United States Merit Systems Protection Board

Case Report for March 25, 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: Valerie A. Peterson

Agency: Department of Veterans Affairs

Decision Number: 2011 MSPB 38

Docket Number: PH-1221-10-0219-W-1

Issuance Date: March 18, 2011

Appeal Type: Individual Right of Action (IRA)

Whistleblower Protection Act
Jurisdiction
Failure to State a Claim Upon Which Relief Can Be Granted

The appellant petitioned for review of an initial decision that dismissed her IRA appeal for failure to state a claim upon which relief can be granted. The appellant, a staff nurse at a VA Medical Center, alleged that the agency failed to “award/promote” her and denied her a within-grade increase in reprisal for disclosing numerous patient concerns. Without holding the requested hearing, the administrative judge issued an initial decision that dismissed the appeal for failure to state a claim upon which relief can be granted. The judge found that the appellant’s “vague and generalized statements” of alleged improper patient care lack specificity and “appear to be based upon mere speculation or conjecture,” and concluded that the appellant failed to prove by preponderant evidence that she engaged in whistleblowing. He dismissed the appeal on the ground that “the appellant has failed to state a claim of [sic] upon which relief can be granted.”

Holdings: The Board granted the appellant’s petition for review, vacated the initial decision, and remanded the appeal for adjudication on the merits:

1. The administrative judge improperly dismissed the appeal for failure to state a claim.

a. Whether the appellant stated a claim upon which relief can be granted goes to the merits of her case, and the Board cannot assume for purposes of analysis that all jurisdictional requirements have been met and resolve a case on the merits.

b. It was inappropriate for the administrative judge to dismiss the appeal for failure to state a claim when he relied upon his review of the appellant’s evidentiary submissions; dismissal for failure to state a claim upon which relief can be granted is based solely on the appellant’s allegations, to the exclusion of any record evidence.

2. The administrative judge analyzed the jurisdictional issue under an invalid legal standard.

a. It is well established that 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: (1) He engaged in whistleblowing activity by making a protected disclosure, and (2) the disclosure was a contributing factor in the agency's decision to take or fail to take a personnel action. To meet the nonfrivolous standard, an appellant need only plead allegations of fact which, if proven, could show that she made a protected disclosure that was a contributing factor in the agency’s decision to take or fail to take a personnel action.

b. Although the administrative judge recognized that the Board adopted the jurisdictional standard described above, he chose instead to apply the standard under Geyer v. Department of Justice, 63 M.S.P.R. 13 (1994), which required the appellant to prove each jurisdictional criterion by preponderant evidence. The Board overruled Geyer in 2002. As the administrative judge improperly heightened the appellant’s burden of proof and erroneously analyzed the jurisdictional issue under an invalid legal standard, the initial decision must be vacated in its entirety.

3. The appellant established jurisdiction over her IRA appeal.

a. The appellant exhausted her remedy with the Office of Special Counsel.

b. The appellant made nonfrivolous allegations of a substantial and specific danger to public health or safety. Among her disclosures were that nurses were ordered to admit critical care, post-operation patients to an area where the nurses lacked the ability to monitor the patients’ vital signs, oxygen flow, and other bodily systems. She asserted that, under applicable agency policy, these patients should have been recovered in the Intensive Care Unit or the recovery room. The appellant alleged that the ongoing improper patient care and procedures jeopardized and adversely affected the health and safety of patients and in some extreme cases led to strokes, heart attacks, and death of patients.

c. The appellant made nonfrivolous allegations that her protected disclosures were a contributing factor in covered personnel actions.

Appellant: David R. Mason

Agency: Department of Homeland Security

Decision Number: 2011 MSPB 39

Docket Number: AT-1221-09-0728-W-1

Issuance Date: March 21, 2011

Appeal Type: Individual Right of Action (IRA)

Jurisdiction
Whistleblower Protection Act
- Exhaustion of OSC Remedy
- Protected Disclosures
- Contributing Factor

The appellant petitioned for review of an initial decision that dismissed his IRA appeal for lack of jurisdiction. The appellant is a Financial Specialist with the Transportation Security Administration. He alleged that the agency took 8 personnel actions against him in retaliation for protected disclosures concerning: an allegedly improper taxi fare receipt; a $251.87 purchase made on a government purchase card that exceeded the available balance of the agency’s allocation for the quarter, and therefore possibly constituted an Anti-Deficiency Act (ADA) violation; an allegedly improper purchase without prior approval and in excess of available funds for the quarter, constituting a possible ADA violation; allegedly fraudulent travel vouchers; and an allegedly improper change in the scope of a contract. In dismissing the appeal for lack of jurisdiction, the administrative judge determined that the appellant’s taxi fare disclosure was not protected. With respect to the appellant’s remaining disclosures, the administrative judge determined that disclosures made to the agency’s Office of Inspector General (OIG) or to the Office of Special Counsel (OSC) could not have contributed to any personnel actions in this matter because the actions all occurred prior to the OIG and OSC disclosures. She further concluded that the latter 4 disclosures were not protected because they were part of the appellant’s normal duties. Finally, the administrative judge determined that the purchase card disclosure was not protected because the appellant stated only that there was a “possible” ADA violation.

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. 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: (1) He engaged in whistleblowing activity by making a protected disclosure, and (2) the disclosure was a contributing factor in the agency's decision to take or fail to take a personnel action.

2. The appellant has exhausted his administrative remedy before OSC with respect to two disclosures and some of the personnel actions. Whether he exhausted his remedy with respect to other disclosures and personnel actions must be remanded for further adjudication.

a. Under 5 U.S.C.  1214(a)(3), an employee is required to seek corrective action from OSC before seeking corrective action from the Board. The Board may only consider those disclosures of information and personnel actions that the appellant raised before OSC. To satisfy the exhaustion requirement, the appellant must inform OSC of the precise ground of his charge of whistleblowing, giving OSC a sufficient basis to pursue an investigation that might lead to corrective action.

b. An appellant may demonstrate exhaustion through his initial OSC complaint, evidence that he amended his original complaint, and other correspondence with OSC.

c. The administrative judge incorrectly informed the appellant that he only needed to make a nonfrivolous allegation that he exhausted his OSC administrative remedies as part of his jurisdictional burden. Further, the administrative judge failed to advise the pro se appellant of the means by which he may show that he has satisfied the exhaustion requirement. Because of these deficiencies, which were not cured by either the initial decision or any agency pleading, the appeal must be remanded to allow the parties an opportunity to submit evidence and argument regarding the exhaustion issue.

d. Based on the current record, the Board was able to determine that the appellant exhausted his OSC remedies with respect to the purchase card disclosure and the taxi fare disclosure and some of the personnel actions.

e. With respect to 3 of the disclosures, the current record indicates that the appellant raised them solely before OSC’s Disclosure Unit in form OSC-12s. Unlike OSC’s Complaints Examining Unit, the Disclosure Unit does not review allegations of prohibited personnel practices, and making disclosures to OSC’s Disclosure Unit does not satisfy the exhaustion requirement of  1214(a)(3).

3. The appellant made a nonfrivolous allegation that his purchase card disclosure was protected.

a. The ADA provides that an “officer or employee of the United States Government . . . may not – (A) make or authorize an expenditure or obligation exceeding an amount available in an appropriation or fund for the expenditure or obligation.” A disinterested observer with knowledge of the essential facts known to or readily ascertainable by the appellant could have reasonably believed that the purchase card charge that exceeded the remaining budget allocation for administrative supplies was a violation of law, rule, or regulation.

b. One disclosure of this belief was not protected because it was made in the normal performance of the appellant’s duties. The disclosures of the same matter to OIG and to OSC were protected, as these disclosures were outside of the appellant’s normal job duties.

4. It is unclear from the current record whether the appellant’s disclosure regarding the taxi fare matter was protected.

a. The disclosure of a fraudulent claim on a travel voucher or excessive travel expenditures is a protected disclosure of a violation of law, rule, or regulation.

b. The appellant made a nonfrivolous allegation that he reasonably believed he was disclosing a violation of law, rule, or regulation with respect to a handwritten taxi fare receipt in the amount of $160, which covered two taxi rides taken on different dates.

c. The appellant’s disclosure to AFSD Meyer fell within his normal job duties and therefore was not protected.

d. It is unclear from the present record whether the appellant made the same disclosure in his July 9, 2008 report of wrongdoing to OIG. That issue must be resolved on remand.

5. Whether the appellant established that his purchase card disclosure and taxi fare disclosure were a contributing factor in a covered personnel action must be remanded for further adjudication.

a. To satisfy the contributing factor criterion, an appellant need only raise a nonfrivolous allegation that the fact of, or content of, the protected disclosure was one factor that tended to affect the personnel action in any way. One way to establish this criterion is the knowledge-timing test, in which the official taking the personnel action knew of the disclosure, and the personnel action occurred within a period of time such that a reasonable person could conclude that the disclosure was a contributing factor in the personnel action.

b. Some of the disclosures of these matters could not have been contributing factors in some of the personnel actions because the personnel action occurred before the disclosures in question. With respect to other disclosures of these matters, the current record was insufficient to support a conclusion, either as to the timing of the disclosures and personnel actions, or whether the asserted personnel actions were covered under 5 U.S.C.  2302(a)(2)(A).

6. The administrative judge did not err in denying his request for a stay. The only method for challenging such a ruling is through a request for an interlocutory appeal, and the appellant did not make such a request.

Appellant: Dianna S. Calkins

Intervenor: Diana M. Frantz

Agency: Office of Personnel Management

Decision Number: 2011 MSPB 40

Docket Number: DA-0831-09-0704-I-1

Issuance Date: March 21, 2011

Action Type: Retirement/Benefit Matter

Retirement
- Survivor Annuity

OPM petitioned for review of an initial decision that reversed its reconsideration decision and ordered it to grant the appellant a survivor annuity. The appellant applied for a survivor annuity based on the federal service of her deceased husband. When he retired in 1979, Mr. Calkins designated his former wife (Diana Frantz, the intervenor) to receive lump sum death benefits. That marriage ended in divorce and Mr. Calkins married the appellant in 1984, but there is no evidence that he ever submitted a written election to OPM to provide the appellant a survivor annuity. The administrative judge found that OPM established that it had provided Mr. Calkins with notice of his right to make an election for the appellant, but that this notice was deficient because it failed to inform the annuitant that, even if he had previously elected a spousal annuity when he married, he must make a new election after his divorce. The judge additionally found that the appellant’s unrebutted testimony was that Mr. Calkins always intended to provide a survivor annuity for her, and that the record does not reflect that OPM terminated the reduction in Mr. Calkins’ annuity after his divorce from the intervenor. The judge concluded that Mr. Calkins’ continued receipt of a reduced annuity manifested his intent to provide an annuity for the appellant, and the appellant met her burden of establishing her entitlement to a survivor annuity.

In its petition for review, OPM does not contest the correctness of the initial decision based on the record before the administrative judge. It instead states that, contrary to its representations during the regional office proceeding, its records show that Mr. Calkins elected an annuity with no survivor reduction. Based on this new assertion that Mr. Calkins did not receive a reduced annuity during his lifetime, OPM contends for the first time on review that this case is distinguishable from Allen v. Office of Personnel Management, 99 M.S.P.R. 653 (2005), where the Board found that an annuitant’s intent to provide a survivor annuity for his new spouse is evidenced by his continuous receipt of a reduced annuity following his remarriage.

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

1. The Board generally will not consider an argument raised for the first time in a petition for review absent a showing that it is based on new and material evidence not previously available despite the party’s due diligence. OPM has made no such showing here.

2. Nevertheless, the Board is compelled to grant OPM’s petition for review and remand the appeal for further adjudication because, under Office of Personnel Management v. Richmond, 496 U.S. 414 (1990), payment of a retirement benefit may not be made in direct contravention of the law. Because OPM has now raised the issue that payment of a survivor annuity would be in contravention of the relevant statute and constitute a violation of the Constitution, a remand is necessary.

Appellant: William N. Barth

Agency: Office of Personnel Management

Decision Number: 2011 MSPB 41

Docket Number: DC-0841-10-0389-I-1

Issuance Date: March 21, 2011

Action Type: Retirement/Benefit Matter

Retirement

OPM petitioned for review of an initial decision that ordered it to process the appellant’s request for a waiver of that portion of his FERS annuity that is based on credit for his military service for purposes of establishing his eligibility for Combat-Related Special Compensation (CRSC) benefits. The appellant retired from the United States Navy in 1971 due to a disabling combat-related injury. He served in a federal civil service position from 1987 until he retired in 1999 as a result of a disabling medical condition for which he was granted disability retirement benefits. When he retired from the civil service, he made a deposit of $697.32 under 5 U.S.C.  8422(e) for his military service, which increased his creditable service and effectively increased his disability retirement annuity. In 2008, the appellant read an article about a law that revised the eligibility requirements for CRSC so as to expand coverage for veterans, like the appellant, who suffered a disabling combat-related injury. He asked OPM to separate his military service from his civilian service for purposes of calculating his FERS annuity so that he could “apply for the CRSC.” In reversing OPM’s negative response to this request, the administrative judge found that 5 U.S.C.  8465 plainly provides that the appellant may waive all or any parts of his FERS annuity by filing a request with OPM, and that the appellant’s requests that OPM separate his “military time” from his “civil service retirement” for purposes of calculating his FERS annuity was an appropriate written waiver. The judge ordered OPM to process the appellant’s request.

Holdings: The Board vacated the initial decision, finding that the appellant and the administrative judge apparently misunderstood the central issues in the case, and that the appellant did not waive his military retired pay to credit that military service toward his FERS annuity, and accordingly he need not waive his civil service retirement credit for his military service in order to be eligible for CRSC benefits:

1. The appellant appears to be operating under the mistaken belief that he waived his military retired pay in order to increase his FERS annuity. Because the appellant’s military retired pay was awarded based on a service-connected disability, he was not required to waive, nor is there any evidence that he waived, his military retired pay in order to include credit for his period of military service in his FERS annuity.

2. Under the amendment to the law that became effective in 2008, an individual may not be paid CRSC benefits unless he has applied for and elected to receive compensation under the CSRS program by filing an application with the military department from which he retired.

3. Both the appellant and the administrative judge were mistaken in assuming that the appellant was required to separate his military time from his civil service retirement in order to be eligible for CRSC benefits. While the appellant’s military retired pay may have been reduced or offset due to his receipt of VA disability compensation, there is no evidence that suggests that the appellant waived his military retired pay in order to credit military service for the purposes of a civil service retirement.

4. Because the appellant never waived his military retired pay, there is no waiver to be revoked by the appellant or approved by OPM; nor must the appellant request OPM to separate his military time from his civil service retirement.

5. If the appellant wishes to receive compensation under the CRSC program, he should apply for such compensation by filing an application with the Department of the Navy.

Appellant: Lora Anne Harper

Agency: Office of Personnel Management

Decision Number: 2011 MSPB 42

Docket Number: AT-831M-10-0554-I-1

Issuance Date: March 22, 2011

Appeal Type: CSRA - Overpayment of Annuity

Action Type: Retirement/Benefit Matter

Retirement
- Annuity Overpayment – Waiver
Jurisdiction – Involuntary Retirement

The appellant petitioned for review of an initial decision that reversed OPM’s reconsideration decision and ordered OPM to waive an overpayment of $28,596.67. The appellant applied for and received a disability retirement annuity after 22 years of federal service. There were a number of breaks in the appellant’s federal service, and in several instances she took a refund of her retirement contributions. In order for all of her service to be funded and credited toward her disability retirement annuity, the appellant would have had to redeposit $83,778 into the retirement fund. The appellant never made this redeposit. However, when OPM first computed the appellant’s annuity, it erroneously believed that the appellant had made the redeposit for her service. By the time OPM realized its error and recomputed the appellant’s annuity downward, the appellant had received an overpayment of $28,596.67. On appeal to the Board, the appellant sought waiver of both the $83,778 redeposit and the $28,596.67 overpayment. The administrative judge found that the appellant was without fault in the overpayment and that her expenses exceeded her income, and ordered OPM to waive the entire amount of the overpayment. The initial decision did not address the appellant’s request for waiver of the $83,778 redeposit. On review, the appellant reiterates that she seeks waiver of the redeposit amount.

Holdings: The Board affirmed the initial decision as modified:

1. It is well settled that an employee who received a refund of retirement contributions pursuant to 5 U.S.C.  8342 may be allowed credit for prior service only if “[w]hile subsequently reemployed in a covered position” she redeposits the amount received, with interest. There is no statutory or regulatory provision for waiver of the redeposit amount. Accordingly, there is no basis for granting the appellant’s request for a waiver of the redeposit.

2. The Board noted that the appellant asserted below that counselors at her former employing agency did not inform her that she would have to repay anything for her disability retirement, and construed this assertion as an allegation that the counselors misled her to retire on disability and that her retirement was therefore involuntary. The Board described what is required to establish a claim of involuntary disability retirement and advised the appellant that, if she wishes to pursue such a claim, she should file a new Board appeal.

Appellant: David Francis SanSoucie

Agency: Department of Agriculture

Decision Number: 2011 MSPB 43

Docket Number: DC-0752-10-0580-I-1

Issuance Date: March 22, 2011

Appeal Type: Adverse Action by Agency

Action Type: Constructive Adverse Action

Jurisdiction
- Alleged Involuntary Retirement

The appellant petitioned for review of an initial decision that dismissed his appeal of an alleged involuntary disability retirement for lack of jurisdiction. The appellant was an Equal Employment Opportunity Specialist in Beltsville, Maryland. He applied for disability retirement in December 2009 based on a number of medical conditions. The application stated that he had requested accommodation in the form of a “permanent reassignment . . . to a different office and location closer to home” due to a hostile work environment. OPM approved the application in May 2010 and the appellant filed an appeal with the Board the following month alleging that his disability retirement was involuntary and that he had been subjected to disability discrimination. Following notice of jurisdictional issues and receipt of evidence and argument, the administrative judge dismissed the appeal for lack of jurisdiction. The administrative judge found that the appellant did not allege that he approached a particular agency official with the authority to reassign him noncompetitively and tell that person he wished to continue working and request reassignment as an accommodation. Instead, the judge found that the appellant first notified the agency of his medical condition in a November 2009 email message that did not state that he desired to continue working. The judge found that the appellant’s efforts to apply for positions under vacancy announcements was not a request for accommodation. The judge further found that the appellant failed to explain how his medical conditions could have been accommodated had he been assigned to a job with an easier commute, productive work assignments, and non-hostile management.

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. Although an employee-initiated action such as a retirement is presumed to be voluntary, and thus outside the Board’s jurisdiction, an involuntary retirement is tantamount to a removal and is within the Board’s jurisdiction.

2. An appellant who alleges that his disability retirement was involuntary must generally establish that he indicated to the agency that he wished to continue working, but that his medical limitations required a modification of his work conditions or duties, i.e., accommodation, that there was a reasonable accommodation available during the period between the date on which he indicated to the agency that he had medical limitations but desired to continue working and the date he was separated that would have allowed the appellant to continue working, and that the agency unjustifiably failed to offer that accommodation.

3. The appellant non-frivolously alleged that he indicated to the agency that he wished to continue working, but that his medical limitations required a modification of his work conditions or duties. The appellant’s sworn statement alleged that he requested reassignment to any agency position in downtown Washington, D.C., that would both allow him to shorten his Alexandria-to-Beltsville commute and remove him from his “stress-inducing chain of command.” He further alleged that in September 2009, the agency’s medical officer found that he was eligible for reasonable accommodation and sent to his line management his physician’s recommendation that he be reassigned.

4. The appellant non-frivolously alleged that there was a reasonable accommodation available between the date on which he indicated to the agency that he had medical limitations, but desired to keep working, and the date that he was separated, that would have allowed him to continue working.

a. The administrative judge concluded that only one of the positions for which the appellant applied – a 508 Compliance Coordinator in Colorado – was available within the proper time frame. The judge found that the agency would not have been required to offer him that position as a reasonable accommodation because it was outside of the appellant’s commuting area.

b. An agency’s reassignment obligation is not limited by geographical location. Moreover, if the appellant can prove his allegation regarding the medical officer’s September 2009 referral of his accommodation request, he potentially could have identified a total of 3 positions for which he was qualified during the relevant time frame.

5. The appellant non-frivolously alleged that the agency unjustifiably failed to offer an available accommodation. The Board noted in this regard that, once an employee informs the agency that he requires an accommodation, the agency must engage in an interactive process to determine an appropriate accommodation. Here, the record is unclear as to whether the agency ever engaged in such a process with the appellant.

Appellant: Michael H. Walker

Agency: Department of the Air Force

Decision Number: 2011 MSPB 44

Docket Number: PH-0752-09-0155-I-1

Issuance Date: March 22, 2011

Appeal Type: Adverse Action by Agency

Action Type: Removal

Disability Discrimination
Penalty

In a nonprecedential Final Order, a majority of the Board affirmed as modified an initial decision that sustained the appellant’s removal on charges of failing to properly request leave and failing to carry out assigned work. In so ruling, the majority found that the appellant failed to prove his affirmative defense of disability discrimination. The majority found in this regard that the appellant failed to present evidence creating the inference that either the proposing or deciding officials’ actions were taken as a result of the appellant’s claimed disability – they had no knowledge of his claimed disability – and an employer cannot be held liable for firing an employee when it lacks knowledge of the employee’s disability. The majority also found that the appellant’s claimed disability was not a significant mitigating factor in reviewing the reasonableness of the removal penalty. Vice Chairman Wagner issued a dissenting opinion in which she stated that she agreed with the determination to sustain the charges and to find the appellant failed to prove his affirmative defense of disability discrimination, but that she believed the record is insufficiently developed to make a determination that the penalty of removal did not exceed the bounds of reasonableness. In particular, she found that “there are unresolved factual disputes regarding whether the deciding official properly considered the appellant’s mental condition in his consideration of the mitigating and aggravating factors relevant to the penalty.”

FEDERAL REGISTER NOTICE

The Equal Employment Opportunity Commission today issued its final revised Americans with Disabilities Act (ADA) regulations and accompanying interpretive guidance in order to implement the ADA Amendments Act of 2008. 76 Fed. Reg. 16978.

COURT DECISIONS

Petitioner: Doretha Hendeson

Respondent: Eric K. Shinkseki, Secretary of Veterans Affairs

Tribunal: United States Supreme Court

Docket Number: 09-1036

Issuance Date: March 1, 2011

Timeliness
Jurisdiction

The issue in this case was whether a veteran’s failure to file a notice of appeal with the Court of Appeals for Veterans Claims from a decision by the Board of Veterans’ Appeals within 120 days after the date when the Board’s decision was mailed, as required by 38 U.S.C.  7266(a), should be regard as having “jurisdictional” consequences.

Holdings: The Court held that the failure to file the notice within the 120-day period should not be regarded as having jurisdictional consequences:

1. Branding a rule as going to a court’s subject-matter jurisdiction alters the normal operation of our adversarial system in which courts are generally limited to addressing the claims and arguments advanced by the parties. Courts have an independent obligation to ensure that they do not exceed the scope of their jurisdiction, and therefore must raise and decide jurisdictional that the parties overlook or elect not to press.

2. Among the types of rules that should not be described as jurisdictional are “claim-processing rules,” i.e., rules that seek to promote the orderly progress of litigation by requiring that the parties take certain procedural steps at certain specified times. Filing deadlines are quintessential claim-processing rules.

3. In determining whether a rule should be regarded as a claim-processing rule or jurisdictional in nature, the Court looks to see if there is any “clear” indication that Congress wanted to the rule to be “jurisdictional.”

4. This case is clearly distinguishable from the time limit held to be jurisdictional in Bowles v. Russell, 551 U.S. 205 (2007), in that Bowles involved an appeal from one court to another court, whereas this case involves an appeal from an administrative tribunal to a court.

5. The terms of the statute do not suggest, much less provide clear evidence, that  7266(a) was meant to carry jurisdictional consequences. Nor does  7266’s placement within the law, in a subchapter entitled “Procedure,” rather than in the subchapter entitled “Organization and Jurisdiction.”

6. The most telling indication of Congress’ intent are the singular characteristics of the review scheme that Congress created for the adjudication of veterans’ benefits claims, in which the “solicitude of Congress for veterans is of long standing.” The contrast between ordinary civil litigation and the system that Congress created for the adjudication of veterans’ benefits claims could hardly be more dramatic. Rigid jurisdictional treatment of the 120-day period for filing a notice of appeal in the Veterans’ Court would clash with this scheme.

 

Non-precedential Decisions

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

May v. Merit Systems Protection Board, No. 2010-3085 (March 11, 2011) (MSPB Docket No. PH-0752-08-0505-I-1) (affirming per Rule 36 a Board decision dismissing for lack of jurisdiction an appeal of an allegedly involuntary retirement)

Godfrey v. Department of Transportation, No. 2010-3127 (March 14, 2011) (affirming per Rule 36 a Board decision denying relief under USERRA in 3 appeals)

Redfield v. Office of Personnel Management, No. 2011-3008 (March 14, 2011) (MSPB Docket No. AT-0845-10-0771-I-1) (affirming a Board decision that dismissed an appeal as settled)

Knight v. Merit Systems Protection Board, No. 2011-3002 (March 14, 2011) (MSPB Docket No. SF-0752-10-0263-I-1) (affirming the Board’s decision, which dismissed an appeal for lack of jurisdiction)

Probasco v. Department of the Air Force, No. 2010-3182 (March 14, 2011) (MSPB Docket No. DE-0752-09-0168-I-2) (affirming the Board’s decision, which sustained the appellant’s removal)

Smith v. Department of Transportation, No. 2011-3019 (March 17, 2011) (MSPB Docket No. AT-0752-09-0893-I-1) (affirming the Board’s decision, which sustained the appellant’s removal)

Royal v. Department of the Army, No. 2010-3190 (March 18, 2011) (MSPB Docket No. SF-1221-09-0670-W-1) (affirming the Board’s decision, which denied the appellant’s request for corrective action in this IRA appeal)