United States Merit Systems Protection Board

Case Report for September 3, 2010

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.



Appellant: Wayne C. Wall

Agency: Office of Personnel Management

Decision Number: 2010 MSPB 178

Docket Number: AT-0831-08-0779-M-1

Issuance Date: August 31, 2010

Action Type: Retirement/Benefit Matter

Case Type: Court Remand

Retirement – Disability Retirement

In a previous decision, 111 M.S.P.R. 122 (2009), the Board found that the appellant failed to establish that he was entitled to disability retirement benefits. The U.S. Court of Appeals for the Federal Circuit vacated and remanded the Board’s decision for reconsideration under the legal standard announced in Reilly v. Office of Personnel Management, 571 F.3d 1372 (Fed. Cir. 2009). In Reilly, the court held that post-separation evidence of an appellant’s medical condition may be considered in determining eligibility for a disability retirement annuity, rejecting the Board’s determination in that case that medical opinions rendered after an employee’s separation are admissible only if they are based on pre-separation tests, observations, interviews, and medical examinations, and address the employee’s pre-separation condition. The court held that post-separation medical evidence can be probative of whether the appellant became disabled while serving in a covered position “[w]here proximity in time, lay testimony, or some other evidence provides the requisite link to the relevant period.”

Holding: After considering the relevant evidence in this case, the Board found that the appellant failed to establish his entitlement to disability retirement benefits under the Reilly standard.

Appellant: William H. Armstrong

Agency: Department of the Treasury

Decision Number: 2010 MSPB 179

Docket Number: DC-0752-08-0188-M-1

Issuance Date: September 1, 2010

Appeal Type: Adverse Action by Agency

Action Type: Removal

Case Type: Court Remand

Timeliness – PFR
Settlement - Validity

In a previous decision, 110 M.S.P.R. 533 (2009), the Board dismissed as untimely filed the appellant’s petition for review seeking to invalidate a settlement agreement on the basis that he relied on agency misinformation when he signed the agreement. In dismissing the petition as untimely filed without good cause for the delay, the Board concluded that the appellant’s evidence was insufficient to invalidate the settlement agreement. On appeal to the Federal Circuit, the court found, 591 F.3d 1358 (Fed. Cir. 2010), that the Board improperly conflated the issue of timeliness with the merits of the appellant’s fraudulent inducement claim, and remanded the appeal “for further proceedings to determine whether the Board should waive its timeliness requirement to permit the appeal to be decided on the merits.”

Holdings: The Board found that the appellant established good cause for the untimely filing of his petition for review of the initial decision dismissing his appeal as settled, but denied his petition on the merits:

1. The appellant established good cause for his untimely petition for review.

a. Because the appellant’s petition for enforcement unmistakably challenged the validity of the settlement agreement, the Board considered the petition for enforcement as a petition for review of the settlement agreement, making the petition just over 2 months late.

b. The appellant acted with due diligence once he became aware of the evidence which he claims establishes a valid reason to set aside the settlement agreement.

2. The appellant failed to establish that he was fraudulently induced to sign the settlement agreement. As the Board found in its previous decision, the agency did not misrepresent its contacts with the Department of Agriculture in any material fashion, and the appellant failed to establish that the agency had knowingly concealed a material fact or intentionally misled him.

Appellant: Pamela S. Winston

Agency: Department of the Treasury

Decision Number: 2010 MSPB 180

Docket Number: DE-0752-08-0286-X-1

Issuance Date: September 1, 2010

Case Type: Compliance Referral

Compliance – Settlement-Related

This case was before the Board on the administrative judge’s Recommendation which found that the appellant was in breach of the settlement agreement that resolved a removal appeal, and recommended that the Board order reinstatement of the appellant’s removal and declare that the appellant will have no right of Board appeal from the removal. In the settlement agreement, the appellant agreed that she would “neither seek, nor apply for, nor accept any employment whatsoever with the Internal Revenue Service,” and that if she did so, she would be in breach of the agreement and “the agency will reinstate her termination” and “Appellant will have no right of appeal in the event the agency takes such action.” The appellant later applied for a position with the IRS as a seasonal employee in Austin, Texas, and the agency filed its petition for enforcement of the settlement agreement.

Holdings: The Board dismissed the agency’s petition for enforcement:

1. The relief requested – permission to reinstate the appellant’s termination – is not within the Board’s jurisdiction to grant. Any decision pertaining to the appellant’s removal would be advisory, and advisory opinions are prohibited by 5 U.S.C.  1201(h).

2. The settlement agreement does not contemplate the relief requested by the agency. It provides that “the agency” – not the Board – “will reinstate her termination.” Because the settlement agreement gives the agency the remedy to itself reinstate the appellant’s termination, the Board’s involvement is not required.

Appellant: Clifton McCarter

Agency: Department of the Navy

Decision Number: 2010 MSPB 181

Docket Number: DC-4324-09-0812-I-2

Issuance Date: September 1, 2010

Appeal Type: Uniformed Services Employment and Reemployment Rights Act (USERRA)

Settlement – Validity, Enforceability

The appellant petitioned for review of an initial decision that dismissed his appeal as settled. This was a Butterbaugh appeal in which the appellant alleged that the agency charged him military leave on nonwork days, which caused him to use annual leave, sick leave, or leave without pay in order to perform his military duty. In her initial decision, the administrative judge asserted that an oral settlement agreement was reached and recorded during a prehearing conference. The judge stated that she had reviewed the agreement and was satisfied that it was lawful on its face, and that it was freely reached and understood by the parties. She concluded that the agreement was enforceable by the Board. In his petition for review, the appellant asserts that the initial decision was wrongly decided based on evidence submitted by his former counsel and that, “based on the submission and content of the evidence in the unilateral ‘Negotiated Settlement Agreement’ [he] was denied due process.”

Holdings: The Board vacated the initial decision and remanded the appeal to the regional office for further adjudication:

1. The record does not show that the appellant understood the terms of the agreement.

a. The recording of the telephonic hearing reflects only that the appellant know how much he was getting paid, and does not specifically address any other term of the 3-page unexecuted written settlement agreement referenced in the recording. The appellant’s affirmative response to the administrative judge’s question whether he agreed to “settle this case for payment of that amount under the terms of that agreement” is insufficient to show that he understood the terms of the agreement.

b. The appellant’s assertion that he understood that “the case cannot proceed” because of a lack of evidence does not show that he understood that the pending dismissal was with prejudice or that such a dismissal was the end of his claim. It is possible that the appellant believed that, if he later obtained further evidence, his appeal could then “proceed.”

2. The record does not reflect whether the parties agreed to enter the settlement agreement into the record for enforcement purposes.

Petitioner: Special Counsel ex rel. Maria Aran

Agency: Department of Homeland Security

Decision Number: 2010 MSPB 182

Docket Number: CB-1208-10-0020-U-1

Issuance Date: September 2, 2010

Appeal Type: Request for Stay (OSC Filed)

Action Type: All Original Jurisdiction Cases

Special Counsel Actions
Whistleblower Protection Act

The Office of Special Counsel (OSC) requested a 45-day stay of the agency’s reassignment of Ms. Aran while OSC completes its investigation, continues settlement negotiations, and determines what further action is required. Ms. Aran alleges that the decision to reassign her was retaliation for having made protected whistleblowing disclosures.

Holdings: Given the assertions made by OSC in its stay request, Chairman Grundmann found that there are reasonable grounds to believe that the agency decided to reassign Ms. Aran because of her protected disclosures under 5 U.S.C.  2302(b)(8), and granted the 45-day stay.


Petitioner: Craig Steven Morse

Respondent: Merit Systems Protection Board

Intervenor: Department of Homeland Security

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

Docket Number: 2010-3030 (MSPB Docket No. AT-3330-09-0571-I-1)

Issuance Date: September 1, 2010

Statutory Interpretation/Construction

In his MSPB appeal, Mr. Morse alleged that the Transportation Security Administration (TSA) violated his veterans’ preference rights when it declined to waive its maximum entry age requirement in connection with his application for employment as a Federal Air Marshal. In an initial decision, the Board’s administrative judge dismissed the appeal for lack of jurisdiction, finding that she had “no authority to overrule or deviate” from Belhumeur v. Department of Transportation, 104 M.S.P.R. 408 (2007), where the Board held that it had no jurisdiction over VEOA appeals from FAA employees or applicants.

Holdings: Because the TSA is exempt from 5 U.S.C.  3330(a), which provides Board appeal rights for preference eligible veterans, the court affirmed the Board’s decision. Section 40122(g)(2)of Title 49, U.S. Code, provides that the provisions of Title 5 “shall not apply” to the FAA’s personnel management system except for specifically enumerated provisions. The enumerated exceptions do not include section 3330(a), which provides preference eligible veterans with appeal rights to the Board.