United States Merit Systems Protection Board

Case Report for July 17, 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: Kevin R. Bell

Agency: Department of Homeland Security

Decision Number: 2009 MSPB 130

Docket Number: SF-0353-07-0731-I-1

Issuance Date: July 14, 2009

Timeliness – PFR
Settlement - Validity

The appellant petitioned for review of an initial decision that dismissed his appeal as settled. The deadline for filing a timely petition for review (PFR) was March 25, 2008. In May 2008, the appellant filed a petition for enforcement contending that the agency had violated the settlement agreement. This petition was denied. During a second compliance proceeding, the appellant contended that the settlement agreement was invalid due to mutual mistake and/or bad faith on the part of the agency. The administrative judge (AJ) rejected the second petition for enforcement on the merits. On April 4, 2009, the appellant filed a PFR in which he again appeared to claim that the settlement agreement was invalid.

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

1. An attack on the validity of a settlement agreement must be made in the form of a petition for review of the initial decision dismissing the case as settled. The appellant’s challenge to the validity of the settlement agreement was filed more than a year after the deadline for timely filing.

2. The appellant has not offered any reason for the delay in filing his PFR, and he failed to respond to the notice by the Office of the Clerk of the Board regarding timeliness.

3. Even assuming that the appellant did not have a basis for seeking review of the decision dismissing the appeal as settled until June 2008, when he says he learned that the agency fraudulently induced him into signing the settlement agreement, he has not shown that he acted with due diligence or reasonable prudence in waiting until April 2009 to challenge the validity of the settlement agreement.

Appellant: George S. Guevara

Agency: Department of the Navy

Decision Number: 2009 MSPB 131

Docket Number: SF-0752-08-0701-I-1

Issuance Date: July 14, 2009

Timeliness – PFR

The appellant petitioned for review of an initial decision that dismissed his appeal as settled. The appellant filed his PFR on April 20, 2009, 171 after the deadline for timely filing.

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

Appellant: Cinderella A. Madison

Agency: Department of Defense

Decision Number: 2009 MSPB 132

Docket Number: DA-0752-02-0095-C-3

Issuance Date: July 15, 2009

Board Procedures/Authorities
- Adjudicatory Error

The appellant petitioned for review of an initial decision that denied her petition for enforcement.

Holdings: The Board affirmed the initial decision as modified, still denying the appellant’s petition for enforcement:

1. The Board found unsubstantiated the appellant’s claim that the AJ denied her a fair opportunity to present her allegations of noncompliance.

a. Matters discussed at telephonic conferences do not constitute evidence. In any event, the appellant had numerous opportunities to submit evidence and argument supporting her case.

b. While the AJ may have contemplated holding a hearing, there is no right to a hearing regarding a petition for enforcement.

2. On the merits of the compliance proceeding, the AJ erred in not addressing one claim, relating to agency contributions to the appellant’s TSP account. The Board addressed the issue, finding the agency in compliance with its obligations.

Appellant: James E. Swink, Jr.

Agency: United States Postal Service

Decision Number: 2009 MSPB 133

Docket Number: CH-752S-09-0328-I-1

Issuance Date: July 16, 2009

Jurisdiction - Suspensions

The appellant petitioned for review of an initial decision that dismissed his appeal of a suspension for lack of jurisdiction. The appellant grieved his “Emergency Placement” in a non-work status and the agency’s proposal to remove him. The grievance was resolved by a settlement agreement in which the Emergency Placement and the notice of proposed removal would be reduced to a letter of warning, the appellant would report to work on his next scheduled workday, and there would be “no recourse to back-pay.” The appellant, a preference eligible, then filed a Board appeal. The AJ determined that the Board lacked jurisdiction because the agency suspended the appellant for only 14 continuous days, and the Board’s jurisdiction is limited to suspensions of more than 14 days. The AJ found that, while the appellant had been suspended for a total of 84.48 hours, these consisted of 2 separate periods of suspension, neither of which exceeded 14 days.

Holdings: The Board affirmed the initial decision as modified, still dismissing the appeal for lack of jurisdiction:

1. Preference-eligible Postal employees are entitled to pursue both a grievance and a Board appeal. In certain circumstances, as set forth in Miller v. Department of Transportation, 109 M.S.P.R. 463 (2009), the Board may combine multiple suspensions of 14 days or less. The Board need not, and did not, determine whether those circumstances were satisfied in this case.

2. Even though the existence of a settlement agreement resolving the grievance may not bar a Board appeal, the appellant still must have expressly reserved the right to seek review in order for the Board to retain jurisdiction. The agreement here did not reserve the right to seek Board review.


Petitioner: Alvern C. Weed

Respondent: Social Security Administration

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

Docket Number: 2008-3112

Issuance Date: July 13, 2009

- Final Judgment Rule

The petitioner sought review of the Board’s determination, 107 M.S.P.R. 142 (2007), that the agency did not willfully violate his veterans’ preference rights. The Board’s decision also remanded the appeal for further adjudication as to other matters.

Holdings: The court dismissed the appeal for lack of jurisdiction because the Board’s decision was not final:

1. The “final judgment rule,” which ordinarily limits the court’s jurisdiction to appeals from a decision that “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment,” is applicable to the MSPB under 28 U.S.C.  1295(a)(9). Under the Board’s regulation at 5 C.F.R.  1201.113, a decision is final “if it disposes of the entire action.”

2. The Board’s decision did not dispose of the entire action. Though the record is not clear, it appears that the agency and the Board have yet to reach any final determination as to whether the petitioner would have been hired in a properly reconstructed selection process, and he could not be entitled to liquidated damages for a willful violation absent an affirmative resolution of that issue.

Petitioner: Sylvia M. Reilly

Respondent: Office of Personnel Management

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

Docket Number: 2008-3236

Issuance Date: July 15, 2009

- Disability Retirement

The petitioner sought review of a Board decision, 108 M.S.P.R. 360 (2008), that affirmed OPM’s denial of her application for disability retirement benefits. As a mail carrier for the Postal Service, the petitioner’s duties included driving a postal vehicle in rural Arizona, parts of which are frequently dusty. During the latter part of her service, she suffered from chronic asthma, which can be aggravated by environmental factors. Also during that period, she was seen and treated for this condition by her primary doctor. She resigned in March 2006 for “ill health,” and filed for disability retirement benefits the following month. In August 2006, a pulmonary specialist submitted a report to OPM in support of the petitioner’s application, referring to examinations conducted in June, July, and August.

On appeal to the Board, the AJ reversed OPM’s denial of the application, finding that, while still employed, the petitioner became disabled as a result of her chronic asthma. On petition for review, the Board reversed the AJ, holding that it was error for the AJ to rely on post-retirement medical evidence.

Holdings: Because the Board applied an erroneous legal standard by categorically rejecting post-retirement medical evidence, the court vacated the Board’s decision and remanded the case for further adjudication:

1. Pursuant to 5 U.S.C.  8347(c) and the Supreme Court’s decision in Lindahl v. Office of Personnel Management, 470 U.S. 768 (1985), the scope of Federal Circuit review in disability retirement cases is limited to cases in which there has been “a substantial departure from important procedural rights, a misconstruction of the governing legislation, or some like error going to the heart of the administrative determination,” and the court may not review factual determinations. As set forth in a later decision, the court “may only address the critical legal errors, if any, committed by the [Board] in reviewing OPM’s decision.”

2. The Board clearly adopted a rule that post-resignation medical evidence is categorically irrelevant, and that it was legal error for the AJ to rely on such evidence. This categorical exclusion was “legal error” that constitutes “a substantial departure from important procedural rights and goes to the heart of the administrative determination.”

a. Under general evidentiary principles, all relevant evidence is admissible, and the passage of time alone is insufficient to support an objection that the evidence is too remote to be relevant. In Social Security and military retirement cases, courts have found that non-contemporaneous medical records are relevant to the determination of the date of onset and severity of a medical condition.

b. Where proximity in time, lay testimony, or some other evidence provides the requisite link to the relevant period, the subsequent medical evidence can be very probative of a prior disability. Here, the specialist’s examinations occurred within a few months of the petitioner’s retirement, and there was no suggestion of any event that would have caused her condition to deteriorate at an unusual rate. Also, lay testimony might establish the same symptoms and severity before retirement as was observed after retirement.

Petitioner: Richard Erickson

Respondent: United States Postal Service

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

Docket Number: 2008-3216

Issuance Date: July 15, 2009

USERRA/VEOA/Veterans’ Rights

The petitioner sought review of a Board decision, 108 M.S.P.R. 494 (2008), that denied his request for relief under USERRA. The petitioner claimed that the agency violated his USERRA rights when it removed him from his position in 2000, and when it later refused to reemploy him after he completed his military service. During his employment with the agency, the petitioner served in the Army National Guard Reserve, and was absent from his position on military leave for lengthy periods. Between 1991 and 1995, he was absent for more than 22 months, and between 1996 and the date of his removal in March 2000, he worked at the Postal Service for no more than 4 days. When a labor relations specialist contacted him in January 2000 to determine whether he intended to return to his civilian position, he responded that he would not report back to work until he completed his current tour of duty in September 2001, and stated that he preferred military service to working for the Postal Service. The agency removed him, effective March 31, 2000, for excessive use of military leave. The petitioner subsequently re-enlisted with the National Guard and remained on active military duty until December 2005.

In the subsequent Board appeal, the AJ found that, at the time of the petitioner’s removal, his cumulative military leave did not exceed the 5-year cap set by USERRA for reemployment rights, and that the agency violated USERRA’s nondiscrimination provision, 38 U.S.C.  4311, when it removed him for excessive use of military leave. The AJ further found, however, that the petitioner had waived his USERRA rights by abandoning his civilian career in favor of one in the military. On review, the Board affirmed the initial decision “as modified.” It did not address the question whether the petitioner had abandoned his civilian career in favor of one in the military. It instead found that the petitioner’s military service was not a motivating factor in the agency’s decision to remove him, because “the agency’s removal notice makes clear that the real reason for [his] removal was his absence regardless of its cause.” The Board further found that the petitioner did not submit a timely request for reemployment with the agency, and so was not entitled to relief on that ground.

Holdings: The court affirmed the Board’s decision as to the reemployment claim, reversed it as to the discrimination claim, and remanded the case to the Board for further adjudication:

1. The petitioner’s removal constituted unlawful discrimination under 38 U.S.C.  4311.

a. The court rejected the Board’s argument that the “real reason” for the petitioner’s removal was his absence from work—regardless of whether that absence was caused by his military obligation. As other circuit courts have held, military service is a motivating factor for an adverse employment action if the employer “relied on, took into account, considered, or conditioned its decision” on the employee’s military-related absence or obligation. The most significant—and predictable—consequence of reserve service is that the employee is absent from his civilian job to perform that service. To permit an employer to fire an employee because of his military absence would eviscerate the protections afforded by USERRA.

b. The Board cannot rely on the fact that an agency is otherwise entitled to remove an employee for prolonged non-military leaves of absence. As the court held with respect to the precursor to  4311, “an employer can not treat employees on military duty like those on non-military leave of absence.”

c. The court rejected the agency’s explanation that firing the petitioner was necessary to fill his position in the Postal Service. The Supreme Court rejected that argument in Monroe v. Standard Oil Co., 452 U.S. 549 (1981), its first decision construing the antecedent to USERRA’s nondiscrimination provision.

d. The Postal Service was not required to hold the petitioner’s job for him indefinitely. Under  4312, employees are entitled to reemployment only if the cumulative length of their absence due to military service does not exceed 5 years. The 5-year cap also applies to  4311 where, as here, the alleged discrimination consists of the employee’s removal because of his military-related absence.

2. The court concurred with the Board’s determination that the petitioner was not entitled to reemployment under 38 U.S.C.  4312. It did so without addressing whether the 5-year period had been exceeded, because the petitioner failed to make a proper request for reemployment within the statutory time frame.

3. An employee can waive his USERRA rights by abandoning his civilian career in favor of one in the military. The case must be remanded to the Board for resolution of this issue, which was not addressed in the Board’s decision.

Petitioner: Floyd J. Adamsen

Respondent: Department of Agriculture

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

Docket Number: 2008-3222

Issuance Date: July 15, 2009

Performance-Based Actions
- OPM Approval of Performance Appraisal Systems

This case was before the court on the government’s petition for panel rehearing seeking a change in the following sentence of the court’s opinion of April 23, 2009, reported at 563 F.3d 1326, 1331:

If an agency makes changes to a previously-OPM-approved performance appraisal system that significantly alters an employee’s performance standards and obligations, OPM review of those changes is necessary to achieve compliance with the basic purpose underlying the OPM-approved requirement.”

The government’s concern was that these words “could be read to require OPM approval for employees’ performance standards. Such a requirement would be inconsistent with law and would dramatically expand OPM’s duties beyond covering those required by statute and regulation.”

Holdings: The court stated that it had not intended to suggest that OPM approval of employees’ performance standards would be required; it is not. Accordingly, the court substituted the following language for the language quoted above:

If an agency significantly alters a previously-OPM-approved performance appraisal system, OPM review of the agency’s modifications is necessary to achieve compliance with the basic purpose underlying the OPM-approval requirement.”