United States Merit Systems Protection Board

Case Report for July 9, 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: Patricia L. Luna

Agency: United States Postal Service

Decision Number: 2010 MSPB 124

Docket Number: SF-0353-09-0493-I-1

Issuance Date: July 1, 2010

Appeal Type: Restoration to Duty

Action Type: After Recovery from Compensable Injury

Jurisdiction
Restoration to Duty

This appeal involves the agency’s National Reassessment Process (NRP) Pilot Program, in which management reviews the assignments of those performing limited duty following partial recovery from a work-related injury to ensure that the assignments are consistent with employees’ medical restrictions and contain only “operationally necessary tasks.” If a limited duty assignment does not meet these criteria, and if management is unable to identify operationally necessary tasks available within the employee’s work restrictions, the employee is sent home until such work becomes available or her medical restrictions change. After the appellant was sent home under the NRP Pilot Program, she filed a Board appeal claiming that the agency violated her restoration rights as a partially recovered employee under 5 C.F.R. part 353, and that the agency had failed to accommodate her medical condition. The initial decision dismissed the appeal for lack of jurisdiction, finding that the appellant failed to make a non-frivolous allegation that the agency’s discontinuation of her limited duty assignment was an arbitrary and capricious denial of restoration. Absent jurisdiction over the restoration claim, the initial decision found that the Board was without jurisdiction to adjudicate the disability discrimination claim.

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

1. As it did in Sanchez v. U.S. Postal Service, 2010 MSPB 121, the Board held that, because the agency’s search for suitable work was apparently limited to a single district, whether the agency searched the entire local commuting area as required by 5 C.F.R.  353.301(d) remains an unanswered question of material fact, and the appellant has made a non-frivolous allegation that the agency’s denial of restoration was arbitrary and capricious. Because jurisdiction over the restoration claim has been established, the Board also has jurisdiction to adjudicate the claim of disability discrimination.

2. The Board rejected the agency’s argument that the appellant’s disability discrimination claim should be held in abeyance because it is covered under McConnell v. Potter, a class complaint pending before the EEOC. This argument is unpersuasive because it presumes that McConnell is a mixed case, which it is not. Nothing in the EEOC’s certification of the class complaint discusses denial of restoration or any other action that may be otherwise appealable to the Board. The appellant’s alleged membership in the McConnell class therefore does not divest the Board of jurisdiction over any aspect of her Board appeal.

Appellant: Adelaido Vazquez

Agency: United States Postal Service

Decision Number: 2010 MSPB 125

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

Issuance Date: July 1, 2010

Appeal Type: Restoration to Duty

Action Type: After Recovery from Compensable Injury

Jurisdiction
Restoration to Duty

As in Luna, the agency sent the appellant home after making a determination under the NRP Pilot Program that it could not identify any operationally necessary tasks with the appellant’s work restrictions, and the initial decision dismissed his restoration appeal for lack of jurisdiction on the basis that he failed to make a non-frivolous allegation that the agency’s discontinuation of his limited duty assignment was an arbitrary and capricious denial of restoration.

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

As it did in Sanchez v. U.S. Postal Service, 2010 MSPB 121, the Board held that, because the agency’s search for suitable work was apparently limited to a single district, whether the agency searched the entire local commuting area as required by 5 C.F.R.  353.301(d) remains an unanswered question of material fact, and the appellant has made a non-frivolous allegation that the agency’s denial of restoration was arbitrary and capricious. Because jurisdiction over the restoration claim has been established, the Board also has jurisdiction to adjudicate the claim of disability discrimination.

Appellant: Lydia T. Chang

Agency: United States Postal Service

Decision Number: 2010 MSPB 126

Docket Number: SF-0353-09-0560-I-1

Issuance Date: July 1, 2010

Appeal Type: Restoration to Duty

Action Type: After Recovery from Compensable Injury

Jurisdiction
Restoration to Duty

As in Luna, the agency sent the appellant home after making a determination under the NRP Pilot Program that it could not identify any operationally necessary tasks with the appellant’s work restrictions, and the initial decision dismissed her restoration appeal for lack of jurisdiction on the basis that she failed to make a non-frivolous allegation that the agency’s discontinuation of her limited duty assignment was an arbitrary and capricious denial of restoration.

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

As it did in Sanchez v. U.S. Postal Service, 2010 MSPB 121, the Board held that, because the agency’s search for suitable work was apparently limited to a single district, whether the agency searched the entire local commuting area as required by 5 C.F.R.  353.301(d) remains an unanswered question of material fact, and the appellant has made a non-frivolous allegation that the agency’s denial of restoration was arbitrary and capricious. Because jurisdiction over the restoration claim has been established, the Board also has jurisdiction to adjudicate the claim of disability discrimination.

Appellant: Teresa Sandoval

Agency: United States Postal Service

Decision Number: 2010 MSPB 128

Docket Number: SF-0353-09-0552-I-1

Issuance Date: July 8, 2010

Appeal Type: Restoration to Duty

Action Type: After Recovery from Compensable Injury

Jurisdiction
Restoration to Duty

As in Luna, the agency sent the appellant home after making a determination under the NRP Pilot Program that it could not identify any operationally necessary tasks with the appellant’s work restrictions, and the initial decision dismissed her restoration appeal for lack of jurisdiction on the basis that she failed to make a non-frivolous allegation that the agency’s discontinuation of her limited duty assignment was an arbitrary and capricious denial of restoration.

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

1. As it did in Sanchez v. U.S. Postal Service, 2010 MSPB 121, the Board held that, because the agency’s search for suitable work was apparently limited to a single district, whether the agency searched the entire local commuting area as required by 5 C.F.R.  353.301(d) remains an unanswered question of material fact, and the appellant has made a non-frivolous allegation that the agency’s denial of restoration was arbitrary and capricious. Because jurisdiction over the restoration claim has been established, the Board also has jurisdiction to adjudicate the claim of disability discrimination.

2. As in Luna, the Board rejected the agency’s argument that the appellant’s disability discrimination claim should be held in abeyance because it is covered under McConnell v. Potter, a class complaint pending before the EEOC.

3. The Board rejected the appellant’s contention that the agency’s action might constitute a violation of the agency’s Employee and Labor Relations Manual, and that the NRP’s criteria for limited duty assignments are impermissible under a 2002 arbitration decision.

Appellant: Linda C. Chen

Agency: United States Postal Service

Decision Number: 2010 MSPB 129

Docket Number: SF-0353-09-0559-I-1

Issuance Date: July 8, 2010

Appeal Type: Restoration to Duty

Action Type: After Recovery from Compensable Injury

Jurisdiction
Restoration to Duty

As in Luna, the agency sent the appellant home after making a determination under the NRP Pilot Program that it could not identify any operationally necessary tasks with the appellant’s work restrictions. The initial decision denied her request for restoration as a partially recovered employee, finding that the appellant failed to establish that the agency’s discontinuation of her limited duty assignment was an arbitrary and capricious denial of restoration.

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

1. The Board found that the agency’s delay between the time the appellant was placed off work (April 9, 2009) and when the agency completed its district-wide search for work for the appellant (July 2009) was not arbitrary and capricious. The delay was not lengthy and, during the period at issue, the agency was conducting an orderly search for work.

2. As it did in Sanchez v. U.S. Postal Service, 2010 MSPB 121, the Board held that, because the agency’s search for suitable work was apparently limited to a single district, whether the agency searched the entire local commuting area as required by 5 C.F.R.  353.301(d) remains an unanswered question of material fact, which must be resolved on remand.

3. On remand, the administrative judge must adjudicate the appellant’s claim of disability discrimination under the guidelines set forth in Sanchez.

4. The administrative judge properly rejected the appellant’s claim that she had been subjected to a reduction in force (RIF) because the agency is only required to use RIF procedures when it releases a preference-eligible employee from her competitive level, and the appellant is not a preference-eligible employee.

Appellant: Melvin Searcy, Jr.

Agency: Department of Commerce

Decision Number: 2010 MSPB 127

Docket Number: DC-0752-09-0851-I-1

Issuance Date: July 7, 2010

Appeal Type: Adverse Action by Agency

Action Type: Constructive Adverse Action

Jurisdiction
- Alleged Involuntary Resignation

The appellant petitioned for review of an initial decision that dismissed his alleged involuntary resignation appeal for lack of jurisdiction without conducting a hearing.

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 appeal for lack of jurisdiction:

1. An appellant is entitled to a hearing on the issue of Board jurisdiction over an appeal of an alleged involuntary resignation only if he makes a non-frivolous allegation casting doubt on the presumption that his resignation was voluntary.

2. Although the administrative judge correctly opened the initial decision by finding that the appellant was not entitled to a hearing because he did not raise non-frivolous allegations of Board jurisdiction, she erred in apparently applying a preponderant evidence standard in analyzing the appellant’s assertions and evidence in the remainder of the initial decision.

3. After reviewing the pertinent evidence, the Board concluded that the appellant failed to make a non-frivolous allegation that his resignation was involuntary.

Appellant: Robert S. Zucker

Agency: Office of Personnel Management

Decision Number: 2010 MSPB 130

Docket Number: PH-0845-09-0446-I-1

Issuance Date: July 8, 2010

Appeal Type: FERS - Collection of Overpay. Debts

Action Type: Retirement/Benefit Matter

Retirement
- Annuity Overpayment – Waiver

The appellant petitioned for review of an initial decision that affirmed OPM’s determinations that he received an overpayment of an annuity and was not entitled to waiver of that overpayment. The appellant retired on disability retirement in 2007 based on conditions that caused cognitive impairments. When it awarded the appellant a disability benefit, OPM informed the appellant that he was required to both apply for Social Security Administration (SSA) disability benefits and to immediately inform OPM of any SSA disability award. SSA subsequently informed OPM that it had awarded the appellant a disability benefit, and OPM notified the appellant that it was required to reduce his FERS annuity because he was also receiving the SSA benefit. OPM also informed the appellant that his receipt of SSA benefits had caused a FERS annuity overpayment of $36,450. OPM rejected the appellant’s request for waiver, explaining that it had informed him of the effect that receiving SSA benefits would have on his FERS annuity, and instructed him to set aside any retroactive payment received from SSA to cover the amount he needed to repay OPM. In light of the appellant’s financial circumstances, however, OPM adjusted the repayment schedule from $500 per month to $264 per month. On appeal, the administrative judge found that: OPM proved both the existence and the amount of the overpayment; even though he was without fault in the creation of the overpayment, he was not entitled to waiver because he was required to have set aside the amount of the overpayment; and that the appellant’s alleged financial hardship and medical conditions, including dementia, did not constitute exceptional circumstances that would bar OPM from recovering the overpayment. Nevertheless, the appellant’s financial circumstances warranted adjusting the repayment schedule to $100 per month.

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

1. A waiver of an annuity overpayment may be granted when the annuitant is without fault and recovery would be against equity and good conscience. Under OPM’s guidelines, annuitants who know or suspect that they are receiving overpayments are expected to set aside the amount pending recoupment and, absent exceptional circumstances, recovery in such cases is not against equity and good conscience, and exceptional circumstances do not include financial hardship.

2. The appellant claimed that the timing of his SSA award and FERS annuity, coupled with his deteriorating mental conditions, led him to reasonably believe that he was not receiving an overpayment. Because the set-aside rule applies only to individuals who know or suspect that they are receiving an overpayment, the appellant’s claim raises a question regarding whether the rule should apply here to bar his request for waiver.

3. Because resolving the factual question of whether the appellant knew or suspected that he was receiving an overpayment may require credibility determinations that are best made first by the administrative judge, a remand is appropriate.

Appellant: Frank B. Carroll

Agency: Office of Personnel Management

Decision Number: 2010 MSPB 131

Docket Number: AT-831M-09-0875-I-1

Issuance Date: July 8, 2010

Appeal Type: CSRA - Overpayment of Annuity

Action Type: Retirement/Benefit Matter

Timeliness – PFR
Retirement
- Annuity Overpayment – Waiver/Adjustment

The appellant petitioned for review of an initial decision that affirmed an OPM reconsideration decision concerning an overpayment of retirement benefits. Because the amount of his interim annuity payments exceeded the correct amount of his regular annuity, the appellant received an overpayment of $4,195.97. OPM determined that the appellant was not entitled to a waiver of the overpayment, and set a repayment schedule of $69 per month. On appeal to the Board, the administrative judge found that OPM proved the existence and amount of the overpayment, and that the appellant was without fault in its creation, but that the appellant was not entitled to a waiver on the basis of financial hardship. The judge determined, however, that the appellant established that he needed substantially all of his current income and liquid assets to meet his current ordinary and necessary living expenses. For that reason, the judge found that recovery at the present rate would cause financial hardship, and that an adjustment of the repayment schedule was warranted. At the end of the body of the initial decision, the judge stated that the repayment schedule would be reduced to $69 per month, but later in the decision ordered OPM to reduce the repayment schedule to $5 per month. In an erratum issued after the deadline for filing a petition for review, the administrative judge stated that the amount to be collected was incorrectly identified as $5, and would be corrected to read $69. In his petition for review, the appellant argued that the erratum improperly increased his monthly repayment to OPM by $64.

Holdings: The Board affirmed the initial decision in part, vacated it in part, and remanded the case to the regional office for further adjudication:

1. The Board affirmed the initial decision with respect to its findings that OPM proved the existence and amount of the overpayment and that the appellant was without fault in the creation of the overpayment.

2. The Board excused the untimeliness of petition for review.

a. The appellant asserts that he believed that the initial decision directed OPM to withhold only $5 per month, and that he was satisfied with this outcome until receiving the erratum. It was only then that he came to believe he had grounds to file a petition for review.

b. The administrative judge was without authority to issue the erratum. After issuing an initial decision, a judge retains jurisdiction “only to the extent necessary” to correct the transcript, adjudicate addendum proceedings (not applicable here), or vacate an initial decision before it becomes final to accept a settlement agreement into the record.

c. The outcome of the appeal itself is unclear because of ambiguities in the initial decision.

3. The appellant must be remanded for further proceedings, to determine whether the appellant is entitled to a waiver of the overpayment or, in the alternative, to an adjustment of the repayment schedule.

a. Financial hardship is deemed to exist when the annuitant needs substantially all of his current income and liquid assets to meet current ordinary and necessary living expenses and liabilities.

b. In reducing the appellant’s monthly expenses to $7,516, the administrative judge did not justify his conclusions with respect to monthly food or household maintenance expenses. The judge did not articulate any basis for determining that a reduction in the appellant’s monthly expenses resulted in an increase in his monthly income.

c. Even if the appellant is not entitled to a waiver of recovery of the overpayment, he may be entitled to an adjustment of the repayment schedule.

COURT DECISIONS

Non-precedential Decisions

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

Ward v. Department of the Air Force, No. 2010-3018 (July 7, 2010) (MSPB Docket No. DA-0752-08-0328-I-1) (affirming per Rule 36 the Board’s decision, which affirmed the appellant’s removal)

Kennington v. Merit Systems Protection Board, No. 2010-3045 (July 8, 2010) (MSPB Docket No. DE-315H-09-0428-I-1) (affirming the Board’s decision, which dismissed for lack of jurisdiction a termination of a probationer’s employment)

Subbaraya v. Merit Systems Protection Board, No. 2010-3087 (July 9, 2010) (MSPB Docket No. PH-0752-09-0439-I-1) (affirming the Board’s decision, which dismissed an appeal for lack of jurisdiction)

Robacker v. Department of Agriculture, No. 2009-3289 (July 9, 2010) (MSPB Docket No. DA-0752-08-0549-I-1) (affirming the Board’s decision, which affirmed the appellant’s removal)