United States Merit Systems Protection Board

Case Report for January 28, 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

 

Appellants: Hyginus U. Aguzie and Holley C. Barnes

Agency: Office of Personnel Management

Decision Number: 2011 MSPB 10

Docket Numbers: DC-0731-09-0261-R-1; DC-0731-0260-R-1

Issuance Date: January 26, 2011

Jurisdiction
- Suitability Actions
- Adverse Actions

The question in these appeals was whether, when OPM directs an agency to remove a tenured employee pursuant to its authority under 5 C.F.R. part 731, the removal action is subject to the requirements of 5 U.S.C. chapter 75 subchapter II, including the Board appeal rights guaranteed under 5 U.S.C.  7513(d).

Holdings: When OPM directs an agency to remove a tenured employee pursuant to its authority under 5 C.F.R. part 731, the removal action is subject to the requirements of 5 U.S.C. chapter 75 subchapter II, including the Board appeal rights guaranteed under 5 U.S.C.  7513(d):

1. The right of appeal under 5 U.S.C.  7513(d) applies where an action falls under 5 U.S.C.  7513(a), i.e., where the action is: (1) taken by an “agency”; (2) covered by 5 U.S.C. chapter 75 subchapter II (5 U.S.C.  7511-7514); and (3) taken against an “employee” as defined under subchapter II.

2. The OPM-directed removal of an employee pursuant to 5 C.F.R. part 731 is an action taken by an “agency,” with the “agency” being OPM.

a. Section 7513 does not require that the agency taking the action be the same agency that makes the decision underlying the action.

b. Under 5 U.S.C.  7701(c), it is the “decision of the agency” which the Board will sustain or not sustain. In the case of a directed suitability removal, the action, though effected by the employing agency, is the result of a decision made by OPM.

3. Title 5 U.S.C. chapter 75 subchapter II covers suitability-based removals.

a. Section 7512 provides that, with certain enumerated exceptions, chapter 75 subchapter II covers 5 specified actions, including a removal. The list of excepted actions does not include suitability actions taken under 5 C.F.R. part 731. Under canons of statutory interpretation, where a statute enumerates certain exceptions to a general rule, other unenumerated exceptions are excluded.

b. OPM’s regulations at 5 C.F.R.  731.203(f) and 752.401(b)(1), which purport to exempt suitability actions from removals appealable to the Board under chapter 75 subchapter II, cannot be reconciled with the clear unambiguous language of  7512.

4. The appellants are employees for purposes of 5 U.S.C. chapter 75 subchapter II.

a. It is undisputed that both appellants are employees within the meaning of 5 U.S.C.  7511(a)(1).

b. Individuals who qualify as tenured employees are not on that account exempt from OPM-initiated suitability actions.

5. The OPM-directed removal of a tenured employee is “taken under” 5 U.S.C.  7513 and therefore appealable under 5 U.S.C.  7513(d).

a. The Board rejected OPM’s contention that the appellants’ removals were not “taken under”  7513 because it invoked 5 C.F.R. part 731 as the authority for directing the actions. It is a well-established principle of Board law that the Board is not obliged to accept the assertion of a party as to the nature of a personnel action, but may make its own independent determination regarding the matter.

b. Although Congress clearly established that OPM is the primary authority in most matters involving the civil service, it also reserved certain matters for the Board and the Special Counsel, and it denied OPM authority over those matters. Congress explicitly gave the Board authority to adjudicate appeals involving the removal of employees under chapter 75, and OPM lacks authority to prescribe regulations that remove such actions from the Board’s jurisdiction.

6. Board review extends to the reasonableness of the penalty and to debarment and cancellation of eligibilities for other federal appointments.

a. In the typical case, the Board will defer to an agency’s penalty determination and modify a penalty only when it finds the agency failed to weigh the relevant factors or that it clearly exceeded the bounds of reasonableness in determining the penalty.

b. This rationale does not apply when OPM, rather than the employing agency, makes the penalty determination. The factors pertinent to determining the appropriateness of the penalty under the efficiency of the service standard are not limited to the factors OPM may consider under the suitability regulations. Accordingly, the Board must conduct an independent review of the penalty in light of the relevant Douglas factors. The ultimate burden is upon OPM to persuade the Board of the appropriateness of the penalty imposed.

c. Although debarment and cancellation of eligibilities would not by themselves be covered under  7512, those actions, in conjunction with the removal actions, lie within the Board’s jurisdiction as components of a unitary penalty arising from the same underlying misconduct.

Appellant: Roberta L. Vojas

Agency: Office of Personnel Management

Decision Number: 2011 MSPB 9

Docket Number: CH-0845-09-0943-I-1

Issuance Date: January 21, 2011

Appeal Type: FERS - Collection of Overpayment

Action Type: Retirement/Benefit Matter

Retirement
- Annuity Overpayment
- Waiver

OPM petitioned for review of an initial decision that affirmed in part and modified in part its reconsideration decision. It was undisputed that the appellant received an overpayment of annuity benefits because she received FERS disability retirement benefits and workers’ compensation benefits covering the same period of time. The amount of the overpayment was contested because of taxes that OPM had withheld from the appellant’s annuity benefits and remitted to the IRS on her behalf. The administrative judge agreed with the appellant’s contention that the amount of the indebtedness should be reduced by the amount of the tax withheld because the IRS had determined that the appellant had no tax liability for the annuity benefits and that it was OPM’s responsibility to recover the funds from the IRS. The administrative judge also determined that the appellant was not entitled to a waiver of the remaining indebtedness because, being aware that she had no right to receive both workers’ compensation and disability retirement benefits, she was not without fault in the matter. Finally, the administrative judge found that the appellant failed to show that she was entitled to an adjustment of the repayment schedule for financial hardship.

Holdings: The Board granted OPM’s petition for review and affirmed the initial decision regarding the existence of an overpayment and as to the appellant’s entitlement to an adjustment of the repayment schedule, but vacated the administrative judge’s other findings and remanded these matters to the regional office for further adjudication:

1. The administrative judge’s findings as to the amount of the appellant’s indebtedness are not supported by reliable evidence.

a. The Board agreed with OPM that the administrative judge did not make explained findings on the tax withholding matter. The judge merely summarized the appellant’s bare assertions, statements, and explanations of the IRS’s alleged determinations. The record does not contain reliable evidence of the IRS’s procedures and determinations concerning recovery of the tax remittance.

b. In a similar case, Snee v. Office of Personnel Management, 39 M.S.P.R. 227 (1988), the Board remanded for a determination of the manner in which the IRS accounts for money withheld from income and the appropriate methods for recovering money erroneously remitted to the IRS. Such action was appropriate here.

2. The administrative judge failed to make adequate findings to support her conclusion that the appellant failed to show that recovery of the overpayment would be against equity and good conscience.

a. Recovery of an overpayment may be waived under 5 U.S.C.  8470(b) when the annuitant is without fault and recovery would be against equity and good conscience. According to OPM’s Policy Guidelines, individuals who notify OPM within 60 days of the receipt of an overpayment will automatically be found without fault, regardless of whether they knew or should have known that the payment was erroneous. That was the case here.

b. Because the administrative judge found that the appellant is not entitled to waiver of the overpayment solely on her erroneous finding that the appellant was not without fault in the creation of the overpayment, she did not consider whether recovery would be against equity and good conscience. A remand is therefore necessary.

Appellant: Darryl L. Mauldin

Agency: U.S. Postal Service

Decision Number: 2011 MSPB 11

Docket Number: AT-0752-10-0656-I-1

Issuance Date: January 26, 2011

Appeal Type: Adverse Action by Agency

Action Type: Removal

Timeliness – PFA

The appellant petitioned for review of an initial decision that dismissed his appeal as untimely filed without good cause shown for the delay in filing. The appellant was removed from his position as a mail handler effective July 11, 2009. The agency’s termination notice advised him that, as a preference eligible, he would have the right to appeal the decision to the Board within 30 calendar days. It also informed the appellant that he had a right to file both an appeal with the Board and a grievance on the same matter, but that the filing of a grievance would not extend the time limit for filing an appeal. The appellant filed a grievance through his union. More than 7 months after the deadline for timely filing, the appellant filed an appeal with the Board after his union informed him it had decided to withdraw his grievance.

Holdings: The Board affirmed the initial decision as modified, still dismissing the appeal as untimely filed without good cause shown for the delay:

1. Generally, an appeal must be filed no later than 30 days after the effective date of the action being appealed. Here, it was undisputed that the appeal was untimely filed by more than 7 months. The critical question is whether the appellant demonstrated good cause for the delay in filing. To establish good cause, a party must show that he exercised due diligence or ordinary prudence under the particular circumstances of the case.

2. The agency failed comply with its duty to provide notice of the requirements of 5 C.F.R.  1201.22(c), including the consequences of filing an appeal after the deadline for timely filing.

3. Notwithstanding the agency’s failure to properly notify the appellant, the appellant failed to establish good cause for his lengthy delay in filing. The delay appears to have been largely caused by the appellant’s decision to utilize the grievance procedures and to wait for the resolution of those procedures before filing with the Board, despite being advised by the agency that the filing of a grievance would not extend the time limit for filing an appeal with the MSPB.

Appellant: Armida G. Chavez

Agency: Office of Personnel Management

Decision Number: 2011 MSPB 8

Docket Number: DE-844E-08-0296-X-1

Issuance Date: January 21, 2011

Appeal Type: FERS - Employee Filed Disability Retirement

Case Type: Compliance Referral

Compliance

This case was before the Board on the administrative judge’s Recommendation finding that OPM was not in compliance with a final Board order directing it to award the appellant retroactive disability retirement benefits.

Holdings: After considering OPM’s evidence of compliance submitted after the issuance of the administrative judge’s Recommendation, the Board found that OPM is now in compliance with its obligations and dismissed the appellant’s petition for enforcement.

COURT DECISIONS

 

Non-precedential Decisions

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

Hinga v. Merit Systems Protection Board, No. 2010-3171 (Jan. 21, 2011) (MSPB Docket No. DA-0752-10-0058-I-1) (affirming the Board’s decision that dismissed an appeal as untimely filed)