United States Merit Systems Protection Board

Case Report for February 19, 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: Walter Vidal

Agency: Department of Justice

Decision Number: 2010 MSPB 28

Docket Number: AT-4324-09-0438-I-1

Issuance Date: February 5, 2010

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

Mootness

The agency petitioned for review of an initial decision granting the appellant’s request for relief under USERRA. In his appeal, the appellant alleged that the agency violated USERRA by charging him military leave on unspecified non-work days, which caused him to use an unspecified amount of annual leave, sick leave, or leave without pay in order to perform military duty. After requesting and obtaining documentation of the appellant’s claim, the agency agreed to pay the appellant for 4 days it said had been identified by the appellant’s representative as the dates at issue, and stated that it had “initiated action to pay” the appellant for those 4 days. The agency moved to have the appeal dismissed as moot because the appellant “will be obtaining all the relief he could have obtained had he prevailed before the Board.” The administrative judge issued an initial decision granting the appellant’s request for corrective action. He denied the agency’s motion to dismiss the appeal as moot, on the ground that the agency had not submitted evidence that it had actually paid the appellant.

Holdings: The Board denied the agency’s petition for review (PFR), but reopened the appeal on its own motion and dismissed the appeal as moot:

1. The initial decision was correct when issued. For an appeal to be rendered moot, an appellant must receive all of the relief that he could have received if the matter had been adjudicated and he had prevailed. An agency’s expression of its intent to provide such relief is not sufficient to establish that the appeal is moot.

2. The appeal is now moot because the record indicates that the agency has paid the appellant for the 4 dates in question, and the appellant did not respond to an order requiring him to identify any additional dates on which he allegedly was required to take leave.

Appellant: Preston L. Smith

Agency: Office of Personnel Management

Decision Number: 2010 MSPB 29

Docket Number: SF-844E-09-0577-I-1

Issuance Date: February 5, 2010

Appeal Type: FERS - Employee Filed Disability Retirement

Jurisdiction
Mootness

The appellant petitioned for review of an initial decision that dismissed this appeal as moot. The appellant filed an appeal with the Board after OPM issued a final decision denying his application for disability retirement benefits. In a subsequent pleading, OPM moved to dismiss the appeal, informing the administrative judge that it had re-evaluated the appellant’s case and determined that he was entitled to disability retirement benefits, and that it had rescinded the decision under appeal. OPM further stated that, after the appeal was dismissed, the matter would be forwarded to the appropriate office for processing. The administrative judge granted the agency’s motion, determining that the agency’s rescission of its reconsideration decision rendered the appeal moot.

Holdings: The Board denied the appellant’s PFR, reopened the appeal on its own motion, vacated the initial decision, and dismissed the appeal for lack of jurisdiction. Because OPM has completely rescinded its reconsideration decision, the appeal must be dismissed for lack of jurisdiction. The appeal cannot be dismissed as moot, however, because the appellant has not yet received all of the relief he could have received if the matter had been adjudicated and he had prevailed.

Appellant: Vincent E. Dowell

Agency: United States Postal Service

Decision Number: 2010 MSPB 30

Docket Number: AT-0752-09-0626-I-1

Issuance Date: February 5, 2010

Appeal Type: Adverse Action by Agency

Action Type: Removal

Timeliness – PFA
Discrimination – Mixed Case Procedures

The appellant petitioned for review of an initial decision that dismissed his removal appeal as untimely filed without a showing of good cause for the delay. The appellant was removed effective March 21, 2009, and filed his appeal with the Board on May 19, 2009. In his appeal, the appellant stated that he had engaged in unsuccessful mediation of a discrimination complaint on May 14, 2009. In an order on timeliness, the administrative judge informed the appellant of the exception to the 30-day filing requirement of 5 C.F.R.  1201.22(b)(1) for mixed cases under 5 C.F.R.  1201.154(b). Under the latter regulation, an appellant who has filed a formal discrimination complaint with the agency may file an appeal either within 30 days after receipt of a final agency decision on the complaint or after 120 days if no final decision has been issued. The appellant did not respond to the timeliness order, and the administrative judge issued an initial decision dismissing the appeal as untimely filed.

Holdings: The Board denied the appellant’s PFR, reopened the appeal on its own motion, vacated the initial decision, and remanded the appeal to the regional office for further adjudication:

1. The Board denied the appellant’s PFR because it did not provide new and material evidence or show an error of law or regulation by the administrative judge.

2. The record does not contain evidence sufficient to establish whether the appellant filed a formal discrimination with the agency prior to filing his Board appeal. If he did so, his Board appeal may have been premature rather than untimely. If the appellant did not file a timely formal discrimination complaint with his agency, and his Board appeal constituted an election of this forum, the 30-day timeliness requirement of 5 C.F.R.  1201.22 applies to this appeal.

3. Because the record lacks evidence to show what forum the appellant elected, it is necessary to remand the appeal to the regional office for further adjudication.

Appellant: Dawn Rosso

Agency: Department of Homeland Security

Decision Number: 2010 MSPB 31

Docket Number: CH-0752-09-0698-I-1

Issuance Date: February 16, 2010

Appeal Type: Adverse Action by Agency

Action Type: Constructive Adverse Action

Board Procedures/Authorities
- Dismissals – With/Without Prejudice
Jurisdiction
- Involuntary Reassignment

The appellant petitioned for review of an initial decision that dismissed her appeal as withdrawn. In her appeal, the appellant identified the personnel action that she was contesting as an “involuntary resignation,” but her description of what occurred reflects a reassignment rather than a resignation. She asserted that the agency improperly conducted a fitness-for-duty examination, found her unfit for duty, and told her it would remove her unless she accepted another position. She asserted that she was forced under extreme duress to accept the second position, tried to rescind her acceptance, but was not allowed to do so. The administrative judge notified the appellant of the standard for proving Board jurisdiction over an alleged involuntary resignation. The appellant later faxed a pleading stating that she had “to drop this appeal with prejudice” because she had no attorney and no funds to hire one to remedy the situation, and no legal education to remedy the situation herself. The administrative judge then issued an initial decision dismissing the appeal as withdrawn. On PFR, the appellant states that she did not wish to withdraw the appeal, and reasserts that she was forced to take the second position under duress.

Holdings: The Board granted the appellant’s PFR, vacated the initial decision, and remanded the appeal to the regional office for further adjudication:

1. An appellant’s withdrawal of her appeal is an act of finality, and, absent unusual circumstances, such as misinformation or new and material evidence, the Board will not reinstate an appeal once it has been withdrawn. But an appellant’s relinquishment of her right to appeal must be by clear, unequivocal, and decisive action.

2. The appellant excercised due diligence in seeking reopening because she timely filed her PFR.

3. An appellant must receive explicit information on what is required to establish an appealable jurisdictional issue. Here, the administrative judge did not provide the appellant with notice of what she must show to establish Board jurisdiction over her allegation that her reassignment was involuntary. In addition, the appellant’s reference to her inability to proceed without legal representation raises the question of whether her withdrawal of her appeal was clear, decisive, and unequivocal, and whether she should have been advised that she could seek to dismiss the appeal without prejudice to refiling.

4. It is also unclear whether the appellant has filed an EEO complaint with the agency or has attempted to proceed before the EEOC. If the appellant filed an EEO complaint with the agency before filing this appeal, then she must exhaust that process before appealing to the Board.

Appellant: Leroy Alford

Agency: Department of Defense

Decision Number: 2010 MSPB 32

Docket Number: DC-3330-09-0703-I-1

Issuance Date: February 16, 2010

Appeal Type: Veterans Employment Opportunities Act

USERRA/VEOA/Veteran’s Preference Rights
Jurisdiction
Failure to State a Claim Upon Which Relief can be Granted

The appellant petitioned for review of an initial decision that dismissed his VEOA and USERRA appeals for lack of jurisdiction and for failure to state a claim upon which relief can be granted. Both appeals related to the appellant’s contention that the agency improperly failed to use his military service to establish his initial civil service annual leave accrual rate. The administrative judge found that the appellant failed to establish VEOA jurisdiction because his assertion that the agency did not correctly credit his military service for purposes of calculating his rate to accrue annual leave, pursuant to 5 U.S.C.  6303, is not a nonfrivolous allegation that the agency violated a statute relating to veterans’ preference. The judge found that the appellant failed to establish USERRA jurisdiction over his appeal because his employer, the Defense Intelligence Agency, is not a “Federal executive agency” from which an employee may file a USERRA appeal with the Board.

Holdings: The Board affirmed the initial decision as modified, dismissing the VEOA appeal for failure to state a claim upon which relief can be granted, and dismissing the USERRA appeal for lack of jurisdiction:

1. The appellant’s PFR does not provide a basis for Board review because he has not made any argument establishing error by the administrative judge or presented any new and material evidence affecting the outcome of the case.

2. The appellant’s VEOA appeal must be dismissed for failure to state a claim upon which relief can be granted.

a. The appellant met jurisdictional requirements, including the requirement that the appellant make a nonfrivolous allegation that the agency violated his rights under a statute or regulation relating to veterans’ preference. Because an appellant’s assertions that his veterans’ preference rights have been violated should be liberally construed, the administrative judge erred in finding that the appellant failed to make a nonfrivolous allegation that the agency violated a statute or regulation relating to veterans’ preference.

b. An appeal is properly dismissed for failure to state a claim upon which relief can be granted if the appellant cannot obtain effective relief before the Board even if his allegations are accepted as true. The fact that 5 U.S.C.  6303 sets forth the circumstances in which a retired member of the military may, for purposes of accruing annual leave as a civilian federal employee, receive credit for his active duty military service does not render this statutory provision as relating to, bearing on, concerning, or having a connection with veterans’ preference rights.

c. Accordingly, even if, as the appellant contends, the agency erred in processing his annual leave accrual rate for the period during which he was a federal employee and on terminal leave from the military, he has failed to state a claim upon which relief can be granted under VEOA, because he cannot prove that the agency’s action violates a statute or regulation relating to, bearing on, concerning, or having a connection to veterans’ preference rights.

3. The administrative judge properly found that the appellant failed to establish USERRA jurisdiction over his appeal.

a. For purposes of USERRA, a “Federal executive agency” is defined as excluding “an agency referred to in section 2302(a)(2)(C)(ii) of title 5,” and that section explicitly excludes the Defense Intelligence Agency from the definition of executive agency.

b. It was error to dismiss the USERRA appeal both for lack of jurisdiction and for failure to state a claim upon which relief can be granted. Because a dismissal for failure to state a claim is a decision on the merits, an appeal must be within the Board’s jurisdiction for this disposition to be proper.

Appellant: Jorge Gonzalez-Acosta

Agency: Department of Veterans Affairs

Decision Number: 2010 MSPB 33

Docket Number: NY-0752-08-0242-I-3; NY-0353-09-0217-I-1

Issuance Date: February 18, 2010

Appeal Type: Adverse Action by Agency

Action Type: Removal

Discrimination
- Physical/Mental Disability - Accommodation

The appellant petitioned for review of an initial decision that affirmed the agency’s removal action and dismissed his restoration appeal for lack of jurisdiction. The agency removed the appellant from his position for inability to perform the physical requirements of the position. The appellant asserted that the removal constituted disability discrimination because of the agency’s failure to accommodate his back condition. The administrative judge found that the appellant failed to establish his affirmative defense of disability discrimination because he did not identify a vacant, funded position at or below his current grade level to which he could have been reassigned. The judge dismissed the restoration appeal on the ground that there was no evidence of an Office of Workers’ Compensation Programs determination that the appellant had in fact suffered a compensable injury.

Holdings: The Board denied the appellant’s PFR, reopened the appeal on its own motion, and affirmed the initial decision as modified, still sustaining the appellant’s removal.

1. The Board denied the appellant’s PFR because it failed to establish any error by the administrative judge. The Board reopened the appeal to clarify the initial decision’s analysis of the appellant’s affirmative defense of disability discrimination.

2. The appellant did not prove his affirmative defense of disability discrimination.

a. Although the appellant’s claim arises under the Rehabilitation Act of 1973, the regulatory standards for the Americans with Disabilities Act (ADA) (29 C.F.R. part 1630) have been incorporated by reference into the Rehabilitation Act.

b. The administrative judge erred in relying on a regulation, 29 C.F.R.  1614.203 (g), that was repealed in 2002. The administrative judge also did not make the threshold determination of whether the appellant is a person with a disability within the meaning of the Rehabilitation Act.

c. The ADA Amendments Act of 2008 (ADAAA), which provide that the definition of disability should be interpreted more broadly than before, became effective on January 1, 2009. Because the appellant’s removal took place prior to the effective date of the ADAAA, the appeal presents a question of whether the ADAAA is retroactive and what definition of disability applies. The Board determined that it need not resolve the question here, however, because it found that the appellant is a person with a disability even under the more restrictive pre-ADAAA standard.

d. The appellant did not prove he was denied reasonable accommodation.

COURT DECISIONS

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

Lee v. U.S. Postal Service, No. 2009-3270 (Feb. 5, 2010) (MSPB Docket No. AT-0752-09-0156-I-1) (affirming the Board’s decision dismissing an appeal as settled)

Famularcano v. Office of Personnel Management, No. 2009-3239 (Feb. 5, 2010) (MSPB Docket No. SF-0831-08-0744-I-1) (affirming the Board’s decision, which affirmed OPM’s determination that the appellant was not entitled to survivor annuity benefits and to make a deposit under the CSRS)

Considine v. National Credit Union Administration, No. 2009-3294 (Feb. 16, 2010) (MSPB Docket No. PH-0432-09-0173-I-1) (affirming the Board’s decision, which sustained the agency’s removal action)

Davidson v. Merit Systems Protection Board, No. 2009-3277 (Feb. 16, 2010) (MSPB Docket No. DC-0831-09-0474-I-1) (affirming the Board’s decision, which dismissed an appeal from a decision by OPM recomputing the appellant’s civil service retirement annuity)

Yesudian v. Environmental Protection Agency, No. 2009-3175 (Feb. 16, 2010) (MSPB Docket No. DC-0432-08-0386-I-1) (affirming, per rule 36, the Board’s decision, which affirmed the agency’s removal action)

Robinson v. Merit Systems Protection Board, No. 2009-3286 (Feb. 17, 2010) (MSPB Docket No. SF-0752-09-0256-I-1) (affirming the Board’s decision, which dismissed an appeal as untimely filed without good cause shown for the delay)

Marshall-Mosby v. U.S. Postal Service, No. 2009-3092 (Feb. 17, 2010) (MSPB Docket No. CH-0752-08-0296-I-1) (affirming, per rule 36, the Board’s decision, which affirmed the agency’s demotion action)