Case Report for July 15, 2011
Appellant: Cory D. Voorhis
Agency: Department of Homeland Security
Decision Number: 2011 MSPB 67
Docket Number: DE-0752-09-0199-I-2
Issuance Date: July 5, 2011
Appeal Type: Adverse Action by Agency
Action Type: Removal
Whistleblower Protection Act
appellant petitioned for review of an initial decision that affirmed the
agency’s removal action. The
appellant was a Criminal Investigator with the Bureau of Immigration and
Customs Enforcement. In 2006, Denver
District Attorney (DA) William Ritter and United States Congressman Robert Beauprez were opponents in the campaign for
Following an investigation by the Colorado Bureau of Investigation, the agency removed the appellant on 4 charges: (1) unauthorized queries of individuals on an official government computer database; (2) unauthorized disclosure; (3) misuse of position; and (4) lack of candor. After conducting a hearing in the ensuing Board appeal, the administrative judge sustained all of the agency’s charges, but not all of the specifications. The judge further found that the appellant failed to prove his affirmative defenses of retaliation for making disclosures protected by the Whistleblower Protection Act (WPA) and the First Amendment, and that the agency violated the appellant’s right to petition Congress under 5 U.S.C. § 7211. Finally, the judge found that the agency’s removal action promotes the efficiency of the service and that the removal penalty is reasonable.
Holdings: The Board affirmed the initial decision as modified:
1. After considering the evidence on each of the 4 charges, the Board found that the administrative judge correctly sustained all of them.
2. The appellant failed to establish that the agency violated his right to petition Congress under 5 U.S.C. § 7211.
a. The administrative judge properly concluded that the appellant’s actions were not protected under § 7211 because they did not constitute “petitioning Congress” within the meaning of that provision.
b. In affirming the administrative judge’s determination in this regard, the Board stated that it must defer to the administrative judge’s finding that the appellant’s assertion that he did not know that the people to whom he made his disclosures were working for the Beauprez gubernatorial campaign was not credible.
3. The appellant failed to establish that the charges brought against him by the agency are within the exclusive authority of OSC.
4. The appellant
failed to establish his affirmative defense of whistleblower
retaliation. The Board rejected the
appellant’s argument that his disclosures regarding the
5. The penalty of removal is within the bounds of reasonableness.
Appellant: Sherryl D.
Agency: Department of Transportation
Decision Number: 2011 MSPB 68
Docket Number: DE-0839-10-0139-I-1
Issuance Date: July 7, 2011
Appeal Type: FERCCA
Action Type: Retirement/Benefit Matter
Retirement – FERCCA
Both parties petitioned for review of an initial decision that reversed the agency’s decision to deny the appellant relief under the Federal Erroneous Retirement Coverage Corrections Act (FERCCA). The appellant worked as an Air Traffic Controller for more than 5 years, leaving government service in 1981. She was rehired in April 2007 under an excepted service appointment for a period not to exceed 5 years. The agency placed the appellant in the Civil Service Retirement System (CSRS) Offset, a version of CSRS for employees whose service is subject to deductions for both CSRS and the Social Security Act. When it took this action, the agency provided the appellant a period of 6 months to decide whether to remain in CSRS Offset or elect coverage under the Federal Employees’ Retirement System (FERS). She did not elect FERS coverage. The appellant later notified the agency of her belief that the agency incorrectly placed her in CSRS Offset and should have instead placed her in FERS. The agency informed the appellant that it considered her communication as a request for corrective action under FERCCA and issued a final decision denying her request.
On appeal to the Board, the appellant reiterated her contention that the agency erred in placing her in CSRS Offset, and should have instead placed her in FERS. She argued that her appointment was indefinite and should therefore have been excluded from CSRS Offset coverage. The administrative judge agreed with the agency that the appointment was not indefinite, but further found that the appellant was nonetheless excluded from CSRS coverage because she was serving a term appointment, and remanded the case to the agency to take corrective action.
Holdings: The Board reversed the initial decision and sustained the agency’s decision placing the appellant under CSRS Offset:
1. An employee who has been placed under the wrong retirement system for a period of 3 or more years since December 31, 1986 is entitled to corrective action under FERCCA. Generally, an employee who was erroneously placed in CSRS or CSRS Offset, but should have been covered by FERS, may elect to be placed in CSRS Offset or FERS retroactively to the date of the error.
2. The dispositive question in this case is whether the appellant’s current appointment is excluded from CSRS coverage by law or regulation.
3. The appellant did not receive an indefinite appointment that would exclude her from CSRS coverage.
a. Indefinite appointments are excluded from CSRS coverage.
b. The SF-50 documenting the appellant’s appointment indicated that she belonged to tenure group 3. Although the SF-50 also employed the word “indefinite” as a short-hand description for that tenure group, tenure group 3 is not limited to excepted service employees serving indefinite appointments; it also includes, among others, excepted service employees who are serving appointments with a specific time limitation of more than 1 year.
c. The Board rejected the appellant’s contention that the appointment was indefinite because it could end at any time up to the 5-year not-to-exceed date. OPM has construed the term “indefinite appointment” to mean an appointment “given a nonpermanent employee hire for an unlimited period of time.” The appellant’s appointment did not meet this definition.
4. The appellant is not serving a “term appointment” that is excluded from CSRS coverage.
a. In concluding that the appellant’s appointment was a “term appointment,” the judge relied on regulations at 5 C.F.R. part 316. Those regulations apply exclusively to the competitive service, and the appellant’s appointment was to the excepted service.
b. Because the appellant is not serving a term appointment, or any other category of appointment excluded from CSRS coverage by law or regulation, she was properly placed in CSRS Offset and is not entitled to relief under FERCCA.
Petitioner: Special Counsel
Respondent: Jeffrey M. Smith
Decision Number: 2011 MSPB 69
Docket Number: CB-1216-10-0009-T-1
Issuance Date: July 12, 2011
Appeal Type: Disciplinary Action - Hatch Act
Action Type: Original Jurisdiction Case
Special Counsel Actions – Hatch Act
The Office of Special Counsel (OSC) petitioned for review of an initial decision that dismissed its Hatch Act complaint against the respondent on the basis that the complaint lacked the degree of particularity required by Board regulations and case law. OSC’s complaint alleged that the respondent engaged in political activity while on duty and while in a government building through the use of a government owned computer. The complaint described the time of the alleged offenses as “[t]houghout 2008” and stated that the alleged offenses involved emails and the drafting of documents “directed toward the success of Barack Obama’s candidacy for President.” The administrative law judge granted the respondent’s motion to dismiss on the basis that the charging document was so vague and the discovery documents were so voluminous and undifferentiated that the respondent was left “to guess at the nature of the charges and the documents that were the factual basis for those charges.”
Holdings: The Board affirmed the initial decision as modified:
1. The core of constitutional due process is the right to notice and a meaningful opportunity to respond. In keeping with this principle, the Board’s regulations mandate that OSC’s complaint must state “with particularity any alleged violations of law or regulation, along with the supporting facts.”
2. The Board rejected OSC’s assertion that “[n]othing in the Board’s regulations or case law require [sic] that the complaint outline each specific instance of Respondent’s political activity.” The Board stated that “OSC is mistaken; outlining each specification is precisely what OSC is required to do.”
3. A respondent cannot be expected to prepare a defense to each specification of a charge unless each specification is listed with sufficient identifying information to permit the respondent to know what event is at issue in the case. Informing a respondent that he is charged with drafting and/or editing documents or sending emails in the year 2008 is not sufficient to provide a respondent with adequate knowledge of the alleged conduct that OSC believes violated the law. He must be put on notice regarding which documents and which emails OSC believes violated the law.
4. OSC is not permitted to amend the complaint, but is free to file a properly detailed new complaint against the respondent.
The U.S. Court of Appeals for the Federal Circuit issued non-precedential decisions in the following cases:
Fogal v. Merit Systems Protection Board, No. 2011-3040 (July 11, 2011) (MSPB Docket No. DC-0752-10-0841-I-1) (affirming the Board’s decision, which dismissed the appeal of a probationary termination for lack of jurisdiction)
Mannion v. Department of the Treasury, No. 2011-3089 (July 11, 2011) (MSPB Docket No. PH-315H-08-0586-I-1) (affirming the Board’s decision, which denied the appellant’s request to reopen and reinstate an appeal that was dismissed pursuant to a settlement agreement)
McWilliams v. Merit Systems Protection Board, No. 2011-3075 (July 11, 2011) (MSPB Docket No. SF-1221-09-0439-W-1) (affirming the Board’s decision, which dismissed the appellant’s IRA appeal for lack of subject matter jurisdiction)
Chapman v. Merit Systems Protection Board, No. 2011-3066 (July 12, 2011) (MSPB Docket No. AT-0752-10-0423-I-1) (affirming the Board’s decision, which dismissed an appeal of a termination for lack of jurisdiction because the appellant was not a preference eligible employee)
Johnson v. Merit Systems Protection Board, No. 2011-3064 (July 13, 2011) (MSPB Docket No. CH-315H-10-0653-I-1) (affirming the Board’s decision, which dismissed the appeal of a probationary termination for lack of jurisdiction)