United States Merit Systems Protection Board

Case Report for March 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: John B. Sauser

Agency: Department of Veterans Affairs

Decision Number: 2010 MSPB 50

Docket Number: PH-300A-09-0431-I-1

Issuance Date: March 12, 2010

Appeal Type: Employment Practices

Employment Practices
Jurisdiction

The appellant filed a petition for review (PFR) of an initial decision that dismissed his employment practices appeal for lack of jurisdiction. The appellant’s applications for the position of General Engineer were rejected on the basis that he lacked “the basic requirement of education or combination of education and experience” to qualify him for the position. In his Board appeal, the appellant argued that the agency’s determination that he was not qualified for the position was based on “an employment practice that violates a basic requirement in 5 C.F.R.  300.103,” i.e., a misinterpretation and misapplication of OPM’s Qualification Standards for the position. The administrative judge found that the appellant failed to make a nonfrivolous allegation of jurisdiction because he was challenging the agency’s rating and handling of his individual application rather than an employment practice per se.

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

1. An applicant for employment who believes that an employment practice violates a basic requirement in 5 C.F.R.  300.103 is entitled to appeal to the Board under 5 C.F.R.  300.104(a) when: (1) the appeal concerns an employment practice that OPM is involved in administering; and (2) the appellant makes a nonfrivolous allegation that the employment practice violated one of the “basic requirements” for employment practices set forth in 5 C.F.R.  300.103.

2. The term “employment practices,” which includes the development and use of examinations, qualification standards, tests, and other measurement instruments, is to be construed broadly. Although an individual agency action or decision does not qualify as an employment practice, an agency’s misapplication of a valid OPM requirement may constitute an employment practice.

3. Because it is undisputed that the agency based its determination that the appellant was unqualified for the General Engineer position on its application of OPM’s Qualification Standards for the position, the appellant has satisfied the first prong of the jurisdictional test, that the appeal concerns an employment practice that OPM is involved in administering.

4. A basic requirement for employment practices is that there must be a “rational relationship between performance in the position to be filled . . . and the employment practices used.” The appellant satisfied the second prong of the jurisdictional test by alleging that the agency’s job analysis led to the “identification of erroneous factors that the Agency deemed important in evaluating candidates,” and that the agency’s misapplication of OPM’s Qualified Standards lead to the elimination of “any rational relationship between performance in the position to be filled and the employment practice used to establish educational requirements.”

Appellant: Leonardo Alvarado

Agency: Office of Personnel Management

Decision Number: 2010 MSPB 51

Docket Number: SE-0831-99-0138-I-1

Issuance Date: March 15, 2010

Action Type: Retirement/Benefit Matter

Timeliness – PFR

The appellant petitioned for review of an initial decision issued in 1999 that affirmed OPM’s determination that he was not entitled to a retirement annuity.

Holding: The Board dismissed the PFR as untimely filed by more than 10 years with no showing of good cause for the delay.

Appellant: Edward J. Simpkins

Agency: Office of Personnel Management

Decision Number: 2010 MSPB 52

Docket Number: DC-844E-09-0623-I-1

Issuance Date: March 18, 2010

Appeal Type: FERS - Employee Filed Disability Retirement

Retirement
- Disability Retirement

The appellant petitioned for review of an initial decision that affirmed OPM’s determination that he was not entitled to disability retirement benefits. The appellant’s application for benefits was based on his high blood pressure, heart disease, and chest pain. After conducting a hearing, the administrative judge found that the appellant failed to establish that his medical conditions prevented him from performing useful and efficient service in his position as a Benefits Advisor. The judge found that the appellant failed to show that his medical conditions caused his performance deficiencies, for which his employing agency removed him, that there were no objective clinical findings to support the appellant’s subjective claim that his medical conditions have deteriorated, and that he failed to produce the opinion of any physician that his conditions have deteriorated to the point that they prevent useful and efficient service in his position.

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 rejected the appellant’s contention that the administrative judge was biased. The appellant’s conclusory claims of bias, none of which involves extrajudicial conduct, do not overcome the presumption of honesty and integrity that accompanies an administrative judge.

2. The appellant’s contention that the administrative judge failed to consider a particular report is without merit. The administrative judge carefully considered the report and quoted from it. Although the doctor stated that the appellant’s blood pressure was not controlled as of a particular date, she also stated that his blood pressure was expected to be controlled in the future with a medication adjustment.

3. After the close of the record on PFR, the appellant submitted a Rating Decision and accompanying compensation letter from the Department of Veterans Affairs (DVA), which determined that the appellant’s left ventricular hypertrophy had worsened, that the appellant’s medical examination showed the presence of hypertensive heart disease, and increased the appellant’s compensation rating.

4. The Board and OPM must consider an award of benefits by the DVA based on the same medical conditions as the appellant’s disability retirement application. Where, as here, the DVA issues a Rating Decision after the issuance of the initial decision, it is proper to remand the appeal to the administrative judge for reconsideration.

Appellant: Deborah Katz-Pueschel

Agency: Department of Transportation

Decision Number: 2010 MSPB 53

Docket Number: DC-0752-81-1049-M-1

Issuance Date: March 18, 2010

Defenses – Laches

The appellant petitioned for review of a remand initial decision dismissing her petition for enforcement as barred by the doctrine of laches. This case has an involved procedural history, starting with the Board’s reversal of the appellant’s 1981 removal. In 2002, our reviewing court affirmed the determination of the U.S. Court of Federal Claims that the latter court did not have jurisdiction over the appellant’s claim that the agency improperly recomputed its award of back pay, and stated that any such claim was “a matter that is within the exclusive jurisdiction of the MSPB.” Pueschel v. United States, 297 F.3d 1371 (Fed. Cir. 2002). The appellant did not file her petition for enforcement (PFE) with the Board until 2008. In the most recent Board decision on that PFE, the administrative judge dismissed the appeal on the ground of laches, finding that the agency had proven that the appellant’s delay in filing the enforcement petition “was unreasonable and inexcusable and that [the agency] was materially prejudiced by the delay.”

Holdings: The Board granted the appellant’s PFR, vacated the initial decision, and remanded the matter for further adjudication:

1. The equitable defense of laches bars an action when an unreasonable delay in bringing the action has prejudiced the party against whom the action is taken. The party asserting laches must prove both unreasonable delay and prejudice.

2. The agency failed to establish that an unavailability of witnesses or documents prejudiced its ability to defend against the appellant’s petition for enforcement. A remand is therefore necessary.

Appellant: David A. Lis

Agency: United States Postal Service

Decision Number: 2010 MSPB 54

Docket Number: CH-3330-09-0168-I-2; CH-4324-09-0154-I-2

Issuance Date: March 18, 2010

Appeal Type: Veterans Employment Opportunities Act (VEOA); 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 remedial action under USERRA on the merits, while dismissing his VEOA claim for lack of jurisdiction on the basis that the appellant failed to make a nonfrivolous allegation that the agency violated his veterans’ preference rights. Both the USERRA and VEOA claims were based on the appellant’s applications for custodian positions.

Holdings: The Board affirmed the initial decision as to the USERRA claim, but reversed it as to the VEOA claim, instead denying the VEOA claim on the merits:

1. One of the jurisdictional elements for a VEOA claim is that the appellant make a nonfrivolous allegation that the agency violated his rights under a statute or regulation relating to veterans’ preference. An appellant need not state a claim upon which relief can be granted to meet this jurisdictional element; an allegation, in general terms, that the appellant’s veterans’ preference rights were violated is sufficient. Here, the appellant made such a general allegation, and therefore established jurisdiction.

2. The appellant failed to establish entitlement to relief on the merits of his VEOA claim.

a. A VEOA appellant must show by a preponderance of the evidence that the agency violated one or more of his statutory or regulatory veterans’ preference rights.

b. It is undisputed that all of the custodial positions in question were filled through internal reassignment, rather than through a competitive examination process. Veterans’ preference does not apply to such intra-agency transfers.

c. The appellant’s claim that the agency prematurely deemed his application to have expired is not cognizable under VEOA, as the alleged error does not implicate a statute or regulation relating to veterans’ preference. The same is true of the appellant’s allegation that the agency failed to give him preference based on his union membership.

COURT DECISIONS

Petitioner: Elpidia L. Braza

Respondent: Office of Personnel Management

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

Docket Number: 2008-3174

Issuance Date: March 16, 2010

Retirement
- Survivor Annuity

This case was before the court on review from a final Board decision that affirmed OPM’s determination that the petitioner was not entitled to a survivor annuity. The facts were undisputed. When Mrs. Braza’s husband retired, he completed an OPM form in which he elected an unreduced annuity during his lifetime without providing for a survivor annuity for his wife. Mrs. Braza signed an OPM form consenting to that election. These forms were executed at a local bank before a notary public. Mrs. Braza had not seen the forms before, did not ask for nor receive any explanation as to their meaning or significance, and did not read them before signing. Following her husband’s death, Mrs. Braza filed a claim for a survivor annuity as the spouse of a deceased civil service employee. OPM denied her claim, finding that she waived her entitlement to such annuity by completing and signing the standard form. On appeal to the Board, she argued that the form bearing her signature did not validly waive her right to an annuity. The Board affirmed OPM’s decision.

Holdings: In a 9-2 en banc decision, the court affirmed the Board’s decision, concluding that Mrs. Braza waived her right to the spousal annuity by completing and signing the written waiver form:

1. The Spouse Equity Act of 1984 was enacted to provide spouses of retired civil service employees with a default entitlement to a survivor annuity, and to ensure that spouses receive notice of, and consent to, a retiring employee’s election not to provide a survivor annuity.

2. To provide for the “written election filed with [OPM]” required by 5 U.S.C.  8339(j)(1) for jointly waiving the spouse’s annuity, OPM has issued a set of standard forms – SF 2801 and SF 2801-2 and Attachment to SF 2801-2.

3. The voluntary signing of a government form for the purpose of evidencing agreement with the terms of the form is binding, and the government is entitled to rely on the act of signing absent a showing of fraud, duress, or mental incompetence.

4. The OPM Spousal Consent to Survivor Election form (SF 2801-2) in use at the time of Mr. Braza’s retirement was sufficient to inform a reader of his or her statutory rights as a spouse and was sufficient to inform him or her of the effect on those rights of signing the form. Mrs. Braza’s unawareness of her rights and of the significance of the form were not due to any insufficiency in the form, but rather to her admitted failure to read the form.

5. The court rejected Mrs. Braza’s contention that the circumstances under which she signed the form are inconsistent with finding a knowing waiver of a known right, and that the waiver is thus invalid under Supreme Court precedent.

a. The court affirmed that the controlling law of the Federal Circuit, per Collins v. Office of Personnel Management, 45 F.3d 1569 (Fed. Cir. 1995), is that a clear express written waiver of annuity rights is invalid only if it was signed pursuant to fraud, duress, or mental incompetence.

b. This case is distinguishable from Johnson v. Zerbst, 304 U.S. 458 (1938), which involved a criminal defendant’s waiver of the constitutional right to counsel.

c. That Mrs. Braza neglected to read the waiver form before signing it does not release her from the binding effect of the waiver. She does not allege duress, fraud, or mental incompetence, and the circumstances of her case would not support finding any.

In his dissenting opinion, Circuit Judge Dyk expressed the view that the spousal waiver form “did not come close to adequately informing spouses of retiring civil service employees of their statutory right to an annuity.”

 

Nonprecedential Decisions

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

Dolinsky v. Department of Homeland Security, No. 2010-3008 (March 12, 2010) (MSPB Docket No. CH-1221-09-0173-W-1) (affirming part, vacating in part, and remanding the Board’s decision, which denied his request for corrective action in this IRA appeal)

Porzillo v. Department of Health & Human Services, No. 2009-3262 (March 12, 2010) (MSPB Docket No. DC-0752-08-0517-I-2) (affirming the Board’s decision that sustained the appellant’s removal)

Cabanayan v. Office of Personnel Management, No. 2009-3149 (March 12, 2010) (MSPB Docket No. SF-844E-08-0686-I-1) (vacating and remanding the Board’s decision, which affirmed OPM’s denial of an application for disability retirement benefits)

Valdez v. Department of the Navy, No. 2010-3035 (March 17, 2010) (MSPB Docket No. DC-0752-09-0339-I-1) (affirming the Board’s decision that sustained the appellant’s removal)