U.S. Merit Systems Protection Board 
Case Report for August 19, 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:  Cathedral M. Henderson
Agency:  Department of Veterans Affairs
Decision Number:  2016 MSPB 29
Docket Number:  AT-0752-15-0860-I-1
Issuance Date:  August 18, 2016
Appeal Type:  Adverse Action by Agency
Action Type:  Suspension - Indefinite

Jurisdiction - Suspensions
 - Reasonable Belief that Employee Committed Crime
Due Process

    The appellant petitioned for review of an initial decision that affirmed the appellant's indefinite suspension based on the agency's reasonable belief that he had committed a crime for which a period of imprisonment may be imposed.  The appellant was a Program Analyst at the agency's Health Eligibility Center in Atlanta, Georgia.  A Federal grand jury indicted him on 50 counts of making false statements relating to health care matters in violation of 18 U.S.C.  1035, an offense punishable by fines, imprisonment, or both.  The agency imposed the indefinite suspension after considering the appellant's response.  The decision letter stated that the suspension would remain in effect until completion of the judicial proceedings pertaining to the conduct charged in the indictment.  

     On review, the appellant challenged only the administrative judge's finding that the agency had the requisite reasonable cause to impose the suspension.  Specifically, he argued that an indictment alone is insufficient to establish reasonable cause when, as here, it was  the agency that made the criminal allegations against him and provided the only evidence presented to the grand jury.  In such a case, he argued, there must be "third party review, law enforcement investigation, or evidence corroborating the criminal charges," in addition to the indictment, to support a finding of reasonable cause.  

Holdings:  The Board denied the appellant's petition for review and sustained the agency's indefinite suspension action:

1. To establish that an indefinite suspension is valid, an agency must show that:  (1) it imposed the suspension for an authorized reason; (2) the suspension has an ascertainable end, i.e., a determinable condition subsequent that will bring the suspension to a conclusion; (3) the suspension bears a nexus to the efficiency of the service; and (4) the penalty is reasonable.  Regarding the first element, one of the authorized circumstances for imposing an indefinite suspension is when the agency has reasonable cause to believe that an employee has committed a crime for which a sentence of imprisonment could be imposed.

2. "Reasonable cause" in the context of an indefinite suspension based on possible criminal misconduct is virtually synonymous with the "probable cause" necessary to support a grand jury indictment, i.e., probable cause to believe that a crime has been committed and that the accused has probably committed it.  The issuance of an arrest warrant or the actual arrest of an employee is insufficient to meet this standard.  However, absent special circumstances, a formal judicial determination following a preliminary hearing or an indictment following an investigation and grand jury proceeding provides "more than enough evidence to meet the threshold requirement of reasonable cause."  An agency may rely solely on a grand jury indictment to prove there is reasonable cause to believe that the employee is guilty of a crime for which a sentence of imprisonment may be imposed.  The appellant's contention that the indictment was based entirely on evidence and testimony provided by the agency, even if true, does not negate the sufficiency of the grand jury indictment.  

3. The Board rejected the appellant's contention that the agency denied him constitutional due process in effecting the indefinite suspension, finding that the information contained in the grand jury indictment was sufficiently detailed to give the appellant a meaningful opportunity to respond to the proposed indefinite suspension.  


COURT DECISIONS

Petitioner:  Jose E. Rosario-Fabregas
Respondent:  Merit Systems Protection Board
Tribunal:  U.S. Court of Appeals for the Federal Circuit
Docket Number:  2015-3102
Issuance Date:  August 16, 2016

Jurisdiction - Constructive Suspensions

    The court reviewed a final Board decision, 122 M.S.P.R. 468 (2015), that dismissed Rosario's appeal for lack of jurisdiction after concluding that he was not constructively suspended during his four-month absence from work.  In May 2012, Rosario submitted a to his supervisor a letter from his physician that stated that Rosario's symptoms, which included severe anxiety, paranoia, chronic insomnia, marked irritability, frequent panic attacks, and aggressive episodes, were not improving, and recommended three options:  partial hospitalization; relocating Rosario's work area; or providing reasonable accommodation for 3 months to evaluate whether Rosario was emotionally stable to continue working.  A month later, Rosario submitted to his supervisor another letter from his physician, which recommended that Rosario return to work on July 2, 2012 on a part-time basis because he had "started to advance emotionally."  The supervisor requested further information to clarify Rosario's proposed accommodation.  The supervisor reminded Rosario 11 days later to submit the requested information so that the agency could continue processing his request for accommodation.  Rosario replied that he would not be providing the requested information because he was going to return to work full-time.  The next day, the supervisor informed Rosario that, due to his symptomology and the possibility of aggressive episodes, the agency had a reasonable belief that he could not perform an essential job function and/or that he represented a direct safety threat to himself or his co-workers.  The supervisor told Rosario that the agency would need a medical release from his physician containing specific medical information before he would be allowed to return to duty.  The supervisor also informed Rosario that he needed to request approved leave or risk being placed in an AWOL status until he provided the requested medical documentation.  Rosario requested leave under protest.  On July 23, 2012, Rosario's physician submitted a letter recommending that Rosario apply for disability because his depression had returned.  On November 14, 2012, Rosario submitted his physician's report that contained the information sought by the agency and recommended that Rosario return to work on a part-time basis on November 19, 2012.  Rosario alleged that he was constructively suspended from July 2 to November 18, 2012.  

Holdings: A majority of the court panel affirmed, stating that the Board's decision applied the correct legal standard to determine whether an employee has been constructively suspended and that the Board's conclusion was supported by substantial evidence:

1. Rosario alleged that his decision to take leave was involuntary due to the agency's coercion.  The Board required him to demonstrate that his absence from work was involuntary by proving that:  (1) he lacked a meaningful choice in the matter; and (2) it was the agency's wrongful actions that deprived him of that choice.  

2. The court rejected Rosario's argument that the Board's requirements for establishing involuntariness erroneously conflated the merits determination (whether the agency's action was wrongful) with the jurisdictional question (whether Rosario's absence was involuntary).  In the context of constructive adverse action cases, whether an agency acted wrongfully is fundamental to determining jurisdiction because "[a]n action is not voluntary if it is produced by government conduct which is wrongful."  
The court noted in this respect that the Board's test is similar to that used by the court's en banc decision in Garcia v. Department of Homeland Security, 437 F.3d 1322, 1329 (Fed. Cir. 2006), which requires an employee to establish involuntariness by proving that a resignation or retirement was the result of improper acts by the agency.  

3. The Board's decision was supported by substantial evidence.  When an employee voluntarily takes leave, an agency may properly refuse to allow the employee to resume working if the employee does not satisfy the agency's conditions for returning to work.  Here, Rosario took voluntary leave to recover from depression.  When he was able to resume working, the agency conditioned his return on the provision of a medical release from his physician.  

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     In his dissenting opinion, Judge Dyk wrote that, although the panel majority, the Board, the agency, and the petitioner himself all viewed the case as involving an alleged constructive suspension, he viewed the case as a facially involuntary suspension over which the Board has jurisdiction.  In his view, the present case is governed by Pittman v. Merit Systems Protection Board, 832 F.2d 598 (Fed. Cir. 1987), in which the court held that a suspension occurred where the agency determined that it could no longer retain the employee on a light-duty position and that it had no other position which he was physically capable of performing within his medical restrictions.   Judge Dyk stated that the Board itself, in Abbott v. U.S. Postal Service, 121 M.S.P.R. 294 (2014), held that "an agency's placement of an employee on enforced leave for more than 14 days constitutes an appealable suspension within the Board's jurisdiction," and that "suspensions under these circumstances are not 'constructive,' and the case law concerning constructive suspensions is inapplicable.'"  In Judge Dyk's view, Rosario's claim is not a constructive suspension because he was barred from returning to work by the agency.
   

Petitioner:  Philip J. Kerrigan
Respondent:  Merit Systems Protection Board
Tribunal:  U.S. Court of Appeals for the Federal Circuit
Docket Number:  2015-3200
Issuance Date:  August 17, 2016

Whistleblower Protection Act
 - Protected Disclosure
 - Contributing Factor

    The court reviewed a final Board decision, 122 M.S.P.R. 545 (2015), that dismissed, for lack of jurisdiction, Kerrigan's claim that his workers' compensation benefits were improperly terminated in retaliation for protected whistleblowing activity.  Kerrigan suffered a work-related injury while employed as a carpentry worker with the Department of the Navy in 1986.  Beginning in 1993, he began raising concerns regarding the administration of his benefits.  In the ensuing years, the Office of Workers' Compensation Programs (OWCP) took a number of actions in adjudicating Kerrigan's claims, including the denial of his request to see Dr. Webber, some of which were reviewed and approved by the Employee Compensation Appeals Board (ECAB).  In 2001, an orthopedic surgeon opined that Kerrigan could return to full-time work with restrictions, and OWCP referred Kerrigan for vocational rehabilitation training.  After Kerrigan refused to participate in that training, OWCP notified Kerrigan that his benefits were being reduced to zero.  In November 2001, Kerrigan sent a letter to the Department of Labor's Office of Inspector General (DOL OIG) alleging that OWCP's denial of his request to see Dr. Webber was based on on illegal actions by DOL employees -- namely, that the OWCP and ECAB persons who had denied his request had done so based on a physician election form that they either falsified, destroyed, or both.  The DOL OIG elected not to investigate, but did forward the letter to the OWCP.  Kerrigan filed a complaint with the Office of Special Counsel in 2013.  In the ensuing IRA appeal, he alleged that the termination of benefits following his November 2001 letter to the DOL OIG was retaliation for the disclosures contained in that letter.  The Board's administrative judge held that the WPA only covers actions taken by an agency concerning is own employees and, because Kerrigan was never an employee with the DOL, jurisdiction was lacking.  The Board held that jurisdiction was lacking for a different reason, namely that Kerrigan was challenging the termination of his benefits, and 5 U.S.C. 8128(b) provides that benefits determinations are within the exclusive jurisdiction of the DOL and are unreviewable.  Alternatively, the Board stated in a footnote that Kerrigan failed to nonfrivolously allege that his protected disclosures were a contributing factor in the agency's decision to terminate his benefits.  

Holdings: While disagreeing with the Board that 5 U.S.C. 8128(b) barred its review of Kerrigan's appeal, the court concluded that Kerrigan failed to make a nonfrivolous allegation that he made a protected disclosure that was a contributing factor in the agency's personnel action, and therefore affirmed the Board's decision:

1.
5 U.S.C. 8128(b) does not preclude the appellant's IRA appeal claim.

a. This statute provides that the actions of the Secretary of Labor or his designee in granting or denying benefits final and conclusive for all purposes and are not subject to review.

b. By its plain terms, this statute applies only to actions by the Secretary or his designee in allowing or denying payments, and does not close the door on review of all decisions that may overlap or touch on a DOL benefits determination.  The question of whether the DOL retaliated against Kerrigan in reprisal for whistleblowing activity is a different one than whether the DOL correctly terminated his benefits for failure to attend vocational training.  

2. The appellant failed to nonfrivolously allege that his alleged disclosures were a contributing factor in the agency's action.  

a. In addition to closeness in timing, the statute (5 U.S.C.  1221(e)(1)) contains a knowledge component.  Nowhere in Kerrigan's pleadings did he allege that his November 2001 letter was known to the OWCP persons who referred him to vocational training and terminated his benefits for failure to attend.  At most, Kerrigan showed that someone within OWCP was aware of his letter on the same day he was referred to vocational training.  

b. The record in this case made the court particularly disinclined to infer knowledge from closeness in timing.  The OWCP's referral to vocational training was not a sudden occurrence untethered in time to anything but Kerrigan's letter to the DOL OIG.  To the contrary, OWCP's referral was just the latest in a long list of many actions it had been taking in efforts to adjudicate Kerrigan's benefit claims.  




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

Miller v. Federal Deposit Ins. Corp., No. 2016-1137 (August 15, 2016) (MSPB Docket No. SF-4324-14-0598-I-3) (affirming the Board's decision, which denied Miller's request for corrective action in this USERRA appeal)

Lasure v. Merit Systems Protection Board, No. 2016-1567 (August 15, 2016) (MSPB Docket No. CB-7121-15-0034-V-1) (affirming the Board's decision, which dismissed for lack of jurisdiction and appeal from an arbitrator's decision sustaining Laure's removal for misconduct)
     
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