U.S. Merit Systems Protection Board 
Case Report for December 31, 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.


Appellant:  Aubrey J. El
Agency:  Department of Commerce
Decision Number:  2015 MSPB 64
Docket Number:  DC-1221-15-0730-W-1
Issuance Date:  December 21, 2015
Appeal Type:  Individual Right of Action (IRA)

Whistleblower Protection Act
 - Jurisdiction - Protected Disclosure
 - Contributing Factor

    The appellant petitioned for review of an initial decision that dismissed his IRA appeal for lack of jurisdiction.  The appellant's employment was terminated during his probationary period for misuse of his Government credit card.  The appellant claimed that the termination was for disclosing delays in processing his claims for reimbursement of his travel expenses.  The administrative judge found that the claimed disclosures were not sufficiently detailed and specific in that the appellant had not identified a law, rule, or regulation that the agency had violated.  

Holding:  The Board affirmed the initial decision as modified, still dismissing the appeal for lack of jurisdiction.  Although the appellant had identified a regulation that the agency may have violated, this disclosure could not have been a contributing factor in the appellant's termination because the disclosure occurred after the termination.  

Appellant:  John Doe
Agency:  Department of Justice
Decision Number:  2015 MSPB 65
Docket Number:  CH-0752-14-0332-I-1
Issuance Date:  December 21, 2015
Appeal Type:  Adverse Action by Agency
Action Type:  Removal

Harmful Procedural Error
Judicial Estoppel

    The agency petitioned for review of an initial decision that reversed its removal action on the ground that the agency committed harmful procedural error.  This case involved a removal of an Assistant U.S. Attorney on two charges:  (1) failure to maintain a qualification for his position, namely a Level 4 Special-Sensitive position that required access to classified information; and (2) posing an operational security risk.  The administrative judge merged those charges, but upheld the removal.  In a previous Opinion and Order, 118 M.S.P.R. 434 (2012), the Board found that the agency had committed procedural error, in that it failed to allow the appellant review by the agency's Access Review Committee (ARC), and remanded the case to the administrative judge to determine whether the procedural error was harmful.  On remand, the ARC reversed the determination that the appellant was ineligible for access to classified information, and the judge found that the procedural error was harmful.  

Holding:  The Board denied the agency's petition for review and affirmed the initial decision.  Relying on the doctrine of judicial estoppel, the Board rejected the agency's argument that the procedural error related only to the first charge and not to the second charge.  Judicial estoppel generally prevents a party from prevailing in one phase of a case on an argument and then relying on a contradictory argument to prevail in another phase.  In the earlier phase of this appeal, the agency successfully argued to the administrative judge that the charges should be merged and that the sole issue was whether the agency properly removed the appellant for failing to maintain Special-Sensitive, Level 4 eligibility.


The U.S. Court of Appeals for the Federal Circuit issued a nonprecedential decision in the following case:

Browne v. Merit Systems Protection Board, No. 2015-3136 (Dec. 21, 2015) (MSPB No. AT-0752-13-7373-I-1) (affirming the Board's dismissal of Browne's appeal of her
alleged involuntary retirement)


     The omnibus appropriations bill recently passed by Congress (P.L. No. 114-113  238) includes a change to the jurisdiction of the MSPB and OSC regarding claims of prohibited personnel practices brought by employees of the Department of Veterans Affairs.  Effective December 28, 2015, 5 U.S.C.  2302(a)(2)(A)(viii) now reads:  "a performance evaluation under chapter 43 of this title or under title 38."  (emphasis added)  Performance evaluations under title 38 were not previously included under the definition of covered personnel actions.  


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