United States Merit Systems Protection Board

Case Report for June 11, 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:  Gloria A. Edge

Agency:  United States Postal Service

Decision Number:  2010 MSPB 102

Docket Number:  AT-0752-09-0846-I-1

Issuance Date:  June 4, 2010

Appeal Type:  Adverse Action by Agency

 

Timeliness – PFA
Jurisdiction – Constructive Suspension

       The appellant petitioned for review of an initial decision that dismissed her appeal as untimely filed.  The appellant alleged that the agency had placed her on leave without pay status for more than 14 days.  Her appeal was filed more than 9 months after returning to work.  After considering the parties’ responses to a show‑cause order, the administrative judge dismissed the appeal as untimely filed without good cause shown for the delay, finding that the appellant failed to counter the agency’s contention that it was not required to provide the appellant with notice of appeal rights to the Board because she voluntarily absented herself from the workplace, and she failed to prove that she exercised due diligence in discovering and pursuing her appeal rights. 

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

1.  Although the existence of Board jurisdiction is a threshold issue, an administrative judge may in an appropriate case dismiss an appeal as untimely filed if the record on timeliness is sufficiently developed and shows no good cause for the untimely filing.  Such an approach is not appropriate, however, if the jurisdictional and timeliness issues are “inextricably intertwined,” i.e., if resolution of the timeliness issue depends on whether the appellant was subjected to an appealable action.

2.  The issues of timeliness and jurisdiction are generally considered to be inextricably intertwined in a constructive suspension appeal because a failure to inform an employee of Board appeal rights may excuse an untimely filed appeal, and whether the agency was obligated to inform the employee of such appeal rights depends on whether the employee was affected by an appealable action.

3.  It was improper for the administrative judge to dismiss this appeal as untimely filed because resolution of the timeliness issue depends on whether the appellant was subjected to an appealable constructive suspension, and because the judge did not make jurisdictional findings.

a.  The appellant was not in a position to articulate a legal basis for a contention that the agency was required to provide a notice of appeal rights, because the administrative judge had not apprised her of the requirements to establish a non-frivolous allegation of a constructive suspension or informed her that the issues of timeliness and jurisdiction are generally considered to be “inextricably intertwined” in such cases.

b.  Even without such notice, the appellant raised a question whether her absence from the workplace was voluntary.

Appellant:  Anthony Days

Agency:  Office of Personnel Management

Decision Number:  2010 MSPB 103

Docket Number:  AT-0831-09-0774-X-1

Issuance Date:  June 4, 2010

Action Type:  Retirement/Benefit Matter

Compliance

       This case was before the Board on a Recommendation finding of noncompliance with an initial decision that became the Board’s final decision.

Holdings:  Based on the agency’s submissions following the administrative judge’s Recommendation, the Board found that the agency is now in compliance with its obligations and dismissed the petition for enforcement.  Specifically, the agency has shown that it has calculated and paid the appellant a retroactive disability annuity for the period in question, determined that the appellant has not been restored to earning capacity, and concluded that the appellant continues to be disabled.

Appellant:  Albert J. Alexander, Jr.

Agency:  Office of Personnel Management

Decision Number:  2010 MSPB 104

Docket Number:  SF-831M-09-0892-I-1

Issuance Date:  June 9, 2010

Appeal Type:  CSRA - Overpayment of Annuity

Action Type:  Retirement/Benefit Matter

Retirement
 - Annuity Overpayment
 - Repayment Schedule

       OPM petitioned for review of an initial decision that affirmed its determination that the appellant had received an annuity overpayment but adjusted OPM’s repayment schedule.  In its petition for review, OPM did not challenge the administrative judge’s finding that the appellant proved financial hardship warranting an adjustment of the repayment schedule, but argued that, under the Board’s decisions in Fearon v. Office of Personnel Management, 107 M.S.P.R. 122 (2007) and Zelenka v. Office of Personnel Management, 107 M.S.P.R. 522 (2007), the Board lacks authority to adjust the repayment schedule.

Holdings:  The Board denied the petition for review, reopened the appeal on its own motion, and affirmed the initial decision as modified.  Fearon and Zelenka differ from the present case in that those appellants were restored to earning capacity and were not receiving any recurring payment from any source from which their debts could be offset. Here, the appellant continues to receive a continuing payment from which his overpayment may be administratively offset – his benefits from the Office of Workers’ Compensation Programs.  To the extent that Fearon and Zelenka suggest that the Board lacks authority to adjust an OPM-set repayment schedule in the absence of an OPM annuity, they are modified.

Petitioner:  Special Counsel

Respondent:  Pattie Ware

Decision Number:  2010 MSPB 105

Docket Number:  CB-1216-09-0025-T-1

Issuance Date:  June 9, 2010

Appeal Type:  Disciplinary Action - Hatch Act

Special Counsel Actions|
 - Hatch Act

       The Special Counsel filed exceptions to the administrative law judge’s recommended decision, which found that the respondent violated several provisions of the Hatch Act, but recommended a 60-day suspension rather than removal as the penalty for the violations.  The respondent is a Program Analyst and Contracting Officer Technical Representative (COTR) with the Department of the Treasury’s Bureau of Engraving and Printing (BEP).  She is the COTR for the staffing contract that BEP has with STG International, which staffs BEP’s Health Unit.  She ensures that the facility is properly staffed; if any staffing problem exists, she asks the company to solve it, and solutions can include replacing employees.  She monitors, documents, and evaluates the company’s overall performance.  

       The Special Counsel filed a complaint charging the respondent with 5 counts of violating the Hatch Act and related regulations.  These violations entailed 6 e-mail messages sent from her government-issued computer and e‑mail account and while occupying in the discharge of her official duties, that encouraged the recipients to support the election of then-Presidential candidate Barack Obama, including the solicitation of political contributions.  Employees of STG International were among the recipients of these e‑mail messages.  The respondent admitted engaging in the charged behavior, but denied that she violated the Hatch Act.  The administrative law judge found that the stipulated facts showed that the respondent was covered under the Hatch Act and its political restrictions, and sustained all 5 counts.  Although acknowledging that the presumptive penalty for violation of the Hatch Act is removal, the administrative law judge recommended a 60-day suspension.  Among the mitigating factors were the following:  the e-mails reached only a small number of contract employees and the respondent’s control over those employees was not as direct as a supervisor’s control; there was no evidence that she continued forwarding political e‑mails in defiance of specific warnings or in the last 6 weeks of the Presidential campaign; there was no evidence that her overall intent or motive was to benefit politically from her activities; she did not compose or add to the e‑mails; she was not a high-level employee or a supervisor; she did not have the advice of counsel when she forwarded the e‑mails; she had 38 years of federal service; and she apologized and promised to refrain from future Hatch Act violations.

Holdings:  The Board adopted the administrative law judge’s recommended decision insofar as it found that the respondent violated the Hatch Act, but not with respect to the recommended penalty, and ordered the respondent’s removal from her position:

1.  In considering whether removal is warranted for a Hatch Act violation, the Board looks to the seriousness of the violation, considering all aggravating and mitigating factors that bear upon the seriousness of the violation.  Removal must be imposed for a violation unless the members of the MSPB find “by unanimous vote” that a lesser penalty is warranted, and the respondent has the burden of showing why she should not be removed.

2.  The Board found that although the administrative law judge correctly analyzed some factors, he incorrectly analyzed other factors, cited factors that are irrelevant, and made findings in his penalty determination that were inconsistent with his findings in his merits determination.

a.  The administrative law judge’s findings concerning the respondent’s control over the contract employees contradict his previous findings in his Order finding that the respondent violated the Hatch Act.  In the earlier Order, he found that, although the respondent was not the employees’ supervisor, she had sufficient authority over them “so that the same evils that obtain when a supervisor asks a subordinate to contribute to a political cause or support a political candidate apply here.”

b.  Whether the respondent actually knew about the Hatch Act’s restrictions, such knowledge is imputed to her, and claims that an employee did not know that she was committing a violation do not support a penalty less than removal. 

c.  Far from being a mitigating factor, a federal employee engaging in inappropriate activities because she is “caught up in the intensity of the Presidential election” is one of the very reasons for the Hatch Act’s prohibitions against those activities.

d.  The Board usually considers it a mitigating factor when an employee’s violation results from the erroneous advise of counsel, but not when the employee acts without the advice of counsel.  Moreover, BEP provided legal advice concerning the Hatch Act.  The respondent attended a 1-hour ethics training in October 2007 that included material on the Hatch Act’s restrictions on political activity, and BEP distributed a publication about the Hatch Act, which cited sending partisan political e‑mails as an example of prohibited political activity, a mere 3 weeks before the respondent repeatedly violated the Act.

e.  That the respondent ceased her Hatch Act violations 6 weeks before the Presidential election is not a mitigating factor.

f.  An employee’s past employment record of 38 years of service with no performance problems or disciplinary action is a mitigating factor, but must be weighted against the seriousness of the offenses in assessing whether the presumptive penalty of removal for a Hatch Act violation is not warranted.

3.  Here, the mitigating factors do not outweigh the seriousness of the respondent’s repeated violations, and removal is the appropriate penalty.

COURT DECISIONS

Nonprecedential Decisions

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

Delos Reyes v. Office of Personnel Management, No. 2009-3201 (June 6, 2010) (MSPB Docket No. SF-0831-08-0721-I-1) (affirming the Board’s decision, which affirmed OPM’s determination that the appellant was not entitled to make a deposit into the CSRS retirement fund)

Kelley v. Merit Systems Protection Board, No. 2009-3250 (June 10, 2010) (MSPB Docket No. CH-0752-09-0405-I-1) (affirming the Board’s decision dismissing an appeal for lack of jurisdiction)

Apodaca v. Merit Systems Protection Board, No. 2009-3293 (June 10, 2010) (MSPB Docket No. AT-0752-09-0223-I-1) (affirming the Board’s decision dismissing an appeal for lack of jurisdiction on the basis that the appellant failed to show that his retirement was involuntary)

Hurst v. Merit Systems Protection Board, No. 2010-3044 (June 11, 2010) (MSPB Docket No. CH-3443-09-0469-I-1) (affirming the Board’s decision dismissing an appeal for lack of jurisdiction)

Council v. Department of Veterans Affairs, No. 2010-3019 (June 11, 2010) (MSPB Docket No. AT-0752-09-0091-I-1) (dismissing for lack of jurisdiction an appeal from the Board’s decision affirming a removal action)