United States Merit Systems Protection Board

Case Report for July 24, 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: Parnell K. Curtis

Agency: United States Postal Service

Decision Number: 2009 MSPB 134

Docket Number: DA-0752-08-0392-I-1

Issuance Date: July 17, 2009

Appeal Type: Adverse Action by Agency

Action Type: Removal

Adverse Action Charges
- Absence-Related

The appellant petitioned for review of an initial decision that affirmed his removal for unacceptable attendance. It was undisputed that, over the course of about 21 months, the appellant was absent from work 81 days, including 77 days of unscheduled leave without pay (LWOP). In his response to the notice proposing to remove him, the appellant asserted that the absences were due to depression and post-traumatic stress disorder. After a hearing, the administrative judge (AJ) sustained the charge, finding that the agency proved the appellant’s attendance was unacceptable because he did not provide appropriate medical documentation to support his absences. The AJ also found that the removal penalty was reasonable.

Holdings: The Board affirmed the initial decision as modified, still sustaining the appellant’s removal:

1. Although an agency’s approval of unscheduled leave generally precludes the agency from taking adverse action on the basis of those absences, an exception to the rule exists where an employee makes excessive use of unscheduled LWOP.

2. The exception applies in this case, as the record showed that: (a) The appellant was absent for compelling reasons beyond his control; (b) the absences continued beyond a reasonable time and the agency warned the appellant that an adverse action could be taken unless he became available for duty on a regular basis; and (c) the position needed to be filled by an employee available for duty on a regular basis.

3. The removal penalty did not exceed the bounds of reasonableness.

Appellant: Ricky L. Hilliard

Agency: United States Postal Service

Decision Number: 2009 MSPB 135

Docket Number: CH-0752-08-0376-A-1

Issuance Date: July 17, 2009

Action Type: Attorney Fee Request

Attorney Fees
- Knew or Should Have Known

The appellant petitioned for review of an initial decision that denied his motion for attorney fees. In the merits proceeding, the AJ mitigated a demotion to a letter of warning in lieu of a 14-day suspension, finding that the agency did not prove its charge of insubordination, but that it did prove its charge of failure to perform the duties of his position. In the attorney fee action, the AJ determined that the appellant prevailed on the merits and had been represented by a licensed attorney, but that attorney fees were not warranted in the interest of justice under the Allen factors.

Holdings: The initial decision became the Board’s final decision under 5 C.F.R.   1200.3 because the two Board members could not agree on a disposition. Chairman McPhie issued an opinion explaining why he thought the AJ correctly determined that the appellant failed to establish that the agency knew or should have known it would not prevail on the merits. Vice Chairman Rose issued an opinion explaining why she would have reached a contrary conclusion.

Appellant: Patrick Ryan

Agency: Department of Homeland Security

Decision Number: 2009 MSPB 136

Docket Number: CB-7121-09-0014-V-1

Issuance Date: July 20, 2009

Action Type: Arbritration

Board Procedures/Authorities
- Dismissal Without Prejudice

The case was before the Board for review of an arbitrator’s decision denying the appellant’s grievance of the agency’s action placing him on enforced leave without pay. After the request for review was filed, the parties entered into a settlement agreement under which the request for review would be dismissed without prejudice to refiling to allow the appellant an opportunity to apply for disability retirement benefits with OPM. The agreement states that it is the parties’ intention that the request for review will be dismissed with prejudice to refiling in the event that OPM approves the appellant’s application for disability retirement.

Holdings: The Board dismissed the request for review without prejudice pursuant to the settlement agreement.

Appellant: Ismael Delgado

Agency: Office of Personnel Management

Decision Number: 2009 MSPB 137

Docket Number: AT-831M-08-0855-I-1

Issuance Date: July 21, 2009

Action Type: Retirement/Benefit Matter

- Restoration to Earning Capacity

OPM petitioned for review of an initial decision that reversed its action terminating the appellant’s disability retirement annuity on the basis that he was restored to earning capacity. Under 5 U.S.C.  8337(d), a disability retirement annuity must be terminated if an annuitant under the age of 60 is “restored to an earning capacity,” i.e., receives income from wages or self-employment or both in any calendar year that equals at least 80% of the current rate of pay of the position occupied immediately before retirement. The dispositive issue here was whether the appellant’s receipt of $46,538—resulting from litigation following an unwarranted indefinite suspension taken against him by his former employer in retirement—should have been included as income from wages in determining whether the appellant had been restored to earning capacity. The AJ reversed OPM’s reconsideration decision, finding that OPM’s consideration of the back pay award was plain error. Relying on 5 C.F.R.  831.1209(c)(3) and 831.1209(f), he found that the back pay award did not constitute “income earned from personal work efforts” but rather was an amount received in litigation for a period in which the appellant was not employed.

Holdings: The Board reversed the initial decision and affirmed OPM’s reconsideration decision. Section 831.1209(f), on which the AJ relied in excluding the back pay award, contains an exception for amounts received in court actions “in the course of . . . trade or business . . . .” The appellant’s back pay award falls within this exception and was therefore appropriately included by OPM in determining whether the appellant had been restored to earning capacity.

Appellant: Angelo Melendez

Agency: Department of Homeland Security

Decision Number: 2009 MSPB 138

Docket Number: AT-0752-09-0238-I-1

Issuance Date: July 21, 2009

Appeal Type: Adverse Action by Agency

Action Type: Removal

Timeliness - PFA

The appellant petitioned for review of an initial decision that dismissed his appeal of a removal action as untimely filed without good cause shown. The appellant filed his appeal on January 9, 2009, 3 days after the deadline for timely filing. The original AJ issued an Acknowledgment Order that did not address the timeliness of the appeal and, further, simply informed the appellant that he “may” respond or object to any motion filed by the agency. The agency filed a motion to dismiss the appeal as untimely filed, to which the appellant did not respond. The AJ to whom the case had been reassigned dismissed the appeal as untimely filed without good cause shown, noting that the agency’s motion to dismiss “fully informed the appellant of the legal standard governing the dismissal of appeals as untimely filed and correctly explained that the appellant had the burden of proof on that issue.”

Holdings: The Board vacated the initial decision, but still dismissed the appeal as untimely filed without good cause shown for the delay:

1. When an appeal appears to be untimely filed, the AJ has the responsibility of apprising the appellant of the timeliness issue and providing him with an opportunity to show good cause for the untimely filing. The AJ to whom this case was originally assigned did not do this.

2. Although the record reflects that the appellant was adequately informed of his burden regarding the timeliness issue through the agency’s motion to dismiss, under the circumstances of this case, the record fails to show that the appellant was provided a fair opportunity to respond to the timeliness issue before the AJ dismissed the appeal as untimely filed.

3. Now that the appellant has been fully and adequately informed in the initial decision as to his burdens on the timeliness issue, the Board considered his arguments on petition for review as to whether there was good cause for his untimely filing.

4. The Board found that the appellant failed to show good cause for his delay in filing. Neither his prior plans to visit relatives during the Christmas holidays nor his assertion that his return was delayed by bad weather demonstrate due diligence and ordinary prudence in filing his appeal.

Appellant: Dennis K. Harlan

Agency: United States Postal Service

Decision Number: 2009 MSPB 139

Docket Number: CH-0752-08-0498-X-1

Issuance Date: July 21, 2009


This case was before the Board on the AJ’s Recommendation finding the agency in noncompliance with the settlement agreement that resolved the appeal of the agency’s removal action. Under the agreement, the appellant would be reassigned to a lower-graded position if he passed a physical examination, but would be removed based on his physical inability to perform if he failed the examination. In his petition for enforcement, the appellant explained that he failed the physical examination called for by the settlement agreement, and that he then applied for disability retirement with OPM. The appellant alleged that OPM denied the application based on his supervisor reporting to OPM that he had engaged in a “service deficiency in conduct.” The appellant asserted that, because the agency’s actions prevented him from obtaining a disability retirement, he should be restored to his original position subject to a physical examination. The AJ found that the agency had materially breached the terms of the settlement agreement and suggested that the Board afford relief along the lines suggested by the appellant.

Following the issuance of the Recommendation, the appellant submitted evidence that OPM has granted him disability retirement, and that OPM’s decision is “de facto confirmation that the [agency] has corrected the errors resulting in the Administrative Judge’s Recommendation.”

Holdings: Based on the new evidence, the Board found that the agency is now in compliance with the parties’ settlement agreement, and dismissed the petition for enforcement as moot.