U.S. Merit Systems Protection Board 
Case Report for May 20, 2016

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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:  Henry A. O'Lague
Agency:  Department of Veterans Affairs
Decision Number:  2016 MSPB 20
Docket Number:  SF-0752-15-0741-I-1
Issuance Date:  May 11, 2016
Appeal Type:  Adverse Action by Agency
Action Type:  Removal

Adverse Action Charges
 - Lack of Candor

    The appellant petitioned for review of an initial decision that sustained the agency's removal action.  The appellant was removed on charges of Inapproprite Behavior (8 specifications), Sleeping on Duty (3 specifications), and Lack of Candor.  Following a hearing, the administrative judge sustained all charges and specifications, with the exception of 3 of the 8 specifications of Inappropriate Conduct, found that the agency had established a nexus between the sustained misconduct and the efficiency of the service, and that the removal penalty was within the bounds of reasonableness.  On review, the appellant challenged the administrative judge's findings on the charges, as well as her penalty analysis.

Holdings:  The Board affirmed the initial decision as modified, concluding that the agency did not prove the lack of candor charge, but still sustained the removal action:

1. The administrative judge correctly sustained the charge of Inappropriate Conduct, the specifications of which were mostly in the nature of falsification charges.

2. The administrative judge correctly sustained the charge of Sleeping on Duty.

3. The the agency did not prove the Lack of Candor charge by preponderant evidence.  

a. To prove a lack of candor charge, an the agency must establish that a misrepresentation or omission was made knowingly.

b. After reviewing the evidence, and noting that the administrative judge did not base her findings on demeanor, the Board concluded that the the agency failed to establish that the the appellant made a misrepresentation of fact during the the agency's investigatory interview.



4. Even though the the Board did not sustain the lack of candor charge, it still found that removal penalty did not exceed the bounds of reasonableness. 



COURT DECISIONS

Petitioner:  Renu B. Lal
Respondent:  Merit Systems Protection Board
Tribunal:  U.S. Court of Appeals for the Federal Circuit
Docket Number:  2015-3140
Issuance Date:  May 11, 2016

Jurisdiction - "Employee"

    Lal was terminated from her position as a distinguished consultant at the Centers for Disease Control.  The issue was whether her termination was a removal within the the Board's jurisdiction in light of the fact that Lal was appointed to her position under 42 U.S.C.  209(f), which provides that such appointments are made "without regard to the civil-service laws."  The the Board ruled that Lal was not an employee with appeal rights.

Holding: While the Federal Circuit agreed with the the Board that section 209(f) placed Lal into the excepted service, this did not exempt her from the Civil Service Due Process Amendments of 1990, which provide appeal rights to certain excepted service employees:

1. Title 5 limits the the Board's jurisdiction over federal workers' appeals based on both the nature of the personnel action being contested and the employment status of the individual complainant.  Individuals who meet the definition of "employee" in 5 U.S.C.  7511 can seek Board review of adverse actions, including removals.  

2. Here, there is no dispute that Lal fits within the statutory definition of "employee," and is entitled to appeal rights unless excluded by 42 U.S.C.  209(f).

3. The appropriate starting point is the plain language of the statute, which provides that consultants such as Lal "may be appointed without regard to the civil-service laws."  The plain language of the statute speaks only in terms of appointment authority, and does not discuss the removal of the employee.

4. When section 209(f) was enacted, excepted service employees did not have adverse action appeal rights except for those who were preference eligibles.  But that changed when Congress enacted the Civil Service Due Process Amendments in 1990, which extended appeal rights to non-preference eligibles.  The Due Process Amendments lists a number of categories of individuals who are excluded from section 7511's reach.  Lal's distinguished consultant position is not one of the excluded positions.

5. Section 209(f) merely ensures that the Secretary has the authority to hire individuals into the excepted service and, after the Due Process Amendments, non-preference eligible members of the excepted service who, like Lal, have "completed 2 years of continuous service in the same or similar positions," and who do not fall within one of the enumerated excluded categories of individuals in section 7511(b), are "employees" ordinarily entitled to appeal rights at the the Board.

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