United States Merit Systems Protection Board

Case Report for June 26, 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:  Robert J. MacLean

Agency:  Department of Homeland Security

Decision Number:  2009 MSPB 114

Docket Number:  SF-0752-06-0611-I-2

Issuance Date:  June 22, 2009

Appeal Type:  Adverse Action by Agency

Action Type:  Removal

Board Procedures/Authorities
 - Interlocutory Appeal
Miscellaneous Topics
 - Sensitive Security Information
Whistleblower Protection Act
 - Protected Disclosure

       This case was before the Board as an interlocutory appeal under 5 C.F.R. §§ 1201.91 to .93.  The appellant was removed from his position as a Federal Air Marshall (FAM) with the Transportation Security Administration (TSA) based on a charge of unauthorized disclosure of Sensitive Security Information (SSI).  Specifically, the agency charged that, on July 29, 2003, the appellant disclosed to media that all Las Vegas FAMs were sent a text message that all Remain Overnight missions up to August 9 would be cancelled.  The appellant alleged that he believed the cancellation of these missions was detrimental to public safety.  He made the disclosure to the media after raising his concern with his supervisor, and attempting to raise it with the Office of the Inspector General.  The agency removed the appellant from his position in April 2006.  In August 2006, the agency issued a “Final Order” finding that the appellant’s disclosure of information to the media, as set forth in the charge, was SSI covered by 49 C.F.R. § 1520.7(j) (2003).  The Board appeal of the removal action was dismissed without prejudice so that the appellant could appeal the agency’s Final Order to the U.S. Court of Appeals for the Ninth Circuit under 49 U.S.C. § 46110.  In September 2008, the Court of Appeals issued a decision finding that the information the appellant disclosed did constitute SSI.  MacLean v. Department of Homeland Security, 543 F.3d 1145 (9th Cir. 2008). 

       After the MSPB appeal was reinstated, the administrative judge (AJ) issued an order certifying 3 issues for interlocutory review by the Board:  (1) Whether the Board has the authority to review the determination by the agency, and affirmed by the Court of Appeals for the Ninth Circuit, that information the appellant disclosed constituted SSI; (2) whether the fact that the agency did not issue its order finding the information the appellant disclosed to be SSI until after it had removed him affects the resolution of the first issue; and (3) whether a disclosure of information that is SSI can be a disclosure protected by the Whistleblower Protection Act.  The AJ ruled in the affirmative with respect to the first two issues, and in the negative on the third. 

Holdings:  The Board reversed the AJ’s rulings as to the first two issues, affirmed as modified the AJ’s ruling on the third issue, and returned the case to the regional office for further adjudication:

1.  The Board does not have the authority to review TSA’s determination that a communication contains SSI when that determination has been upheld by a U.S. Court of Appeals, and the court’s determination is binding in a Board proceeding.  The fact that the agency did not issue its order until after it took its removal action does not alter this result.

a.  Congress provided TSA with the responsibility of defining, regulating, and protecting SSI.

b.  Congress provided individuals with an avenue to challenge TSA’s SSI determination before a U.S. Court of Appeals pursuant to 49 U.S.C. § 46110, and the appellant availed himself of that avenue, so the finding of the court is binding in this proceeding.

c.  The fact that the agency did not issue its order finding the information the appellant disclosed to be SSI until after it had removed him does not alter this conclusion because Congress provided individuals with an opportunity to challenge TSA’s determination and the appellant actually availed himself of that opportunity.  The Board need not and does not decide whether it could make its own finding whether particular information was SSI in the absence of a court decision.

2.  A disclosure in violation of the regulations governing SSI, which were promulgated pursuant to 49 U.S.C. § 114(s), is “specifically prohibited by law” within the meaning of 5 U.S.C. § 2302(b)(8), and thus cannot give rise to whistleblower protection.

a.  Section 2302(b)(8)(A) excludes from whistleblower protection disclosures “specifically prohibited by law” or Executive order. 

b.  The starting point for analyzing whether a violation of the regulations in 49 C.F.R. Part 1520 falls within the “specifically prohibited by law” exception to whistleblower coverage is the Supreme Court’s decision in Chrysler Corp. v. Brown, 441 U.S. 281 (1979), which interpreted a statute that contained an exception for activities “authorized by law.”  Under Chrysler, agency regulations that are (1) properly promulgated, and (2) substantive, must be accorded the force and effect of law absent a clear showing of contrary legislative intent. 

c.  TSA’s regulations in 49 C.F.R. Part 1520 meet these criteria.  The law expressly granted the agency the authority to promulgate regulations which would prohibit the disclosure of information that would be “detrimental to the security of transportation,” and TSA regulations are substantive.  An examination of the legislative history of the “specifically prohibited by law” language of § 2302(b)(8) does not meet the standard of clarity required by Chrysler for a showing of contrary legislative intent. 

Appellant:  Phillip R. Brickhouse

Agency:  Office of Personnel Management

Decision Number:  2009 MSPB 115

Docket Number:  DC-844E-09-0188-I-1

Issuance Date:  June 23, 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 denial of his application for disability retirement on the ground that it was not filed with OPM within 1 year of his separation from the Department of the Navy.  The appellant argued that his application should be treated as timely filed because, acting on the advice of a Navy retirement counselor, he submitted his application to the Navy before the 1‑year deadline, but the agency did not forward the application to OPM until after the deadline.  Relying on the court’s decision in Deerinwater v. Office of Personnel Management, 78 F.3d 570 (Fed. Cir. 1996), the AJ found that the statutory deadline of 5 U.S.C. § 8453 cannot be waived in circumstances such as this.

Holdings:  The Board reversed the initial decision and remanded the appellant’s application to OPM for a determination of his entitlement to disability retirement benefits:

1.  The facts in Deerinwater were similar to those in this case, but the court’s decision was based in significant part on OPM’s regulation at 5 C.F.R. § 844.201, which provided at that time that, when an individual submits his application to the former employing agency rather than with OPM, the individual “will meet the filing deadline only if OPM receives the application from the agency within 1 year after the separation.”

2.  Two years after the court’s decision in Deerinwater, OPM amended § 844.201, which now provides that an application filed with the former employing agency is considered filed on the date on which the former employing agency receives it.  Accordingly, the application was timely filed.

Appellant:  Steven G. Coker

Agency:  Department of Commerce

Decision Number:  2009 MSPB 116

Docket Number:  DA-0752-08-0426-I-1

Issuance Date:  June 23, 2009

Appeal Type:  Adverse Action by Agency

Action Type:  Reduction in Grade/Pay

Compliance
 - Settlement Related
Jurisdiction – Reduction in Pay
Defenses and Miscellaneous Claims
 - Res Judicata/Collateral Estoppel

       The agency petitioned for review of an initial decision that reversed its action reducing the appellant’s pay.  In an earlier appeal of a removal action on misconduct charges, the parties entered into a settlement agreement in which the parties agreed that the agency would cancel the removal action, return the appellant to the rolls in a sick leave status as of a particular date, remove him for failure to meet the medical standards of his position, and the appellant would withdraw his appeal and apply for disability retirement.  In a subsequent enforcement action, the appellant contended that the agency breached the settlement agreement by failing to afford him Law Enforcement Availability Pay (LEAP) when it placed him in a sick leave status.  The AJ found that the settlement agreement did not entitle the appellant to LEAP, and this determination became the Board’s final decision.  In the present appeal, the appellant contended that the agency improperly reduced his pay without affording him due process when it suspended his LEAP during the time period he was placed on sick leave pursuant to the settlement agreement.  Rejecting the agency’s motion to dismiss the appeal on the basis of res judicata, in that the appellant’s entitlement to LEAP had already been decided by the Board, the AJ found that the agency’s cancellation of the appellant’s LEAP certification was an appealable adverse action, which must be reversed because the agency did not give the appellant advance notice and an opportunity to respond.

Holdings:  The Board vacated the initial decision and dismissed the appeal for lack of jurisdiction:

1.  As the Board previously found in the compliance proceeding, the settlement agreement made no provision for the payment of LEAP while the appellant was on sick leave during the interim period between the effective date of the settlement agreement and the effective date of separation for failure to meet the medical standards of the position.

2.  The appellant’s attempt to separately appeal the agency’s failure to pay LEAP amounts to a prohibited collateral attack on the settlement agreement, and the appeal must be dismissed for lack of jurisdiction.

Appellant:  Linda A. Parker

Agency:  United States Postal Service

Decision Number:  2009 MSPB 117

Docket Number:  AT-0752-09-0108-I-1

Issuance Date:  June 23, 2009

Appeal Type:  Adverse Action by Agency

Action Type:  Reduction in Grade/Pay

Penalty

       The agency petitioned for review of an initial decision that sustained the agency’s two charges against the appellant but mitigated the demotion penalty to a 30-day suspension.  For each charge, the AJ sustained one of two specifications.  Citing Byers v. Department of Veterans Affairs, 89 M.S.P.R. 655 (2001), the AJ accorded no deference to the agency’s penalty determination, and instead imposed a 30-day suspension as the maximum reasonable penalty.

Holdings:  The Board affirmed the initial decision as modified, sustaining the agency’s demotion action:

1.  The Board affirmed the AJ’s factual determinations, as well as his findings that the agency proved only of its two specifications relating to both charges, and that the appellant failed to prove her claim of retaliation for protected EEO activity.

2.  The AJ erred in finding that the agency’s penalty determination was not entitled to deference.  The Byers decision was not apt, because it involved an appeal in which only one of two agency charges was sustained.  Here, both charges were sustained.  In a situation where the Board sustains all of the agency’s charges, the agency’s penalty determination is entitled to deference and should be reviewed only to determine whether it is within the parameters of reasonableness.  After reviewing the relevant evidence, the Board concluded that the agency’s penalty determination was entitled to deference, the agency provided a reasoned explanation of its penalty determination, and the AJ should not have disturbed it.

Appellant:  Maria S. Gamble

Agency:  Department of the Army

Decision Number:  2009 MSPB 118

Docket Number:  AT-315H-09-0053-I-1

Issuance Date:  June 24, 2009

Action Type:  Probationary Termination

Jurisdiction – Probationers
Miscellaneous Agency Actions - Suitability

       The appellant petitioned for review of an initial decision that dismissed her appeal for lack of jurisdiction.  In April 2008, the appellant was appointed to the position of General Equipment Mechanic Helper for a term not to exceed May 13, 2009.  In September 2008 the agency terminated her based on its conclusion that she had submitted false information on the résumé that was part of her application for the position.  In dismissing the appeal for lack of jurisdiction, the AJ found that, normally when a probationary employee alleges that she was terminated for reasons arising before her appointment, and the agency did not provide her with advance written notice of her termination and a reasonable time to file an answer, as required by 5 C.F.R. § 315.805(a), the Board has jurisdiction over the appeal.  In this case, however, the AJ determined that, under Wiley v. Department of Veterans Affairs, 101 M.S.P.R. 207 (2006), the appeal must be dismissed for lack of jurisdiction because the appellant did not allege that the agency obtained OPM’s prior approval for terminating her.

Holdings:  The Board vacated the initial decision and remanded the appeal to the regional office for further adjudication:

1.  As a term employee terminated during a trial period, the appellant was entitled to the same procedures as competitive service probationary employees under 5C.F.R. §§  315.804 and .805.  A probationer who was terminated pursuant to 5 C.F.R. § 315.805 for reasons based on pre-appointment conditions may appeal her termination if she alleges the agency failed to follow the procedural requirements of that regulation, i.e., advance written notice of the proposed termination and the opportunity to provide a written response.  Here, it is undisputed that the agency did not provide the appellant an opportunity to provide a response to its notice of termination.

2.  Because the appellant’s termination was based on the charge of submitting false information on her résumé, the AJ properly determined that, if her appointment was in the competitive service, OPM’s suitability regulations must be considered.

3.  In Wiley, the Board held that, per the requirements of OPM’s suitability regulation at 5 C.F.R. § 731.103(a), the Board lacks jurisdiction to consider the termination of a probationary competitive service employee that was based on evidence of an intentional false statement or deception in appointment that could form the basis of a negative suitability determination, unless it is established that the agency had prior approval from OPM to take action under its own authority under 5 C.F.R. Part 315.

4.  Effective June 16, 2008, two years after the decision in Wiley, OPM issued revised suitability regulations, which significantly altered requirements in cases such as this.  Under the new suitability regulations of Part 731, agencies no longer need approval from OPM prior to taking unfavorable suitability actions within their delegated authority, but are required to report such actions to OPM with 30 days after taking the action.  In addition, the regulations allow an agency to take an action under 5 C.F.R. Parts 315, 359, or 752, instead of under Part 731, in cases involving a material, intentional false statement, or deception or fraud in exam, in cases involving a material, intentional false statement, or deception or fraud in examination or appointment.  When an agency does so, however, it must comply with the requirements of those parts.

5.  The Board could not determine from the present record what regulatory authority the agency relied upon to terminate the appellant’s employment, and it is unclear whether the appellant’s term appointment was in the competitive or excepted serve.  Accordingly, it is necessary to remand the appeal to the regional office for further adjudication.

Appellant:  Anita L. Alford

Agency:  Office of Personnel Management

Decision Number:  2009 MSPB 119

Docket Number:  PH-844E-08-0616-I-1

Issuance Date:  June 24, 2009

Appeal Type:  FERS - Employee Filed Disability Retirement

Retirement
 - Disability Retirement

       The appellant petitioned for review of an initial decision that affirmed OPM’s reconsideration decision denying her application for disability retirement benefits. 

Holdings:  The Board affirmed the initial decision as modified, still affirming OPM’s reconsideration decision.  The AJ erred in applying the FERS legal standards in adjudicating the case, as the appellant was covered under CSRS rather than FERS.  However, the basis for the AJ’s decision was that the appellant failed to prove she suffered from a disabling medical condition, and that is the only issue the appellant challenges on PFR.  Because the legal standard for establishing a disabling condition is essentially the same under both FERS and CSRS, the AJ’s error was harmless.

Appellant:  Carolyn G. Davis

Agency:  Office of Personnel Management

Decision Number:  2009 MSPB 120

Docket Number:  DC-831M-07-0811-X-1

Issuance Date:  June 25, 2009

Appeal Type:  CSRA - Overpayment of Annuity

Compliance

       This case was before the Board on the AJ’s Recommendation finding that the agency had not fully complied with the Board’s final order in this case.  After the Recommendation was issued, the agency submitted evidence of further compliance, but the appellant argued that the agency was still not in full compliance.

Holdings:  The Board found that OPM was still in partial noncompliance, finding that OPM improperly offset a previously undisclosed debt and withheld federal income tax from the appellant’s reimbursement.  It concluded that OPM must refund the appellant $1,866 withheld from the appellant’s reimbursement, and that the appellant will be responsible for any federal income tax that she owes.

COURT DECISIONS

Petitioner:  Jack Gross

Respondent:  FBL Financial Services, Inc.

Tribunal:  United States Supreme Court

Docket Number:  08-441

Issuance Date:  June 18, 2009

Discrimination - Age

       The question presented was whether a plaintiff must present direct evidence of age discrimination in order to obtain a mixed-motive jury instruction in a suit brought under the Age Discrimination in Employment Act of 1967 (ADEA).

Holding:  In a 5-4 decision, the Court (opinion by Justice Thomas) held:  “We hold that a plaintiff bringing a disparate-treatment claim pursuant to the ADEA must prove, by a preponderance of the evidence, that age was the “but-for” cause of the challenged adverse employment action.  The burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age, even when a plaintiff has produced some evidence that age was one motivating factor in that decision.”