United States Merit Systems Protection Board

Case Report for July 15, 2011

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.



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
- Protected Disclosure

The 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 Colorado governor. The Rocky Mountain News published an article that quoted Mr. Ritter stating that as DA, he “made it a policy to always send illegal immigrants to jail so federal authorities would have the chance to detain them” but that the “feds often chose not to detain them.” After reading the article, the appellant contacted John Marshall, who the article had identified as Congressman Beauprez’s spokesman. In meetings with Marshall and a political advocacy group, the appellant stated that DA Ritter had a policy of structuring plea agreements with illegal immigrants who were charged with felonies so as to allow them to plead guilty to misdemeanor charges in order to avoid deportation. The appellant encouraged those with whom he met to verify this policy by searching cases in the Denver court records. Marshall later advised the appellant that he had searched court records and made a list of names from cases of interest. At Marshall’s request, the appellant agreed to provide the “alien status information” for the names on Marshall’s list. The appellant ran the names through several government databases, and made handwritten notes on the Marshall List, including information such as the individual’s immigration status, the year the individual was granted legal permanent resident status, the individual’s country of origin, whether they were granted amnesty or asylum, and if and when they were deported. The appellant provided the annotated list to Marshall at the Beauprez Campaign headquarters. Using information provided by the appellant, the Beauprez Campaign ran a political advertisement alleging that an illegal alien who was arrested on suspicion of distributing heroin received lenient treatment from the Denver DA’s office, which allowed him to avoid deportation, and that as a result, the illegal alien was later arrested on suspicion of sexually assaulting a minor.

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 Denver DA’s practice of plea bargaining with criminal aliens implicated the reputation and good name of the federal government because Mr. Ritter alleged in the newspaper article that the federal government, rather than his office, was responsible for releasing illegal aliens.

5. The penalty of removal is within the bounds of reasonableness.

Appellant: Sherryl D. Warren

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
Constitutional Issues – Due Process

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.



Non-precedential Decisions

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)

Price v. U.S. Postal Service, No. 2011-3059 (July 13, 2011) (MSPB Docket No. DE-0752-09-0346-I-1) (affirming the Board’s decision, which dismissed a removal appeal pursuant to a settlement agreement)

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)