Case Report for September 9, 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: Glenda J. Williams

Agency: Office of Personnel Management

Decision Number: 2011 MSPB 81

Docket Number: SF-0831-11-0048-I-1

Issuance Date: September 2, 2011

Action Type: Retirement/Benefit Matter

Survivor Annuity – Dependent Child

The appellant petitioned for review of an initial decision that affirmed OPM’s reconsideration decision denying her application for a survivor annuity under the Civil Service Retirement System. She applied for benefits as a dependent of her deceased father, who was a federal employee prior to his death in 1966, at which time the appellant was 12 years old. The appellant requested a survivor annuity in 2009 as a dependent child under 5 U.S.C. § 8341(a)(4)(B), which provides for a survivor annuity for an “unmarried dependent child regardless of age who is incapable of self-support because of mental or physical disability incurred before age 18.” The appellant is currently legally blind, and presented evidence that the degenerative eye disease from which she suffers was inherited at birth. After a hearing, the administrative judge determined that the appellant did not meet the legal requirements for the benefit she sought.

Holdings: The Board affirmed the initial decision as modified, still sustaining OPM’s reconsideration decision:

1. One of the circumstances in which the statutory right to a dependent child annuity terminates is when the child “ceases to be . . . a student after becoming 18 years of age unless he is then incapable of self-support.”

2. The administrative judge correctly determined that the appellant was capable of self-support after she completed 1-2 years as a college student after she turned 18.

Appellant: Sylvia M. Kitt

Agency: Department of the Navy

Decision Number: 2011 MSPB 82

Docket Number: AT-0752-07-0985-C-1

Issuance Date: September 2, 2011

Appeal Type: Adverse Action by Agency

Case Type: Compliance

Compliance – Settlement-Related

The appellant petitioned for review of an initial decision that denied her petition for enforcement of a settlement agreement. In the underlying appeal of a removal action, the parties entered into a written settlement agreement that provided that the agency would “change the nature of Employee’s Standard Form 50 . . . from Removal to a 30-days Suspension.” By letter the following year, the agency informed the appellant that she was being denied a security clearance, in part because her history included the fact that her command “issued [her] a Notice of Removal from federal service” and because her “employment records” reflect that she received a 30-day suspension. In her petition for enforcement, the appellant asserted that the agency breached the agreement because documentation of her removal remained in her Official Personnel File (OPF). Relying on Cutrufello v. U.S. Postal Service, 56 M.S.P.R. 99 (1992), the administrative judge determined that the agency had not breached the settlement agreement because the agreement did not include any language requiring the agency to expunge the removal from the appellant’s OPF or other records.

Holdings: The Board granted the appellant’s petition for review, found that the agency had breached the settlement agreement, and remanded the case to the regional office for further adjudication:

1. Although this case is analogous to Cutrufello, the U.S. Court of Appeals for the Federal Circuit reached a different result in a later case with similar facts, Conant v. Office of Personnel Management, 255 F.3d 1371 (Fed. Cir. 2001). The court there held that, by agreeing to “rescind” the original removal SF-50 and issue a new one reflecting a resignation for personal reasons, the agency in effect promised to destroy the original SF-50 and remove it from the employee’s record.

2. Here, where the agency agreed to “change” the nature of action on the SF-50 from a removal to a suspension, and provided no express language permitting other disclosures of the removal, it was agreeing to remove any record of the appellant’s removal. Accordingly, the agency breached the settlement agreement.

3. The breach was a material one, i.e., it related to a matter of vital importance or went to the essence of the contract.

4. When one party commits a material breach of a settlement agreement, the other party is entitled to either enforce the settlement agreement or to rescind it and to reinstate her appeal. The appeal was remanded to the regional office to afford the appellant an opportunity to make an informed decision regarding these options.