United States Merit Systems Protection Board

Case Report for July 31, 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:  Phillip Raymond Lancaster

Agency:  Office of Personnel Management

Decision Number:  2009 MSPB 140

Docket Number:  AT-0831-09-0200-I-1

Issuance Date:  July 27, 2009

Action Type:  Retirement/Benefit Matter

Retirement
 - Deposits – Post-1956 Military Service
 - Administrative Error

       The appellant petitioned for review of an initial decision that affirmed OPM’s action reducing his retirement annuity to eliminate credit for post-1956 military service.  When the appellant became eligible for a Social Security retirement annuity, OPM reduced his CSRS retirement annuity to eliminate credit for military service performed after 1956, because the appellant had not paid a 7% deposit before his retirement to retain retirement benefits for his military service under both retirement systems.  The issue was whether the appellant should be permitted to make a post-separation deposit for his military service on the ground that his employing agency made an administrative error that caused his failure to timely make the deposit.  The appellant contended that he was misled into not making the deposit by the agency’s retirement counselor, who told him, in response to his question about how much his annuity would be reduced if he did not make the deposit, that the reduction would be “a fraction of [his] annuity.”  The administrative judge (AJ) concluded that the agency had not committed administrative error, finding that the appellant was on notice of the consequences of failing to make a deposit for his prior military service, and that the counselor’s statement about the annuity being reduced by a “fraction” was merely an ambiguous statement that the appellant could have clarified.

Holdings:  The Board reversed the initial decision and ordered OPM to allow the appellant to make a post-separation deposit for his military service:

1.  The Board will order OPM to allow an individual to make a post-separation deposit to receive retirement credit for post-1956 military service only if the individual shows that OPM or his employing agency made an administrative error that caused his failure to timely make the deposit.

2.  The Board has found administrative error where the agency provides material misinformation regarding the deposit or the consequences of failing to make the deposit.  If the employee affirmatively asks for information regarding the consequences of failing to make a deposit, the agency commits administrative error if its response either misrepresents the dollar amounts in question, or is so indirect, inaccurate, or incomplete as to confuse the employee as to the effect of a failure to make the deposit.

3.  By telling the appellant that a failure to make the deposit would result in a reduction that would be a “fraction” of his annuity, the retirement counselor gave the appellant the reasonable impression that the amount of the reduction would be very small.  In fact, it was reduced by about 25%.  The Board concluded that this constituted administrative error entitling him to make a post-separation deposit.

Appellant:  Amber M. Rothlisberger

Agency:  Department of the Army

Decision Number:  2009 MSPB 141

Docket Number:  CH-3443-09-0061-I-1

Issuance Date:  July 27, 2009

Adverse Action Charges
 - Security Clearance Determinations

       The appellant petitioned for review of an initial decision that affirmed her indefinite suspension pending an investigation to determine whether her security clearance should be revoked.  The appellant had been suspended without pay for about a year because her access to classified information had been suspended.  At the conclusion of its investigation, the agency reinstated the appellant’s access to classified information and offered her the opportunity to return to her position.  The appellant then filed this appeal alleging that the agency violated her rights as a civil servant, failed to follow its procedures for conducting a security investigation, improperly denied her request for lateral transfer to another office, committed harmful error, and retaliated against her for prior EEO-protected conduct.  Although the AJ recognized that the appeal appeared to be untimely filed, she did not make any findings on this issue, affirming the agency’s action on the merits, and finding that the appellant did not prove any of her affirmative defenses.

Holdings:  Although the Board denied the appellant’s petition for review (PFR), it reopened the case on its own motion, vacated the initial decision, and remanded the case to the regional office for further adjudication:

1.  The Board reopened the appeal on its own motion because there are unusual equitable and legal circumstances that require remanding the appeal in the interests of justice.  Specifically, the record is insufficiently developed regarding two issues, either of which could be outcome determinative.

2.  The record is insufficiently developed to determine whether the appeal was timely filed.

3.  The record is insufficient to determine whether the agency failed to provide the appellant with statutory and regulatory procedural protections when it indefinitely suspended her. 

Appellant:  Samuel Green, Jr.

Agency:  Department of Veterans Affairs

Decision Number:  2009 MSPB 142

Docket Number:  PH-0752-08-0549-I-2

Issuance Date:  July 27, 2009

Appeal Type:  Adverse Action by Agency

Action Type:  Removal

Jurisdiction
 - Resignation

       The appellant petitioned for review of an initial decision dismissing his appeal of an allegedly involuntary resignation for lack of jurisdiction. 

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

1.  An appellant is entitled to a hearing in a case such as this if he makes a nonfrivolous allegation casting doubt on the voluntariness of his decision to resign.  The AJ erred, in that she apparently applied a preponderant evidence standard (more likely true than not) in analyzing the appellant’s assertions regarding voluntariness, instead of assessing whether he had made a nonfrivolous allegation that his resignation was involuntary.

2. The Board concluded that the appellant failed to make a nonfrivolous allegation that his resignation was involuntary.

Petitioner:  Social Security Administration

Respondent:  London Steverson

Decision Number:  2009 MSPB 143

Docket Number:  CB-7521-08-0017-T-1

Issuance Date:  July 27, 2009

Appeal Type:  Actions Against ALJ's

Action Type:  All Original Jurisdiction Cases

Miscellaneous Agency Actions
 - Actions Against ALJs

       The petitioner filed a complaint pursuant to 5 U.S.C. § 7521 proposing to remove the respondent from his administrative law judge (ALJ) position based on 4 charges:  (1) conduct unbecoming an ALJ (4 specifications of using official agency letterhead for personal correspondence); (2) misuse of government equipment (storing sexually-oriented material on his government-issued computer and using his government computer to support a personal private business; (3) lack of candor, for providing misleading and incomplete responses to questions about the other charges; and (4) failure to follow agency policy by using the agency’s address and mail delivery services for his personal correspondence.  The ALJ assigned to hear the case sustained the first, third, and fourth charges, but not the third, and found good cause to suspend the respondent for 35 days.  On PFR, the petitioner contends that the ALJ improperly dismissed the third charge and improperly weighed the Douglas factors in finding good cause to impose only a 25-day suspension instead of removal.

Holdings:  The Board sustained the dismissed charge and found good cause to remove the respondent:

1.  A lack of candor charge, unlike a falsification charge, does not require proof of an intent to deceive, and may be proved by showing that the individual failed “to disclose something that, in the circumstances, should have been disclosed in order to make the given statement accurate and complete.”  After reviewing the evidence, the Board concluded that the petitioner established this charge by preponderant evidence.

2.  In an original jurisdiction case, where the Board is the first entity to consider the evidence of the charged conduct as well as any mitigating factors, the choice of the penalty is for the Board.  After reviewing the Douglas factors, the Board concluded that removal was the appropriate penalty.

Appellant:  Othel L. Bradshaw

Agency:  Department of Veterans Affairs

Decision Number:  2009 MSPB 144

Docket Number:  SF-0353-08-0318-I-1

Issuance Date:  July 27, 2009

Appeal Type:  Restoration to Duty

Timeliness – PFR

       The appellant petitioned for review of an August 15, 2008 initial decision that dismissed his appeal for lack of jurisdiction.  The PFR was filed more than 7 months after the deadline for timely filing.

Holdings:  The Board dismissed the PFR as untimely filed without good cause shown for the delay in filing.

Appellant:  Kurt Chadwell

Agency:  Office of Personnel Management

Decision Number:  2009 MSPB 145

Docket Number:  DA-300A-08-0567-I-1

Issuance Date:  July 28, 2009

Appeal Type:  Employment Practices

Jurisdiction
Miscellaneous Agency Actions
 - Employment Practices

       This case was before the Board by petition for review of the initial decision which dismissed the appeal for lack of jurisdiction.  The appellant asserted that OPM’s Rule requiring a 1-year waiting period before an applicant can retake the ALJ examination constitutes an “employment practice” under 5 C.F.R. § 300.101, which violated one or more of the “basic requirements” for employment practices set forth in 5 C.F.R. § 300.103.  The AJ found that the Rule is not an employment practice because it is “an exercise of OPM’s administrative discretion regarding a procedural matter and is not a substantive or merits consideration that affects the qualification standards for the position at issue.”

Holdings:  Because the two Board members could not agree on a disposition, the initial decision became the Board’s final decision.  Chairman McPhie issued an opinion expressing his view that the Rule requiring a 1-year waiting period is an employment practice and that it violates at least one of the basic requirements for employment practices, that they be relevant to performance in the position.  Vice Chairman Rose issued an opinion expressing her view that, while the AJ erred as to the correct jurisdictional standard, the appeal was properly dismissed for lack of jurisdiction because the Rule did not constitute an employment practice.

Appellant:  Judy Lynne Aldridge

Agency:  Department of Agriculture

Decision Number:  2009 MSPB 146

Docket Number:  DC-0752-07-0821-B-1

Issuance Date:  July 28, 2009

Appeal Type:  Adverse Action by Agency

Action Type:  Constructive Adverse Action

Jurisdiction
 - Retirement

       The appellant petitioned for review of a remand initial decision that dismissed the appeal for lack of jurisdiction, finding that the appellant’s retirement was voluntary.  At the time of her retirement, there was a pending proposal to remove her for attendance and work deficiencies.  In a previous decision, 2008 MSPB 209, 110 M.S.P.R. 21, the Board found that the appellant had made a nonfrivolous allegation that her retirement was involuntary, based on her unrebutted sworn statement that she was told she would lose her retirement benefits if she was removed.  After holding a hearing on remand, the AJ concluded that the appellant failed to show by preponderant evidence that her retirement was involuntary. 

Holdings:  The Board reversed the remand initial decision, finding that the appellant’s retirement was involuntary, and ordering the agency to reinstate her to employment with back pay and benefits.  It also remanded the appeal to the regional office for adjudication of her allegations of disability discrimination.

1.  The Board found that the AJ’s credibility determinations were inconsistent with the evidence and that the appellant proved that her retirement was involuntary, in that it was based on the agency making misleading statements upon which the appellant reasonably relied to her detriment.

2.  In an involuntary separation case, the issue of Board jurisdiction and the merits of the case are inextricably intertwined.  Because the appellant has proven that her retirement was involuntary and thus tantamount to a removal, there is Board jurisdiction and she prevails on the merits.  She is therefore entitled to reinstatement.

3.  Despite the determination that the appellant is entitled to reinstatement, the appellant’s claim of disability discrimination must be addressed on remand.

Appellant:  Grimaldi M. Gonzalez, Jr.

Agency:  Department of Veterans Affairs

Decision Number:  2009 MSPB 147

Docket Number:  CH-0752-09-0091-I-1

Issuance Date:  July 30, 2009

Appeal Type:  Adverse Action by Agency

Action Type:  Removal

Timeliness – PFR

       The appellant petitioned for review of an initial decision that affirmed his removal.  The PFR was filed 8 days after the deadline for timely filing.

Holdings:  The Board dismissed the PFR as untimely filed without good cause shown for the delay in filing.  In so ruling, the Board noted that, while not especially lengthy, 8 days is not minimal, and that the appellant failed to show that illness prevented him from timely filing.

COURT DECISIONS

Petitioner:  John E. Kirkendall

Respondent:  Department of the Army

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

Docket Number:  2008-3342

Issuance Date:  July 27, 2009

USERRA/VEOA/Veterans’ Rights

       This case was before the court from the Board’s final decision denying Kirkendall’s request of corrective action under VEOA and USERRA in connection with his non-selection for a position with the Army in 1999.  Regarding the VEOA claim, the Board held that Kirkendall had “identified no veterans’ preference statute or regulation” which the agency had violated in processing his application, and had “adduced no evidence showing the agency erred in its determination to rate him ineligible.”  Regarding the USERRA claim, the Board held that Kirkendall failed to show that his military service played any part in the agency’s decision rating him ineligible for the position in question.

       In addition to a Supplemental Qualification Statement (SQS), applicants for the position were required to submit “an Application for Federal Employment (SF-171), an Optional Application for Federal Employment (OF-612), a resume or any other written format chosen provided it contains all the required information to apply for this position.”  The announcement also referred to Optional Form 510, which states that an applicant may use “any other written format you choose.”  The court noted that nothing in the announcement barred submission of multiple documents as an application.  Kirkendall’s application consisted of the SQS, a self-made 2-page résumé, proof of his disabled status, plus 3 “military documents”:  an Army Officer Evaluation Report; his Officer Record Brief; and proof of his discharge, Form DD-214.  At the Board hearing, it was learned that the reason the Army found that Kirkendall’s application lacked sufficient detail to verify the requisite experience was that Army officials refused to consider the content of the military documents which, according to the court, “showed that he was applying for exactly the same job he had held in his military service.”  The Army’s position was to ignore such documents unless the information contained in those documents had been previously stated verbatim in the “application” itself. 

Holdings:  The court reversed the Board’s decision on the VEOA claim, vacated the decision on the USERRA claim, and remanded for further proceedings:

1.  With respect to the VEOA claim, the court held that the Army violated 5 U.S.C. § 3311(2), which provides that a preference eligible “is entitled to credit . . . for all experience material to the position for which examined,” when it failed to consider Kirkendall's military documents as part of his application for the position.  The court stated that it could “barely imagine a stronger case of violation of a veteran’s preference rights.”

2.  With respect to the USERRA claim, the court held that the Board abused its discretion in not granting Kirkendall's request for sanctions in the form of adverse inferences for the agency's destruction of pertinent records while the case was underway.  The court observed that Board precedent establishes that negligence can justify an adverse inference sanction for destruction of records; proof of bad faith is not required.

3.  The court instructed the Board to order appropriate relief for Kirkendall on his VEOA claim.  With respect to the USERRA claim, the court directed the Board “to determine to which of the destroyed documents an adverse inference must be drawn, and the scope and effect of each such inference.”

Petitioner:  Anthony W. Lisanti

Respondent:  Office of Personnel Management

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

Docket Number:  2008-3261

Issuance Date:  July 29, 2009

Retirement
 - Annuities

       This case was before the court from the Board’s final decision affirming OPM’s calculation of his CSRS retirement annuity.  Lisanti was a court reporter who worked for the Administrative Office of the United States Courts.  Since 1984, court reporters have been treated as full-time government employees with benefits, but they receive compensation in two distinct ways.  They receive an annual salary, which is subject to CSRS retirement deductions, but they are separately paid by parties to court proceedings for producing transcripts by “charg[ing] and collect[ing] fees for transcripts . . . , at rates prescribed by the court subject to the approval of the Judicial Conference.”  When Lisanti retired, his CSRS annuity was based on his rate of “basic pay.”  The issue was whether OPM was required to include income received for preparing transcripts as part of Lisanti’s “basic pay,” as defined in 5 U.S.C. § 8331(3).  The Board affirmed OPM’s determination on the basis that the Board lacked authority to decide the case.  The AJ reasoned that OPM’s rules require that the employing agency determine an employee’s basic pay, and the Board could not disturb the agency’s certification of Lisanti’s basic pay.

Holdings:  Although the court disagreed with the Board’s ruling that it lacked authority to decide the case, it affirmed on the basis that OPM had correctly determined the amount of Lisanti’s basic pay and calculated the amount of his annuity.