United States Merit Systems Protection Board

Case Report for September 11, 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: Hyginus U. Aguzie

Agency: Office of Personnel Management

Decision Number: 2009 MSPB 177

Docket Number: DC-0731-09-0261-I-1

Issuance Date: September 3, 2009

Appeal Type: Suitability

Miscellaneous Agency Actions
- Suitability
Jurisdiction - “Employee”

The appellant petitioned for review of an initial decision that affirmed OPM’s suitability action under 5 C.F.R. part 731. The appellant was appointed to the U.S. Commission on Civil Rights (USCCR) as a Budget Analyst in May 2006. In December 2008, OPM informed the appellant that it had found him unsuitable for his position, and directed the USCCR to remove him from the rolls. OPM also cancelled any reinstatement eligibility he may have had, and debarred him from competing for a covered position for 3 years. In his appeal to the Board, the appellant contested OPM’s suitability action and raised affirmative defenses of harmful error and discrimination based on race and national origin. The administrative judge (AJ) found that the Board had jurisdiction under 5 U.S.C.  7701 and 5 C.F.R.  731.501. Following a hearing, the AJ sustained the charge, found the appellant’s affirmative defenses unproven, and affirmed the suitability action.

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

1. At the time of his termination, the appellant occupied a competitive service position and had completed his 1-year probationary period. He therefore satisfies the definition of an “employee” at 5 U.S.C.  7511(a)(1)(A), and would appear to have adverse action appeal rights under 5 U.S.C.  7513, notwithstanding OPM’s characterization of the removal as an action under part 731.

2. Under OPM’s current regulations, 5 C.F.R.  731.204(f), a removal action may not be taken under both part 731 and part 752. To the extent that  731.204(f) may purport to carve out an exception to the Board’s statutory jurisdiction under 5 U.S.C.  7513(d), the validity of the regulation is in doubt.

3. On remand, the parties will be provided an opportunity to brief the question of whether the appellant is entitled to appeal his removal under 5 U.S.C.  7513(d) and, if so, whether the other actions on appeal, i.e., debarment and cancellation of eligibilities, remain within the Board’s jurisdiction under 5 C.F.R.  731.501.

Appellant: Holley C. Barnes

Agency: Office of Personnel Management

Decision Number: 2009 MSPB 178

Docket Number: DC-0731-09-0260-I-1

Issuance Date: September 3, 2009

Appeal Type: Suitability

Miscellaneous Agency Actions
- Suitability
Jurisdiction - “Employee”

The appellant petitioned for review of the initial decision sustaining her removal and other actions taken pursuant to a suitability decision by OPM.

Holdings: This case involves the same issues as in Aguzie, and was remanded to the regional office for further proceedings.

Appellant: Eloy J. Hernandez

Agency: Department of Defense

Decision Number: 2009 MSPB 179

Docket Number: DA-3443-06-0531-M-1

Issuance Date: September 3, 2009

Compliance
- Settlement-Related

This case was before the Board on remand from the U.S. Court of Appeals for the Federal Circuit, 325 F. App’x. 905 (Fed. Cir. 2009), which reversed the Board’s denial of the appellant’s petition for enforcement of a settlement agreement. The court construed the settlement agreement as requiring the agency to enroll the appellant in a priority placement program for 12 months after the effective date of the settlement agreement and held that the agency’s failure to do so constituted a breach of the settlement agreement.

Holdings: In remanding the case to the regional office for further adjudication, the Board found that the agency’s breach was a material one and stated that, on remand, the appellant must be permitted to make an informed choice between rescinding and enforcing the agreement.

Appellant: Robert Chamblin

Agency: Office of Personnel Management

Decision Number: 2009 MSPB 180

Docket Number: NY-0831-08-0315-I-2

Issuance Date: September 3, 2009

Action Type: Retirement/Benefit Matter

Jurisdiction – Life and Health Insurance Benefits

OPM petitioned for review of an initial decision that reversed its reconsideration decision and ordered it to correct “errors and irregularities” relating to deductions it made from the appellant’s lump-sum annuity payment. OPM admitted that its calculation of lump-sum benefits t included deductions for federal life and health insurance programs. The appellant claimed that he did not validly elect either type of insurance and that OPM’s calculation was therefore incorrect. The AJ concluded that the Board had jurisdiction over the appeal and, because OPM’s contacts with the appellant regarding his right to enroll in the health and life insurance programs were “fraught with irregularities,” OPM’s calculation of the lump-sum payment must be reversed.

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

1. In general, claims concerning the federal employee life and health insurance programs are beyond the Board’s jurisdiction. The Board has consistently reached this result in cases where an appellant has challenged OPM’s determination that the appellant has received an annuity overpayment due to a retroactive election to participate in the federal life or health insurance programs upon receiving an annuity.

2. Although the Board has recognized several exceptions to this general rule, the appellant’s circumstances are more like those in cases where the general rule has been applied than to those in which an exception has been found.

Appellant: Robert M. McCoy

Agency: United States Postal Service

Decision Number: 2009 MSPB 181

Docket Number: PH-0353-07-0455-I-3

Issuance Date: September 3, 2009

Appeal Type: Restoration to Duty

Timeliness – PFR

The appellant petitioned for review of an initial decision that dismissed his appeal as withdrawn due to settlement. The settlement specifically provided that the appellant had reviewed and understood the agreement, had discussed the agreement with his attorney, and had voluntarily accepted the agreement as resolving all his claims. In a petition for review filed approximately 6 months after the deadline for timely filing, the appellant stated that his attorney had no authority to settle the case and he knew nothing about the settlement because he was incarcerated while it was being negotiated. He said he did not learn about the initial decision until he was released from jail, and that he spent the next several months searching in vain for counsel before he finally filed a PFR on his own.

Holdings: The Board dismissed the PFR as untimely filed without a showing of good cause for the delay, and also denied the motion to reopen the case. Even assuming that the appellant’s discovery of his attorney’s alleged misconduct constitutes new evidence that would justify good cause for late filing, his additional months-long delay in filing could not be excused.

Appellant: Barry D. Inman

Agency: Department of Veterans Affair

Decision Number: 2009 MSPB 182

Docket Number: DE-1221-09-0158-W-1

Issuance Date: September 8, 2009

Appeal Type: Individual Right of Action (IRA)

Whistleblower Protection Act
- Jurisdiction
- Contributing Factor

The appellant petitioned for review of an initial decision that dismissed his IRA appeal for lack of jurisdiction. The appellant claimed that his reassignment was taken in retaliation for protected disclosures. Based on the written record, the AJ found that the appellant had exhausted procedures before the Office of Special Counsel, and that he had made a nonfrivolous allegation that he had made protected whistleblowing disclosures. The AJ further found, however, that the appellant failed to make a nonfrivolous allegation that his protected disclosure was a contributing factor in his reassignment.

Holdings: The Board reversed the initial decision and remanded the appeal to the regional office for adjudication on the merits:

1. In determining whether an appellant has made a nonfrivolous allegation of jurisdiction entitling him to a hearing, an AJ may consider the agency’s documentary submission; however, to the extent that the agency’s evidence constitutes mere factual contradiction of the appellant’s otherwise adequate prima facie showing of jurisdiction, the AJ may not weigh evidence and resolve conflicting assertions.

2. Here, the appellant made a nonfrivolous allegation that his protected disclosure was a contributing factor in his reassignment under the statutory knowledge/timing test, and the AJ erred in considering the agency’s submissions to rebut that nonfrivolous allegation. Accordingly, the appellant is entitled to a hearing and decision on the merits.

Appellant: Carmen Bettis

Agency: Department of Labor

Decision Number: 2009 MSPB 183

Docket Number: CB-7121-09-0016-V-1

Issuance Date: September 9, 2009

Action Type: Arbitration

Jurisdiction
- Arbitration/CBA-Related Issues

The appellant requested review of an arbitrator’s decision that denied her grievance in part and remanded her grievance in part. The appellant grieved her removal on attendance-related charges. The arbitrator issued a decision finding that, although the appellant’s behavior authorized the agency to charge her with AWOL, remand was appropriate in order for the agency to consider all of the relevant penalty factors under Douglas. The arbitrator rejected the appellant’s claim of disability discrimination, finding that she did not show she was “disabled” with the meaning of the Rehabilitation Act or that her alleged disability prevented her from complying with the agency’s directions.

Holdings: The Board dismissed the appellant’s request for review for lack of jurisdiction:

1. One of the requirements for jurisdiction under 5 U.S.C.  7121(d) is that the arbitrator have issued a final decision.

2. Here, there has not been a final decision because the arbitrator remanded an issue for further action by the agency, specifically “retain[ing] jurisdiction over this matter for purposes of clarifying any aspect of this Decision and/or reconsidering the Agency’s decision, if necessary.”

Appellant: Carolyn G. Davis

Agency: Office of Personnel Management

Decision Number: 2009 MSPB 184

Docket Number: DC-831M-07-0811-X-1

Issuance Date: September 9, 2009

Appeal Type: CSRA - Overpayment of Annuity

Compliance – Dismissal on Proof

In a previous decision, 111 M.S.P.R. 544 (June 25, 2009), the Board ordered OPM to pay the appellant $2,646 in reimbursement for its $780 offset for a previously undisclosed debt and $1,866 withheld in federal income tax.

Holdings: OPM has provided evidence that it has taken the action ordered by the Board, and the appellant does not dispute OPM’s evidence. Accordingly, the Board found that OPM is in compliance with its final order and dismissed the petition for enforcement.