United States Merit Systems Protection Board

Case Report for January 8, 2010


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: Stella Crumpler

Agency: Department of Defense

Decision Number: 2009 MSPB 233

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

Issuance Date: December 18, 2009

Appeal Type: Adverse Action by Agency

Action Type: Removal

Adverse Action Charges
- Security Clearance/Sensitive Position Determinations
Board Procedures/Authorities
- Reopening and Reconsideration

In a previously issued Opinion and Order, 112 M.S.P.R. 636, 2009 MSPB 224 (Nov. 2, 2009), then-Vice Chairman Rose and then-Chairman McPhie ruled that the Supreme Court’s decision in Department of the Navy v. Egan, 484 U.S. 518 (1988), precluded the Board from reviewing the reasons underlying an agency’s determination to deny continued eligibility for employment in a non-critical sensitive position. A month later, the appellant filed a request for reopening of her appeal and reconsideration of the decision in her case.

Holdings: The Board exercised its authority under 5 U.S.C.  7701(e)(1)(B) to reopen the appeal and vacate the November 2, 2009 decision:

1. In deciding whether to exercise its discretionary authority, the Board balances the desirability of finality with the public interest in achieving the right result. This discretionary authority will be exercised only in “unusual or extraordinary” circumstances.

2. The Board’s November 2 decision marked a momentous change in the law with potentially far-reaching implications across the federal civil service.

3. The Office of Personnel Management (OPM) was not a party to the case and did not otherwise explain its view. Considering that government-wide rules promulgated by OPM lie at the heart of this case, 5 C.F.R. Part 732, orderly administration of the federal civil service system demands that OPM, as well as other interested parties as amici, have the opportunity to express their views before a groundbreaking decision is issued.

Appellant: Joseph S. Murray

Agency: National Aeronautics and Space Administration

Decision Number: 2009 MSPB 232

Docket Number: DC-4324-09-0240-I-1

Issuance Date: December 18, 2009

Appeal Type: Uniformed Services Employment and Reemployment Rights Act (USERRA)

USERRA/VEOA/Veterans’ Rights

The appellant petitioned for review of an initial decision that denied his request for relief under the Uniformed Services Employment and Reemployment Rights Act (USERRA). The appellant alleged that the agency denied him a benefit of employment in the form of annual leave when it did not use his military service to establish his initial civil service leave accrual rate. The administrative judge (AJ) determined that the appellant’s entitlement was governed by the predecessor to USERRA, the Vietnam Era Veterans’ Reemployment Rights Act (VRRA). The AJ found that the appellant failed to state a claim for relief for the period between September 26, 1983, when he was appointed to his civilian position, and November 1, 1983, when he retired from the Air Force and became a member of the Retired Reserve, because VRRA only applied to members of a reserve component of the armed forces. The AJ further found that, even assuming that the appellant could bring a VRRA or USERRA claim for the period beginning November 1, 1983, he still failed to establish his entitlement to relief because 5 U.S.C.  6303(a) generally prohibits retired military members from receiving credit for military service for purposes of calculating annual leave while entitled to military retirement pay, and the exceptions set forth in the statute to that general rules were not met.

Holdings: The Board affirmed the initial decision as modified, still denying the appellant’s request for relief.

Appellant: Asaad E. Abdullah

Agency: Department of the Treasury

Decision Number: 2009 MSPB 234

Docket Number: AT-315H-09-0446-I-1

Issuance Date: December 23, 2009

Action Type: Probationary Termination

Jurisdiction
- “Employee”
- Probationers

The appellant petitioned for review of an initial decision that dismissed his appeal of the termination of his employment for lack of jurisdiction. The appellant was appointed to GS-5 position in the competitive service in March 2008, with the SF‑50 indicating that he appointment was subject to a 1-year probationary period. The agency terminated his employment during this 1-year period. On appeal, the AJ advised the appellant that probationary employees are excluded from the definition of “employee” in 5 U.S.C.  7511(a)(1)(A), and that, under 5 C.F.R.  315.806, probationers terminated for post-termination reasons may appeal if they make a good faith allegation their termination was based on partisan political reasons or marital status, and that probationers terminated for pre-appointment reasons may appeal on the grounds that the agency failed to comply with required procedures. In response, the appellant alleged that he completed his probationary period based on his prior federal service and that his termination was inconsistent with 5 C.F.R.  315.801. The agency contended that the appellant’s prior federal service was inapplicable to his 1‑year probationary period pursuant to 5 C.F.R.  315.802.

The AJ dismissed the appeal for lack of jurisdiction, finding that the appellant had no statutory appeal because he had not completed his required 1-year probationary period, and had not made the necessary jurisdictional allegations under 5 C.F.R.  315.805-806.

Holdings: Although the Board denied the PFR, it reopened the appeal on its own motion, vacated the initial decision, and remanded the appeal for further adjudication:

1. The Board reopened the appeal to consider an issue that was not addressed below, namely, whether the appellant qualifies as an “employee” under 5 U.S.C.  7511(a)(1)(A)(i) because he was not serving a probationary or trial period under an initial employment.

2. Under 5 C.F.R.  315.801(a)(1), the first year of service of an employee who is given a career or career-conditional appointment is a probationary period when the employee was appointed from a competitive list of eligibles pursuant to 5 C.F.R.  315.301. Under certain limited circumstances, not present here, the employee’s prior federal service may count toward the completion of the probationary period.

3. Nevertheless, if the appellant’s appointment constituted a reinstatement under Subpart D of Part 315, and met the criteria of 5 C.F.R.  315.801(a)(2), then he would be an “employee” with adverse action appeal rights under 5 U.S.C.  7511(a)(1)(A)(i) when the agency terminated his appointment.

4. Because the record has not been sufficiently developed to determine whether the appellant’s appointment was a reinstatement as described above, a remand to the regional office is necessary.

Appellant: Raymond H. Ryan

Agency: Department of the Air Force

Decision Number: 2009 MSPB 235

Docket Number: DA-1221-09-0045-W-1

Issuance Date: December 28, 2009

Appeal Type: Individual Right of Action (IRA)

Board Procedures – Discovery
Defenses – Collateral Estoppel/Res Judicata
Whistleblower Protection Act
- Clear and Convincing Evidence

The appellant petitioned for review of an initial decision that denied his request for corrective action under the Whistleblower Protection Act (WPA). During the course of adjudication in the regional office, the appellant filed two discovery requests and motions to compel with respect to both of them. During a telephonic status conference, the AJ informed the parties that the appellant’s “motion to compel” was denied, but did not specify which motion to compel he was denying. In the initial decision, the AJ found that the appellant established that the agency took personnel actions against him, and assumed arguendo that the appellant showed that he made protected disclosures and that his disclosures were a contributing factor in the agency’s personnel actions. The AJ found, however, that the agency established by clear and convincing evidence that it would have taken some of the same personnel actions in the absence of the protected disclosures, and that claims regarding the remaining personnel actions were barred by res judicata.

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

1. The AJ erred in finding that 2 of the appellant’s claims were barred by res judicata.

a. The AJ found that the appellant’s claims of retaliation regarding an involuntary placement on leave without pay, and a particular denial of a request for sick leave, were barred by res judicata.

b. Res judicata (claim preclusion) precludes parties from relitigating issues that were, or could have been, raised in a prior action, if the prior judgment was rendered by a forum with competent jurisdiction, the prior judgment was on the merits, and the same cause of action and the same parties were involved in both cases.

c. At issue in the previous MSPB appeal was the appellant’s removal. Because the propriety of the 2 personnel actions in question here were not, and could not have been, raised in the removal appeal, those claims were not barred by res judicata.

2. On remand, the AJ should determine whether the agency removed 3 suspensions from the appellant’s record, as the initial decision indicated it had agreed to do.

3. The AJ should reconsider the appellant’s motions to compel discovery.

a. The AJ erred in denying the appellant’s motions to compel discovery in their entirety. At least some of the appellant’s discovery requests clearly meet the standard of seeking “information that appears reasonably calculated to lead to the discovery of admissible evidence.”

b. On remand, the AJ shall give both parties an opportunity to address the relevance of the appellant’s discovery requests. To the extent the agency believes that a request is overly broad, it should comply with the request to the maximum extent possible and explain why it should not be required to respond more fully. The AJ shall then determine whether the agency has properly responded to each of the requests.

c. After the completion of discovery, the AJ shall afford the appellant an opportunity to submit admissible, discovered evidence into the record. The AJ shall also afford the appellant a hearing, if requested.

Appellant: Stephen W. Gingery

Agency: Department of the Treasury

Decision Number: 2009 MSPB 236

Docket Number: CH-3330-09-0303-I-1

Issuance Date: December 28, 2009

Appeal Type: Veterans Employment Opportunities Act

USERRA/VEOA/Veterans’ Rights
Jurisdiction

The appellant petitioned for review of an initial decision that denied his request for corrective action under Veterans Employment Opportunities Act (VEOA). The appellant filed a complaint with the Department of Labor (DOL) regarding his application for an Internal Revenue Agent position under a particular vacancy announcement (5T11). After the DOL notified him that it had been unable to resolve his complaint, he filed an appeal with the Board. During the course of the regional office proceeding, evidence was adduced concerning two other vacancy announcements for Internal Revenue Agents, a merit promotion vacancy in which no outside applicants were solicited, and one that was filled through the Federal Career Intern Program (FCIP). With respect to the first vacancy announcement (5T11), the AJ found that the appellant could not demonstrate that his veterans’ preference rights had been infringed because no final rating had yet been issued and no certificate of eligibles had yet been referred. With respect to the merit promotion vacancy, the AJ found that the appellant’s veterans’ preference rights had not been violated, because such rights apply only where an agency accepts applications from individuals outside of its workforce. With respect to the FCIP vacancy, the AJ found that, in light of the undisputed evidence that the appellant never applied for the position under the FCIP, he did not have to reach the question of whether the selection had otherwise violated the appellant’s veterans’ preference rights.

Holdings: The Board affirmed the initial decision as modified with regard to the 5T11 vacancy, still denying the appellant’s request for corrective action, and dismissing the appellant’s claims with respect to the other two vacancy announcements for lack of jurisdiction:

1. The Board found that the appellant’s PFR had failed to meet the criteria for review in 5 C.F.R.  1201.115, and affirmed the initial decision with respect to the 5T11 vacancy.

2. The Board dismissed the appellant’s claims with respect to the other 2 vacancies, because the appellant had not satisfied the jurisdictional requirement of exhausting his DOL remedy.

Appellant: Carolyn A. Miller

Agency: Department of the Army

Decision Number: 2009 MSPB 237

Docket Numbers: AT-0752-05-0990-X-2; AT-0752-05-0990-C-2

Issuance Date: December 29, 2009

Appeal Type: Adverse Action by Agency

Action Type: Removal

Compliance
Timeliness – PFR

At issue were two matters: the AJ’s Recommendation finding that the agency was in partial noncompliance with its obligations under a final Board order; and the appellant’s PFR of the initial decision that dismissed her prior petition for enforcement as settled.

Holdings:

1. With regard to the compliance matter, the Board found that the agency was now in compliance with all of its obligations and therefore dismissed the petition for enforcement.

2. To the extent that the appellant was asserting that the settlement agreement was involuntary, the Board dismissed her petition as untimely filed without good cause shown for the delay.

Appellant: Caulton D. Allen

Agency: Department of Veterans Affairs

Decision Number: 2009 MSPB 238

Docket Number: DC-0752-07-0694-C-3

Issuance Date: December 29, 2009

Appeal Type: Adverse Action by Agency

Action Type: Removal

Compliance – Settlement-Related

The appellant petitioned for review of a compliance initial decision that denied his petition for enforcement of a settlement agreement. Under the settlement agreement of the underlying removal appeal, the appellant agreed to resign and the agency agreed, among other things, to remove all information related to the appellant’s removal from his Official Personnel File (OPF). The agreement also provided that, if the Human Resources Officer was contacted for any employment inquiry, she would “truthfully respond regarding those matters required by law.” Following the settlement agreement and dismissal of the removal appeal, the appellant resigned and applied for disability retirement. A week after that application was approved by OPM, the appellant filed a workers’ compensation claim with the Office of Workers’ Compensation Programs (OWCP). OWCP sent the agency a letter requesting specific information, including the agency’s position on the appellant’s allegations and whether the appellant had any performance or conduct problems. The Human Resources Officer provided a narrative response and enclosed documents regarding the appellant’s disciplinary history, which included copies of the proposal and decision notices from the rescinded removal action. The appellant filed a petition for enforcement, which the AJ denied, finding that the appellant failed to prove that the agency breached the agreement, and that even if the agency did breach it, the breach was not material.

Holdings: The Board affirmed the initial decision as modified, still denying the petition for enforcement:

1. The agency established that it expunged all removal-related documents from the appellant’s OPM as required by the settlement agreement.

2. The agency was not required to expunge documents from agency-maintained files other than the appellant’s OPF.

3. The agency did not breach the settlement agreement in disclosing removal-related information to OWCP.

a. Under Conant v. Office of Personnel Management, 255 F.3d 1371 (Fed. Cir. 2001), the general rule is that an agency materially breaches a clean record settlement if it discloses information regarding the rescinded adverse action to any third party.

b. The presence of other pertinent contract language can create an exception to the general rule. Here, the agreement expressly provides that the agency’s Human Resources Officer “will truthfully respond regarding those matters required by law” if contacted for any employment inquiry or reference. This provision may reasonably be interpreted as permitting disclosure of removal-related information to a third party as required by law.

c. The parties did not intend to preclude disclosure of removal-related information to OWCP, and the agency was required by law to truthfully respond to OWCP’s request for information regarding the appellant’s performance and conduct issues.

Appellant: Linda D. Hurston

Agency: Department of the Army

Decision Number: 2010 MSPB 1

Docket Number: AT-315H-09-0847-I-1

Issuance Date: January 6, 2010

Action Type: Probationary Termination

Jurisdiction
- “Employee”
- Probationers

The appellant petitioned for review of an initial decision that dismissed her probationary termination appeal for lack of jurisdiction. The agency terminated the appellant’s appointment to a career-conditional competitive service position during her first year of employment, citing post-appointment conduct. On appeal to the Board, the AJ issued the appellant an order apprising her of the limited appeal rights afforded to probationary employees under 5 C.F.R.  315.801, .805, and .806. Although he ordered the appellant to file evidence and argument to establish why her appeal should not be dismissed for lack of jurisdiction, the appellant did not respond. Without holding the requested hearing, the AJ issued an initial decision dismissing the appeal for lack of jurisdiction.

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

1. The AJ failed to provide the appellant with explicit information regarding the jurisdictional standard to show that she qualifies as an “employee” with appeal rights under 5 U.S.C. Chapter 75. Neither the agency’s motion to dismiss nor the initial decision corrected this error.

2. Because the appellant has submitted evidence on PFR concerning her previous federal service, the case need not be remanded.

3. The Board has no jurisdiction over the appellant’s termination during her probationary period.

a. The AJ correctly found that the appellant failed to establish jurisdiction as a probationer under 5 C.F.R. Part 315.

b. An appellant who has not served a full year can show that she has completed the probationary period by tacking on prior service if the prior service was rendered immediately preceding the probationary appointment, it was performed in the same agency and line of work, and was completed with no more than 1 break of service of less than 30 days. Although the appellant had more than 2 years of previous service with the agency, it cannot be tacked to the probationary service because the break in service was longer than 30 days.

c. Alternately, an employee can show that, while she may be a probationer, she is an “employee” with Chapter 75 appeal rights because immediately preceding the adverse action, she had completed at least 1 year of current continuous service in the competitive service. The appellant did not meet this criterion, as her employment was terminated during the first year of current continuous service.

COURT DECISIONS

Petitioner: William Armstrong

Respondent: Department of the Treasury

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

Docket Number: 2009-3155 (reviewing MSPB Docket Nos. DC-0752-08-0188-C-1; DC-0752-08-0188-I-1)

Issuance Date: January 4, 2010

Timeliness – PFR
Compliance

The petitioner filed an untimely petition for review with the Board seeking review of the AJ’s decision dismissing his case under a settlement agreement. In a published decision, 110 M.S.P.R. 533 (2009), the Board declined to decide the petitioner’s PFR, finding that, because his new evidence of fraud in the procurement of the agreement was insufficient to render the agreement invalid, it would not excuse the untimeliness of his PFR. The Board also held that the petitioner abandoned any appeal from the AJ’s separate decision that the employing agency had not breached the settlement agreement.

Holdings: The court affirmed the Board’s decision in part, vacated it in part, and remanded the case to the MSPB for further proceedings.

1. Because the MSPB improperly conflated the issue of timeliness with the ultimate decision on the merits of the petitioner’s claim, the court vacated the Board’s decision on the PFR, and remanded for further proceedings to determine whether the MSPB should waive its timeliness requirement to permit the petitioner’s case to be decided on the merits.

2. The court agreed with the MSPB that the petitioner abandoned the compliance matter, and affirmed its decision in that respect.

Petitioner: Rosemary O. Slattery

Respondent: Department of Justice

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

Docket Number: 2009-3095 (reviewing MSPB Docket No. AT-0752-01-0756-C-1)

Issuance Date: January 6, 2009

Compliance – Settlement-Related

The petitioner sought review of an MSPB decision that the agency’s non-selection of her for any of the law enforcement positions for which she applied was not a violation of the Negotiated Settlement and Last Chance Agreement (NSLCA) which resolved an MSPB appeal. After the petitioner pleaded nolo contendere to a criminal offense, the agency first suspended and then removed her from her position as a supervisory immigration officer. During her appeal of that action, the parties entered into the NSLCA, under which the agency agreed to reinstate her to a non-law enforcement position and barred her from applying for any law enforcement position within the agency for one year. After the 1-year bar expired, she applied for 24 law enforcement positions but was not selected for any of them. She filed a petition for enforcement arguing that the agency breached the NSCLA by failing to give her applications “good faith” consideration, as required by the NSCLA. She argued that she possessed superior qualifications for at least some of the positions and, therefore, the agency must have held her past criminal conduct against her. The Board ruled that the agency did not breach the NSCLA.

Holdings: A majority of the court panel affirmed the Board’s decision:

1. Although the Board does not generally have jurisdiction over non-selections, it did have jurisdiction to resolve whether the NSCLA agreement was executed in good faith by the agency.

2. The NSCLA does not require the agency to ignore the petitioner’s history, and “good faith” does not require pretending that this history does not exist. If it had been intended that knowledge of her past conduct could have no role in evaluating her applications for law enforcement positions after 1 year, the NSCLA reasonably would have included such a critical provision.

Chief Judge Michel issued a dissenting opinion stating that the Board’s decision found “as a matter of law” that the agency “could not have breached” the NSCLA. He stated that, “Because the MSPB’s interpretation of the NSCLA would render superfluous and meaningless the one-year ban on Ms. Slattery’s applying for law enforcement positions with the Agency and would nullify the good-faith clause, I would reverse and remand for fact-finding in light of the correct construction of the agreement.”

Petitioner: Ismael Delgado

Respondent: Office of Personnel Management

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

Docket Number: 2009-3254 (reviewing MSPB Docket No. AT-831M-08-0855-I-1)

Issuance Date: January 6, 2010

Retirement
- Restoration to Earning Capacity

The petitioner sought review of the Board’s decision, 112 M.S.P.R. 46 (2009), which affirmed OPM’s action terminating his disability retirement on the basis that he was restored to earning capacity. The dispositive issue was whether the petitioner’s receipt of $46,538 – resulting from litigation following an unwarranted indefinite suspension taken against him by his former employer – should have been included as income from wages in determining whether he had been restored to earning capacity. The Board resolved this issue in the affirmative.

Holdings: The court vacated the Board’s decision and remanded the case for further consideration. Although the court agreed that the petitioner’s award of back pay constitutes income under the provisions of 5 C.F.R.  831.1209, it vacated the Board’s decision for a determination whether the award of back pay constitutes income in the year awarded or the year(s) it would have been earned but for the petitioner’s unwarranted suspension for the purposes of determining earning capacity pursuant to 5 U.S.C.  8337(d).

Petitioner: Larry Dow

Respondent: General Services Administration

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

Docket Number: 2008-3352 (reviewing MSPB Docket Nos. SF-3443-07-0415-I-2 and SF-300A-07-0502-I-2)

Issuance Date: January 6, 2010

Mootness
Jurisdiction – Employment Practices

The petitioner sought review of the MSPB initial decision, which became the Board’s final decision, that dismissed for lack of jurisdiction the agency’s refusal to hire him. The agency issued 2 separate announcements for the Position of Chief People Officer Intern, one limited to candidates qualified under the Outstanding Scholar Program, and one open to all qualified applicants. Dow was the highest ranked candidate on the list of those eligible for appointment under the second announcement. The agency did not hire Dow and cancelled the second vacancy announcement, under which it had not hired anyone. Prior to rejecting Dow, the agency hired 3 people under the Outstanding Scholar announcement. Dow filed two appeals with the MSPB. In one (the employment practices appeal), he alleged a violation of OPM’s regulation at 5 C.F.R.  300.101. The AJ dismissed this appeal for lack of jurisdiction. In the other appeal, Dow alleged that the agency’s refusal to hire him violated his veterans’ preference rights under the VEOA. The AJ found a VEOA violation and ordered the agency to reconstruct its hiring process. On appeal to the court, the government filed a motion to vacate the Board’s decision and to remand the case to the Board to determine whether the case is moot on the ground that Dow has already been given all remedies available for a Part 300 violation.

Holdings: The court denied the government’s motion to vacate and remand the appeal, but affirmed the Board’s decision dismissing the appeal for lack of jurisdiction.

1. The court denied the Government’s motion to dismiss the case as moot, stating that “[t]here continues to be a live controversy between the parties whether the Administration’s treatment of Dow violated Part 300 and, if it did, what relief Dow should obtain.”

2. The court held that the AJ properly dismissed the employment practices appeal for lack of jurisdiction.

a. For there to be Board jurisdiction under 5 C.F.R.  300.104(a), there must have been an “employment practice” and that “practice” must have been “applied to” the applicant by OPM. There is no dispute that the use of the Outstanding Scholar Program was an employment practice which was applied by OPM.

b. Notwithstanding the above, it is also necessary that the challenged employment practice have been applied to the applicant as the basis for the adverse hiring decision. Here, the Outstanding Scholar Program must have been the reason that led the agency to deny Dow the position he sought.

c. The record shows that the agency’s reason for not hiring Dow had nothing to do with the Outstanding Scholar Program, but was based on the agency’s conclusion that he was not suitable for the position he sought.