Action (IRA)

Whistleblower Protection Act
 - Jurisdiction - Exhaustion of Administrative Remedy

   The appellant petitioned for review of an initial decision that dismissed his IRA appeal for lack of jurisdiction.  The appellant was terminated during his probationary period as a Physician due to alleged substandard care and professional incompetence.  The appellant filed a whistleblower reprisal complaint with OSC alleging that his employment was terminated in retaliation for his prior protected disclosures regarding patient care issues.  He filed an IRA appeal with the Board after OSC issued him a close-out letter.  After the appellant failed to respond to the administrative judge's jurisdictional notice, the judge issued an initial decision dismissing the appeal for lack of jurisdiction, finding that the appellant failed to nonfrivolously allege facts necessary to establish his IRA claim.  On review, the appellant presented evidence that OSC had reopened its investigation after he filed a request for reconsideration with that agency.
   
    

Holding:  In light of the evidence that OPM has reopened its investigation, the Board vacated the initial decision and dismissed the appeal without prejudice to refiling.  A decision by OSC to reopen its investigation deprives its initial close-out determination of the requisite finality needed before an appellant can file an IRA appeal with the Board pursuant to the exhaustion requirement of 5 U.S.C.  1214(a)(3)(A).  

 

Appellant:  Sandra K. Miller
Agency:  Office of Personnel Management
Decision Number:  2015 MSPB 63
Docket Number:  DE-0845-15-0148-I-1
Issuance Date:  December 16, 2015
Appeal Type:  CSRS Retirement

Retirement - Jurisdiction

     The appellant petitioned for review of an initial decision that dismissed her appeal for lack of jurisdiction.  The appellant's mother received CSRS retirement annuity benefits until her death in December 2011.  OPM asserted that it erroneously continued to send annuity payments totaling $2,433.40 to the appellant's mother at the assisted living center where she resided.  According to the appellant, she received a check in the amount of $2,212.97 from the assisted living center on behalf of her mother's estate.  She returned the check with a letter explaining that she believed the check consisted partly of funds from OPM that were not the property of her mother's estate.  The appellant later received a new check from the assisted living center in the amount of $1,215.82.  The appellant cashed the check and divided the proceeds among herself and the other two heirs of her mother's estate, with the appellant receiving $607.97.  OPM notified the appellant that she was overpaid $1,215.82 in CSRS annuity benefits and that it intended to collect the overpayment.  After the appellant filed an appeal with the Board, OPM asserted that it was rescinding its reconsideration decision because it erroneously gave the appellant notice of appeal rights and moved to dismiss the appeal for lack of jurisdiction.  The administrative judge issued an initial decision finding that OPM's rescission of its reconsideration decision divested the Board of jurisdiction and dismissed the appeal on that basis.  On review, the appellant asserts that the administrative judge erred because OPM did not rescind its decision entirely and was continuing to collect the alleged overpayment.

Holdings:  The Board vacated the initial decision and dismissed the appeal for lack of jurisdiction:

1. Generally, the Board has jurisdiction over OPM's determinations only after OPM has issued a reconsideration decision, and OPM's complete rescission of its reconsideration decision divests the Board of jurisdiction.  However, the Board will retain jurisdiction if it is apparent that OPM does not intend to issue a new decision.  Here, the record suggests that OPM does not intend to issue a new reconsideration decision.

2. Despite the above, the Board's jurisdiction concerning retirement matters is limited to "an administrative action or order affecting the rights of an individual" under the retirement laws.  Here, the appellant has not established that such an action or order has occurred.  The appellant was not the annuitant or a designated survivor annuitant; nor did she receive any federal funds directly, as a representative of her mother's estate, or as a third party with rights under the federal retirement laws.  

3. Although the appellant may have incurred a debt to the Federal Government as a result of funds from her mother's estate, there are provisions of law other than the retirement statutes, such as 31 U.S.C.  3711(a), that grant the head of an executive agency the right to collect such a debt.


COURT DECISIONS

Petitioner:  David Dean
Respondent:  Department of Labor
Tribunal:  U.S. Court of Appeals for the Federal Circuit
Docket Number:  2015-3131
Issuance Date:  December 9, 2015

Veterans' Rights/VEOA
 - Jurisdiction - Statutes Relating to Veterans' Preference
 - Recent Graduates Program - Placement in Excepted Service
 - Recent Graduates Program - Educational Requirements

     This was an appeal from a Board decision, 122 M.S.P.R. 276 (2015), which denied Dean's request for corrective action in this VEOA appeal.  Dean had applied for a position under the Pathways Employment Program, which was open only to "[e]ligible recent graduates from qualifying educational institutions."  Dean was not considered for the position because he had not graduated within the timeframe established under the program.  


Holdings: The court affirmed the Board's denial of corrective action:

1. The Board had jurisdiction over the VEOA appeal.

a. 5 U.S.C.  3302(1) relates to veterans' preference.  

1. Under 5 U.S.C.  3330a(a)(1)(A), a jurisdictional requirement for a VEOA appeal is that is that a preference-eligible veteran alleges that an agency has violated his rights under a statute or regulation "relating to veterans' preference."  

2. Section 3302(1) provides that "[t]he President may prescribe rules governing the competitive service.  The rules shall provide, as nearly as conditions of good administration warrant, for necessary exceptions of positions from the competitive service."  

3. Although veterans' preferences apply to both the competitive service and the excepted service by operation of 5 U.S.C.  3320, moving positions from the competitive service to the excepted service necessarily implicates the strength of the impact of veterans' preferences on hiring decisions.  A statute need not recite the term "veteran" to be a statute relating to veterans' preference.  The Board was correct in concluding that section 3302 is a statute "relating to veterans' preference."  

b. 5 U.S.C.  3308 relates to veterans' preference.  

1.  Section 3308 provides that OPM may not prescribe a minimum educational requirement for an examination for the competitive service except when it decides that the duties of a scientific, technical, or professional position cannot be performed by an individual who does not have a prescribed minimum education.  Section 3308 derives from  5 of the Veterans' Preference Act.  

2. The court reversed the Board's finding that section 3308 is not a statute relating to veterans' preference.  While the Board characterized the relationship between
3308 and 5 of the VPA as "a mere general similarity," the court observed that the provisions are "almost identical."

2. The Board did not abuse its discretion in denying Dean a hearing, because the case presented no disputes of material fact.  

3. Placement of the position in question into the excepted service as part of the Recent Graduates Program did not violate 5 U.S.C.  3302(1)
, rejecting Dean's argument that the Recent Graduates Program is invalid to the extent it excludes certain veterans who are not recent graduates from applying to positions within the program.

a. Using the authority granted him by section 3302(1), the President issued an Executive Order authorizing OPM to except positions from the competitive service when it determines that recruitment from among attending qualifying educational institutions or individuals who have recently completed educational programs can better be achieved by devising additional means for recruitment.  

b. In creating the Pathway Programs, the President stated the need to promote employment opportunities in the Federal workforce for students and recent graduates make necessary an exception to the competitive service hiring rules.

c. After conducting a study, OPM found barriers to hiring students and recent graduates, observing that these individuals lack the experience needed to compete in the competitive hiring system.  OPM then issued a regulation, 5 C.F.R.  213.102(c)(2), that allowed agencies to make excepted service appointments to positions that would otherwise be in the competitive service.  

d. The court concluded that the position at issue in this case was properly excepted from the competitive service.  

4. Placement of the position in question into the excepted service as part of the Recent Graduates Program did not violate 5 U.S.C.  3308.  

a. OPM issued a regulation applicable to the excepted service, 5 C.F.R.  302.202, which provides that an agency "shall not include a minimum educational requirement in qualification standards except for a scientific, technical, or professional position the duties of which the agency decides cannot be performed by a person who does not have a prescribed minimum education."  

b. The educational requirement at issue in this case not a qualification standard.  It relates to eligibility for a specific program -- the Recent Graduates Program.  

c. The court concluded that OPM's regulations implementing section 3308 and 3320 are permissible and reasonable.  



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


Essex v. Department of Labor, No. 2015-3177 (Dec. 9, 2015) (MSPB No. DA-1221-15-0205-W-1) (affirming the Board's decision, which dismissed Essex's complaint about a non-selection for lack of subject matter jurisdiction)

Lua v. Office of Personnel Management, No. 2015-3158 (Dec. 9, 2015) (MSPB No. SF-0845-15-0244-I-1) (affirming the Board's decision, which affirmed OPM's determination that Lua received an overpayment of FERS benefits and was not entitled to waiver of repayment)

Stone v. Merit Systems Protection Board, No. 2015-3139 (Dec. 10, 2015) (MSPB No. DA-3443-14-0560-I-1) (affirming the Board's decision, which dismissed Stone's appeal for lack of jurisdiction)

Twardoski v. Merit Systems Protection Board, No. 2014-3177 (Dec. 10, 2015) (MSPB No. DE-1221-13-0272-W-1) (affirming the Board's decision, which dismissed Twardoski's IRA appeal for lack of jurisdiction)

Clarke v. Department of Veterans Affairs, No. 2014-3103 (Dec. 11, 2015) (MSPB Nos. NY-1221-10-0226-W-2 & NY-1221-11-0169-W-2) (affirming per Rule 36 the Board's decision, 121 M.S.P.R. 254, which denied the appellant's request for corrective action in this IRA appeal because the appellant failed to exhaust his remedy with OSC in that he failed to provide OAC with sufficient basis to pursue an investigation that might lead to corrective action in that he failed to provide requested additional information)

Aiken v. Department of the Army, No. 2015-3180 (Dec. 11, 2015) (MSPB No. DA-0752-14-0152-I-1) (affirming per Rule 36 the Board's decision, which denied Aiken's petition for review of an initial decision that affirmed his removal)

Richardson v. Office of Personnel Management, No. 2015-3130 (Dec. 15, 2015) (MSPB No. AT-0841-15-0189-I-1) (affirming the Board's decision, which affirmed OPM's calculaation of Richardson's FERS retirement annuity)

Russell v. Department of Health & Human Services, No. 2015-3183 (Dec. 15, 2015) (MSPB No. DC-3330-11-0405-M-1) (affirmed the Board's decision, which affirmed the agency's determination that Russell was not qualified for the position he sought)

Miranne v. Merit Systems Protection Board, No. 2015-3128 (Dec. 16, 2015) (MSPB No. AT-3443-13-0527-B-1) (affirming the Board's decision, which found that Miranne’s complaint did not sufficiently allege that an employment practice administered by OPM violated one of the basic requirements of 5 C.F.R. 300.103

U.S. Merit Systems Protection Board | Case Reports