United States Merit Systems Protection Board

Case Report for April 1, 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: John Doe

Agency: Department of the Army

Decision Number: 2011 MSPB 45

Docket Number: CH-0752-08-0412-C-1

Issuance Date: March 25, 2011

Appeal Type: Adverse Action by Agency

Action Type: Removal

Compliance – Settlement-Related

The appellant petitioned for review of an initial decision that denied his petition for enforcement. On appeal from a removal action taken against the appellant, the parties entered into a written settlement agreement that provided that the appellant would resign and the agency would amend his personnel records to reflect a resignation and delete all mention of his removal from official personnel records. The agreement also directed that responses to employment inquiries would be limited to date, position, and length of employment. The appellant alleged that the agency violated the agreement when, in response to a question from an agency criminal investigator, his former supervisor stated that the appellant had been terminated from employment. The agency apparently conducted an investigation on referral from the Office of Special Counsel (OSC) regarding potential fraud by a different employee. The appellant expressed concern that when the OSC’s investigation is completed, it “will be made public on the OSC website which can be searched and [the supervisor’s] statements will be there.” In response, the agency stated that the supervisor had been interviewed by an “Army CID Special Agent” concerning one of his other employees “who had prepared dummy receipts for lodging,” and that the supervisor believed “the interview was being conducted in confidence and [he] had no idea that another agency would broadcast it over the internet.” In denying the petition for enforcement, the administrative judge stated that the settlement agreement “details the nature of the separation, the disposition of records, and employment inquiries. Nothing in the settlement agreement covers the content of disclosures to criminal investigators.”

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

1. When an agency has contractually agreed to provide an employee with a clean record, both the Federal Circuit and the Board have consistently held that the clean record agreement contains an implied provision that precludes the agency’s disclosure of information regarding the rescinded adverse action to third parties.

2. In the context of a clean record settlement agreement, the Board has interpreted court precedent as “creating the general rule that if an agency discloses information regarding the rescinded adverse action to any third party, then the agency has materially breached the clean record settlement.” Furthermore, the Board has found that the appellant need not show actual harm to establish that the agency’s disclosure constituted a material breach. A breach is material when it relates to a matter of vital importance or goes to the essence of the contract.

3. The enforcement decision at issue contains no analysis or discussion of the foregoing legal precedent. This was error, and the case must be remanded for further proceedings.

Appellant: Thomas M. Deese

Agency: Office of Personnel Management

Decision Number: 2011 MSPB 46

Docket Number: AT-0831-10-0065-I-1

Issuance Date: March 25, 2011

Action Type: Retirement/Benefit Matter

Retirement
- Survivor Annuity

The appellant petitioned for review of an initial decision that affirmed OPM’s reconsideration decision denying his application for a survivor annuity under 5 U.S.C.  8341 as an unmarried dependent child over the age of 18 who is incapable of self-support because of a mental disability incurred before age 18. OPM denied the application on the ground that “there are no medical records to show that [the appellant] was treated for his condition prior to age 18 and no information to support that he was incapable of self support because of a condition incurred before 18.” In affirming OPM’s determination, the administrative judge found that the appellant failed to establish that he was incapable of self-support at the time that his father died in 2001.

Holdings: The Board granted the appellant’s petition for review, vacated the initial decision, and remanded the matter to OPM for further development of the record and the issuance of a new reconsideration decision:

1. Under 5 U.S.C.  8341(a)(4)(B), the “unmarried dependent child” of a deceased federal employee is entitled to a survivor annuity, regardless of age, if he “is incapable of self-support because of mental or physical disability incurred before age 18.”

2. The administrative judge concluded that the appellant bore the burden of proving that he “was incapable of self-support” at the time of his father’s death in 2001. This was error. The plain language of the statute requires that an applicant for a child survivor annuity demonstrate that he currently “is incapable of self-support.” The Board therefore vacated the initial decision.

3. Because OPM’s reconsideration decision contains no determination whether the appellant “is incapable of self-support,” the Board has no jurisdiction to review the matter. This matter must be remanded to OPM for determination and the issuance of a new reconsideration decision.

4. Under  8341(a)(4)(B), an applicant must have been an “unmarried dependent.” Because OPM has not made a determination whether the appellant meets that definition, it must do so on remand.

Appellant: Jacqueline H. McNair

Agency: Equal Employment Opportunity Commission

Decision Number: 2011 MSPB 47

Docket Number: AT-0752-10-0275-I-1

Issuance Date: March 29, 2011

Jurisdiction
- SES Employees

The appellant petitioned for review of an initial decision that dismissed her purported removal appeal for lack of jurisdiction. The agency promoted the appellant from a GS-15 position to a Senior Executive Service (SES) position effective December 7, 2008. She was removed from the SES position effective December 6, 2009, and assigned to a GS-15 position, based on her allegedly unacceptable performance. The appellant filed an appeal, asserting that the agency’s action was appealable under 5 U.S.C.  7701, and the appeal was docketed as an adverse action appeal. The administrative judge dismissed the appeal for lack of jurisdiction on the basis that the appellant failed to make a nonfrivolous allegation that she had completed her 1-year probationary period.

Holdings: The Board dismissed the appeal for lack of jurisdiction:

1. The appellant did not make a nonfrivolous of jurisdiction under 5 U.S.C. chapter 75, subchapter V and 5 C.F.R. part 752, subpart F.

a. Under 5 U.S.C.  7543(a), actions may be initiated against SES appointees for “misconduct, neglect of duty, malfeasance, or failure to accepted a directed reassignment or to accompany a position in a transfer of function.” As provided by 5 U.S.C.  7542, such actions are limited to “a removal from the civil service or suspension for more than 14 days.”

b. It is apparent from the record that the appellant was not actually removed from the civil service entirely; instead, she was removed from the SES and placed in a GS-15 position. Accordingly, the Board does not have jurisdiction under  7543, regardless of whether the appellant completed her SES probationary period.

2. The appellant may file a request for an informal hearing under 5 U.S.C.  3592(a) if she believes she completed her probationary period.

a. 5 U.S.C. chapter 75, subchapter V and 5 C.F.R. part 359 govern the removal of an individual from the SES and her placement in a civil service position outside of the SES based on “less than fully successful executive performance.” Such an individual is guaranteed placement in a civil service position at or above the GS-15 level for an individual who completed her SES probationary period.

b. An individual covered by these provisions is entitled to an “informal hearing before an official designated by the . . . Board,” but is not entitled to initiate an action before the Board under 5 U.S.C.  7701.

c. SES career appointees removed during their statutory 1-year probationary period have no right to even the informal hearing provided for in  3592(a).

d. If the appellant believes she completed her probationary period and is interested in an informal hearing, she should file a request with the Clerk of the Board in accordance with 5 C.F.R.  1201.143.

Appellant: Danny Vaughan

Agency: Department of Agriculture

Decision Number: 2011 MSPB 48

Docket Number: DA-1221-07-0521-X-1

Issuance Date: March 31, 2011

Appeal Type: Individual Right of Action (IRA)

Case Type: Compliance Referral

Compliance

This case was before the Board on the administrative judge’s Recommendation finding that the agency was in partial noncompliance with a final Board order. In the underlying IRA appeal, the appellant alleged that, in reprisal for protected whistleblowing activity, the agency proposed his removal and lowered his 2004-2005 performance appraisal. In an initial decision that became the Board’s final decision, the administrative judge ordered the agency to cancel the removal action, eliminate all references to the proposed removal from the appellant’s personnel records, and change the rating on the appellant’s performance appraisal for 2004-2005 to “Superior.” In his petition for enforcement, the appellant: (1) alleged that the agency’s modification to the performance appraisal was inadequate; (2) questioned the agency’s calculation of the bonus for the 2004-2005 performance year; (3) alleged that his supervisor had improperly communicated information about his proposed removal to OPM in connect with an application for disability retirement; and (4) alleged that the agency had made references to the proposed removal in its defense of the appellant’s EEO complaint.

The administrative judge ruled that the agency did not violate its obligations with respect to communications to third parties in connection with the appellant’s application for disability retirement and EEO complaint. With regard to the supervisor’s statement that was part of the appellant’s application for disability retirement, the judge found that this did not constitute a personnel record included under the final order and that the statement submitted to OPM “is not subject to change or alteration by the agency.” With respect to the EEO matter, the judge found that the contents of the EEO investigative file are not the type of records subject to the Board’s final decision and that it would not be appropriate to order the agency to alter an affidavit taken in the course of the EEO process. The judge found, however, that the agency failed to establish its compliance regarding the performance appraisal and related bonus matter, and referred the matter to the Board for enforcement.

Holdings: The Board found that the agency established compliance regarding the performance appraisal and related bonus matter. A majority of the Board, Member Rose dissenting, found that the agency remains in noncompliance regarding the communications to third parties.

1. When the Board finds a personnel action unwarranted, it orders that the appellant be placed, as nearly as possible, in the situation he would have been in had the wrongful personnel action not occurred. The Board’s authority in this realm is broad and far-reaching and extends to areas over which the Board would otherwise lack jurisdiction.

2. The agency is in noncompliance regarding the requirement to eliminate all references to the proposed removal from the appellant’s personnel records.

a. In the context of enforcement of a settlement agreement providing for rescission of an adverse action, the Board has held that the agency was prohibited from disclosing the circumstances of the settled action in communications with third parties.

b. This action is different from such decisions in that this action was not resolved by settlement and, at the time of the supervisor’s statements to OPM and in response to the appellant’s EEO complaint, the administrative judge had not yet issued the initial decision ordering the agency to cancel the proposed removal and eliminate all references to it from the appellant’s personnel records.

c. Nevertheless, once the Board ordered cancellation of the proposed removal, status quo ante relief required that the agency’s communications with third parties not disclose the cancelled matter. Furthermore, status quo ante relief required that the agency take appropriate steps to correct official information to third parties that contained information about the appellant that was contrary to the Board’s decision.

d. The Board outlined the steps that the agency must take to seek correction or deletion of records in the possession of other agencies.

In her separate opinion, Member Rose stated why she believed the administrative judge was correct to find the agency in compliance with respect to its communications to third parties. With respect to the appellant’s disability retirement application, she noted that the supervisor’s statement was accurate when it was submitted, and that the agency offered the information in response to a specific request on the form. She also noted that OPM granted the appellant’s application for disability retirement, and that any breach was not material because it can no longer result in any prejudice to the appellant’s disability retirement rights. She further noted that the disability retirement application belongs to OPM and is not within the agency’s control. She would find that this matter is moot because there is no effective relief that the Board can grant. As to the EEO matter, Member Rose stated that the administrative judge correctly found that such a file is not a personnel file subject to the Board’s final order, but is an evidentiary file of a snapshot in time as matters existed during the investigation. In the absence of any statute, regulation, or government-wide policy that extends the Board’s enforcement authority to ordering the alteration of EEO investigative files, she would find that such an order is inappropriate and that the agency is in compliance.

COURT DECISIONS

Petitioner: Sarah Bennett

Respondent: Merit Systems Protection Board and Department of Veterans Affairs

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

Docket Number: 2010-3084

Issuance Date: March 30, 2011

Jurisdiction
- “Employee” – Veterans Canteen Services

This case was on appeal from a Board decision that dismissed for lack of jurisdiction Bennett’s appeal of her removal from her position as a sales clerk in the Veterans Canteen Service (VCS). At issue is whether an individual hired by the VCS pursuant to 38 U.S.C.  7802 has appeal rights under 5 U.S.C. chapters 75 and 77.

Holdings: Individuals hired by the VCS pursuant to 38 U.S.C.  7802 do not have appeal rights under 5 U.S.C. chapters 75 and 77:

1. 38 U.S.C.  7802(e) excludes VCS employee from the right to appeal under 5 U.S.C.  7513(d).

a. Section 7802(e) provides that “[VCS p]ersonnel shall be . . . removed by the Secretary without regard to the provisions of title 5 governing appointments in the competitive service . . . .”

b. When analyzing the plain language of the statute in the context of the VCS’s legislative history, the true meaning of the language—to exclude non-preference eligible employees in the excepted service from appeal rights under title 5—is clear.

2. Even if the appellant meets the definition of “employee” contained in 5 U.S.C.  7511(a)(1)(C), which was revised by the Civil Service Due Process Amendments of 1990, those amendments were not intended to create any new rights for employees previously excluded from the statute, and VCS employees were clearly excluded prior to these amendments.

 

Non-precedential Decisions

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

Beatrez v. Merit Systems Protection Board, No. 2010-3145 (Fed. Cir. March 25, 2011) (MSPB Docket No. CB-1215-08-0015-T-1). The court reversed in part the Board’s decision, 114 M.S.P.R. 57 (2010), which had imposed a 10-day suspension on Beatrez for violating 5 U.S.C.  2302(b)(6) by intentionally assisting in the granting of an illegal preference for employment. The court ruled that the Board’s reasons for substituting its own credibility determinations for that of the administrative judge were not sufficiently sound to justify overturning the administrative judge’s finding as to Ms. Beatrez’s intent, and therefore did not survive substantial evidence review. The court’s decision did not affect the Board’s findings with respect to a second individual who did not appeal the Board’s decision.