United States Merit Systems Protection Board

Case Report for June 12, 2009


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 J. Roesel

Agency: Peace Corps

Decision Number: 2009 MSPB 90

Docket Numbers: DC-3330-09-0241-I-1
DC-3330-09-0189-I-1

Issuance Date: May 29, 2009

Appeal Type: Veterans Employment Opportunities Act

USERRA/VEOA Veterans’ Rights
- Jurisdiction
Defenses and Miscellaneous Claims
- Res Judicata

The appellant petitioned for review of an initial decision that dismissed these VEOA appeals for lack of jurisdiction. The “0189” appeal related to the appellant’s nonselection for a single vacancy; the “0241” appeal related to the appellant’s nonselection for 15 other vacancies. The administrative judge (AJ) dismissed the 0189 appeal for lack of jurisdiction on the basis that the appellant failed to meet the 60-day deadline of 5 U.S.C.  3330a(a)(2)(a) for filing a complaint with the Secretary of Labor. In the 0241 appeal, the AJ found that the appellant’s claims with respect to 6 of the vacancies were barred under the doctrine of res judicata, because they had been previously litigated in a Board proceeding. With respect to the remaining 9 vacancies, the AJ dismissed them for failure to exhaust the administrative complaint process with the Department of Labor (DOL).

Holdings: The Board affirmed the initial decision as modified, denying the appellant’s request for corrective action of some claims, and dismissing the remainder for lack of jurisdiction:

1. When DOL rejects a VEOA complaint as untimely filed, and the appellant fails to establish circumstances warranting the application of equitable tolling, the proper disposition of the appeal is not to dismiss it for lack of jurisdiction, as the AJ did here, but to deny the appellant’s request for corrective action for failure to meet the 60-day time limit of 5 U.S.C.  3330a(a)(2)(a).

2. The appellant’s claims for corrective action with respect to 6 of the vacancies in the 0241 appeal must be dismissed under the doctrine of res judicata.

a. Under the doctrine of res judicata, a valid, final judgment on the merits of an action bars a second action involving the same parties based on the same cause of action.

b. The AJ correctly found that the appellant’s nonselection for 6 vacancies had been resolved by a valid, final judgment in a previous Board appeal.

c. The AJ erred in dismissing these claims for lack of jurisdiction. Res judicata is a basis to dismiss an appeal over which the Board has jurisdiction, not a basis to dismiss an appeal for lack of jurisdiction.

3. The AJ properly dismissed the appellant’s claims regarding the other 9 vacancies for lack of jurisdiction, on the basis that the appellant failed to show that he exhausted his remedy with DOL.

Appellant: Ronald Smith

Agency: United States Postal Service

Decision Number: 2009 MSPB 91

Docket Numbers: SF-0752-05-0821-I-1
SF-3443-05-0820-I-1

Issuance Date: June 4, 2009

Action Type: Constructive Adverse Action

Timeliness – PFR

In December 2008, the appellant sought review of two initial decisions that were issued in 2005.

Holdings: The Board dismissed the appellant’s petitions for review (PFRs) as untimely filed without good cause shown for the delays.

Appellant: David C. Potter

Agency: Department of Veterans Affairs

Decision Number: 2009 MSPB 92

Docket Number: DA-0752-09-0059-I-1

Issuance Date: June 4, 2009

Action Type: Constructive Adverse Action

Settlement
- Validity
- Mutual Mistake

The appellant petitioned for review of an initial decision that dismissed his appeal as settled. The issue on appeal was whether the appellant voluntarily resigned from his position as a Cook/Driver. The agency representative advised the AJ that the parties had reached a settlement in which the agency agreed to hire the appellant as a Cook/Driver and pay him $4,000.00, and requested that the AJ enter the settlement agreement into the record for enforcement purposes. The AJ issued an initial decision entering the agreement into the record and dismissing the appeal without making a finding whether the Board had jurisdiction over the appeal. On PFR, the appellant claimed that the settlement agreement was involuntary.

Holdings: The Board denied the appellant’s PFR, but reopened the appeal on its own motion, set aside the settlement agreement, vacated the initial decision, and remanded the appeal to the regional office for further consideration:

1. The appellant did not establish that the settlement agreement was involuntary.

2. The settlement agreement must be set aside as invalid on the basis of a mutual mistake of law, namely that the settlement agreement would be entered into the record for enforcement by the Board. An AJ may not accept a settlement agreement into the record for enforcement unless she has first made a determination that the Board has jurisdiction over the underlying action. Because the AJ never made such a determination, the settlement agreement could not properly be entered into the record for enforcement.

3. On remand, if the AJ determines that the Board lacks jurisdiction, she shall dismiss the appeal. If she determines that the appellant has established jurisdiction, she shall adjudicate the appeal on the merits.

Appellant: Rufus L. Mitchell, Jr.

Agency: United States Postal Service

Decision Number: 2009 MSPB 93

Docket Number: AT-0752-08-0769-I-1

Issuance Date: June 4, 2009

Appeal Type: Adverse Action by Agency

Action Type: Removal

Timeliness – PFR

The appellant petitioned for review of an initial decision that sustained the agency’s removal action. The PFR was filed nearly 3 months after the deadline for timely filing.

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

Appellant: Robbie C. Barker

Agency: Office of Personnel Management

Decision Number: 2009 MSPB 94

Docket Number: AT-0831-08-0705-I-1

Issuance Date: June 5, 2009

Action Type: Retirement/Benefit Matter

Retirement
- Survivor Annuity

The appellant petitioned for review of an initial decision that affirmed OPM’s reconsideration decision denying her request to change her late husband’s survivor annuity election. When the appellant’s husband retired in 2005, his SF 2801 (Box 1b) reflected an intent to provide the appellant with a partial survivor annuity equal to 55% of $12,000 a year, and the appellant signed an SF 2801-2, Spouse’s Consent to Survivor Election, which reflected the same election of a partial survivor annuity. When the appellant applied for a survivor annuity following her husband’s death in 2007, she asserted that an administrative error had been made, that her husband had intended that she receive “55% of his annuity, a full survivor benefit,” and that the amount of the survivor annuity election on her husband’s SF 2801 had been changed with correction tape. After holding a telephonic hearing, the AJ affirmed OPM’s reconsideration decision, finding inter alia that, if Mr. Barker had intended to provide the appellant a full survivor annuity, he would have checked Box 1a of his SF 2801, and left Box 1b blank. The AJ also noted that if Mr. Barker had intended to provide full survivor benefits to the appellant, “there would have been no need for the preparation or execution of an SF 2801-2” in order for the appellant to assent to his election of a reduced survivor annuity.

Holdings: The Board denied the appellant’s PFR, reopened the appeal on its own motion, vacated the initial decision, and remanded the appeal for further adjudication:

1. The appellant failed to establish any error in the AJ’s factual analysis of the evidence in the appeal.

2. Nevertheless, OPM’s reconsideration decision was both incomplete and potentially misleading because it analyzed the appellant’s claim under 5 C.F.R.  831.622(a), and incorrectly stated that Mr. Barker was required to file any change in his survivor annuity election no later than 30 days after the date of his first monthly annuity payment. Because the Barkers were married when he retired and he elected a partially reduced annuity to provide a current spouse annuity, Mr. Barker could have elected, no later than 18 months after his retirement, to increase the reduction in his annuity to provide a larger survivor annuity to his wife, and OPM was required to give annual notice of his right to make such an election. This issue has not been addressed.

Appellant: Sharon S. Simon

Agency: Department of Commerce

Decision Number: 2009 MSPB 95

Docket Number: CH-0752-08-0336-I-1

Issuance Date: June 5, 2009

Appeal Type: Adverse Action by Agency

Action Type: Removal

Board Procedures/Authorities
- Sanctions

The appellant petitioned for review of an initial decision sustained her removal under Chapter 75. Following a hearing, the AJ sustained all 3 charges, found that the action promotes the efficiency of the service, and that the penalty of removal was reasonable. The AJ did not address the appellant’s affirmative defenses of sex discrimination, retaliation for protected EEO activity, and harmful error. Prior to the hearing, the AJ ruled that the appellant’s affirmative defenses were waived because of her failure to timely respond to the AJ’s affirmative defenses order. The sole issue raised in the PFR is that the AJ did not allow the appellant to present evidence or call witnesses relevant to her retaliation claim and that, had this evidence been presented, the AJ would have reached a different conclusion.

Holdings: The Board affirmed the initial decision as modified, still staining the removal action:

1. The AJ abused her discretion by imposing the sanction of waiver of the appellant’s affirmative defenses.

a. An AJ has the authority to impose sanctions for failure to follow the Board’s regulations or failure to respond to the AJ’s orders. The AJ should not resort to the imposition of sanctions unless necessary to serve the ends of justice. The Board will not ordinarily disturb an AJ’s determination to impose a sanction unless the sanction would constitute an abuse of discretion.

b. The appellant failed to meet several deadlines and orders, and the Board found little to mitigate the appellant’s failures. Accordingly, the imposition of sanctions was clearly appropriate here as necessary to serve the ends of justice.

c. The AJ went too far in imposing the extreme sanction of striking the appellant’s affirmative defenses. This sanction is problematic because the appellant clearly asserted her affirmative defenses, and the agency did not suggest the extreme sanction that the AJ imposed.

2. Nevertheless, the appellant never presented any factual allegations which, if taken as true, would support the affirmative defenses that she alleged, despite multiple opportunities to do so. The AJ was not required to permit the appellant to attempt to prove her allegations at the hearing, and the appellant failed to meet her burden of proof regarding those defenses.

Appellant: Joe Lewis

Agency: Department of Veterans Affairs

Decision Number: 2009 MSPB 96

Docket Number: AT-0752-08-0747-I-1

Issuance Date: June 5, 2009

Appeal Type: Adverse Action by Agency

Action Type: Removal

New Evidence
Penalty
- Disparate Penalties

The appellant was removed from his position as a Health Technician based on a single charge of violating a Nursing Service Policy entitled “Suicide and Homicide Observation.” Following a hearing, the AJ sustained the agency’s charge and found the removal penalty to be within the bounds of reasonableness.

On PFR, the appellant challenges the penalty determination on the basis of new evidence. During the appeal before the AJ, the appellant submitted a discovery request asking the agency to identify employees disciplined for similar offenses, and the agency replied that there were no disciplinary actions for similar offenses. After the close of the record in this appeal, the appellant’s representative learned of two instances in which employees had been given lesser penalties for similar misconduct.

Holdings: The Board granted the appellant’s PFR, vacated the initial decision in part, and remanded the appeal for further adjudication:

1. The Board discerned no error with the AJ’s decisions to sustain the charge and to find a nexus between the charge and the efficiency of the service. It therefore affirmed those conclusions.

2. The appellant’s new evidence warrants a remand for reconsideration of the reasonableness of the penalty.

a. The Board will consider new evidence on PFR only upon a showing that the evidence was previously unavailable despite the party’s due diligence, and where it is of sufficient weight that it may warrant an outcome different from that of the initial decision.

b. The appellant’s new evidence meets both criteria and merits further adjudication on remand.

Appellant: Arthur E. Walker

Agency: Department of Health and Human Services

Decision Number: 2009 MSPB 97

Docket Number: NY-0752-97-0332-I-1

Issuance Date: June 5, 2009

Appeal Type: Adverse Action by Agency

Action Type: Removal

Timeliness – PFR

The appellant petitioned for review of a 1997 initial decision that affirmed his removal.

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

Appellant: Andrew Clark

Agency: Department of the Air Force

Decision Number: 2009 MSPB 98

Docket Number: SF-0752-06-0817-X-1

Issuance Date: June 5, 2009

Appeal Type: Adverse Action by Agency

Action Type: Reduction in Grade/ Pay

Compliance

This case was before the Board based on the AJ’s Recommendation finding the agency in noncompliance with a final Board order. In the underlying appeal, the AJ issued an initial decision mitigating a demotion and suspension to a 30-day suspension, which became the Board’s final decision. The appellant later filed a petition for enforcement, alleging, inter alia, that the agency did not restore him to the correct position. The AJ found that, because of a reclassification, a GS-14 Management Analysis Officer position was the “clear successor” to the job from which the appellant was demoted, and that the appellant “would have remained in the position at the higher grade level if the unwarranted personnel action had not occurred.” The AJ also found that the agency had failed to demonstrate that it had provided the appellant with back pay and other benefits as required.

Following the AJ’s Recommendation, the agency submitted evidence that it has retroactively placed the appellant in a GS-14, step 2 position. The appellant contended that he should be placed at the step 4 level because he should have received an Exemplary Performance Award (EPA) as well as a Quality Step Increase, but that both actions were held in abeyance pending the outcome of the MSPB appeal. The appellant also raised other issues regarding his position and benefits.

Holdings: The Board agreed with the AJ’s Recommendation and found that the agency is not in compliance with the Board’s final order:

1. If an employee would have, in fact, received an EPA, he is entitled to one as part of Board-ordered status quo ante relief. Although the agency asserts that the appellant would not have received an EPA because of his misconduct, it has provided nothing to support this assertion. Nor has the appellant provided anything showing that he would have received the EPA despite the misconduct sustained by the AJ. The agency must submit evidence regarding the appellant’s entitlement or lack of entitlement to an EPA.

2. The Board rejected the appellant’s argument of entitlement to a Quality Step Increase based on the agency’s evidence that he did not meet the requirements of the agency’s policy.

3. The agency has not explained the nature of the appellant’s appointment, e.g., whether the position is “Unobligated” and whether the appellant’s position is considered an “overhire,” such that the appointment constitutes status quo ante relief. Nor has the agency provided a detailed and understandable explanation of its calculations regarding the payments and benefits due to the appellant.

Appellant: Johnny Lynn Jones

Agency: Department of the Army

Decision Number: 2009 MSPB 99

Docket Number: AT-0752-08-0459-I-1

Issuance Date: June 5, 2009

Appeal Type: Adverse Action by Agency

Action Type: Suspension - Indefinite

Miscellaneous Agency Actions
- Indefinite Suspensions

The appellant sought to reopen an appeal that was dismissed as withdrawn in May 2008. He had been placed on indefinite suspension in February 2008 pending the completion of a criminal investigation. He filed a Board appeal challenging that action in March, but moved to dismiss the appeal in May after the agency submitted an affidavit from a Special Assistant United States Attorney stating that he had determined that there was sufficient evidence to prosecute the appellant criminally, but that a determination of whether to proceed with felony or misdemeanor charges had not yet been made. In December 2008, the appellant challenged the same indefinite suspension, stating that no charges had been filed against him in the intervening 8 months.

Holdings:

1. Considering the appellant’s December 2008 filing to be a petition for review, the Board dismissed it as untimely filed without good cause shown for the delay in filing.

2. The Board forwarded the pleading to the regional office for docketing and processing as a separate appeal challenging the continuation of the appellant’s indefinite suspension.

a. An indefinite suspension may extend through the completion of both a pending investigation and any subsequent administrative action, but an agency must initiate administrative action within a reasonable period of time after completion of the pending investigation. To permit the agency to take an unlimited amount of time to determine what action to take while keeping the appellant on an indefinite suspension would run counter to the requirement that an indefinite suspension have an ascertainable end.

b. The imposition of an indefinite suspension and the failure to terminate that suspension after the condition subsequent has occurred are separately reviewable agency actions. The parties have raised an issue of fact as to whether the condition subsequent that would terminate the appellant’s suspension has occurred so as to trigger the agency’s obligation to end the indefinite suspension within a reasonable time.

Appellant: Thomas E. Gagham

Agency: Office of Personnel Management

Decision Number: 2009 MSPB 100

Docket Number: PH-0831-08-0559-I-1

Issuance Date: June 5, 2009

Action Type: Retirement/Benefit Matter

Retirement
- Discontinued Service

OPM petitioned for review of an initial decision that reversed its reconsideration decision that denied the appellant’s application for discontinued service retirement under 5 U.S.C.  8336(d)(1). In 2002, OPM approved the appellant’s application for disability retirement, but in 2005, OPM rescinded its approval and terminated the appellant’s disability retirement benefits. This decision was approved by the Board and its reviewing court. The appellant then submitted an application for a discontinued service retirement, which OPM denied. On appeal to the Board, the AJ reversed, finding that OPM had misled the appellant by approving his disability retirement, that the appellant had relied on this misinformation to his detriment in retiring, and that the appellant’s disability retirement was therefore involuntary.

Holdings: The Board reversed the initial decision and affirmed OPM’s reconsideration decision, finding that the appellant is not entitled to discontinued service retirement:

1. The cases on which the AJ relied deal with alleged de facto removals under 5 U.S.C. Chapter 75, in which the individual seeks restoration as an employee. The Board has long held, however, that the determination of an involuntary separation for retirement purposes is totally separate and distinct from a determination of involuntary retirement for jurisdictional purposes under Chapter 75.

2. In Nebblett v. Office of Personnel Management, 237 F.3d 1353 (Fed. Cir. 2001), the court noted that a separation obtained through intolerable working conditions or through misinformation was unlawful, whereas the “type of involuntary separation to which section 8336(d)(1) speaks is one that results from lawful agency actions.” The court’s decision was based in part on the provisions of the Federal Personnel Manual (FPM). Although the FPM has been abolished, its successor, the CSRS and FERS Handbook, contains similar definitions. Nothing in the Handbook suggests that an employee’s separation for disability retirement qualifies as an “involuntary separation” for purposes of discontinued service retirement.

3. Under Office of Personnel Management v. Richmond, 496 U.S. 414 (1990), an individual’s reliance on misinformation provided by a government official cannot serve as a basis for the individual’s entitlement to annuity benefits not otherwise permitted by law. Accordingly, even if OPM’s original approval of the appellant’s disability retirement application can properly be regarded as providing misinformation or misleading information on which the appellant relied to his detriment, this would not be a basis on which to find that the appellant is entitled to a discontinued service retirement annuity.

Appellant: David L. Gerdts

Agency: Department of Labor

Decision Number: 2009 MSPB 101

Docket Numbers: DC-3443-08-0727-C-1
DC-3443-08-0727-I-1

Issuance Date: June 8, 2009

Timeliness – PFR

The appellant petitioned for review of two initial decisions: one that dismissed his alleged restoration appeal as withdrawn pursuant to a settlement agreement; and one that dismissed his petition for enforcement for lack of jurisdiction. The basis for the latter dismissal was that the AJ had made no finding that the appellant’s alleged restoration appeal was within the Board’s jurisdiction and the parties did not express any intention in their settlement agreement to have the settlement entered into the record for enforcement purposes.

The PFR of the restoration initial decision was filed 21 days after the deadline for timely filing. In asking the Board to waive the time limit, the appellant said he was not aware, until the AJ issued the compliance initial decision, that the settlement agreement was not enforceable by the Board, and that he would not have withdrawn his appeal had he been aware that the settlement agreement was not entered into the record for enforcement purposes.

Holdings:

1. The Board denied the PFR of the compliance initial decision because it did not meet the review criteria of 5 C.F.R.  1201.115.

2. The Board dismissed the PFR of the restoration appeal as untimely filed without good cause shown for the delay in filing.

a. It is error for an AJ to dismiss an appeal based on a settlement agreement without documenting for the record whether the parties agreed that the settlement agreement is to be enforceable by the Board. The AJ failed to make such a finding here.

b. Nevertheless, the agency submitted evidence that, prior to the execution of the settlement agreement, it notified the appellant that it had removed the draft Board enforceability clause based on its understanding that the Board would not have jurisdiction to enforce the agreement. Although the appellant responded to this email requesting other changes to the agreement, he did not dispute or address the agency’s removal of the clause concerning Board enforceability of the settlement agreement. The agency’s evidence rebuts the appellant’s assertion that he first learned that the agreement is not enforceable when the AJ issued the compliance initial decision.

Appellant: Jackie Confer

Agency: Office of Personnel Management

Decision Number: 2009 MSPB 102

Docket Number: NY-844E-08-0287-I-1

Issuance Date: June 8, 2009

Appeal Type: FERS - Employee Filed Disability Retirement

Action Type: Retirement/Benefit Matter

Retirement
- Disability Retirement

The appellant petitioned for review of an initial decision that affirmed OPM’s reconsideration decision denying her application for disability retirement. The appellant based her application for disability retirement from her position as a Licensed Practical Nurse (LPN) at a Veterans Affairs Medical Center (VAMC) based on 2 conditions: post-traumatic stress disorder (PTSD), following an assault by a patient while on the job; and neck and back injuries suffered in an automobile accident 6 months after her resignation. The AJ concluded that the appellant became disabled by the physical injuries she received in the automobile accident after her resignation, and was not disabled by PTSD while employed at the VAMC. The AJ also held that the appellant was disqualified for disability retirement benefits because she declined a reasonable offer of reassignment to a vacant position at the VAMC.

On PFR, the appellant asked that the Board consider a decision by the Social Security Administration, issued after the record closed below, granting her disability insurance benefits.

Holdings: The Board denied the appellant’s PFR, but reopened the appeal on its own motion to find that the appellant was disabled from useful and efficient service by PTSD, and that the appeal must be remanded because the record is insufficiently developed to determine if the appellant declined a reasonable offer of reassignment:

1. Although an award of SSA disability benefits is relevant if the conditions underlying both applications are the same, SSA’s decision does not explain why the appellant was determined to be disabled, and she used both her physical condition and PTSD as the basis for her application. Only the PTSD condition is relevant as to her entitlement to a FERS disability retirement annuity.

2. The appellant was disabled from useful and efficient service by PTSD.

a. After reviewing the evidence of record, the Board found that the appellant’s subjective evidence of disability was credible. It noted in this regard that the AJ’s conclusion that the appellant’s depiction of her condition as disabling was not credible because she was able to work for several months as a home health care supervisor was not based on the appellant’s demeanor, but on logic. The Board concluded that the nature of the two positions were very different, in that the LPN position entailed a great deal of direct nursing care, whereas the home health care position did not.

b. The appellant’s subjective evidence was supported by competent medical evidence, and there was no medical evidence to contradict the medical professionals’ conclusions that the appellant had PTSD as the result of the patient assault and was disabled from working as an LPN.

c. The appellant is not disqualified for entitlement to disability retirement for failing to obtain recommended treatment. She did avail herself of treatment, and her ability to get additional recommended treatment was limited by her financial resources. The Board will not find that an individual has refused treatment where the evidence shows she cannot afford it.

d. The appellant’s condition was incompatible with useful and efficient service or retention in her position.

e. The appellant could not be accommodated in her position. The Board concluded that the VAMC did not provide appropriate adjustments to the appellant’s work duties or work environment, and it saw no evidence that any adjustment would have been sufficient to accommodate her condition and permit her to perform her duties as an LPN in the VAMC.

3. The record is not sufficiently developed to determine if the appellant declined a reasonable offer of reassignment to a vacant position. A remand is therefore necessary.

Appellant: Tramell Kukoyi

Agency: Department of Veterans Affairs

Decision Number: 2009 MSPB 103

Docket Number: DA-0752-08-0571-I-1

Issuance Date: June 8, 2009

Jurisdiction
- Probationers
Whistleblower Protection Act
- Exhaustion of Remedy
- Contributing Factor

The appellant petitioned for review of an initial decision that dismissed her appeal for lack of jurisdiction. The agency terminated the appellant’s employment as a Social Worker during her 1-year probationary period. After seeking corrective action from the Office of Special Counsel (OSC), the appellant filed an appeal claiming that the agency took 3 personnel actions, including the termination of employment, in retaliation for 3 whistleblowing disclosures. Without conducting a hearing, the AJ dismissed the appeal for lack of jurisdiction. In so ruling, she found that one of the alleged disclosures could not have been contributing factor because it occurred after the personnel actions in question, that she had failed to exhaust her OSC remedy with respect to another alleged disclosure, and that the appellant failed to make a nonfrivolous allegation that the third was a contributing factor.

Holdings: The Board affirmed the initial decision insofar as it found that the appellant has no statutory or regulatory direct right to appeal her termination to the Board, vacated the initial decision insofar as it determined that the Board lacks jurisdiction over her IRA appeal, and remanded the case to the regional office for further adjudication:

1. On PFR, the appellant does not challenge the AJ’s finding that she has no statutory or regulatory direct right to appeal her termination to the Board, and those findings were affirmed.

2. The Board affirmed the AJ’s determination that one alleged disclosure could not have been a contributing factor in the personnel actions at issue because the disclosure occurred after the personnel actions.

3. As to the other 2 alleged disclosures, the Board found that the AJ’s failure to adequately instruct the appellant regarding her burden to establish jurisdiction requires that the case be remanded for further proceedings.

a. Under 5 U.S.C.  1214(a)(3), an employee is required to seek corrective action from OSC before seeking corrective action from the Board, and the Board may only consider charges of whistleblowing that the appellant raised before OSC. The AJ should have, but did not, apprise the appellant of the means by which she may show that she has satisfied the exhaustion requirement. An appellant must receive explicit information on what is required to establish an appealable jurisdictional issue.

b. Similarly, the AJ failed to apprise the appellant of the means by which she could establish a nonfrivolous allegation of a contributing factor.

4. The Board rejected the appellant’s contention that the AJ demonstrated bias against her.

Appellant: James Galatis

Agency: United States Postal Service

Decision Number: 2009 MSPB 104

Docket Number: PH-0752-07-0298-X-1

Issuance Date: June 9, 2009

Compliance

In a previous decision in this compliance proceeding, 2009 MSPB 6, 110 M.S.P.R. 399, the Board ordered the agency to make an adjustment in the appellant’s leave balance. That adjustment was made, but the appellant asked the Board to reconsider its determination in the previous decision that he is not entitled to pay for performance as part of the back pay to which the agency agreed. The basis for the Board previous determination was that the appellant merely asserted he would have received such a bonus, but failed to provide evidence that such bonuses were mandatory or that all supervisors received them. The appellant thereafter provided evidence indicating that all supervisors in the work unit received such bonuses.

Holdings: The Board determined that the appellant is entitled to pay for performance during the back pay period. In doing so, it noted that, while there was no showing that the appellant’s evidence was not previously available, an agency is required to produce evidence within its possession that is material to an appellant’s claim. It therefore found it appropriate to consider the appellant’s new evidence.

Appellant: Doreen P. Maseuli

Agency: Office of Personnel Management

Decision Number: 2009 MSPB 105

Docket Number: DC-0845-09-0016-I-1

Issuance Date: June 9, 2009

Appeal Type: FERS - Collection of Overpay. Debts

Action Type: Retirement/Benefit Matter

Retirement
- Annuity Overpayment
- Waiver
- Adjustment for Financial Hardship

The appellant petitioned for review of an initial decision that affirmed in part OPM’s reconsideration decision, which found that the appellant had received an overpayment of $20,222, and that waiver of the overpayment was not warranted. The AJ affirmed those determinations, but found that the monthly payments of $250 would cause the appellant financial hardship and adjusted the payments to $150 per month.

Holdings: The Board affirmed the initial decision as modified, readjusting the repayment schedule to $100 per month:

1. OPM policy provides that individuals who know or suspect that they are receiving erroneous payments are expected to set aside the amount overpaid pending recoupment. The Board agreed with the AJ that the appellant should have, but did not, set aside the overpayment she was receiving. It noted however, that, contrary to the analysis in the initial decision, the set-aside rule goes to the question of whether recovery would be against equity and good conscience, not whether the annuitant is at fault in the overpayment.

2. In considering whether an adjustment to the repayment schedule was warranted, the AJ neglected to include $50 for emergency expenses in the appellant’s monthly expenses. Taking that sum into account, the Board readjusted the appellant’s repayment schedule from $150 per month to $100 per month.

Appellant: Stephanie G. Graf

Agency: Department of Labor

Decision Number: 2009 MSPB 106

Docket Number: CH-3330-09-0127-I-1

Issuance Date: June 9, 2009

Appeal Type: Veterans Employment Opportunities Act

USERRA/VEOA/Veterans’ Preference

The appellant petitioned for review for review of an initial decision that dismissed her VEOA appeal for lack of jurisdiction.

Holdings: The Board vacated the initial decision, but still dismissed the appeal for lack of jurisdiction:

1. To establish jurisdiction over a VEOA appeal, an appellant must show that she has exhausted her Department of Labor (DOL) remedy, and makes nonfrivolous allegations that: she is a preference eligible; an agency has violated her rights under any statute or regulation relating to veterans’ preference; and the action at issue took place after VEOA’s enactment. An appellant need not state a claim upon which relief can be granted for the Board to have jurisdiction over a VEOA claim.

2. The AJ’s analysis went to the merits of the appellant’s claim, rather to the jurisdictional issue. It was therefore error for the AJ to dismiss the appeal “for lack of jurisdiction.”

3. Nevertheless, the appeal is properly dismissed for lack of jurisdiction because the appellant failed to establish that she exhausted the DOL complaint procedure. Although she wrote a letter to the DOL, it was unclear from the letter that she was attempting to file a VEOA complaint, and she did not send it to the correct office.

Appellant: Lori E. Heath

Agency: Department of Agriculture

Decision Number: 2009 MSPB 107

Docket Number: CH-0752-07-0675-X-1

Issuance Date: June 9, 2009

Appeal Type: Adverse Action by Agency

Action Type: Removal

Compliance

This case was before the Board based on the AJ’s Recommendation finding the agency in concompliance with a final Board order. In the merits proceeding, the Board reversed the agency’s removal action and ordered the appellant reinstatement effective February 1, 2007. In a petition for enforcement (PFE), the appellant complained that the agency had not complied with the Board’s final order. The agency did not respond to the PFE, and the AJ recommended that the Board order the agency to retractively restore the appellant to her position with full back pay and benefits.

Following the AJ’s Recommendation, the agency presented evidence that it had complied with its obligations, but the appellant argued that she is entitled to back pay from September 1, 2006, to February 1, 2007, during which she was carried in an absent without leave status prior to her removal.

Holdings: The Board found that the agency is now in compliance with the final Board order, which by its terms limited the back pay period to February 1, 2007. It therefore dismissed the PFE as moot.

COURT DECISIONS

Petitioner: Mario Gonzalez

Respondent: Department of Transportation

Tribunal: U.S. Court of Appeals for the Federal Circuit

Docket Number: 2007-3309

Issuance Date: June 11, 2009

Back Pay

In a previous decision, 551 F.3d 1372 (Fed. Cir. 2009), the court held that the Board correctly concluded that 49 U.S.C.  40122 does not grant jurisdiction for back pay awards to FAA employees. By a 6-5 vote, the court denied the petitioner’s request for rehearing en banc. Judge Bryson issued an opinion supporting the denial of the request; Judge Dyk issued a dissenting opinion.