United States Merit Systems Protection Board

Case Report for September 24, 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: Milo D. Burroughs

Agency: Department of Defense

Decision Number: 2010 MSPB 192

Docket Number: DA-3330-09-0583-I-1

Issuance Date: September 21, 2010

Appeal Type: Veterans Employment Opportunities Act

VEOA/Veterans’ Rights
- Exhaustion of DOL Remedy

The appellant petitioned for review of the initial decision in this VEOA appeal that denied his request for corrective action. In a jurisdictional order, the administrative judge ordered the appellant to establish that he exhausted his administrative remedy with the Department of Labor (DOL), as required by 5 U.S.C.  3330a(a) & (d)(1)-(2). In response, the appellant filed a copy of his complaint to DOL, but he did not indicate whether DOL ever responded to his complaint. In the initial decision, the administrative judge found that the appellant exhausted his remedy with DOL and otherwise established Board jurisdiction, but found on the merits that the appellant failed to establish that the agency violated his veterans’ preference rights in the selection process at issue. On petition for review, both parties submitted evidence and argument relating to the merits of the appeal.

Holdings: The Board denied the appellant’s petition for review, reopened the appeal on its own motion, vacated the initial decision, and dismissed the appeal for lack of jurisdiction:

1. The Board must satisfy itself that it has authority to adjudicate the matter before it and may raise the issue of its own jurisdiction at any time.

2. The exhaustion requirement in a VEOA appeal is satisfied where the appellant filed a complaint with DOL and either (1) DOL sent the appellant written notification of the results of its investigation of the complaint, or (2) DOL did not resolve the complaint within 60 days and the appellant notified the Secretary of Labor of his intention to appeal to the Board.

3. In this case, the appellant satisfied the first of these elements, but not the second. This defect was explained to the appellant in a show cause order issued by the Clerk of the Board, but the appellant did not remedy the defect.

Appellant: Stephen I. Adler

Intervenor: Valerie B. Baker

Agency: Office of Personnel Management

Decision Number: 2010 MSPB 193

Docket Number: SF-0831-10-0512-I-1

Issuance Date: September 22, 2010

Action Type: Retirement/Benefit Matter

Retirement
- Annuities
- Court/Domestic Relations Orders

At issue was an OPM reconsideration decision that awarded the intervenor a pro rata share of the appellant’s CSRS retirement annuity. When the appellant and the intervenor were divorced in 1997, the divorce decree provided that the intervenor was to received one-half of the appellant’s civil service retirement plan “to be divided between the parties by [qualified domestic relations order] QDRO.” A later court Order specified that the intervenor was “entitled to a prorata share” of the appellant’s gross monthly annuity under the CSRS, and specified how the numerator and denominator of this share would be calculated. In its final decision, OPM determined that the intervenor’s pro rata share was 47.56% of the appellant’s current gross annuity, a figure equal to one-half of the appellant’s 273 months of federal service while married to the intervenor divided by his 287 months of total federal service. However, in explaining its calculation, OPM indicated a denominator of 296 months. On appeal, the initial decision found that the court Order was acceptable for processing and awarded the intervenor a pro rata share of the appellant’s retirement benefit. With respect to the amount of the pro rata share, however, the judge instructed OPM to determine on remand the correct denominator.

Holdings: The Board affirmed the initial decision insofar as it found that the intervenor is entitled to a pro rata share of the appellant’s CSRS annuity, vacated the decision insofar as it remanded the case to OPM clarify its calculations, and affirmed OPM’s reconsideration decision.

1. To the extent the appellant contests the validity of the court Order, he has selected the wrong forum. Under 5 C.F.R.  838.224, a retiree who alleges that a court order is invalid must prove the invalidity by submitting a new court order that sets aside or declares the prior order invalid.

2. OPM was correct in its determination that the Order is suitable for processing and awards the appellant a pro rata share of the appellant’s gross annuity in accordance with the requirements of 5 C.F.R.  838.621.

3. OPM correctly interpreted the Order to award the intervenor a share equal to one-half of the fraction for which the numerator is the appellant’s 273 months of federal service while married to the intervenor, and for which the denominator is his 287 total months of federal service, or 47.56%. Although OPM’s letter refers to a denominator of 296, it is evident that this was a typographical error, and a remand to OPM is unnecessary.

4. The appellant’s claims of various regulatory violations are without merit or would not change the outcome.

Appellant: Leroy Hudson

Agency: Office of Personnel Management

Decision Number: 2010 MSPB 194

Docket Number: AT-0831-10-0061-I-1

Issuance Date: September 23, 2010

Action Type: Retirement/Benefit Matter

Timeliness – PFA
Jurisdiction

The appellant petitioned for review of an initial decision that dismissed his appeal of an OPM determination as untimely filed. At issue was whether the appellant was entitled to a refund for the overpayment of insurance premiums for his federal employee health benefits resulting from his move from New York to Georgia. Although noting that there was a question of jurisdiction, the administrative judge dismissed the appeal as untimely filed without addressing jurisdiction.

Holdings: The Board vacated the initial decision and dismissed the appeal for lack of jurisdiction:

1. Although an administrative judge may, in certain circumstances, assume Board jurisdiction and dispose of an appeal on timeliness grounds, such action is not appropriate when the issues of jurisdiction and timeliness are interrelated.

2. The issues of jurisdiction and timeliness are interrelated in this case because the question of whether the appellant can establish due diligence to excuse his untimely appeal is related to whether OPM had an obligation to notify the appellant of his Board appeal rights, which depends upon whether the Board would have jurisdiction over his appeal.

3. It is well established that the Board does not have jurisdiction to consider claims concerning federal employee health insurance benefits.

Appellant: Carl L. Gibeault

Agency: Department of the Treasury

Decision Number: 2010 MSPB 195

Docket Number: AT-0752-10-0010-I-1

Issuance Date: September 23, 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. In a sworn statement, the appellant averred that: (1) He was told his employment was going to be terminated based on the agency’s recent discovery that he had failed to complete certain work; (2) if he fought the termination, he would be ineligible for any future employment with the government, but that, if he immediately resigned, he would be able to later apply for government jobs; and (3) if he decided to resign, he had to do so within 24 hours. In dismissing the appeal for lack of jurisdiction, the administrative judge found that the appellant had failed to made a nonfrivolous allegation that his resignation was involuntary.

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

1. While an employee-initiated action such as a resignation is presumed to be voluntary, and thus outside the Board’s jurisdiction, an involuntary resignation is tantamount to a removal, which is appealable.

2. The appellant made nonfrivolous allegations that his resignation was involuntary. In his sworn statement, he alleged that the agency provided him with, if not incorrect, then at least misleading or incomplete, information as to his options, and that, as a long-time employee who had never been disciplined, he reasonably relied upon these statements in concluding that he had no real choice but to resign immediately.

Appellant: Anthony D. Viana

Agency: Department of the Treasury

Decision Number: 2010 MSPB 196

Docket Number: NY-0752-09-0287-I-1

Issuance Date: September 23, 2010

Appeal Type: Adverse Action by Agency

Action Type: Suspension - More than 14 Days

Adjudicatory Error
Discrimination

The appellant petitioned for review of an initial decision that affirmed his 16-day suspension, which was based on a charge that he displayed discourteous and unprofessional conduct. On petition for review, the appellant alleges among other things that the administrative judge failed to consider his discrimination claim.

Holdings: The Board granted the appellant’s petition for review, vacated the initial decision, and remanded the appeal to the regional office for adjudication of the appellant’s affirmative defense of discrimination:

1. The Board granted the appellant’s petition for the sole purpose of addressing his argument that the administrative judge failed to consider his claim of discrimination, finding all his other contentions of error to be without merit.

2. The appellant raised a discrimination claim in his initial appeal, but the administrative judge did not make any findings of fact or conclusions of law regarding this claim. An initial decision must address and resolve all material issues of fact and law, including claims of discrimination. The judge did not, as required by Board case law, apprise the appellant of the relevant burden and elements of proof for his discrimination claim.

COURT DECISIONS

Petitioner: Billye D. Downing

Respondent: Office of Personnel Management

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

Docket Number: 2010-3043 (MSPB Docket No. DA-0831-09-0342-I-1)

Issuance Date: September 20, 2010

Retirement
- Former Spouse Annuity
- Court/Domestic Relations Orders

This case was on appeal from a final Board decision that affirmed OPM’s reconsideration decision, which denied Ms. Downing’s request for a former spouse survivor annuity under the Civil Service Retirement System (CSRS). After more than 37 years of marriage, Ms. Downing filed for divorce in 2003. While the divorce proceeding was pending, Mr. Downing retired from his federal government position in 2004, electing to provide a survivor annuity for Ms. Downing. The divorce decree, issued in October 2006, provided that Ms. Downing would receive half of the appellant’s retirement benefits and Thrift Savings Plan, but did not mention any survivor benefits for her. The Board’s administrative judge concluded that Ms. Downing was not entitled to a survivor annuity because the divorce decree did not expressly provide for such benefits, and Mr. Downing did not elect such benefits within 2 years of the divorce as required by law. On appeal to the Federal Circuit, Ms. Downing contended that although the divorce decree was “admittedly poorly written,” the court order clearly intended for her to receive former spouse survivor annuity benefits and she did not need to use “magic words” to obtain them. She also argued that Mr. Downing did not receive adequate notice because OPM failed to follow its own rules when it continued to withhold amounts from Mr. Downing’s annuity payments instead of terminating them upon divorce as required by law.

Holdings: The court, Judge Newman dissenting, held that Ms. Downing was not entitled to survivor annuity benefits because her former husband did not reelect former spouse survivor benefits for her within 2 years following their divorce and the divorce decree makes no mention of a survivor annuity:

1. Although Ms. Downing was entitled to survivor annuity benefits as a result of Mr. Downing’s election at retirement, that entitlement terminated by operation of law when the Downings divorced in October 2006. A former spouse of a federal employee is entitled to a survivor annuity if and to the extent a divorce decree or court order expressly provides for one, or if the annuitant make a new election to grant a survivor annuity within 2 years of the divorce.

2. The divorce decree did not provide for a former spouse survivor annuity as required by OPM regulations. Nor did the court order qualify under the framework devised by the court in Fox v. Office of Personnel Management, 100 F.3d 141 (Fed. Cir. 1996), for analyzing whether a court order without any “magic words” provides a survivor annuity benefit, because it cannot fairly be read as awarding a survivor annuity. Under these circumstances, Mr. Downing’s intent is irrelevant.

3. A former spouse may receive survivor annuity benefits in the absence of a new election by the annuitant if the annuitant did not receive the required annual notice of his election rights, and there is evidence sufficient to show that the retiree intended to provide a former spouse survivor annuity. Here, the first prong of this test has not been met.

4. The circumstances of this case are unusual because Mr. Downing made an election for survivor annuity benefits at retirement, after Ms. Downing filed for divorce but more than 2 years before the divorce became final, and OPM continued to made deductions from his annuity even though they should have terminated by operation of law. Nevertheless, the clear statutory language makes no exception to the requirement that a new election must be made within 2 years after the marriage dissolves where the employee receive adequate notice.

In a dissenting opinion, Judge Newman stated that “[t]his is the rare case in which the intention of the divorcing employee is clear, and was clearly recorded in several official documents.” She further stated that “Mr. Downing’s death before the two-year window had closed and OPM’s continued payment of the reduced annuity after the divorce is precisely the situation that this court has noted ‘strongly suggests the elements of an estoppel that might be permitted through the crack left in the door by the language in Office of Personnel Management v. Richmond, 496 U.S. 414, 423 (1990).’”