United States Merit Systems Protection Board

Case Report for November 6, 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: Jose W. Linares-Rosado

Agency: United States Postal Service

Decision Number: 2009 MSPB 219

Docket Numbers: NY-3443-08-0345-I-1
       NY-3330-08-0346-I-1
       NY-4324-08-0348-I-1

Issuance Date: October 29, 2009

Timeliness – PFR
Settlement - Validity

The appellant petitioned for review of 3 initial decisions dismissing his appeals as settled. The agency made a tentative determination that the appellant was not qualified for a position as a City Carrier because of a medical or physical condition, and OPM rendered a final determination pursuant to 5 U.S.C.  3312(b) finding that the appellant’s medical condition presented an unacceptable safety and health risk. The appellant, a preference-eligible veteran, challenged the agency’s failure to employ him and its supposed negative suitability determination. The agency submitted a handwritten settlement agreement which resolved “the pending MSPB appeal.” The administrative judge (AJ) dismissed the appeals as withdrawn based upon the settlement agreement. Even before the appeal was dismissed, the appellant began disputing various aspects of the settlement, but his pleadings were rejected as untimely by the AJ. In June 2009, more than 8 months after the issuance of the initial decisions, the parties agreed to revoke the settlement agreement, consider it void in its entirety, and recommence the EEO process previously terminated by the settlement agreement. The petition for review was filed more than 7 months after the deadline for timely filing.

Holdings: The Board vacated the initial decisions and remanded the appeals for further proceedings:

1. The Board found that the appellant established good cause for the late filing of his petition for review (PFR).

a. In cases such as this, the question of good cause and the underlying issue of the validity of the settlement agreement overlap.

b. The appellant sent a letter to the agency disputing provisions of the purported settlement agreement the day before the agency filed the agreement with the AJ. This contemporaneous document casts doubt on the existence of a settlement agreement because it suggests that there was no meeting of the minds.

c. The parties’ subsequent agreement to deem the settlement “void” constitutes new evidence regarding whether a settlement ever existed and good cause for the delay in filing the PFR.

2. The AJ erred in dismissing the appeal as settled without confirming that the case had actually settled, that the parties understood the agreement’s terms, or that the parties had agreed that the settlement would be enforceable by the Board. The AJ also never assessed the facial legality of the agreement, whether the parties had entered into it voluntarily, or whether the appeals were within the Board’s jurisdiction. This is particularly significant given there is some question regarding the Board’s jurisdiction in two of the appeals.

3. When a post-initial decision pleading can be construed as a petition for review seeking to reopen and reinstate an appeal, the proper course is to forward the pleading to the Board. The appellant has represented that his post-decision filings included a motion to reinstate or reopen his appeal and other pleadings that could also fairly be construed as PFRs. The AJ’s post-decision orders addressing these filings are problematic because they may have exceeded the AJ’s authority.

Appellant: Richard Bowen

Agency: Department of the Navy

Decision Number: 2009 MSPB 220

Docket Number: SF-0752-09-0040-I-2

Issuance Date: October 30, 2009

Appeal Type: Adverse Action by Agency

Action Type: Removal

Board Procedures/Authorities
- Adjudicatory Error
Defenses and Miscellaneous Claims
- Family and Medical Leave

The appellant petitioned for review of an initial decision that affirmed the agency’s removal action, which was based on 3 charges: failure to follow instructions; absence without leave; and insubordination. The initial decision found that the agency proved all of its charges and specifications, that the appellant did not prove retaliation for whistleblowing because the agency showed by clear and convincing evidence that it would have taken the same action in the absence of his disclosures, the action promoted the efficiency of the service, and that the removal penalty was reasonable.

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

1. An initial decision must identify and resolve all material issues of fact and law. The initial decision did not address the appellant’s arguments regarding the Family and Medical Leave Act (FMLA), his allegation that he received “double punishment” for the same conduct, and his contention that insubordination charge was improper.

2. The Board addressed each of those arguments and found them without merit.

3. The appellant’s remaining arguments did not meet the criteria for review under 5 C.F.R.  1201.115 and provide no basis for disturbing the initial decision.

Appellant: Orville W. J. Layton

Agency: Department of the Army

Decision Number: 2009 MSPB 221

Docket Number: SF-1221-09-0069-W-1

Issuance Date: October 30, 2009

Appeal Type: Individual Right of Action (IRA)

Whistleblower Protection Act
- Jurisdiction
- Protected Disclosure

The appellant petitioned for review of an initial decision that dismissed his IRA appeal for lack of jurisdiction. The appellant serves as an attorney, specializing in environmental law. There were environmental concerns concerning the agency’s Taku construction project in Alaska. The appellant was assigned to conduct a comprehensive audit of the Taku site selection and waste management practices associated with the construction activities. During the course of the appellant’s investigation and preparation of his report, he met with agency officials to discuss his progress and prepared short information papers. The appellant’s report concluded that there were various errors and wrongdoing associated with the Taku construction.

On appeal to the Board, the agency claimed that, under Huffman v. Office of Personnel Management, 263 F.3d 1341 (Fed. Cir. 2001), any disclosures in the appellant’s report were not protected because he made them while performing in his official capacity and within the scope of his official duties. The appellant argued that his situation was more like that of the special agent in Kahn v. Department of Justice, 528 F.3d 1336 (Fed. Cir. 2008), in which the court held that the employee had raised a nonfrivolous allegation of jurisdiction because there was a genuine issue of material fact whether the employee’s disclosures were part of his normal duties. Without conducting a hearing, the AJ dismissed the appeal for lack of jurisdiction on the basis that the investigation and report on the Taku project were part of the appellant’s normal duties.

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

1. In Huffman, the court described 3 categories into which a disclosure might fall, with only the latter 2 protected under the WPA: (1) disclosures made as part of normal duties through normal channels; (2) disclosures as part of normal duties outside of normal channels; and (3) disclosures outside of normal duties.

2. It is undisputed that the agency assigned the appellant with the duty to investigate and report on the Taku construction project. Under a plain reading of Huffman, any disclosures made while performing this assigned duty fall into the first category – disclosures made as part of normal duties through normal channels – and would therefore not be protected.

Appellant: Lillie M. Coley

Agency: Department of Transportation

Decision Number: 2009 MSPB 222

Docket Number: PH-0752-08-0095-I-1

Issuance Date: November 2, 2009

Appeal Type: Adverse Action by Agency

Action Type: Removal

Jurisdiction
- Discrimination Complaints/Mixed Cases

The appellant requested review of a July 2008 initial decision that affirmed her removal. The initial decision informed the appellant of her various options for seeking review, which included review by the EEOC as her appeal contained claims of unlawful discrimination and retaliation for protected EEO activity. The appellant sought review with the EEOC, which issued a decision concurring with the Board’s decision. The appellant then filed a civil action in U.S. District Court, and the case in that court is still pending. The appellant thereafter filed a document with the Board requesting review of the July 2008 initial decision.

Holding: The Board dismissed the attempted petition for review for lack of jurisdiction, finding that this case is governed by Williams v. U.S. Postal Service, 967 F.2d 577 (Fed. Cir. 1992), in which, under very similar circumstances, the court ruled that the Board “simply lacked jurisdiction to reopen a final and fully adjudicated decision.”

Appellant: Ramona Williams

Agency: Department of Health and Human Services

Decision Number: 2009 MSPB 223

Docket Number: DC-0752-09-0478-I-1
      DC-0432-09-0477-R-1

Issuance Date: November 2, 2009

Appeal Type: Adverse Action by Agency

Action Type: Constructive Adverse Action

Jurisdiction - Retirement
Res Judicata

The appellant petitioned for review of an initial decision that dismissed her claim of an involuntary retirement. On September 24, 2007, the agency issued a decision to remove the appellant from her position as a Social Worker. The appellant retired on the effective date. She then filed a timely appeal of her removal, which was resolved by a settlement agreement under which the agency agreed to make certain payments to the appellant in consideration for withdrawal of her pending Board and equal employment opportunity claims. The AJ dismissed the appeal as settled and entered the agreement into the record for enforcement purposes.

More than a year later, the appellant filed a new appeal form, which she characterized as a “request for appeal of a removal,” and that that the date of the action was September 25, 2007, the effective date of her retirement. In addition to checking a box on the appeal form indicating that she was appealing a removal action, she also checked the box indicating that she was appealing an involuntary retirement. The case was docketed as two separate appeals, a removal appeal and a claim of an involuntary retirement. The agency moved to dismiss both appeals for lack of jurisdiction based on the waiver provision of the settlement agreement or, in the alternative, res judicata or laches. The AJ dismissed both appeals for lack of jurisdiction. In the involuntary retirement appeal, the basis for dismissal was that the appellant failed to make a nonfrivolous allegation that her retirement was coerced. The removal claim was dismissed on the basis of res judicata.

Holdings: The Board joined the involuntary retirement appeal with the removal appeal, vacated both initial decisions and dismissed the joined appeal for lack of jurisdiction:

1. The AJ erred in adjudicating the appellant’s involuntary retirement claim. Under 5 U.S.C.  7701(j), when an employee retires on the date a removal action was to become effective, the employee does not on that account lose the right to file a Board appeal contesting the decided removal, and in such a case, the Board will not address whether the appellant’s retirement was involuntary. It was thus error for the AJ to adjudicate the appellant’s involuntary retirement claim as a matter distinct from her removal.

2. Although neither party petitioned for review of the removal initial decision, the error in the involuntary retirement appeal cannot be addressed without reopening the removal appeal.

3. The doctrine of res judicata does not apply to the removal appeal because that doctrine only applies when the merits of an agency action are examined. In the original removal appeal, the merits were not examined, as that appeal was dismissed on the basis of a settlement agreement.

4. The current removal appeal must be dismissed for lack of jurisdiction, based on the waiver provision of the settlement agreement.

Appellant: Stella Crumpler

Agency: Department of Defense

Decision Number: 2009 MSPB 224

Docket Number: DC-0752-09-0033-I-1

Issuance Date: November 2, 2009

Appeal Type: Adverse Action by Agency

Action Type: Removal

Adverse Action Charges
- Security Clearance/Sensitive Position Determinations

The appellant petitioned for review of an initial decision that sustained her removal. As a GS-4 Store Associate at an Air Force Base Commissary, the appellant occupied a position that was designated non-critical sensitive by the agency pursuant to 5 C.F.R.  732.201(a). After issuing the appellant a Letter of Denial advising the appellant that her eligibility for occupancy of a sensitive position had been denied, the agency removed her based on the “[r]evocation/denial of [her] Department of Defense eligibility to access classified information and/or occupy a sensitive position.” On appeal to the Board, the issue was whether the case was governed by the standards set forth in Department of the Navy v. Egan, 484 U.S. 518, 530‑31 (1988), which held that, when a removal is based on the denial or revocation of a security clearance, the Board does not have authority to review the substance of the underlying security clearance determination. The AJ ruled that Egan did apply, and that the only issues before the Board were: (1) whether the appellant’s position required eligibility to occupy a sensitive position; (2) whether her eligibility was denied; (3) whether the agency was required by regulation to reassign her to a non-sensitive position; and (4) whether the agency followed the procedural requirements of 5 U.S.C.  7513 in processing her removal. The AJ resolved all but the third of these issues in the affirmative and sustained the appellant’s removal.

Holding: The Board held that the Egan standard applies to this case, finding that “no meaningful distinction warrants treating the determination that the appellant is ineligible to occupy a sensitive position any differently from a determination denying or revoking an employee’s security clearance.”

Vice Chairman Rose issued a separate, concurring opinion acknowledging that she had changed her position since issuing a separate opinion in Brown v. Department of Defense, 110 M.S.P.R. 593,600-05 (2009), stating that “no Board member should tie her own hands with a rigid rule that a view, once expressed, cannot be reexamined.”

Appellant: Kevin M. Colleran

Agency: United States Postal Service

Decision Number: 2009 MSPB 225

Docket Number: SF-0752-09-0285-I-1

Issuance Date: November 3, 2009

Appeal Type: Adverse Action by Agency

Action Type: Constructive Adverse Action

Jurisdiction – Burgess Notice

The appellant petitioned for review of an initial decision that dismissed his appeal of a variety of agency actions. In 2001, the appellant was a Supervisor of Maintenance Operations. After the agency placed him on enforced leave in July 2001, the appellant applied for disability retirement, which was granted and became effective in November 2001. A July 2001 appeal to the Board of the constructive suspension was resolved by settlement agreement. In November 2001, the appellant filed a second Board appeal alleging 3 new claims: a furlough of 30 days or less, sex discrimination, and exclusion from economic value added (EVA) payments. In an initial decision issued in 2002 that became the Board’s final decision, the AJ dismissed the appeal for lack of jurisdiction. In 2009, the appellant filed the present appeal in which he sought review of the matters resolved in the first two appeals, plus several other matters. The AJ dismissed the appeal in its entirety for lack of jurisdiction, finding that the appellant waived his right to appeal the 2001 alleged constructive suspension in a settlement agreement, and that the appellant’s claims of furlough, exclusion from EVA payments, and FMLA violations were barred by the doctrine of collateral estoppel, because he raised identical claims in his second appeal.

Holdings:

1. The Board affirmed the initial decision insofar as it dismissed the appellant’s claims of constructive suspension, furlough of 30 days or less, and exclusion from EVA payments.

2. The Board remanded the appeal with respect to the appellant’s alleged involuntary disability retirement and restoration claims, because the AJ failed to inform the appellant of the jurisdictional requirements for these claims, as required by Burgess v. Merit Systems Protection Board, 758 F.2d 641 (Fed. Cir. 1985).

3. The AJ failed to provide the appellant with Lacy notice upon the appellant’s assertion that his mental incapacity prevented him from timely filing his Board appeal.

COURT DECISIONS

The U.S. Court of Appeals for the Federal Circuit issued nonprecedential decisions in the following cases:

Gibson-Michaels v. Federal Deposit Insurance Corporation, No. 2009-3200 (Nov. 4, 2009) (MSPB Docket No. DC-1221-08-0698-W-1) (affirming the Board’s decision, which dismissed the petitioner’s individual right of action appeal on the basis of collateral estoppel)

Vasquez v. Merit Systems Protection Board, No. 2009-3202 (Nov. 5, 2009) (MSPB Docket No. DA-0831-08-0521-I-1) (affirming the Board’s decision, which dismissed an appeal for failure to prosecute).

Williams v. Merit Systems Protection Board, No. 2009-3110 (Nov. 5, 2009) (MSPB Docket No. PH-0752-08-0427-I-1) (affirming the Board’s decision, which dismissed as settled the petitioner’s appeal of her removal from her position for unacceptable performance).

De Maio v. Office of Personnel Management, No. 2006-3298 (Nov. 5, 2009) (MSPB Docket No. PH-0831-06-0036-I-1) (affirming the Board’s decision, which affirmed OPM’s denial of a request for an additional retirement annuity based upon voluntary contributions to the petitioner’s individual retirement account).