United States Merit Systems Protection Board

Case Report for September 10, 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: David M. Pecard

Agency: Department of Agriculture

Decision Number: 2010 MSPB 185

Docket Number: DA-3330-09-0730-I-1

Issuance Date: September 8, 2010

Appeal Type: Veterans Employment Opportunities Act

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

The appellant petitioned for review of an initial decision that denied his request for corrective action under VEOA and concluded that the Board lacked jurisdiction over his claim of a negative suitability determination. The appellant applied and was tentatively selected for a position as a GS-07 Mounted Patrol Inspector. Before the appointment was finalized, the agency conducted a Google search, which revealed several newspaper articles and a report based on a CBS “48 Hours” telecast, which portrayed the appellant as a con man, a criminal, and a bigamist, among other things. The agency withdrew its offer of employment and requested permission to object to or pass over the appellant based on qualifications and suitability. This request was “sustained” 2 days later. On appeal to the Board, the administrative judge found that the appellant had not been subjected to an appealable suitability action. Although the judge found that the Board had jurisdiction over the VEOA appeal, he denied the appellant’s request for corrective action.

Holdings: The Board granted the appellant’s petition, affirmed the initial decision insofar as it concluded that the Board lacked jurisdiction over the appellant’s claim of a negative suitability determination, vacated the initial decision regarding the appellant’s VEOA claim, and remanded that claim to the regional office for further adjudication:

1. Because it does not appear that the administrative judge considered the appellant’s final pleading in the regional office proceeding, which was timely filed, the Board considered it on review.

2. The Board affirmed the administrative judge’s conclusion that the Board lacks jurisdiction over the appellant’s claim of a negative suitability determination and his affirmative defense of harmful procedural error.

3. The Board vacated and remanded the VEOA claim to address unresolved issues regarding the agency’s handling of the request to pass over or object to a preference eligible.

a. Under the section of the form in which a box is checked indicating that OPM sustained the request and removed the appellant from consideration, the signature of the “OPM” official appears to be a Department of Agriculture employee.

b. The appellant complained that the agency withdrew its tentative offer of employment one day before the agency completed its pass over request, and the agency’s request appears to apply to a position based on a different vacancy announcement than the one in question.

c. The administrative judge appears to have disregarded both of these discrepancies in concluding that OPM sustained the pass over request on August 13, 2009, and that “subsequently,” in an August 10, 2009 letter, the agency withdrew its tentative offer of employment.

d. OPM promulgated a new regulation, 5 C.F.R.  332.406, which became effective 2 weeks before the agency completed the pass over request in question, that specifically delegates to agencies the authority to adjudicate objections to eligibles, including pass over requests. Accordingly, if the agency had delegated authority, it could have properly adjudicated the instant objection or pass over request, but the record contains no information on this issue.

e. It was not clear whether the ultimate selectee for the position was entitled to veterans’ preference. If the selectee was not a preference eligible, then the agency was required to request pass over under 5 U.S.C.  3318. If the selectee was entitled to veterans’ preference, then there was no reason for the agency to submit the pass over request in the first place.

4. The appellant failed to establish that the administrative judge abused his discretion in denying his motion for sanctions.

Appellant: Russell Hart et al.

Agency: Department of Transportation

Decision Number: 2010 MSPB 183

Docket Number: AT-0752-07-0660-A-1

Issuance Date: September 7, 2010

Appeal Type: Adverse Action by Agency

Action Type: Attorney Fee Request

Attorney Fees - Reasonableness

The 22 appellants in this consolidated appeal petitioned for review of an addendum initial decision that awarded attorney fees in the amount of $154,212.50. In the underlying appeals, the administrative judge found that the appellants had been subjected to constructive suspensions and reversed the agency’s actions. In the attorney fees proceeding, it was undisputed that the appellants were entitled to an award of reasonable attorney fees, and the agency did not challenge the appellants’ attorney’s requested rate of $300 per hour. All that was at issue was the reasonableness of the claimed hours spent on the cases. In the addendum initial decision, the administrative judge awarded significantly less than had been requested. On review, the appellants challenged all of the hours disallowed by the administrative judge, and sought fees for the time spent on petition for review, bringing the total requested to $222,000.

Holdings: The Board granted the appellants’ petitions and affirmed the initial decision as modified, awarding the appellants $214,800 in attorney fees:

1. The sole matter in contention is the reasonableness of the hours claimed.

2. In reviewing various categories of hours claimed, the Board restored many of the hours that had been disallowed. In doing so, the Board relied on court and MSPB precedent that hold that, when an administrative judge has concerns about deficiencies in a motion for attorney fees, the judge should afford the party an opportunity to address the matter before rejecting the claims. In several instances, the administrative judge failed to do so. The Board found that remand was unnecessary, however, because the appellants’ attorney provided a full explanation for the disputed charges in his petition for review.

3. The Board granted attorney fees for the 28.5 hours expended in preparing the petition for review.

Appellant: Barry D. Inman

Agency: Department of Veterans Affairs

Decision Number: 2010 MSPB 184

Docket Number: DE-1221-09-0508-W-1

Issuance Date: September 8, 2010

Appeal Type: Individual Right of Action (IRA)

Whistleblower Protection Act
Timeliness – PFA
Res Judicata

The appellant petitioned for review of an initial decision that dismissed his IRA appeal as barred under the doctrine of res judicata and, alternatively, as untimely filed. In an earlier IRA appeal, the appellant alleged that the agency did not select him for a particular vacancy in reprisal for whistleblowing. In an initial decision that became the Board’s final decision, the administrative judge found that the agency established by clear and convincing evidence that it would have selected the other individual, and not the appellant, despite the appellant’s whistleblowing. In the current IRA appeal, the appellant alleged that the agency failed to issue him performance evaluations for FY 2006 and 2007 in reprisal for whistleblowing. On his appeal form, the appellant alleged that he had been denied “several” promotions since 2006 because he was unable to explain why he did not have a current performance evaluation. The administrative judge dismissed the appeal as barred by the doctrine of res judicata, finding that the cause of action in this appeal is the same as the cause of action in the appellant’s first appeal, i.e., his non-selection for promotion. In the alternative, the judge found that the appeal must be dismissed because it was untimely filed.

Holdings: The Board affirmed the initial decision as modified, dismissing the appeal as untimely filed:

1. The Board denied the appellant’s petition for review because he failed to allege any specific error in the administrative judge’s finding that the doctrine of res judicata precludes this IRA appeal or his finding that the appellant untimely filed this appeal.

2. The administrative judge erred by dismissing this appeal based on res judicata.

a. 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.

b. The causes of action in the two appeals were not the same. The cause of action in the first appeal was the agency’s failure to select the appellant for a particular position. The cause of action in this appeal is the agency’s failure to provide the appellant with performance evaluations for FY 2007 and 2007.

3. The administrative judge correctly dismissed the appeal as untimely filed.

a. An appellant must file an IRA appeal within 60 days of receipt of OSC’s written notification that it is terminating its investigation into the alleged whistleblowing retaliation.

b. Here, the administrative judge correctly found that the IRA appeal was untimely filed because it was filed approximately 15 months after OSC informed the appellant that it was concluding its investigation and that he had the right to file an IRA appeal with the Board.


Petitioner: Douglas Kahn

Respondent: Department of Justice

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

Docket Number: 2009-3125 (MSPB Docket No. AT-1221-06-0966-M-1)

Issuance Date: September 7, 2010

Whistleblower Protection Act
- Protected Disclosure

Kahn is a Special Agent Criminal Investigator with the Drug Enforcement Administration (DEA). This case concerns his involvement with a task force that investigated drug crimes and aided a U.S. Attorney’s Office in developing cases against persons accused of drug crimes. In this IRA appeal, he alleged that he was reassigned in reprisal for whistleblowing disclosures. In a previous decision, 528 F.3d 1336 (Fed. Cir. 2008), the court reversed the administrative judge’s decision that Kahn failed to establish jurisdiction over his IRA appeal. On remand, the administrative judge found that the appellant did not prove by preponderant evidence that he made any protected disclosures, and Kahn appealed that decision to the court. At issue was whether Kahn reasonably believed he was disclosing a violation of DEA rules and regulations when he communicated to two other DEA officials, Mitchell and Ozulak, concerning the actions of Annis, another member of the task force.

Holding: The court affirmed the administrative judge’s determination that Kahn did not make protected disclosures under the WPA:

1. Under the circumstances of this case, a protected disclosure under 5 U.S.C.  2302(b)(8)(A) is “any disclosure of information by an employee or applicant which the employee or applicant reasonably believes evidences . . . a violation of any law, rule, or regulation.” This statutory definition covers an employee communication (1) that discloses unknown information, (2) that an employee would reasonably believe is unlawful, and (3) that is outside the scope of the employee’s normal duties or communicated outside of normal channels.

2. As to the third requirement, the court has outlined three categories into which an employee’s communication may fall: (a) disclosures made as part of normal duties through normal channels; (b) disclosures made as part of normal duties outside of normal channels; and (c) disclosures made outside of normal or assigned duties. A communication can only qualify as a protected disclosure if it falls within one of the latter two categories.

3. In this case, the administrative judge did not err in finding that Kahn’s communications with Mitchell were not protected because Kahn reported Annis’s conduct to Mitchell as part of normal duties through normal channels. In so ruling, the court deferred to the administrative judge’s credibility determinations.

4. Kahn’s communications with Ozaluk were not protected because he did not “reveal something that was hidden and not known” to the DEA.

5. Although it affirmed the Board’s judgment, the court noted that the administrative judge appeared to have erroneously required Khan to prove that Annis actually violated DEA rules and regulations. Kahn was not required to prove that an actual violation occurred, only that a disinterested observer could have reasonably concluded that Annis violated DEA rules and regulations.

6. Because it held that Kahn’s communications were not protected under the WPA, the court stated that it need not address whether the agency could have shown by clear and convincing evidence that it would have transferred Kahn to the Atlanta Field Office in the absence of his communications. The court noted, however, that, had it agreed with Kahn that he made a protected disclosure, a second remand to the Board would have been required to address this issue. “To avoid such inefficiency in the future, the Board should resolve all contested issues on the merits after a petitioner in a whistleblowing case has established jurisdiction and is entitled to a hearing on the merits.”

Petitioner: Stephanie D. Byrum

Respondent: Office of Personnel Management

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

Docket Number: 2009-3264 (MSPB Docket No. DA-0843-08-0294-I-2)

Issuance Date: September 9, 2010

- Lump Sums
- Survivor Annuity

At issue in this case was determining the rightful claimant to certain death benefits attributable to the service of a deceased federal employee, Rebecca Moulton. In a civil action in state court, Mrs. Moulton’s husband, David Moulton, was found to have wrongfully caused his wife’s death, and the court ordered him to assign any rights he may have to Mrs. Moulton’s federal retirement benefits to the plaintiffs in the civil action, which included Stephanie Byrum, Mrs. Moulton’s daughter and the Administrator of her mother’s estate. Mr. Moulton executed the forms in question, which were submitted to OPM by Ms. Byrum with her Application for Death Benefits. In its final decision, OPM acknowledged that the law that applies to Ms. Byrum’s request for benefits includes subsections (A) and (B) of 5 U.S.C.  8442(b)(1), which provide for a lump sum death benefit and a survivor annuity. The decision ended with a conclusory statement that “the FERS law and regulation provide for payment of [death benefits] to eligible spouses of an employee . . . . [Y]ou are not eligible for [death benefits] because you are not the widower of the deceased.”

On appeal to the MSPB, the initial decision acknowledged that OPM had failed to address several issues: whether Ms. Byrum was entitled to the death benefits in the event David Moulton was precluded by law from claiming them for himself; whether Ms. Byrum was entitled to receive the death benefits “derived from the interests of” David Moulton; and the status of unrefunded retirement contributions that ordinarily are to be paid as a lump sum according to a statutory order of precedence if no survivor is eligible for an annuity. Nevertheless, the administrative judge concluded that, since OPM had only decided the narrow issue of whether Ms. Byrum was indeed not her mother’s spouse, the Board’s decision on appeal would be equally limited. The AJ found that “OPM’s reasoning on this limited point [was] correct and must be affirmed.” The initial decision became the Board’s final decision when the Board denied Ms. Byrum’s petition for review.

Holdings: The court vacated the Board’s decision and remanded the case to the Board to return the matter to OPM with instructions to give Ms. Byrum a full and complete review and decision of the claim made, including all issues related thereto:

1. As an initial matter, the court clarified that the benefits Ms. Byrum was seeking included both a lump sum benefit under subsection (A) of 5 U.S.C.  8442(b)(1) and a survivor annuity under subsection (B). Both OPM and the Board used the term “Basic Employee Death Benefit” or “BEDB” at times to describe both benefits, but at other times to describe just the lump sum benefit.

2. The only question expressly decided by OPM and the Board was that Ms. Byrum was not her mother’s spouse, and therefore not entitled to claim FERS death benefits as her mother’s spouse. On appeal, the Government did not even address this issue, apparently acknowledging that it is irrelevant to the claim actually made by Ms. Byrum – that she was entitled to FERS death benefits as the court-designated assignee of her mother’s spouse.

3. While the case was on appeal, the Government advised the court that David Moulton had been convicted of the murder of Rebecca Moulton, and that such conviction “would be dispositive of this case.” Whether Mr. Moulton’s conviction is dispositive depends on several questions: Does state law determine whether a murder conviction works a forfeiture of federal benefits, or is there some kind of federal common law rule? Would such a forfeiture inure to the benefit of the Government, i.e., would the Government get to keep the money earned through Mrs. Moulton’s many years of service, or are the benefits payable in some form to her estate and her legitimate survivors? The court declined the Government’s invitation to offer an advisory opinion on such matters, especially when they were never decided by any authority below and have not been satisfactorily briefed by the parties.

4. The court similarly declined to resolve the Government’s argument that neither a lump sum payment nor an annuity payable under  8442(b) is assignable as a matter of federal law under 5 U.S.C.  8470(a), which provides that many benefits, including those at issue here, are not assignable except under certain exceptions. One exception provides: “An individual entitled to an annuity payment from [FERS] may make allotments or assignments of amounts from the annuity for such purposes as [OPM] considers appropriate.” This raises the question of whether an assignment of an annuity to Ms. Byrum would be considered by OPM to be “appropriate,” and also whether the lump sum benefit is an annuity for purposes of this statute.

5. The court rejected the Government’s suggestion that the issues described above should be considered to have been decided by OPM and the Board. The court stated that “we will not invent administrative decisions that were not issued by the responsible administrative authority.” The court added that “several factual and legal questions regarding David Moulton’s entitlement to the benefits and the assignability of those benefits pursuant to the court orders in this case must be addressed. Neither OPM nor the Board has addressed the relevant issues, and we will not affirm the Board’s decision on grounds not relied on by the Board itself.”

Non-precedential Decisions

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

Layton v. Merit Systems Protection Board, No. 2010-3063 (Sept. 9, 2010) (MSPB Docket No. SF-1221-09-0069-W-1) (affirming per curiam the Board’s decision, which dismissed this IRA appeal for lack of jurisdiction)