U.S. Merit Systems Protection Board 
Case Report for September 23, 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:  Christopher S. Scoggins
Agency:  Department of the Army
Decision Number:  2016 MSPB 32
Docket Number:  CH-1221-14-0228-W-2
Issuance Date:  September 19, 2016
Appeal Type:  Individual Right of Action (IRA)

Whistleblower Protection Act
 - Covered Personnel Actions
 - Protected Disclosures
 - Contributing Factor
 - Clear and Convincing Evidence

    Both parties petitioned for review of an initial decision that granted the appellant's request for corrective action in this IRA appeal.  The appellant is a GS-12 Security Specialist who alleged that the agency took 5 personnel actions against him for making whistleblowing disclosures.  Virtually all of the 9 disclosures in question involved the handling of classified information.  After a hearing, the administrative judge found that 4 of the disclosures were protected because the appellant reasonably believed they evidenced a violation of Army regulations and he made these disclosures to individuals who were outside his chain of command.  The judge found that the remaining disclosures were not protected because the appellant made them to individuals in his chain of command and he was performing an "essential job duty" by reporting possible security violations to his immediate and second-level supervisors.  The judge found that the protected disclosures were contributing factors in the personnel actions at issue.  The judge found that the agency proved by clear and convincing evidence that it would have taken three of the same actions absent the protected disclosures -- denying the appellant's access to restricted areas and classified documents, changing the appellant's work duties and location,  and denying him security training -- but that the agency failed to prove by clear and convincing evidence that it would have taken the other two actions absent the protected disclosures -- proposing the appellant's removal, and postponing his 2012 performance evaluation.  The administrative judge ordered corrective action with respect to those personnel actions.  

Holdings:  The Board affirmed the initial decision as modified,  finding that 8 of the appellant's 9 disclosures were protected, and ordered corrective action with respect to the proposed removal and postponed performance evaluation:

1. The administrative judge correctly found that disclosures (2), (5), (7), and (9) were protected because the appellant reasonably believed they evidenced a violation of Army regulations.  

2. The administrative judge erred in finding that disclosures (1), (3), (4), and (6) were not protected.

a. Although this case is governed by the law in effect prior to the effective date of the Whistleblower Protection Enhancement Act of 2012 (WPEA), the WPEA clarified that disclosures made in the normal course of one's job duties are not excluded from the definition of a protected disclosure, 5 U.S.C.  2302(f)(2), and the Board found in Day v. Department of Homeland Security, 119 M.S.P.R. 589 (2013), that this clarification applies retroactively.

b. Given the Board's decision in Day, the administrative judge erred in finding that 4 of the appellant's disclosures were not protected because the appellant made these disclosures in performing his "essential job duty" of reporting suspected security violations to his supervisors.  (The appellant did not contest the judge's finding that disclosure (8) was not protected.)

3. The agency's claims of bias and denial of the opportunity to cross-examine the appellant are not persuasive.

4. The administrative judge correctly found that, under the "knowledge/timing" test, the appellant proved that his protected disclosures were a contributing factor in the personnel actions.

5. Because the administrative judge correctly found that the agency's denial of the appellant's access to restricted areas and classified documents was not a covered personnel action, she improperly conducted a clear and convincing analysis regarding that action.

6. The agency proved by clear and convincing evidence that it would have changed the appellant's work duties and work location and would have denied him security training absent his whistleblowing activities.  There was some motive to retaliate against the appellant on the part of the agency officials involved in these actions, but because the appellant's position required access to classified documents and secured areas, and the lack of such access necessitated a change in the appellant's work duties and location, there was no reason for him to receive security training as he was no longer performing a security function.

7. The administrative judge correctly found that the agency failed to prove by clear and convincing evidence that it would have proposed the appellant's removal and postponed his 2012 performance evaluation in the absence of his protected disclosures.  



Appellant:  Andreas Hau
Agency:  Department of Homeland Security
Decision Number:  2016 MSPB 33
Docket Number:  SF-4324-16-0268-I-1
Issuance Date:  September 19, 2016
Appeal Type:  Uniformed Services Employment and Reemployment Rights Act (USERRA)

Veterans' Rights - USERRA - Constructive Discharge Actionable
Res Judicata (Claim Preclusion)
Collateral Estoppel (Issue Preclusion)

    The appellant, a Lieutenant Colonel in the U.S. Air Force Reserve, was formerly employed by the agency's Customs and Border Protection.  In a prior Board appeal, the appellant alleged that the agency had unlawfully discriminated against him on the basis of his military service in violation of USERRA.  His appeal was consolidated with two other similar Board appeals.  During the processing of these appeals, all three appellants either resigned from their positions, or testified that they were about to do so, "based solely on their military affiliations and military service obligations," such that they were constructively suspended.  The administrative judge issued an initial decision denying the appellants' request for corrective action, finding, among other things, that the appellants failed to establish that they were subjected to a hostile work environment in violation of USERRA.  The judge declined, however, to adjudicate the appellants' constructive discharge claims and advised them that they could pursue those claims by filing separate appeals under 5 U.S.C. chapter 75.  The appellant then filed the present appeal, in which he reiterated his claim that the agency constructively discharged him by creating a hostile work environment such that he was forced to resign.  The administrative judge dismissed the appeal as barred by the doctrine of res judicata.  

Holdings:  The Board vacated the initial decision, found that the appellant's claim of a hostile work environment is barred by collateral estoppel, and dismissed the appeal for lack of jurisdiction:

1. An allegation that an agency has constructively discharged an employee, i.e., denied him retention in employment, by creating a hostile work environment based on his military service, which in turn forced him to resign, would be actionable under USERRA.

2. While res judicata bars certain claims that were or could have been adjudicated in a prior action from being adjudicated in a subsequent action, collateral estoppel bars certain issues that were actually litigated in a prior action from being relitigated in a subsequent action.  Collateral estoppel may be grounds for dismissing an appeal for lack of jurisdiction if a jurisdictional determination in a prior action is afforded collateral estoppel effect and the appellant provides no other valid basis of Board jurisdiction.  

3. The appellant's present allegation that the agency denied him retention in employment is predicated on his previously adjudicated claim that the agency subjected him to a hostile work environment based on his military service.  The issue of whether the agency subjected the appellant to a hostile work environment based on his military service was actually litigated in his prior USERRA appeal, and the administrative judge's findings on that issue were necessary to the resulting judgment.  The appellant is thus barred by collateral estoppel from arguing that the agency subjected him to a hostile work environment based on his military service, which is the sole basis of his constructive discharge claim.  

4.  The Board overruled three previous decisions which held that, although an appellant has raised identical issues in two separate appeals, an earlier decision that the appellant did not prevail on the merits did not preclude a finding that he made a nonfrivolous allegation establishing jurisdiction in a subsequent appeal.  To find jurisdiction and allow this matter to proceed to the merits phase of the case when the appellant is barred by collateral estoppel from presenting any of his merits arguments during such proceedings would defy logic.  Dismissal for lack of jurisdiction was therefore appropriate.  



COURT DECISIONS

Petitioner:  Susan Fitzgerald
Respondent:  Department of Homeland Security
Tribunal:  U.S. Court of Appeals for the Federal Circuit
Docket Number:  2015-3154
Issuance Date:  September 20, 2016

Retirement
 - Service Credit - Customs and Border Protection Officer


    At issue in this case was whether Fitzgerald is entitled to enhanced retirement credit as a Customs and Border Protection Officer (CBPO).  After serving as an Immigration Inspector and as a Customs Inspector with the Departments of Justice and Treasury during the period from August 2, 1987 to May 6, 2000, Fitzgerald has been employed continuously in various Instructor positions at the Federal Law Enforcement Training Center, a component of the Department of Homeland Security.  Federal retirement laws extend enhanced benefits to certain groups such as law enforcement officers and firefighters who have served in physically rigorous positions.  In an Act that became effective in July 2008, the law was amended to add enhanced retirement benefits for CBPOs.  As is the case for law enforcement officers and firefighters, the law distinguishes between primary positions and secondary conditions.  Fitzgerald did not claim coverage in a primary position; she alleged that her Instructor position qualifies as a secondary position.  The law, 5 U.S.C.  8401(36), provides that secondary positions "includ[e] any such employee who is transferred directly to a supervisory or administrative position in [DHS] after performing such duties [in a primary position] for at least 3 years."  Although the new Act was not retroactive in general, it does permit prior service to be considered when determining whether a position held in DHS on or after the effective date qualifies as a "supervisory or administrative" position for purposes of CBPO retirement credit.  A regulation promulgated by OPM to implement the new Act, 5 C.F.R.  842.1002, limits "supervisory or administrative" secondary positions to ones "for which experience in a primary [CPBO] position is a prerequisite."  The Board's administrative judge ruled that, while Fitzgeral had the requisite service in a primary position, her Instructor position did not qualify as a secondary position because service in a primary CPBO position was not a prerequisite.  

     Fitzgerald challenged the Board's decision on two grounds:  that the regulations upon which the Board based its decision should be found invalid for contradicting the plain language of the statute; and that, even if the regulations are not invalid, her Instructor position qualified as a secondary position.  

Holdings: The court held that OPM's regulations are valid, and affirmed the Board's decision denying  Fitzgerald's request for retirement credit because it was supported by substantial evidence:

1. OPM's regulations are not invalid, because they do not impermissibly contradict the plain language of the statute and because they are based on a permissible construction of the statute.

a. The first prong under Chevron is to ask whether Congress has directly spoken to the precise question at issue.  If it has, a court "must give effect to the unambiguously expressed intent of Congress."  If the statute is silent or ambiguous, however, the agency's interpretation of the statute must be given effect if it is a "permissible" one.  In other words, to survive judicial scrutiny, an agency's interpretation need not be the only reasonable one or even the most reasonable interpretation.

b. The "precise question" at issue here is:  what constitutes a supervisory or administrative position in DHS for the purpose of meeting the definition of a CBPO?  The statute is silent on this point; the terms "supervisory" and "administrative" are not defined within the definition of the statute or in any other part of the statute.

c. OPM's interpretation of the statute in its regulations is a permissible one.  

2. The Board's determination that Fitzgerald did not qualify for enhanced retirement coverage as a CBPO is supported by substantial evidence.  The court rejected Fitzgerald's argument that, although experience in customs and border protection was not explicitly included in the job description, it was an implicit requirement.  




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

Garcia v. Office of Personnel Management, No. 2016-1114 (September 21, 2016) (MSPB Docket No. SF-0831-14-0567-I-1) (affirming the Board's decision, which affirmed OPM's denial of entitlement to a deferred retirement annuity)

Simmons v. Merit Systems Protection Board, No. 2015-3202 (September 22, 2016) (MSPB Docket No. NY-0752-15-0109-I-1) (affirming the Board's decision, which dismissed Simmons's claim of an involuntary retirement)

Thomas v. Merit Systems Protection Board, No. 2016-1341 (September 22, 2016) (MSPB Docket No. NY-0752-15-0111-I-1) (affirming the Board's decision, which dismissed Thomas's claim of an involuntary retirement)



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