United States Merit Systems Protection Board

Case Report for November 12, 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: Bryan D. Baldwin

Agency: Department of Veterans Affairs

Decision Number: 2010 MSPB 221

Docket Number: CH-0752-08-0238-A-1

Issuance Date: November 10, 2010

Appeal Type: Adverse Action by Agency

Action Type: Attorney Fee Request

Attorney Fees
- Prevailing Party
- Interest of Justice – Gross Procedural Error

The appellant petitioned for review of an addendum initial decision that dismissed his petition for attorney fees as premature. The appellant resigned from his position as a Maintenance Mechanic in late 2007 after the agency issued a notice of decision removing him for misconduct. In a previous decision, 111 M.S.P.R. 586 (2009), the Board found that the appellant established that his resignation was involuntary due to agency misinformation, specifically that the agency led him to believe that his separation would be processed as a retirement. The Board ordered a return to the status quo ante, which meant that the appellant would be restored to employment, but subject to the agency’s decided removal action. Although the propriety of the removal action had not (and still has not) been adjudicated, the appellant filed a motion for attorney fees, arguing that the agency’s errors that led to his involuntary resignation constitute “gross procedural error of commission and omission that significantly and materially burdened [him].” In dismissing the attorney fees petition, the administrative judge found that it is premature to conclude that the Board’s order resulted in a material alteration of the relationship between the parties which would make the appellant a prevailing party for the purposes of awarding attorney fees. The judge found that, although the Board’s order requiring the agency to cancel the involuntary resignation action resulted in the appellant’s reinstatement, giving the appellant standing to challenge his separation under 5 U.S.C. chapter 75, the appellant has not yet realized any benefit from this advantage.

Holdings: The Board granted the appellant’s petition for review, found that the appellant was a prevailing party and that attorney fees are warranted in the interest of justice, and remanded the appeal for a determination of whether the requested fees are reasonable:

1. The appellant is a prevailing party.

a. The Board has adopted the standard set forth by the U.S. Supreme Court that an appellant is considered to have prevailed in a case and to be entitled to attorney fees only if he obtains an “enforceable order” resulting in a “material alteration of the legal relationship of the parties.” A plaintiff “prevails” when actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant’s behavior in a way that directly benefits the plaintiff.

b. Because the Board’s decision required the agency to cancel the appellant’s resignation, through which the appellant regained his right to appeal his removal for misconduct, the decision resulted in a “material alteration of the legal relationship of the parties” that directly benefited the appellant. He is therefore a prevailing party for purposes of an award of attorney fees.

2. Attorney fees are warranted in the interest of justice.

a. One of the situations in which an award of attorney fees is in the interest of justice is when the agency committed a gross procedural error that prolonged the proceeding or severely prejudiced the employee.

b. Here, the agency gave the appellant misinformation which led to its error in wrongly processing his separation as a resignation. This error significantly prejudiced the appellant by requiring that he pursue an appeal before the Board to have the involuntary resignation reversed and prolonging his ability to exercise his statutory right to file a Board appeal of the underlying removal action.

3. The attorney fees petition must be remanded for a determination of whether the requested fees are reasonable.

Appellant: Scott E. Secrist

Agency: United States Postal Service

Decision Number: 2010 MSPB 217

Docket Number: DE-3443-10-0041-I-1

Issuance Date: November 9, 2010

Jurisdiction – Debt Collection
Compliance – Settlement-Related

The appellant petitioned for review of an initial decision that dismissed his appeal for lack of jurisdiction. The appellant resigned from the agency in 2009 pursuant to a written settlement agreement. He subsequently filed a Board appeal that challenged the merits of the agency’s action seeking to collect a debt from him. The administrative judge dismissed the appeal for lack of jurisdiction, finding that the Board has no authority to review the merits of the underlying debt. The judge further found, however, that the Board has limited jurisdiction to determine whether the agency complied with due process requirements prior to collection of the debt, but that the appellant failed to make a nonfrivolous allegation that he was denied due process.

Holdings: The Board denied the appellant’s petition for review, but reopened the appeal on its own motion to address the scope of the Board’s authority to adjudicate this case:

1. The initial decision overstated the limited scope of the Board’s authority to consider debts owed by an employee.

a. No law, rule, or regulation grants the Board jurisdiction over a debt collection except in the context of the recovery of an overpayment in retirement benefits by OPM. However, the Board may address a debt collection issue when it is integral to the disposition of an underlying appealable action.

b. In Ramirez v. Department of the Army, 86 M.S.P.R. 211 (2000), the Board held that, although the merits of the underlying debt issue between the appellant and the creditor agency were excluded from the Board’s purview, the appellant’s procedural claim “fairly read, is one that comes within OPM’s scope of review and, derivatively, the Board’s.” The holding in Ramirez is limited to situations where an agency seeks to recover a debt by having OPM offset an individual’s retirement account or benefits.

c. Ramirez is inapposite because the appellant has not alleged that the agency requested that OPM proceed with debt collection through administrative offset, nor is there any indication that the appellant has retired or is eligible to retire.

2. To the extent that the appellant’s claims constitute an allegation that the agency’s debt collection breached the settlement agreement between the parties, the Board forwarded the matter to the Denver Field Office for docketing as a petition for enforcement.

Appellant: Arthur R. Niederhofer

Agency: Office of Personnel Management

Decision Number: 2010 MSPB 218

Docket Number: AT-0841-10-0385-I-1

Issuance Date: November 9, 2010

Action Type: Retirement/Benefit Matter

Jurisdiction
- Retirement/Health Insurance

The appellant petitioned for review of an initial decision that dismissed for lack of jurisdiction his appeal of an OPM reconsideration decision that denied his request to change the classification of his retirement under the Federal Employees’ Retirement System (FERS). The appellant resigned from the Department of Agriculture in 1996. Because he was not yet eligible to retire at that time, he completed an Application for Deferred or Postponed Retirement and elected for his retirement to commence in February 2004. When the appellant retired in 2004, he requested to enroll in the Federal Employee Health Benefits (FEHB) program as a retiree. OPM informed the appellant that, as a deferred retiree under 5 U.S.C.  8413(b), he was not eligible to continue or re-enroll in the FEHB program and denied his request. The appellant sought reconsideration, asserting that his retirement classification was incorrect, and that his retirement should be should be under 5 U.S.C.  8412(g), which is a form of immediate retirement. On appeal to the Board, the appellant reiterated his request that his retirement be reclassified from  8413(b) to  8412(g). He also asserted that, at the time he left federal service, OPM advised him that as long as he maintained FEHB coverage until his annuity went into effect, he could reinstate his FEHB benefits when his retirement became effective. The administrative judge dismissed the appeal for lack of jurisdiction, finding that OPM determinations concerning health plan enrollment are final and not reviewable by the Board. The administrative judge also stated that, if the appellant wished to adjudicate a claim that his resignation and retirement were involuntary, he should file an appeal with the Board against the Department of Agriculture.

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. Although the administrative judge was correct that claims concerning federal health insurance programs are beyond the Board’s jurisdiction, the Board’s jurisdiction over final decisions of OPM in administering FERS derives from 5 U.S.C.  8461(e)(1), which provides for Board review of “an administrative action or order affecting the rights or interests of an individual” under the retirement law.

2. Even though the appellant’s ultimate goal may have been to secure enrollment in a federal health insurance program, his specific request to OPM was to change his retirement classification. Whether OPM correctly classified the appellant’s retirement as a deferred retirement under 5 U.S.C.  8413 rather than as an immediate retirement under 5 U.S.C.  8412 clearly affects the appellant’s rights and interests under the retirement law, and is within the Board’s jurisdiction.

3. Even though there do not appear to be any issues of material fact as to the correct classification of the appellant’s retirement, he is entitled to the hearing he requested. The case must therefore be remanded.

3. The appellant’s assertions that he relied on misrepresentation from OPM and would not have left federal service if he knew he could not reinstate FEHB benefits when his deferred retirement became effective is in essence an involuntary retirement claim, even though it was raised in the context of OPM’s denial of his request to change his retirement classification. The Board forwarded that claim to the regional office for docketing against the Department of Agriculture.

Appellant: Anne Visser Ney

Agency: Department of Commerce

Decision Number: 2010 MSPB 219

Docket Number: AT-315H-10-0148-I-1

Issuance Date: November 9, 2010

Appeal Type: Termination of Probationers

Jurisdiction
- Probationers – Marital Status Discrimination
- “Employee”
- VEOA/USERRA

The appellant petitioned for review of an initial decision that dismissed her appeal for lack of jurisdiction on the ground that she failed to nonfrivolously allege that her probationary termination was based upon her marital status.

Holdings: The Board vacated the initial decision and remanded the case to the regional office to resolve the appellant’s claim that her termination was due to her marital status, as well as three other possible bases for the Board to exercise jurisdiction:

1. The appellant made a nonfrivolous allegation that her termination was due to her marital status and is entitled to a jurisdictional hearing on that issue.

2. An initial decision must identify and resolve all material issues of fact and law, and an appellant must receive explicit information on what is required to establish and appealable jurisdictional issue. The administrative judge failed to consider 3 issues that implicate the Board’s jurisdiction and the intended scope of this pro se appellant’s claims.

a. The record indicates that the appellant had about 15 years of prior federal service. The administrative judge erred in failing to provide an appropriate Burgess notice informing the appellant how she could establish that she was an employee with adverse action appeal rights to the Board.

b. The appellant repeatedly referred to her military service and how it was a source of tension with her supervisor, and specifically requested that the Board exercise jurisdiction over the “USERRA violations” in her complaint. The judge did not acknowledge this claim, and did not inform the appellant what she needed to establish the Board’s jurisdiction over a claim under the Uniformed Services Employment and Reemployment Rights Act.

c. The appellant may also have been trying raise a claim under the Veterans Employment Opportunities Act of 1998.

Appellant: Richard A. Becker

Agency: Department of Veterans Affairs

Decision Number: 2010 MSPB 220

Docket Number: NY-0330-10-0223-I-1

Issuance Date: November 10, 2010

Appeal Type: Veterans Employment Opportunities Act (VEOA)

VEOA/Veterans’ Rights

The appellant petitioned for review of an initial decision that denied his request for corrective action under VEOA. The appellant is a GS-5 Nursing Assistant. He claimed that the agency violated his veterans’ preference rights when it noncompetitively promoted two other employees, but not him, to the GS-6 level. In denying relief, the administrative judge found that the addition of points to a veteran’s score because of his status applies only in the open competitive examination process, and was not applicable to the action the appellant was appealing, a noncompetitive promotion where there was no job announcement.

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

1. The existence of the Board’s jurisdiction is a threshold issue that may be raised at any time during a Board proceeding.

2. To establish Board jurisdiction over a “right to compete” claim under 5 U.S.C.  3330a(a)(1)(B), one of the required elements is a nonfrivolous allegation that the agency denied the appellant an opportunity to compete under merit promotion procedures for a vacant position for which the agency accepted applications from individuals outside of its own workforce in violation of 5 U.S.C.  3304(f)(1). That element was not satisfied here, as there was no job announcement for which the appellant sought a promotion.

Appellant: Joan M. Young

Agency: US Postal Service

Decision Number: 2010 MSPB 222

Docket Number: AT-0353-10-0150-I-1

Issuance Date: November 10, 2010

Appeal Type: Restoration to Duty

Action Type: Denial After Recovery from Compensable Injury

Restoration to Duty

The appellant petitioned, and the agency cross-petitioned, for review of an initial decision that denied the appellant’s restoration appeal on the merits. The appellant suffered a work-related injury on April 5, 2006. The appellant asserted that, because the agency placed her on administrative leave from the date of her injury until November 21, 2008, she was ineligible for wage loss benefits until November 22, 2008. She argued that, because the Office of Workers’ Compensation Programs (OWCP) terminated her benefits effective October 24, 2009, she was entitled to immediate restoration as of that date because she had fully recovered within 1 year of the date she became eligible for wage loss compensation. The administrative judge gave the appellant a comprehensive notice of her rights under 5 C.F.R. 353.301, including not only the rights of those who fully recover within 1 year, but also the more limited rights available to those whose full recovery takes longer than a year, those who partially recover, and those who are “physically disqualified” from their former positions. The appellant relied solely on her contention that she was fully recovered within 1 year. In denying the appellant’s restoration claim on the merits, the administrative judge found that the appellant was ineligible for immediate and unconditional restoration under  353.301(a) because she did not recover by April 5, 2007, 1 year after she became eligible for wage loss compensation.

Holdings: The Board denied the appellant’s petition, granted the agency’s cross-petition, vacated the initial decision, and dismissed the appeal for lack of jurisdiction:

1. The appellant failed to establish that the evidence she offered in her petition for review is material or that it was unavailable despite her due diligence before the close of the record below.

2. On review, the appellant advances an argument of entitlement to restoration under 5 C.F.R.  353.301(b), i.e., as an employee whose full recovery took more than 1 year. The Board will not consider an argument raised for the first time on review absent a showing that it is based on new and material evidence not previously available despite the party’s due diligence. The administrative judge made the appellant aware of her rights under subsection 353.301(b), but the appellant rejected that theory of the case, adamantly insisting that she was relying solely on her claim that she was fully recovered within 1 year.

3. The appellant failed to establish jurisdiction over her claim of a denial of restoration under 5 C.F.R.  353.301(a).

a. One of the jurisdictional elements is a nonfrivolous allegation that the employee fully recovered from the compensable injury within 1 year from the date her eligibility for compensation began.

b. The appellant became eligible to receive OWCP wage loss benefits on the date of her work-related injury, April 5, 2006. The appellant failed to make a nonfrivolous allegation that she fully recovered within 1 year of that date.

4. The appellant failed to establish her claim that the administrative judge was biased.

FEDERAL REGISTER NOTICE

The Equal Employment Opportunity Commission issued final regulations, 75 Fed. Reg. 68912 (Nov. 9, 2010), implementing the Genetic Information Nondiscrimination Act of 2008.

COURT DECISIONS

Non-precedential Decisions

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

Pacilli v. Merit Systems Protection Board, No. 2010-3135 (Nov. 5, 2010) (MSPB Docket No. SF-1221-09-0862-W-1) (affirming the Board’s decision, 113 M.S.P.R. 526 (2010), which dismissed this IRA appeal as untimely filed)

Dinkins v. U.S. Postal Service, No. 2010-3033 (Nov. 5, 2010) (MSPB Docket No. DC-0752-09-0358-I-1) (affirming the Board’s decision, which dismissed the appeal for lack of jurisdiction on the basis that the appellant waived his appeal rights in a last chance agreement)

Marshall v. U.S. Postal Service, No. 2010-3128 (Nov. 8, 2010) (MSPB Docket No. NY-0353-10-0042-I-1) (affirming the Board’s decision, which dismissed this restoration appeal on the basis of a settlement agreement)

Bowen v. Department of the Navy, No. 2010-3065 (Nov. 8, 2010) (MSPB Docket No. SF-0752-09-0040-I-2) (affirming per Rule 36 the Board’s decision, 112 M.S.P.R. 607 (2009), which sustained the appellant’s removal)

Delapenia v. Merit Systems Protection Board, No. 2010-3116 (Nov. 9, 2010) (MSPB Docket No. SF-0752-09-0980-I-1) (affirming the Board’s decision, which dismissed the appeal for lack of jurisdiction)

Jones v. Department of Veterans Affairs, No. 2010-3140 (Nov. 9, 2010) (MSPB Docket No. PH-0752-10-0038-I-1) (affirming the Board’s decision, which sustained the appellant’s removal)

Cahill v. Department of Defense, No. 2010-3101 (Nov. 9, 2010) (MSPB Docket Nos. PH-315H-09-0360-I-1, PH-0752-0430-C-2) (affirming the Board’s decisions in these appeals, which dismissed a termination during the first year of employment for lack of jurisdiction, and which denied a petition for enforcement for alleged violation of a settlement agreement)