United States Merit Systems Protection Board

Case Report for August 28, 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: Douglas C. Felch

Agency: Department of the Navy

Decision Number: 2009 MSPB 160

Docket Number: SF-0752-07-0550-C-1

Issuance Date: August 24, 2009

Appeal Type: Adverse Action by Agency

Action Type: Suspension - Indefinite

Compliance
- Settlement-Related

The appellant petitioned for review of an initial decision that denied his petition for enforcement. In the underlying appeal of an indefinite suspension, the parties reached a settlement agreement under which the appellant agreed to resign or retire, and the agency agreed to purge from the appellant’s Official Personnel Folder (OPF) the record that placed him on indefinite suspension, as well as a notice of proposed removal. The agreement contained detailed procedures for handling inquiries from prospective employers, which greatly limited the information that could be provided concerning the appellant’s employment. The agreement further provided that the parties “will not disclose or discuss the terms of this settlement with other agency employees except those who may have a need to know in the course of their official duties or as otherwise required by law or regulation.” The appellant alleged that the agency breached the agreement by providing the California Unemployment Insurance Appeals Board (UIB) with information about his suspension. As evidence, the appellant submitted a document sent by the UIB to the agency, in which the UIB stated, “You provided information regarding the eligibility of the [appellant]. . . . You suspended [the appellant].” In denying the appellant’s petition for enforcement, the administrative judge (AJ) found that “the UIB was not a prospective employer, and there were no terms whatsoever [in the settlement agreement] addressing the agency’s obligations regarding its participation or input in the appellant’s efforts to obtain unemployment benefits.”

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

1. Both the Board and the Federal Circuit have construed settlement agreements that provide for expungement of adverse action-related documents from an OPF as requiring agency communications with third parties to reflect what the OPF, as amended, shows. The key concern in such cases is that the Board “see to it that the parties receive that for which they bargained.”

2. If the agency informed the UIB of the appellant’s suspension while the settlement agreement was in effect, then the agency materially breached the settlement agreement, unless its disclosure was required by law or regulation.

3. The AJ made no findings with regard to when or from what source the UIB became aware of the appellant’s suspension. Nor is the record developed as to whether disclosure of the suspension to the UIB was required by law or regulation. A remand is necessary to resolve these matters.

Appellant: Willie L. Lamb

Agency: Office of Personnel Management

Decision Number: 2009 MSPB 161

Docket Number: CH-0831-08-0716-B-1

Issuance Date: August 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 his post-1956 military service. When he retired from the Postal Service in 2005, the appellant did not make a deposit for this military service. As a result, when he turned 62 three years later, OPM recomputed his annuity to exclude credit for his military service, resulting in a $500 per month reduction in his retirement annuity. The appellant alleged that his failure to make the deposit at the time of his retirement was the result of misinformation provided by his employing agency’s retirement counselor, who told him that he would be able to make such a deposit after retirement. In affirming OPM’s action, the AJ held that the appellant failed to make the deposit because of a lack of financial resources, rather than because of any incorrect advice by the retirement counselor.

Holdings: The Board reversed the initial decision, finding that the appellant’s failure to make a deposit at the time of his retirement was the result of administrative error, and ordered OPM to allow the appellant to make a post-separation deposit for his military service:

1. The Board will order OPM to permit a post-separation deposit if the failure to make the deposit was the result of administrative error by the individual’s employing agency or OPM. The Board may find administrative error and waive the deposit deadline when the employee can show that he relied on misinformation in electing not to make the deposit.

2. The record reflects that the employing agency’s retirement counselor told the appellant that the deposit could be paid after he retired. This is precisely the sort of situation envisioned by OPM when it issued regulations to permit some post-separation deposits.

3. Although the appellant did not readily have the funds to make the deposit at the time of his retirement, the record indicates he would have taken whatever action was necessary to make the deposit, including borrowing the money, had he known he would not be able to make a post-separation deposit.

Appellant: Mark J. Zajac et al.

Agency: Department of Agriculture

Decision Number: 2009 MSPB 162

Docket Number: CH-0752-09-0227-I-1

Issuance Date: August 27, 2009

Appeal Type: Adverse Action by Agency

Action Type: Reduction in Grade/Rank/Pay

Jurisdiction
- Reduction in Pay

The appellants in this consolidation petitioned for review of initial decisions that dismissed their appeals alleging a reduction in pay for lack of jurisdiction. All 8 appellants are employed with the agency’s Rural Development” office. They were relocated from a duty station in Howell, Michigan to a duty station in Mason, Michigan. Although their General Schedule grade and step levels remained the same, their locality pay adjustment was reduced. The AJ found that the appellants could be said to have suffered a reduction in pay under applicable law and regulation, as the term “rate of basic pay” now includes locality pay. The AJ further determined however, that the Board lacks jurisdiction because the appellants’ rate of basic pay would have been contrary to law and regulation had the agency failed to adjust their pay to reflect the locality pay for their new official worksite.

Holdings: After a detailed analysis of applicable law and regulation, the Board affirmed the initial decision as modified, still dismissing the appeals for lack of jurisdiction.

Appellant: Chiquita Simon

Agency: Department of Justice

Decision Number: 2009 MSPB 163

Docket Number: DA-315H-09-0297-I-1

Issuance Date: August 27, 2009

Appeal Type: Termination of Probationers

Board Procedures/Authorities
- Withdrawal of Appeal

The appellant petitioned for review of an initial decision that dismissed her appeal as withdrawn. The AJ’s dismissal was based on a one-sentence motion submitted by the appellant’s representative. The appellant was not listed on the certificate of service. On petition for review, the appellant asserts, under penalty of perjury, that her representative withdrew the appeal without her authorization.

Holdings: The Board vacated the initial decision and remanded the case to the regional office for further adjudication. Based on the appellant’s declaration, there is a genuine issue of fact whether she acted in a clear, unequivocal, and decisive way to relinquish her Board appeal rights.

Appellant: Charles D. Thompson

Agency: Department of the Army

Decision Number: 2009 MSPB 164

Docket Number: SF-4324-08-0749-I-1

Issuance Date: August 27, 2009

Appeal Types: Uniformed Services Employment and Reemployment Rights Act (USERRA); Veterans Employment Opportunities Act (VEOA)

USERRA/VEOA/Veteran’s Rights
Jurisdiction

The appellant petitioned for review of an initial decision that dismissed his appeal for lack of jurisdiction. The appellant applied for Security Guard vacancies that were open to the public. The agency decided to fill the vacancies by first using applicants eligible for non-competitive “Veterans Recruitment Appointments” (VRA) under 38 U.S.C.  4214, and it referred 10 potential applicants, including the appellant, for determination of eligibility. The Human Resources Office concluded that the appellant was not VRA eligible and, for that reason alone, refused to give him further consideration for the vacant positions. In his appeal to the Board, the appellant alleged that his rights under USERRA and VEOA were violated. In dismissing the appeal, the AJ found that a hearing was unnecessary because the appellant had not made a nonfrivolous allegation of the Board’s USERRA jurisdiction, and indicated in a footnote that, if the appellant wished to assert a VEOA veterans’ preference claim, he would have to exhaust his Department of Labor administrative remedy prior to filing a separate appeal with the Board.

Holdings: The Board affirmed the initial decision as to the USERRA claim, but vacated the decision and remanded with respect to the VEOA claim:

1. The AJ correctly dismissed the USERRA claim for lack of jurisdiction. The appellant failed to make a nonfrivolous allegation that his military status was a motivating or substantial factor in the agency’s refusal to consider him for the positions in question.

2. A remand to the regional office is necessary with respect to the appellant’s claim of a denial of veterans’ preference rights under VEOA.

a. One of the jurisdictional requirements for a VEOA claim is that an appellant show that he exhausted his remedy with the Department of Labor (DOL). This ordinarily requires that the appellant establish that he filed a complaint with the Secretary of Labor, and that the Secretary was unable to resolve the complaint within 60 days or has issued a written notification that the Secretary’s efforts have not resulted in a resolution.

b. The Board can find that a jurisdictional requirement has been exhausted when it finds that an appellant has attempted to obtain a necessary decision and the agency responsible for issuing that decision has refused to issue a decision. Here, the appellant has asserted that he attempted to file a veterans’ preference complaint with DOL, but was informed by DOL that it does not handle such complaints and was directed by DOL to file an appeal with the Board instead.

c. The AJ did not provide the appellant with notice and an opportunity to respond to the VEOA jurisdictional issue.

COURT DECISIONS

Petitioner: Linda L. Hayward

Respondent: Office of Personnel Management

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

Docket Number: 2008-3308

Issuance Date: August 24, 2009

Retirement
- Court/Domestic Relations Orders

This case was on appeal from the Board’s final order, 109 M.S.P.R. 13 (2008), which affirmed OPM’s determination finding that a 1990 Qualified Domestic Relations Order (QDRO) submitted by Hayward’s attorney to OPM in 2001 was not acceptable for processing, and that she was therefore not entitled to a former spouse survivor annuity under CSRS. The Board held that the QDRO was ambiguous, and therefore did not meet the requirement of 5 U.S.C.  8341(h)(1) that the order must “expressly provide for” such an annuity. The Board found that the state court may have intended to award a former spouse survivor annuity while citing to incorrect statutes and mistakenly failing to refer to 5 C.F.R. Part 838, or it may have intended to award the appellant survivor annuity benefits under her former husband’s military retired pay while mistakenly referring to CSRS.

Holdings: The court reversed the Board’s decision, concluding that the 1990 Civil Service QDRO meets the requirements of 5 U.S.C.  8341(h)(1) and 5 C.F.R.  838.803, and that Hayward is therefore entitled to have OPM process the QDRO with respect to her claimed former spouse survivor annuity:

1. The court concluded that the more stringent requirements of Subpart J of 5 C.F.R. Part 838 apply to this controversy, rather than the more lenient requirements of Subparts A-I, which apply to orders received by OPM prior to 1993. The court found in this regard that there is substantial evidence supporting the Board’s finding that OPM did not receive the 1990 QDRO until 2001.

2. The 1990 Civil Service QDRO meets the “expressly provided for” requirement of 5 U.S.C.  8341(h)(1).

a. In order to determine that a court order without any “magic words” does provide the survivor annuity benefit, the tribunal must first determine whether the order contains a pertinent clause regarding a survivor annuity. The court found that the language discussing the “Survivor Benefit Plan” in the 1990 QDRO, when combined with the references to Mr. Hayward’s participation in the “Civilian Service Retirement System” and the “Civil Service Retirement System Pension Plan,” compels the conclusion that the survivor benefit clause can fairly be read as awarding a CSRS annuity.

b. Since the 1990 QDRO can fairly be read as awarding a CSRS survivor annuity, extrinsic evidence must be examined to discover the true intent of the parties. Here, the presence of 2 separate QDROs, 1 military and 1 civilian, demonstrates that the parties appreciated the need to apportion both Mr. Hayward’s civil service and military plans. In addition, the state courts have found that the intent of the 1990 Civil Service QDRO was to award a former spouse survivor annuity.

3. The 1990 Civil Service QDRO meets the requirements set forth in 5 C.F.R.  838.803. The court agreed with Board precedent cautioning against a rigid application of the regulation that “frustrate[s] the language and intent of 5 U.S.C.  8341(h).” The court adopted the Board’s logic that “there is no rational reason to apply the regulation to deny the survivor annuity where the ‘expressly provided for’ requirement of the statute is met, and the CSRS plan is the only plan that could have been intended by the court’s order.”

Petitioner: Karla M. Malloy

Respondent: United States Postal Service

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

Docket Number: 2008-3117

Issuance Date: August 25, 2009

Penalty

The petitioner appealed the Board’s final order affirming her removal for disrespectful communication to a supervisor and failure to follow instructions. On appeal to the Board, she did not dispute that her communications to her supervisor contained inappropriate language, but contended that mental impairment caused her to sometimes act inappropriately. Several medical reports were adduced at the hearing to support this contention. Without discussing the medical evidence, the AJ concluded that Malloy’s representations about her medical condition were “not credible,” and affirmed the removal action.

Holdings: The court vacated the Board decision and remanded for consideration of the evidence relating to mental impairment and reapplication of the Douglas factors in light of this evidence:

1. When mental impairment or illness is reasonably substantiated, and is shown to be related to the ground of removal, this must be taken into account when taking an adverse action against an employee. The court noted that “mental impairment” is included among the Douglas factors that must be considered in assessing the reasonableness of the penalty.

2. The AJ’s statement that Malloy’s representations about her medical condition were “not credible” is so totally at odds with the medical records as to raise strong doubts as to the thoroughness of the AJ’s review.