United States Merit Systems Protection Board

Case Report for June 25, 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: Kathryn King

Agency: Office of Personnel Management

Intervenor: Diana M. King

Decision Number: 2010 MSPB 112

Docket Number: DE-831M-09-0077-I-1

Issuance Date: June 18, 2010

Appeal Type: CSRA - Overpayment of Annuity

Action Type: Retirement/Benefit Matter

Timelines – PFR
Retirement
- Annuity Overpayment

The appellant petitioned for review of an initial decision affirming OPM’s determination that she was ineligible for survivor annuity benefits, that she had received an overpayment, and that collection of the debt would not cause her financial hardship. Following the death of the appellant’s putative husband, a federal annuitant, the appellant applied for a survivor annuity, which OPM initially granted. A Montana district court later determined, however, that the intervenor was Mr. King’s common law wife at the time of his death. In light of this, OPM found that the appellant had received an overpayment of $41,939.13 in annuity benefits, and set a repayment schedule. On appeal to the Board, the appellant contended, as she had before OPM, that the intervenor had already received the overpayment in the state court proceeding. She contended that, during the litigation before the Montana court, she deposited the annuity payments she received from OPM into a trust fund with her attorney or the court, and that these funds were paid to the intervenor. She argued that it would be inequitable to require her to pay the same funds to both the intervenor and to OPM. The administrative judge ruled, however, that recovery of the overpayment was not against equity and good conscience because the appellant had not provided any evidence of detrimental reliance, i.e., that she had changed her position for the worse or relinquished a valuable right based on either the incorrect payment or OPM’s notice that payments would be made, nor that recovery would be unconscionable.

Holdings: The Board dismissed the appellant’s petition for review as untimely filed without good cause shown for the filing delay, but reopened the appeal on its own motion to vacate the initial decision and remand the case to the regional office for further adjudication:

1. The Board dismissed the petition for review as untimely filed without good cause shown for the delay.

a. The appellant petition for review was filed more than 4 months after the deadline for timely filing.

b. The appellant’s apparent explanation that she was waiting to receive additional information regarding the monies she allegedly paid to the intervenor in the Montana court proceeding did not establish good cause for the delay.

2. The Board reopened the appeal on its own motion and remanded the case to the regional office for a full accounting of the funds collected from the appellant and paid to the intervenor from the trust fund, as well as any funds paid to the intervenor by OPM and, based on that accounting, a determination whether recovery of the debt would be against equity and good conscience on the basis that the intervenor was unjustly enriched.

a. The record below supported a finding that repayment was not against equity and good conscience. The evidence did not establish how much money was transferred to the intervenor. On review, the appellant has provided additional evidence that lends credibility to her claims and raise the possibility that the intervenor may have been unjustly enriched at the appellant’s expense. The records are still insufficient, however, to resolve the matter.

b. On remand, the administrative judge must obtain a full accounting from the appellant and the intervenor and determine the complete amount of annuity money that was collected from the appellant and paid to the intervenor. In addition, the judge needs to determine what funds OPM has paid the intervenor. To the extent that the appellant or the trust fund has transferred annuity money to the intervenor which has also been paid to the intervenor by OPM, and any double payments have not been recovered by the court and returned to the appellant, repayment may be unconscionable.

Appellant: Marcelino G. Espiritu

Agency: Office of Personnel Management

Decision Number: 2010 MSPB 113

Docket Number: SF-0831-09-0974-I-1

Issuance Date: June 18, 2010

Action Type: Retirement/Benefit Matter

Board Procedures/Authorities
- Adjudicatory Error
Retirement - Annuities

The appellant petitioned for review of an initial decision that affirmed OPM’s reconsideration decision denying his application to make a deposit under the Civil Service Retirement System (CSRS). In 1992, the appellant resigned from his position as a Supervisory Security Clerk stationed at Subic Bay, Philippines. His personnel records described his retirement coverage in various positions that he held since 1966 as “other” or “none,” and he did not allege that any retirement deductions were withheld from his pay during almost 25 years of service. In February and March 2009, the appellant completed an Application for Deferred Retirement and an Application to Make a Deposit for his service from 1982 through 1992. OPM issued separate reconsideration decisions denying both applications, and the appellant filed an appeal with the Board challenging both. The administrative judge issued an initial decision that only addressed OPM’s reconsideration decision denying the appellant’s application to make a deposit.

Holdings: The Board denied the appellant’s petition for review, reopened the appeal on its own motion, affirmed the initial decision insofar as sustained OPM’s reconsideration decision denying the appellant’s application to make a CSRS deposit, and affirmed OPM’s reconsideration decision denying the appellant’s application for a deferred retirement annuity:

1. The administrative judge correctly determined that, at the time of his application to make a deposit, the appellant was not a current federal employee and he was not formerly employed in a position constituting covered service under 5 U.S.C. chapter 83, and thus was ineligible to make a deposit for such service. The Board therefore denied the appellant’s petition for review.

2. An initial decision must identify and resolve all material issues of fact and law. The administrative judge erred by not adjudicating the correctness of the reconsideration decision denying the appellant’s application for a deferred retirement annuity.

3. The Board affirmed OPM’s reconsideration decision denying the appellant’s application for a deferred retirement annuity. He did not meet the requirement of 5 U.S.C.  8333 that 1 of his last 2 years prior to his separation have been in a covered position.

Appellant: Larry J. Green, Sr.

Agency: Department of the Air Force

Decision Number: 2010 MSPB 114

Docket Number: AT-4324-10-0016-I-1

Issuance Date: June 22, 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. The appellant alleged that the agency improperly charged him military leave on non-workdays, which caused him to use annual leave, sick leave, or leave without pay to perform military duty, in violation of his rights as explicated in Butterbaugh v. Department of Justice, 336 F.3d 1332 (Fed. Cir. 2003). In response to an order to provide records in support of his claim, the appellant submitted date-specific documentation indicating that he had been forced to take another form of leave to participate in military duty on 13 days. The agency notified the appellant and the administrative judge that it would pay him compensation for the 13 days at issue. The agency also requested a continuance until it could provide proof of payment “at which time this appeal will become moot and should be dismissed.” The appellant objected to the continuance, which he viewed as the agency’s attempt to prevent him from obtaining attorney fees, and the agency moved to dismiss the appeal as moot. The administrative judge denied the agency’s motions for a continuance and to dismiss the appeal as moot, and issued an initial decision ordering the agency to provide compensation for the 13 days in question.

Holdings: The Board denied the agency’s petition for review, reopened the appeal on its own motion, vacated the initial decision, and dismissed the appeal as moot:

1. The administrative judge did not err in denying the agency’s motion to dismiss the appeal as moot.

a. The Board’s jurisdiction is determined by the nature of an agency’s action against a particular appellant at the time an appeal is filed with the Board, and an agency’s unilateral modification of its action after an appeal has been filed cannot divest the Board of jurisdiction, unless the appellant consents or unless the agency completely rescinds the action being appealed.

b. The appellant did not consent to dismissal, and the appeal was not moot when the initial decision was issued. An agency’s expression of its intent to provide relief is not sufficient to establish that an appeal is moot; the agency must have actually provided the relief.

2. The appeal is now moot, as the agency has presented evidence that it has provided compensation for the 13 days at issue, which the appellant conceded would be full relief.

Appellant: Betty Walker Walley

Agency: Office of Personnel Management

Decision Number: 2010 MSPB 115

Docket Number: DA-0831-09-0696-I-1

Issuance Date: June 22, 2010

Action Type: Retirement/Benefit Matter

Retirement
- Former Spouse Annuity
- Court/Domestic Relations Orders

The appellant petitioned for review of an initial decision that affirmed OPM’s determination that the appellant was not entitled to a former spouse survivor annuity based upon her former spouse’s federal service. The appellant and her former spouse divorced in 1993. When he retired in 1998, Mr. Walley was unmarried and elected to receive a retirement annuity with no survivor benefit for the appellant. The appellant petitioned the state court for a partition of community property, which asked for a “Judicial Partition of the Community Property consisting of the Defendant’s U.S. Postal Retirement Plan, which has not been partitioned.” The court issued an order in February 2008, which provided that “the Former Spouse shall be awarded the maximum possible former spouse survivor annuity under the CSRS.” Mr. Walley died following the issuance of this order. OPM denied the appellant’s application for a survivor annuity based on its determination that the divorce decree issued in 1993 made no reference to any award of survivor annuity benefits. On appeal to the Board, the administrative judge affirmed, finding that the 2008 partition order was an invalid modification of the earlier divorce decree because it was not the first court order distributing marital property.

Holdings: The Board granted the appellant’s petition for review, reversed the initial decision, and ordered OPM to award the appellant a former spouse annuity:

1. The divorced spouse of a retired federal employee is entitled to a survivor annuity if the employee has elected a survivor annuity, or a survivor annuity has been provided in a divorce decree or court order or court-approved property settlement agreement under 5 U.S.C.  8341(h)(1).

2. Under OPM regulations, which have been approved by the Board and its reviewing court, a modification of a divorce decree is not effective if it is made after the employee’s retirement or death; for purposes of awarding a former spouse retirement annuity, a court order must be the first court order dividing the marital property. In a “bifurcated” divorce proceeding – where the initial court order merely terminates the marriage and matters relating to property division are reserved for a subsequent order – the subsequent order is the first order dividing marital property and does not modify the original divorce decree.

3. The 1993 divorce decree did not partition or otherwise divide any of the marital property; the 2008 partition order was the first order dividing marital property.

a. The relevant provision of the divorce decree stated that “Plaintiff and Defendant . . . are recognized as owners of an undivided one-half (1/2) community interest each in and to all property . . . which was acquired during the existence of the marriage.

b. This provision cannot be read to divide or partition the marital property into the individual ownership of the parties; it merely acknowledged that the parties owned an “undivided one-half (1/2) interest” in their marital property. Accordingly, this case is essentially one involving a bifurcated divorce proceeding, and the 2008 partition order is the first court order dividing marital property.

Appellant: Freddie Hooten

Agency: Office of Personnel Management

Decision Number: 2010 MSPB 116

Docket Number: PH-0831-10-0034-I-1

Issuance Date: June 22, 2010

Action Type: Retirement/Benefit Matter

Retirement - Annuities

The appellant petitioned for review of an initial decision that affirmed an OPM final decision that recomputed his retirement annuity to eliminate service credit for his post-1956 military service because the appellant turned 62 and had not made a deposit for this service prior to his retirement. OPM stated in his final decision that its recomputation resulted in a decrease in the appellant’s gross monthly annuity from $1,338 to $1,120. On appeal to the Board, the appellant asserted that he was not properly informed about the consequences of not paying the deposit. He also produced evidence that OPM had reduced his gross monthly annuity to $912, not the $1,120 amount noted in its final decision. The administrative judge affirmed OPM’s decision to recompute the appellant’s retirement annuity, but did not address the appellant’s claim regarding the amount of the reduction.

Holdings: The Board granted the appellant’s PFR, affirmed the initial decision insofar as the administrative judge correctly determined that OPM was required to recompute the appellant’s retirement annuity, but remanded the appeal to address the discrepancy in the amount the annuity would be reduced. In reaching the first finding, the Board noted that there is no administrative error when, as here, an employee is provided with and completes the 1990 version of SF-2801 electing not to make a deposit for his post-1956 military service.

Appellant: Gary N. Lynch

Agency: Department of Defense

Decision Number: 2010 MSPB 117

Docket Number: DC-3330-10-0072-I-1

Issuance Date: June 22, 2010

Appeal Type: Veterans Employment Opportunities Act

VEOA/Veterans’ Rights
Board Procedures/Authorities
- Adjudicatory Error

The appellant petitioned for review of an initial decision that denied his request for corrective action under VEOA relating to his non-selection for a promotion within the agency.

Holdings: The Board granted the appellant’s petition for review, vacated the initial decision, and remanded the appeal for further adjudication:

1. The administrative judge correctly found that the Board has jurisdiction over this VEOA appeal.

2. The administrative judge abused her discretion in issuing the initial decision prior to the parties’ completion of discovery.

Appellant: Michael B. Graves

Agency: Department of Veterans Affairs

Decision Number: 2010 MSPB 118

Docket Number: SF-3330-09-0725-I-1

Issuance Date: June 22, 2010

Appeal Type: Veterans Employment Opportunities Act

VEOA/Veterans’ Rights
- Title 38 Hybrid Positions

The appellant petitioned for review of an initial decision that denied corrective action in his VEOA appeal and dismissed his employment practices appeal for lack of jurisdiction. The agency announced vacancies for “hybrid” Medical Records Technician (MRT) positions under 38 U.S.C.  7401(3). The vacancy announcement was open to all U.S. citizens from December 29, 2008, to January 13, 2009. Although the agency claimed to have made 2 selections on March 6, 2009, only 1 person, a 10‑point preference eligible, was appointed, effective April 26, 2009. In his VEOA appeal, the appellant alleged that he attempted to file an application for an MRT position around February 15, 2009, but the agency refused to accept his application. He contended that the agency was required to receive his application whether the vacancy announcement was open or closed. The administrative judge ruled that the appellant had established VEOA jurisdiction, but ultimately failed to prove that the agency violated any relevant veterans’ preference statute or regulation. The judge found that the agency’s policy of using veterans’ preference only when applicants were equally qualified was appropriate, and that the regulation allowing late applications from 10‑point preference eligibles applies only to the competitive service, and this was an excepted service position.

Holdings: The Board denied the appellant’s petition for review regarding the employment practices appeal, but granted it regarding the VEOA appeal, remanding that appeal to the regional office for further adjudication:

1. The agency must comply with the veterans’ preference requirements set forth in Title 5 of the U.S. Code in filling hybrid positions under 38 U.S.C.  7401(3), and the Board will determine any violation of those requirements by analyzing Title 5 veterans’ preference provisions.

a. Under the provisions of 38 U.S.C.  7403(f)(2)-(3), Title 5 competitive service veterans’ preference requirements apply to appointments made for 38 U.S.C.  7401(3) positions, such as MRTs.

b. The agency’s policy of using veterans’ preference essentially as a tie-breaker for equally qualified applicants is insufficient, as it does not provide Title 5 competitive service veterans’ preference rights in considering applicants for Title 38 hybrid positions.

2. The appeal must be remanded to determine whether the agency violated certain of the appellant’s veterans’ preference rights.

a. Pursuant to 5 U.S.C.  3305(b), which is a statute relating to veterans’ preference, 5 C.F.R.  332.311(a), OPM’s Delegated Examining Operations Handbook, Chapter 4,  A, and OPM’s VetGuide, the agency should have accepted the appellant’s application, even though it was submitted after the closing of the vacancy announcement. Because the agency did not do so in this case, it violated veterans’ preference rights requirements and corrective action is warranted.

b. Although it appears that a “list of eligibles” within the meaning of 5 C.F.R. part 332 may have existed but was closed to new applicants at the time the appellant attempted to submit his application, further examination and interpretation of the relevant regulation and the Delegated Examining Operations Handbook is necessary.

c. It is not entirely clear that OPM intended “certificate” and “certificate of eligibles” to mean the same thing, but it appears that they are used interchangeably in the Handbook. If those terms are synonymous, then there is a discrepancy between OPM’s regulation and its Handbook regarding whether a “certificate” is merely a “list of eligibles” or a “list of the highest-ranked eligibles in score and veterans preference order.” The precise definition of “certificate” will govern whether the agency violated the appellant’s veterans’ preference rights by not adding him to its February 10, 2009 “certificate” and considering him for the MRT vacancies at issue.

Appellant: Adrian M. Crump

Agency: Department of Veterans Affairs

Decision Number: 2010 MSPB 119

Docket Number: CH-0752-06-0820-I-4

Issuance Date: June 23, 2010

Appeal Type: Adverse Action by Agency

Action Type: Removal

Adverse Action Charges
- Falsification/Fraud

The appellant petitioned for review of an initial decision that affirmed his removal for misconduct. The agency removed the appellant from his position as a Cemetery Caretaker based on 3 specifications of misrepresentation of material facts: (1) that he falsely stated in his job application documents that he had earned a master’s degree; (2) that he submitted a memorandum that falsely stated that he had been seen at a medical clinic during a 2-day absence; and (3) that he submitted a letter that falsely stated that he was on military duty for a 10-day period. Following a hearing, the administrative judge sustained the charge and specifications, found that the appellant failed to prove that the agency removed him in retaliation for protected activity, and that the removal penalty was within the bounds of reasonableness. In his petition for review, the appellant asserted that the administrative judge erred in relying on his failure to rebut the agency case to sustain the charges.

Holdings: The Board denied the appellant’s petition for review, reopened the appeal on its own motion to consider the appellant’s arguments on review, and affirmed the initial decision:

1. The agency proved its charge of misconduct.

a. To sustain a falsification charge, an agency must prove by preponderant evidence that the appellant knowingly supplied incorrect information with the intention of defrauding, deceiving or misleading the agency.

b. Intent is a state of mind, which is generally proven by circumstantial evidence. The Board will examine the totality of the circumstances, including the existence or absence of a credible explanation for the misrepresentation, to determine whether the agency has proven intent to defraud, deceive, or mislead.

c. The Board examined the evidence and concluded that, in all 3 specifications, the agency proved that the appellant provided incorrect information with an intent to deceive.

2. The appellant failed to establish that the proffered reason for taking the removal action was a pretext for retaliation for filing a workers’ compensation claim.

Appellant: Elbert Hicks

Agency: United States Postal Service

Decision Number: 2010 MSPB 120

Docket Number: PH-0353-09-0609-I-1

Issuance Date: June 24, 2010

Action Type: Restoration to Duty After Recovery from Compensable Injury

Restoration
Jurisdiction
Defenses and Miscellaneous Claims
- Res Judicata

The appellant petitioned for review of an initial decision that dismissed his appeal of a denial of restoration as barred by res judicata (claim preclusion). The appellant, formerly a letter carrier, suffered a compensable injury in July 1984 and resigned from the agency later that year. He partially recovered from his injury, and in 1985 requested restoration to his former position. The agency denied his request, and in the ensuing appeal, the administrative judge directed the agency to place the appellant’s name on a reemployment list and to extend him priority consideration. In a subsequent compliance proceeding, the Board found (in 1987) that the agency had complied with its final order to afford the appellant priority consideration as a partially recovered employee. The appellant filed additional restoration appeals with the Board in 1994, 1998, and 1999, and did not prevail in any of them. In the present appeal, the appellant claimed that the agency has “continuously denied” his requests for restoration as a partially recovered employee, and that its denial of restoration constituted a constructive discharge. He also contended that his resignation was involuntary and that the agency had engaged in discrimination and retaliation for filing EEO complaints. The administrative judge found that the appellant’s claims were barred by res judicata, stating in general terms that the issues on appeal “have been previously decided by the Board.” The judge further found, in the alternative, that the discrimination and constructive discharge claims are outside the Board’s jurisdiction, and that the appeal was untimely filed without a showing of good cause for the delay.

Holdings: The Board denied the appellant’s petition for review, reopened the appeal on its own motion, and affirmed the initial decision as modified, still dismissing the appellant’s denial of restoration claim as barred by res judicata, and dismissing the appellant’s claims of discrimination, retaliation, and constructive removal for lack of jurisdiction:

1. A partially recovered employee is one who has recovered sufficiently to return to less physically demanding work. Agencies are required to “make every effort to restore in the local commuting area . . . an individual who has partially recovered from a compensable injury and who is able to return to limited duty,” and this obligation is an ongoing one.

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

3. The Board has previously held that the agency’s continuing obligation to afford the appellant priority consideration as a partially recovered employee is limited to the Charleston, South Carolina local commuting area. By asserting that he was entitled to priority consideration for restoration in the Capital Metro Area, the appellant was seeking a relitigate the merits of his 1985 restoration appeal, and his restoration claim is barred on grounds of res judicata.

4. The administrative judge erred in finding that the appellant’s remaining claims are barred by res judicata. The appellant’s claims of discrimination, retaliation, and constructive removal are properly dismissed for lack of jurisdiction.

COURT DECISIONS

Nonprecedential Decisions

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

Reardon v. Department of Homeland Security, No. 2009-3268 (June 21, 2010) (MSPB Docket No. DC-1221-09-0361-W-1) (affirming the Board’s decision, which dismissed an IRA appeal for lack of jurisdiction on the basis that the appellant failed to make a non-frivolous allegation that he made a protected whistleblowing disclosure)