United States Merit Systems Protection Board

Case Report for January 7, 2011


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: Rhonda K. Conyers

Agency: Department of Defense

Decision Number: 2010 MSPB 247

Docket Number: CH-0752-09-0925-I-1

Issuance Date: December 22, 2010

Appeal Type: Adverse Action by Agency

Action Type: Suspension - Indefinite

Jurisdiction
- Adverse Actions
- Non-Critical Sensitive Positions

At issue in this interlocutory appeal was whether, in adjudicating an adverse action based on the denial or revocation of an employee’s eligibility to occupy a position designated as non-critical sensitive (NCS) under the Department of Defense Personnel Security Program Regulation, the Board would apply the limited scope of review set forth in Department of the Navy v. Egan, 484 U.S. 518 (1988). In Egan, the Supreme Court held that the Board lacks the authority to review the substance of a security clearance determination or to require the agency to support the revocation or denial of the security clearance by preponderant evidence, as it would be required to do in other adverse action appeals. Rather, the Court found that the Board has authority to review only whether the employee’s position required a security clearance, whether the clearance was denied or revoked, whether the employee was provided with the procedural protections of 5 U.S.C.  7513, and whether transfer to a nonsensitive position was feasible.

Because the Board found that this interlocutory appeal presented the same legal issue as that presented in another interlocutory appeal, Northover v. Department of Defense, it invited the Office of Personnel Management and interested amici to express their views on the issue, and held oral argument. During the course of these interlocutory appeals, the parties stipulated that the positions held by the Conyers and Northover did not require the incumbents to have a confidential, secret, or top secret clearance, or to have access to classified information.

Holdings: The Board, Member Rose dissenting, held that it would not apply the limited scope of review set forth in Egan to this appeal and returned the case to the regional office for further adjudication:

1. Because the appellant is not required to have a security clearance and she is not required to have access to classified information, Egan does not limit the Board’s statutory authority to review the appellant’s indefinite suspension appeal.

2. Egan limits the Board’s review of an otherwise appealable adverse action only if the action is based upon a denial, revocation or suspension of a “security clearance,” i.e., involves a denial of access to classified information or eligibility for such access.

3. The Board may exercise its full statutory review authority and review the agency’s determination that the appellant is no longer eligible to hold a “sensitive” position, because this appeal does not involve a discretionary agency decision regarding a security clearance.

In her dissenting opinion, Member Rose stated that she “would hold that the Board cannot review the reasons underlying the agency’s determination that the appellant is no longer eligible to occupy a sensitive position. . . .  The substance of an agency’s decision that retaining an employee would be inconsistent with the interests of national security has never been subject to third-party review before today, and I would hold that it is not subject to such review.”

Appellant: Devon Haughton Northover

Agency: Department of Defense

Decision Number: 2010 MSPB 248

Docket Number: AT-0752-10-0184-I-1

Issuance Date: December 22, 2010

Appeal Type: Adverse Action by Agency

Action Type: Reduction in Grade/Rank/Pay

Jurisdiction
- Adverse Actions
- Non-Critical Sensitive Positions

This case was before the Board on interlocutory appeal from the chief administrative judge’s ruling that he would apply the limited scope of Board review set forth in Department of the Navy v. Egan, 484 U.S. 518 (1988) in adjudicating the appellant’s reduction in grade.

Holding: As in Conyers, the Board, Member Rose dissenting, held that, in adjudicating this adverse action, the Board may review the agency’s determination that the appellant is no longer eligible to hold a “sensitive” position.

Appellant: Patrick K. Harellson

Agency: United States Postal Service

Decision Number: 2011 MSPB 3

Docket Number: SF-4324-09-0406-B-1

Issuance Date: January 5, 2011

USERRA/Veterans’ Rights
- Discrimination – Disparate Impact Claims

This case was before the Board on an interlocutory appeal certified by the administrative judge, who found that an appellant does not state a cause of action under USERRA by alleging that a hiring practice results in a disparate impact upon individuals protected by that statute. The appellant asserted that the agency’s decision to waive the Custodian examination for non-maintenance internal agency candidates enabled the agency to consider a greater number of internal non-veteran candidates, to the disadvantage of preference eligible candidates like him.

Holdings: The Board affirmed the administrative judge’s ruling and returned the case to the regional office for further adjudication:

1. Disparate treatment and disparate impact are distinct analytical frameworks for establishing discrimination. A disparate treatment claim may succeed only if there is a finding of intent to discriminate by the acting party, while a disparate impact claim may succeed if a facially neutral policy or practice has a disproportionate effect on a protected class of people and is not justified by business necessity. It is impermissible to conflate these two modes of analysis.

2. Unlike Title VII, the ADA Amendments Act of 2008, and the Age Discrimination in Employment Act of 1967, USERRA does not mention finding liability for discrimination based on the adverse effect of an employer’s practice. Rather, USERRA focuses on the employer’s motivation in taking that action, stating that an employer will be found to have violated USERRA if the individual’s protected status is a “motivating factor” in the employer’s action.

3. Congress knows how to express a desire to include a disparate impact cause of action to establish discrimination, as it did when it passed the Civil Rights Act of 1991, 3 years prior to the passage of USERRA.

4. While the legislative history does state that the USERRA legislation should be liberally construed and states that it is a remedial statute, Congress did not provide for or even discuss an action under this statute absent discriminatory intent.

5. The Board noted that denying an appellant’s ability to pursue a claim under a disparate impact theory does not preclude an appellant from using evidence of a disparate impact of an agency’s policies or practices as circumstantial evidence of intention discrimination in violation of 38 U.S.C.  4311.

Appellant: Anil N. Parikh

Agency: Department of Veterans Affairs

Decision Number: 2011 MSPB 1

Docket Number: CH-1221-08-0352-B-2

Issuance Date: January 3, 2011

Appeal Type: Individual Right of Action (IRA)

Whistleblower Protection Act
- Protected Disclosure
- Danger to Public Health or Safety
- Disclosures “specifically prohibited by law”

The appellant petitioned for review of the remand initial decision that denied his request for corrective action in this IRA appeal. The appellant was a Staff Physician at a Veterans Administration Medical Center (VAMC). The agency removed him based on one charge (6 specifications) of “unauthorized release and disclosure of private and protected information.” In an earlier decision, 110 M.S.P.R. 295 (2008), the Board found that the appellant made nonfrivolous allegations that all of his disclosures, except for disclosures 5 and 6, were protected under the WPA. On remand, the administrative judge denied the appellant’s request for corrective action on the merits, finding that the appellant failed to establish than any of his disclosures were protected under the WPA because he failed to prove by preponderant evidence that he reasonably believed that the disclosures evidenced any type of wrongdoing listed under 5 U.S.C.  2302(b)(8).

Holdings: The Board granted the appellant’s petition for review, reversed the initial decision, and granted the appellant’s request for corrective action, ordering the agency to cancel the appellant’s removal and restore him to his former position:

1. The essence of this case is whether the disclosures cited in the notice of proposed removal were protected. The Board found that the case can be resolved without a detailed analysis of each and every one of the appellant’s disclosures. The Board may resolve the merits issues in an IRA appeal in any order it deems most efficient. In this case, it is most efficient to begin with the disclosures named in the notice of proposed removal.

2. Each of the 6 specifications described personal patient information that the appellant disclosed and identified the individual to whom he described it. Specification (v) concerned a letter dated January 6, 2007 (disclosure 8), which was sent to Senator Barack Obama and Congressman Luis Gutierrez, which contained the full names and diagnoses of 3 patients. Specification (vi) concerned a letter dated March 12, 2007 (disclosure 9), which was sent to Senators Obama, Akaka, and Craig, and which included copies of the medical records of 4 patients, including their last names, partial security numbers, as well as the patients’ medical history, evaluations, prescribed medications, conditions, and diagnoses. The appellant admitted that these disclosures contained confidential patient information, but argued that the agency was not permitted to discipline him for those disclosures because they were protected under the WPA.

3. Disclosures 8 and 9 were protected under 5 U.S.C.  2302(b)(8)(A)(ii), i.e., they were disclosures of information that the appellant reasonably believed evidenced substantial and specific danger to public health or safety.

a. In both disclosures, the appellant alleged that there are systematic problems within the VAMC that resulted in untimely and inadequate patient care, and related particular examples of alleged misdiagnoses, misdirection of patients within the hospital, and unwarranted delays in treatment.

b. In determining whether a disclosure evidenced a reasonable belief of substantial and specific danger to public health or safety, the Board considers factors such as the likelihood of harm resulting from the danger, the imminence of the potential harm, and the nature of the potential harm. Here, each of these factors militated in favor of finding that the disclosures were protected.

c. There is substantial evidence in the record to show that the VAMC appropriately managed and treated all of the patients in question and that none of these patients suffered harm because of the care they received. There was also evidence to show that some of the examples of allegedly deficient patient care and management amounted to reasonable disagreements between the appellant and other staff. Nevertheless, an IRA appellant need only show that a disinterested observer with knowledge of the essential facts known to and readily ascertainable by him could have reasonably concluded that a disclosure was protected, and the Board found that the appellant had such a reasonable belief here.

d. There is evidence in the record to show that the appellant’s motivation in disclosing one alleged misdiagnosis was not his concern for patient care but rather his desire to tarnish the reputation of his coworkers. Nevertheless, the Board found that the appellant’s motivation for making the disclosure is immaterial to whether he reasonably believed that it evidenced a substantial and specific danger to public health or safety.

4. The disclosures underlying the two agency specifications in question were not specifically prohibited by law.

a. The WPA excludes from coverage disclosures “specifically prohibited by law” or Executive order, even if the disclosures otherwise meet the criteria of 5 U.S.C.  2302(b)(8)(A).

b. Disclosures 8 and 9 are not prohibited by the Health Insurance Portability and Accountability Act of 1996 (HIPAA), which generally prohibits healthcare providers from disseminating confidential patient information. Among the exceptions to the general rule are disclosures by whistleblowers to a “health oversight agency or public health authority authorized by law to investigate or otherwise oversee the relevant conduct or conditions of the covered entity . . . .” Because the Senators and Congressman to whom these disclosures were made were members of the relevant committees that review matters relating to the medical care of veterans, the Board found that the committees are “public health authorities” within the meaning of the exception for whistleblowing disclosures.

c. Disclosures 8 and 9 are not prohibited by the Privacy Act of 1974. Although that Act generally prohibits an agency from disclosing medical records without the written authorization of the individuals to whom the records pertain, an exception applies to disclosures to congressional committees with jurisdiction over the matters disclosed.

d. Although the agency correctly argued that it also relied on a violation of agency policy, i.e., VA Handbook 1605.1, the Board found that the Handbook does not constitute a “law” within the meaning of 5 U.S.C.  2302(b)(8)(A).

5. The disclosures underlying specifications (i) through (iv) were not protected under the WPA because they were specifically prohibited by law.

a. In these specifications, the agency alleged that the appellant disclosed the same confidential patient information identified in specifications (v) and (vi) to other individuals.

b. There do not appear to be any exceptions to the Privacy Act that would permit disclosure of medical information to these individuals.

6. The appellant’s protected disclosures were a contributing factor to his removal.

7. The agency did not show by clear and convincing evidence that it would have removed the appellant notwithstanding the protected disclosures.

a. Even if an appellant establishes that he made protected disclosures that were a contributing factor to the agency’s personnel action, the Board will not order corrective action if the agency can show by clear and convincing evidence that it would have taken the action even in the absence of the protected disclosures. Clear and convincing evidence “is that measure or degree of proof that produces in the mind of the trier of fact a firm belief as to the allegations sought to be established.”

b. Although there was evidence that tended to show that the agency would still have removed the appellant even if it were only for the unprotected disclosures underlying specifications (i) through (iv), the Board found that the evidence as a whole was insufficient to leave the Board with a firm belief on the matter.

8. As corrective action, the Board ordered the agency to cancel the appellant’s removal and restore him to his former position with back pay and other benefits.

Appellant: Christopher Lane

Agency: Department of Homeland Security

Decision Number: 2010 MSPB 245

Docket Number: DC-1221-10-0231-W-1

Issuance Date: December 17, 2010

Appeal Type: Individual Right of Action (IRA)

Whistleblower Protection Act
- Jurisdiction
- Protected Disclosure
- Violation of Law, Rule, or Regulation
- Abuse of Authority
- Gross Mismanagement or Waste of Funds

The appellant petitioned for review of an initial decision that dismissed his IRA appeal for lack of jurisdiction. Citing unsatisfactory performance, the agency terminated the appellant’s employment as a GS‑15 Information Technology Specialist during his probationary period. The appellant claimed that his employment was terminated in retaliation for protected whistleblowing disclosures. The appellant worked as a Contracting Officer’s Technical Representative. Among the matters that he disclosed to agency officials were his allegations that: His supervisors ignored his reports that some of the federal contractors he oversaw were not complying with their contractual obligations; he was improperly directed to sign off on contractors’ invoices even where he reasonably believed it would violate ethical rules, either because he had supervised work done by that contractor before accepting his position with the federal government, or because he had not been monitoring the performance of the contract and therefore had no basis for concluding that the contractor had performed the services specified in the contract; after he refused to sign off on one invoice, one supervisor denigrated and threatened him; the agency was guilty of gross mismanagement and gross waste of funds in the administration of its contracts; and that the net effect of his supervisors’ improper actions and inactions was to undermine his ability to perform his job successfully. Without conducting a hearing, the administrative judge dismissed the appeal for lack of jurisdiction, finding that the appellant failed to make a nonfrivolous allegation that he had made any disclosures protected by 5 U.S.C.  2302(b)(8).

Holdings: The Board granted the appellant’s petition for review, reversed the initial decision, found that the appellant established jurisdiction, and remanded the case to the regional office for adjudication on the merits:

1. The Board has jurisdiction over an IRA appeal if the appellant has exhausted his or her administrative remedies before OSC and makes nonfrivolous allegations that he made a protected disclosure and that the disclosure was a contributing factor in the agency's decision to take or fail to take a covered personnel action. Here, there was no dispute that the appellant had exhausted his OSC remedy and that the agency had taken a covered personnel action. At issue were whether the appellant made nonfrivolous allegations that he made a protected disclosure and that the disclosure was a contributing factor in the agency’s decision to terminate his employment.

2. Among the disclosures protected under 5 U.S.C.  2302(b)(8) are any disclosures of information by an employee which the employee reasonably believes evidences a violation of law, rule, or regulation, gross mismanagement, a gross waste of funds, or an abuse of authority. The proper test for determining whether an employee had a reasonable belief that his disclosures revealed misconduct prohibited under the WPA is whether a disinterested observer with knowledge of the essential facts known to and readily ascertainable by the employee could reasonably conclude that the actions of the government evidence wrongdoing as defined by the WPA.

3. Even if a disclosure would otherwise fit the definition of a protected disclosure, it will not be protected if it is made as part of an employee’s normal duties reported through normal channels or if the disclosure is made to the wrongdoer.

4. The Board found no basis for concluding that the appellant could have a reasonable belief that he was disclosing any of the covered types of wrongdoing by reporting that government contractors were not meeting their contractual obligations. In addition, most of these disclosures would be part of the appellant’s normal job duties reported through normal channels.

5. The disclosures alleging that the appellant’s supervisors failed to respond appropriately to his reports that contractors were not meeting their contractual obligations did not constitute protected whistleblowing. While such a failure on the supervisors’ part might constitute mismanagement, the appellant failed to make a nonfrivolous allegation of gross mismanagement, i.e., management action or inaction that creates a substantial risk of significant adverse impact upon the agency’s ability to accomplish its mission.

6. The appellant made a nonfrivolous allegation that he disclosed a violation of law, rule, or regulation regarding his allegation that his supervisors’ directive that he sign off on contractors’ invoices would violate ethical obligations, either because the appellant had supervised work done by that contractor before accepting his position with the federal government, or because he had not been monitoring the performance of the contract and therefore had no basis for concluding that the contractor had performed the services specified in the contract.

7. The appellant made a nonfrivolous allegation of a disclosure of an abuse of authority regarding his supervisor’s alleged statements – “you should watch out for your wife and kids and think about them” and that the supervisors would “fix” the appellant – following the appellant’s refusal to sign off on the invoices. The Board has found that a supervisor’s use of his influence to denigrate staff members and to threaten their careers constitutes an abuse of authority.

8. The appellant failed to make a nonfrivolous allegation of a gross waste of funds, as the disclosure in both instances was made to the alleged wrongdoer.

9. The appellant made a nonfrivolous allegation of a protected disclosure (abuse of authority) regarding his contention that the net effect of his supervisors’ wrongdoing was to undermine his ability to perform his job successfully.

10. The appellant made a nonfrivolous allegation that his disclosures were a contributing factor in the agency’s decision to terminate his employment by satisfying the knowledge/timing test of 5 U.S.C.  1221(e)(1).

Appellant: Linda I. McKenzie

Agency: Office of Personnel Management

Decision Number: 2010 MSPB 246

Docket Number: SF-0831-09-0421-R-1

Issuance Date: December 21, 2010

Action Type: Retirement/Benefit Matter

Retirement
Former Spouse Survivor Annuity

This case was before the Board pursuant to a request from the OPM Director that the Board reconsider its final decision in this case, 113 M.S.P.R. 240 (2010), which ordered OPM to grant the appellant’s request for former spouse survivor annuity benefits. When Mr. McKenzie retired from the federal service in 1998, he elected a survivor annuity for his wife (the appellant). They divorced in 2006, and the Marital Settlement Agreement awarded her a portion of his lifetime annuity, but the Agreement did not mention the survivor annuity and therefore did not expressly award such benefits. The parties discovered this inadvertent election and attempted to rectify it. Mr. McKenzie’s attorney drafted an order that would explicitly award a former spouse survivor annuity to the appellant and sent it to OPM to determine if it met OPM’s criteria. After OPM did not respond to this letter or a later one, and did not respond to several voicemail messages, the draft order was approved by a state court and Mr. McKenzie’s attorney forwarded the order to OPM with a cover letter asking that OPM “administer the court’s orders as indicated.” OPM granted the appellant her share of Mr. McKenzie’s lifetime annuity but denied her request for a former spouse survivor annuity because the court order awarding it was not the first order dividing marital property. OPM did not notify the parties that Mr. McKenzie still had the option, within 2 years from the date of divorce, to reelect a survivor annuity for the appellant.

In its earlier decision, the Board found that the revised court order did not entitle the appellant for a former spouse survivor annuity as a qualifying court order, but that Mr. McKenzie, through his attorney, communicated to OPM a voluntary election, in writing, to provide a former spouse survivor annuity to the appellant. In his request for reconsideration, the OPM Director contends that the Board’s decision is in conflict with 5 U.S.C.  8341(h)(4), which prohibits modifications of court orders for the purpose of effectuating former spouse survivor annuity awards. OPM also asserts that the order does not qualify as an election because it was not signed by Mr. McKenzie and there was no specific designation of Mr. McKenzie’s attorney as his agent to make an election.

Holdings: The Board denied the Director’s petition for reconsideration and affirmed its previous decision as modified:

1. 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, 5 U.S.C.  8341(h)(1), or if the annuitant makes a new election to grant a survivor annuity within 2 years after the date on which the marriage dissolves, 5 U.S.C.  8339(j)(3).

2. The Board’s decision is not in conflict with  8341(h)(4), which prohibits modifications of court orders for the purpose of effectuating former spouse survivor annuity awards. The provisions of  8341(h)(4) are not nullified by giving force and effect to an election under the circumstances presented here. The order, which was transmitted to OPM within 2 years after the divorce, although defective under  8341(h), nevertheless constituted an election by Mr. McKenzie.

3. OPM’s assertions that the order does not qualify as an election because it was not signed by Mr. McKenzie and there was no specific designation of his attorney as his agent to make an election are not persuasive. These requirements do not appear in the statute or the relevant regulations, and OPM has not identified any authority that requires a retiree to sign his written election or any authority that prescribes a designation or appearance to be filed with OPM by the retiree’s attorney.

4. An applicant for former spouse survivor annuity benefits makes a prima facie case of entitlement when the retiree’s intent to provide such an annuity has been conveyed in writing within 2 years after the retiree’s marriage to the former spouse has terminated. Those requirements are satisfied in this case.

Appellant: Misty L. Wofford

Agency: Department of Justice

Decision Number: 2010 MSPB 249

Docket Number: DA-0752-02-0325-C-1

Issuance Date: December 23, 2010

Appeal Type: Adverse Action by Agency

Action Type: Removal

Compliance – Settlement-Related

The appellant petitioned for review of a compliance initial decision that dismissed her petition for enforcement of the parties’ 2002 settlement agreement. The underlying removal appeal was resolved by a written settlement agreement in which the appellant agreed to resign and dismiss any and all claims she may have had against the agency arising from her employment, and the agency agreed to purge any and all files it maintained on the appellant of any and all disciplinary matters, specifically including all documents relating to investigations conducted by the agency’s Office of Internal Audit. In 2008, the appellant filed a discrimination appeal with the EEOC alleging that the agency subjected her to disability discrimination, which ultimately resulted in her removal. In 2009, she filed suit against the agency in U.S. District Court including claims of discrimination, hostile work environment, and disparate treatment under Title VII of the Civil Rights Act of 1964. The appellant later filed a petition for enforcement alleging that, during the U.S. District Court case, she discovered that the agency had not purged negative information about her from the Internal Audit case report.

In dismissing the petition for enforcement, the administrative judge found that the agency materially breached the settlement agreement by failing to purge the Internal Audit case report of information concerning the 2002 removal action. The administrative judge further determined, however, that the appellant materially breached the settlement agreement by filing complaints with the EEOC and in U.S. District Court. Citing to the Board’s decision in Caston v. Department of the Interior, 108 M.S.P.R. 190 (2008), the administrative judge determined that the appellant materially breached the agreement before she became aware of the agency’s breach and that, because she came to the Board with “unclean hands,” she cannot now complain of the agency’s breach.

Holdings: The Board denied the appellant’s petition for review, but reopened the appeal on its own motion to affirm the compliance initial decision as modified, denying the appellant’s petition for enforcement:

1. The Board rejected the appellant’s contention that she did not breach the settlement agreement by filing a lawsuit against the agency in U.S. District Court, as the case was dismissed for want of prosecution and thereby “relieved [the agency] of having to defend this referenced litigation.” The appellant’s alleged decision not to prosecute her case does not erase the fact that she filed the lawsuit, which was a breach of the settlement agreement.

2. The Board discerned no error with the administrative judge’s conclusion that the agency breached the settlement agreement by maintaining the Internal Audit case report.

3. The administrative judge’s reliance on the Caston decision was problematic for two reasons. First, the cases are factually distinguishable, in that Caston’s breach preceded the agency’s breach, whereas the agency breach in this appeal preceded the appellant’s breach. Second, the compliance initial decision left the impression that the Board applied the doctrine of “unclean hands” in Caston; that term of art was not used in the Caston decision.

4. The Board found that application of the “unclean hands” doctrine is appropriate in this case and that it precluded the appellant from prevailing.

a. The clean hands doctrine “closes the doors of a court of equity to one tainted with inequitableness or bad faith relative to the matter in which he seeks relief, however improper may have been the behavior of the defendant.”

b. The administrative judge correctly observed that the appellant breached the agreement before she became aware of the agency’s breach, and the appellant’s breach was clearly a material one.

Appellant: Misty L. Wofford

Agency: Department of Justice

Decision Number: 2010 MSPB 250

Docket Number: DA-0752-02-0325-I-1

Issuance Date: December 23, 2010

Appeal Type: Adverse Action by Agency

Action Type: Removal

Settlement - Validity

The appellant asked the Board to set aside the 2002 settlement agreement described above as invalid. The basis for this contention was that the agency’s failure to purge its files as required by the agreement shows that the agency entered into the agreement in bad faith.

Holdings: The Board denied the appellant’s petition, finding that she failed to establish any basis for setting aside the settlement agreement as invalid:

1. An appellant may challenge the validity of a settlement agreement if she believes it was unlawful, involuntary, or the result of fraud or mutual mistake. The party challenging the validity of a settlement agreement bears a heavy burden of showing a basis for invalidation.

2. To establish that a settlement agreement resulted from fraud in the inducement, an appellant must show that the agency knowingly concealed a material fact or intentionally misled her.

3. The mere fact that the agency did not purge negative information about the appellant from its files is insufficient to establish that the agency never intended to purge the files and that it knowingly concealed a material fact or intentionally misled her. There is no evidence to support the appellant’s bare assertions that the agreement resulted from fraud.

Petitioner: Craig S. Ragland

Agency: Office of Personnel Management

Decision Number: 2010 MSPB 251

Docket Number: CB-1205-10-0021-U-1

Issuance Date: December 23, 2010

Appeal Type: Request for Regulation Review

Regulation Review

The petitioner requested that the Board review OPM’s regulations at 5 C.F.R. Part 550, Subpart E. The petitioner, an employee of the U.S. Postal Service, applied for a Laboratory Worker position with Department of the Army with the intention of holding dual employment. The Army denied the request, stating that the law does not permit dual federal employment unless the position is “hard to fill,” and advised the petitioner that dual employment would be permissible only if he limited his weekly hours to 20 hours for the Postal Service and 20 hours for the Army. The petitioner alleged that the Army did not comply with the OPM regulations at 5 C.F.R.  550.501 and 550.504(b).

Holdings: The Board denied the petitioner’s request for regulation review:

1. The Board has original jurisdiction under 5 U.S.C.  1204(f) to review rules and regulations promulgated by OPM. In exercising its jurisdiction, the Board is authorized to declare an OPM rule or regulation invalid on its face if the Board determines that such provision, would, if implemented by any agency, on its face require any employee to commit a prohibited personnel practice. Similarly, the Board has the authority to determine that an OPM regulation has been invalidly implemented by an agency if the Board determines that the regulation as implemented through a personnel action or through any policy adopted by the agency in conformity with the provision has required any employee to commit a prohibited personnel practice.

2. Although the appellant has cited a prohibited personnel practice, 5 U.S.C.  2302(b)(12), he has failed to provide reasons explaining why the Army’s purportedly incorrect interpretation of OPM’s regulations requires an employee to commit this prohibited personnel practice.

Petitioner: Gary N. Lynch

Agency: Office of Personnel Management

Decision Number: 2011 MSPB 2

Docket Number: CB-1205-10-0010-U-1

Issuance Date: January 5, 2011

Appeal Type: Request for Regulation Review

Regulation Review

This case was before the Board on a request for regulation review. The petitioner identified 5 C.F.R.  211.102(c) – OPM’s regulatory definition of “preference eligible” – as the regulation he seeks to have reviewed. This regulation provides, among other things, that “[p]reference does not apply . . . to inservice placement actions such as promotions.” The petitioner contended that this harmed him in connection with two merit promotions for which he was considered, but not selected, by the Department of Defense. The petitioner argues that OPM’s regulation requires agencies to commit prohibited personnel practices.

Holdings: The Board denied the petitioner’s request for regulation review:

1. In exercising its discretion to grant requests for regulation review, the Board considers a number of factors, including: (1) the likelihood that the issues will be timely reached through ordinary channels of appeal; (2) the availability of other equivalent remedies; (3) the extent of the rule or regulation’s application; and (4) the strength of the arguments against its validity.

2. The petitioner failed to explain in sufficient detail how OPM’s regulation would require an agency to commit a prohibited personnel practice.

3. The petitioner’s claim that OPM’s regulation requires an agency to commit a prohibited personnel practice can be reached through ordinary appeal channels. Indeed, the appellant’s claims have been reached by both the Board and its reviewing court, the U.S. Court of Appeals for the Federal Circuit. To prevail, the appellant would need to persuade the Federal Circuit to overrule its decision in Joseph v. Federal Trade Commission, 505 F.3d 1380 (Fed. Cir. 2007).

Appellant: Wayelon Howard Penland

Agency: Department of the Interior

Decision Number: 2010 MSPB 252

Docket Number: SF-0752-09-0736-I-1

Issuance Date: December 30, 2010

Appeal Type: Adverse Action by Agency

Action Type: Removal

Penalty

The agency petitioned for review of an initial decision in which the administrative judge sustained the agency’s charge but mitigated the removal penalty to a demotion. The agency removed the appellant from his position as an Airplane Pilot on a single charge that he lost his pilot authorization as a result of a Pilot Review Board’s recommendation that his qualification card not be reinstated. After a hearing, the administrative judge sustained the charge, finding that the agency revoked the appellant’s pilot authorization and that such authorization was a condition of employment. Nevertheless, the administrative judge mitigated the removal to a demotion to the position of Airplane Mechanic.

Holdings: The Board granted the agency’s petition for review and affirmed the initial decision as modified, sustaining the appellant’s removal:

1. Where, as here, all of the agency’s charges are sustained, the Board will review the agency-imposed penalty only to determine if the agency considered all the relevant factors and exercised management discretion within the tolerable limits of reasonableness. The Board must give due weight to the agency’s primary discretion in maintaining employee discipline and efficiency, recognizing that the Board’s function is not to displace management’s responsibility, but to ensure that managerial judgment has been properly executed.

2. The administrative judge erred in finding that the deciding official failed to properly consider one of the key Douglas factors – the adequacy of alternative sanctions – and in further finding that, even if the deciding official properly considered that factor, the removal penalty “clearly exceeded the bound of reasonableness.”

3. The deciding official determined that removal was appropriate given the nature and seriousness of the sustained conduct that led to the revocation of the appellant’s pilot authorization, and 7 of the 10 major duties identified in the appellant’s position description required the incumbent to possess a valid pilot authorization.

4. The deciding official specifically considered reassignment to the aircraft mechanic position, but rejected it, stating that, “Regrettably, demoting and reassigning you to another position would not promote the efficiency of the service because of your difficulty getting along with others as well as my determination, based upon my experience with and observation of you, that you do not accept responsibility for your actions and that you do not accept or implement suggestions for improvement.” The initial decision failed to articulate any basis for the administrative judge’s conclusion that the deciding official’s consideration of the availability of alternative sanctions was insufficient.

COURT DECISIONS

 

Non-precedential Decisions

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

Bass v. Office of Personnel Management, No. 2010-3105 (Dec. 27, 2010) (MSPB Docket No. SF-831E-08-0563-I-2) (affirming the Board’s decision, which denied the appellant’s application for disability retirement benefits as untimely filed)