United States Merit Systems Protection Board

Case Report for April 2, 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: Tyrone D. Scott

Agency: Department of the Air Force

Decision Number: 2010 MSPB 58

Docket Number: SF-0752-09-0417-I-1

Issuance Date: March 29, 2010

Jurisdiction – Term Appointment

The appellant filed a petition for review (PFR) of an initial decision that affirmed his termination from employment. Effective April 3, 2006, the appellant was appointed to the position of Historian at the Yokota Air Base in Japan. Prior to his employment, he signed an agreement that specified, among other things, that his “prescribed tour of duty” was 36 months and that any extension beyond that period was subject to both his and management’s approval. The agency separated him effective April 2, 2009, citing the expiration of his 3-year tour of duty and his ineligibility to register for a priority placement program due to his performance rating. On appeal to the Board, the agency moved to dismiss the appeal for lack of jurisdiction. The administrative judge denied the motion, finding that the appellant is an employee with appeal rights who had completed his probationary period. After holding a hearing, the administrative judge sustained the agency’s “charges” that the appellant’s tour of duty had expired and that he was ineligible to register for the priority placement program, and affirmed his removal.

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:

1. The issue of Board jurisdiction is always before the Board and may be raised by either party or by the Board itself at any time.

2. Although the Standard Form (SF) 50 documenting the appellant’s appointment stated that he received a career-conditional appointment in the competitive service, an SF-50 is not a legally operative document that controls an employee’s status and rights. The Board looks at the totality of the circumstances in determining the nature of an appointment. Here, the evidence shows that the appellant was appointed to a 3-year term and that he was separated at the expiration of that term.

3. It is well established that the expiration of a term appointment is not an action appealable to the Board. That the appellant met the definition of “employee” under 5 U.S.C.  7511 and had completed his probationary period is irrelevant to that determination.

Petitioner: Special Counsel

Respondent: Mikki DeWitt

Decision Number: 2010 MSPB 59

Docket Number: CB-1216-09-0021-T-1

Issuance Date: March 30, 2010

Appeal Type: Disciplinary Action - Hatch Act

Special Counsel Actions – Hatch Act
Settlement

This case was before the Board on a complaint filed by the Special Counsel against the respondent charging him with engaging in prohibited political activity in violation of the Hatch Act by being a candidate for election to a partisan political office. The parties into a settlement agreement requesting that the Board impose a 30-day suspension without pay upon the respondent rather than removal. In a Recommended Decision, the administrative law judge found that the stipulated mitigating factors warranted a penalty less than removal, specifically, a 30-day suspension.

Holdings: The Board adopted the administrative law judge’s Recommended Decision and found that a 30-day suspension without pay is appropriate.

Appellant: Bohdan Senyszyn

Agency: Department of the Treasury

Decision Number: 2010 MSPB 60

Docket Number: PH-0752-05-0403-C-5

Issuance Date: March 30, 2010

Appeal Type: Adverse Action by Agency

Action Type: Suspension - Indefinite

Res Judicata

The appellant petitioned for review of a compliance initial decision that denied his petition for enforcement (PFE). In April 2005, the agency indefinitely suspended the appellant from his position as an IRS Revenue Agent based on reasonable cause to believe that he had committed a crime for which a sentence of imprisonment may be imposed. The administrative judge, the Board, and the U.S. Court of Appeals for the Federal Circuit sustained the indefinite suspension, and the agency later removed the appellant from his position following his guilty pleas to felony charges. In this PFE, the appellant’s 6th, he contends that he is entitled to pay for the period between the notice of proposed removal and the effective date of his removal. The administrative judge denied the PFE on the merits.

Holdings: The Board denied the appellant’s PFR, reopened the appeal on its own motion, and dismissed the PFE under the doctrine of res judicata (claim preclusion):

1. Under the doctrine of res judicata, a valid, final judgment on the merits of an action bars a second action involving the same parties based on the same cause of action.

2. In a previous enforcement proceeding, 110 M.S.P.R. 437 (2009), the Board issued a final judgment on the merits rejecting the appellant’s claim for back pay for the same period involved in this appeal.

Appellant: Marsha L. Payton

Agency: Department of Homeland Security

Decision Number: 2010 MSPB 61

Docket Number: AT-0353-09-0770-I-1

Issuance Date: April 1, 2010

Action Type: Restoration After Recovery From Compensable Injury

Restoration to Duty
Jurisdiction

The appellant petitioned for review of an initial decision that dismissed her restoration appeal for lack of jurisdiction. The appellant suffered a work-related injury in 2003. In 2004, she was removed from her position on 5 charges of misconduct, and this removal action was affirmed by the Board. In the current appeal, the appellant alleged that the agency failed to restore her to duty following a 2009 medical examination, which she said “cleared [her] to perform all job functions associated with regular job duties.” In dismissing the appeal, the administrative judge found that the appellant had “made no claim that she was separated because of a compensable injury.”

Holdings: The Board granted the appellant’s PFR and affirmed the initial decision as modified, still dismissing the appeal for lack of jurisdiction:

1. An employee who is separated because of a compensable injury, and whose full recovery takes longer than a year, is entitled to priority consideration for restoration to the position she left or an equivalent one, provided she applies for restoration in a timely manner.

2. An employee who has been removed for cause, other than for a compensable injury, is not entitled to restoration, and cannot appeal any failure of restoration to the Board. A valid reason for separation, unrelated to a compensable injury, precludes restoration rights, even if the separation was also related to a compensable injury.

3. The administrative judge erred in finding that the appellant did not claim that she was separated because of a compensable injury. She alleged that 1 of the 5 charges for which she was removed, being absent without leave, was related to her compensable injury. She did not, however, claim that any of the other 4 charges were related to her compensable injury. Under these circumstances, even if the appellant’s assertions were substantiated, she would not establish that her removal was based only on reasons related to her compensable injury.

COURT DECISIONS

Nonprecedential Decisions

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

Plenty v. Department of the Interior, No. 2009-3184 (March 29, 2010) (MSPB Docket No. DE-0752-08-0324-I-2) (affirming the Board’s decision that sustained the appellant’s removal)