U.S. Merit Systems Protection Board

Case Report for May 29, 2009

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:  Jerome Deas

Agency:  Department of Transportation

Decision Number:  2009 MSPB 84

Docket Number:  AT-0752-07-0563-B-1

Issuance Date:  May 19, 2009

Appeal Type:  Adverse Action by Agency

Action Type:  Constructive Adverse Action

 - Disparate Treatment

       The appellant petitioned for review of a remand initial decision that dismissed the appeal without a hearing.  Because the two Board members could not agree on the disposition of the petition for review (PFR), the initial decision becomes the MSPB’s final decision.  In a separate opinion, Chairman McPhie stated why he believed that the administrative judge’s (AJ’s) denial of the appellant’s discovery request was based on a too narrow reading of the requirement that a comparator employee in a disparate treatment discrimination case have engaged in “similar misconduct.”  Vice Chairman Rose issued a separate opinion stating why she believed the AJ correctly interpreted and applied the Board’s remand instructions regarding the required similarity of comparison employees.

Appellant:  Stuart D. Miller

Agency:  Department of Homeland Security

Decision Number:  2009 MSPB 85

Docket Numbers:  DC-0752-08-0714-I-1

Issuance Date:  May 26, 2009

Appeal Type:  Adverse Action by Agency

Action Type:  Constructive Adverse Action

 -Involuntary Retirement

       The appellant petitioned for review of an initial decision that dismissed these appeals for lack of jurisdiction.  In 2006, the agency reassigned the appellant from his K band position as a Supervisory Transportation Security Specialist in Arlington, Virginia, to a K band position in Brussels, Belgium, for a period not to exceed 4 years.  In early 2008, the agency notified him that his tour of duty in Belgium would terminate in August, and that he would be able to exercise his return rights in accordance with a Management Directive.  In July, the agency notified the appellant that he would be assigned to a J band position (a lower pay band than the K band) in Arlington in August, and that he would receive retained pay.  The appellant responded that he was dismayed that the agency was demoting/downgrading him after nearly 20 years of service, that he was declining the agency’s offer, and that he intended to retire.  He requested that his accrued leave be used to establish entitlement to a discontinued service retirement.  The agency disapproved the appellant’s request for leave and advised that he did not meet the requirements for discontinued service retirement.  The appellant then retired under the MRA [minimum retirement age] + 10 eligibility provision (see 5 U.S.C. § 8412(g)(1)). 

       In his first-filed Board appeal (the 0752 appeal), the appellant asserted that the agency improperly directed his assignment to the J band position and that he was challenging the agency’s denial of his request to use annual leave to establish his eligibility for a discontinued service retirement annuity.  He later filed a separate appeal (the 3443 appeal) asserting that his retirement under the MRA + 10 provision was involuntary.  The AJ dismissed both appeals for lack of jurisdiction.  As to the first, she found that the agency exercised its management discretion in assigning the appellant to a different position, the appellant did not suffer a reduction in pay, and although the assignment would have resulted in a reduction in grade, the appellant retired before the effective date of any such reduction.  As to the second appeal, the AJ found that the appellant did not describe any event that rose to the level of coercion necessary to overcome the presumption that his retirement was voluntary.

Holdings:  The Board denied the appellant’s PFR of the 0752 appeal, but granted it as to the appeal alleging an involuntary retirement, vacated the initial decision with respect to that claim, and remanded the case to the regional office for further adjudication:

1.  The AJ correctly dismissed the 0752 appeal for lack of jurisdiction.  The appellant did not make a nonfrivolous allegation that the Board has jurisdiction over the agency’s decision to notify the appellant that he would be assigned to the J band position at the end of his overseas tour of duty, or the agency’s decision not to grant his requests for leave in connection with the agency’s ultimate denial of his request to pursue a discontinued service retirement.

2.  The involuntary retirement appeal must be remanded for further adjudication because the appellant raised a nonfrivolous allegation that the agency failed to provide him with notice of his right to appeal a reduction in force or his reduction in grade to the Board when it informed him of his August 2008 assignment, and that he reasonably relied upon that lack of information in deciding to retire, rather than accepting the downgrade and challenging it on appeal.

Appellant:  Gayle F. Perry

Agency:  Office of Personnel Management

Decision Number:  2009 MSPB 86

Docket Number:  DE-0845-07-0375-I-2

Issuance Date:  May 27, 2009

Appeal Type:  FERS - Collection of Overpay. Debts

Action Type:  Retirement/Benefit Matter

Timeliness - PFR

       The appellant sought reopening of an initial decision that affirmed OPM’s determination that he had been overpaid more than $17,000 in disability benefits.  The request for reopening was filed nearly 4 months after the deadline for filing a PFR. 

Holding:  The Board dismissed the appellant’s request as untimely filed without good cause shown for the delay.

Appellant:  Diane N. Edwards

Agency:  Department of Veterans Affairs

Decision Number:  2009 MSPB 87

Docket Number:  AT-0752-08-0843-I-1

Issuance Date:  May 27, 2009

Appeal Type:  Adverse Action by Agency

Action Type:  Removal

Board Procedures/Authorities
 - Withdrawal of Appeal

       The appellant petitioned for review of an initial decision that dismissed her appeal of a removal action as withdrawn.  The agency moved to dismiss for lack of jurisdiction, claiming that the appellant had made a binding election to proceed under the negotiated grievance procedure.  The appellant’s attorney thereafter submitted a “Notice of Voluntary Dismissal,” and the AJ dismissed the appeal as withdrawn.  On PFR, both the appellant and her attorney stated that there was a misunderstanding between the two, and that the appellant did not knowingly authorize the dismissal of her appeal.

Holdings:  The Board granted the appellant’s PFR, vacated the initial decision, and remanded the appeal for further adjudication.  An appellant’s decision to withdraw her appeal is ordinarily a final action.  Here, however, there was a miscommunication between the appellant and her attorney such that the appellant’s diligent efforts to prosecute her appeal were thwarted by what appears to be her attorney’s negligence.  The Board therefore found it appropriate to reinstate her appeal.

Appellant:  Nikola Bilandzich

Agency:  Department of the Army

Decision Number:  2009 MSPB 88

Docket Number:  SF-4324-09-0109-I-1

Issuance Date:  May 27, 2009

Appeal Type:  Uniformed Services Employment and Reemployment Rights Act (USERRA)

USERRA/VEOA/Veterans’ Rights
Board Procedures/Authorities
 - Dismissal for Failure to Prosecute

       The appellant petitioned for review of an initial decision that dismissed his USERRA appeal “for lack of jurisdiction.”  The appellant asserted that the agency violated Butterbaugh v. Department of Justice, 336 F.3d 1332 (Fed. Cir. 2003), by improperly charging him military leave on non-work days, which caused him to use annual leave, sick leave, or leave without pay to perform military duty.  In his Acknowledgment Order, the AJ stated that a person’s entitlement to USERRA benefits terminates upon the occurrence of any of several events set forth in 38 U.S.C. § 4304, and ordered the appellant to file a statement addressing whether any of those events applied to his service.  The agency later filed a motion to dismiss on the basis that the appellant had not responded to the AJ’s order.  The appellant opposed the agency’s motion, but did not address the matter raised by the Acknowledgment Order.  Without issuing any additional orders, the AJ dismissed the appeal.

Holdings:  The Board vacated the initial decision, found that the appellant had established jurisdiction, and remanded the case for further adjudication:

1.  Although the decision stated that the appeal was being dismissed for lack of jurisdiction, in essence it was dismissed for failure to prosecute because the appellant failed to respond to the Acknowledgment Order.  The Board has stated that it is inappropriate to dismiss an appeal for failure to respond to a single order.

2.  The appellant established jurisdiction over his USERRA appeal by alleging that he performed duty in a uniformed service and that the agency denied him a benefit of employment due to his uniformed service.

3.  Under Kirkendall v. Department of the Army, 479 F.3d 830 (Fed. Cir. 2007) (en banc), an appellant has an unconditional right to a Board hearing once he has established jurisdiction over his USERRA appeal.

Appellant:  Stephen Strausbaugh

Agency:  Government Printing Office

Decision Number:  2009 MSPB 89

Docket Number:  AT-315H-09-0034-I-1

Issuance Date:  May 27, 2009

Appeal Type:  Termination of Probationers

 - Probationers

       The appellant petitioned for review of an initial decision that dismissed his appeal for lack of jurisdiction.  The appellant was terminated from his position as an electrician during his 1-year probationary period.  On appeal to the Board, the appellant claimed that the termination was based on his marital status.  In response to the AJ’s Acknowledgment Order on the issue, the appellant claimed, inter alia, that his supervisor made derogatory comments concerning his marital status and excluded his fiancé and child from an official function on the ground that he was not married to his fiancé, and that the supervisor told him he wouldn’t be having “these problems” if he were married.  The AJ dismissed the appeal for lack of jurisdiction without conducting a hearing.

Holdings:  The Board vacated the initial decision and remanded the case for a jurisdictional hearing:

1.  A probationary employee has no statutory right of appeal to the Board, but OPM’s regulation at 5 C.F.R. § 315.806(b) provides that an employee may appeal a termination not required by statute which he alleges was based on marital status.

2.  A probationary employee faces a two-step process in establishing Board jurisdiction in a case such as this.  First, the employee must allege marital status discrimination and support the allegation with factual assertions indicating that it is not a pro forma pleading.  An appellant who meets this requirement has a right to a hearing, at which he must support his allegation with a showing of facts which would, if not controverted, require a finding that marital status discrimination was the basis for his discharge.

3.  The appellant’s allegations were sufficient to satisfy the requirements at the first step, and he is therefore entitled to a hearing.