Case Report for September 23, 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: Diane King

Agency: Department of the Army

Decision Number: 2011 MSPB 83

Docket Number: AT-1221-11-0037-W-1

Issuance Date: September 14, 2011

Appeal Type: Individual Right of Action (IRA)

Whistleblower Protection Act
Jurisdiction – Protected Disclosure
- Perceived as a Whistleblower

The appellant petitioned for review of an initial decision that dismissed her IRA appeal for lack of jurisdiction. While being interviewed for a position with the agency, the appellant alleged that, when the discussion turned to the circumstances of her previous separation from federal service, she informed the interview panel that she had been “fired for whistleblowing” and that one of the panel members responded that “whistleblowers [at the agency] were immediately reassigned to the library.” The agency selected other individuals for the vacancies at issue. On appeal to the Board after exhausting her remedies with the Office of Special Counsel, the administrative judge issued an order directing the appellant to submit evidence and argument as to jurisdictional elements, including that she engaged in whistleblowing by making a protected disclosure. Rather than identifying a protected disclosure, the appellant alleged that her status as a whistleblower had already been confirmed in previous Board appeals. In dismissing the appeal for lack of jurisdiction, the judge stated that the identification of a particular disclosure is essential to the prosecution of an IRA appeal, and that the Board cannot accept jurisdiction over the appeal merely on the basis that the appellant had been found to be a whistleblower.

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. Establishing jurisdiction over an IRA appeal generally requires a nonfrivolous allegation that the appellant made a protected whistleblowing disclosure. In some circumstances, however, an appellant can establish jurisdiction without such an allegation if she can establish that she is perceived as a whistleblower.

2. Although cases in which appellants have established jurisdiction over an IRA appeal on the basis that they were perceived as whistleblowers involve widely different factual circumstances, they share a common element—that agency officials appeared to believe that the appellants engaged or intended to engage in whistleblowing activity. In such cases, the Board will focus its analysis on the agency’s perceptions; the issue of whether the appellant actually made protected disclosures is immaterial.

3. The appellant has not yet made a nonfrivolous allegation that the agency perceived her as a whistleblower or that her perception as a whistleblower was a contributing factor to her nonselection. Nevertheless, because the appellant did not receive explicit notice of how to establish jurisdiction over an IRA appeal as a perceived whistleblower, the case must be remanded to the regional office for further adjudication.

Appellant: Michael D. Olszak

Agency: Department of Homeland Security

Decision Number: 2011 MPSB 84

Docket Number: DC-0842-10-0561-I-1

Issuance Date: September 20, 2011

Action Type: Retirement/Benefit Matter

Retirement
- Enhanced Retirement Coverage as Customs and Border Patrol Officer

The appellant petitioned for review of an initial decision that affirmed the agency’s reconsideration decision denying his request for benefits under the agency’s Customs and Border Protection Officer (CBPO) enhanced retirement coverage. The primary issue as to the appellant’s entitlement to this benefit was whether his service as an Asylum Officer with the Immigration & Naturalization Service constituted covered secondary service. If that issue was resolved in the negative, the appellant would not qualify for the benefit because he would have a disqualifying break in covered service. The administrative judge determined that the appellant’s service as an Asylum Officer was not covered secondary service.

Holdings: The Board affirmed the initial decision as modified, still affirming the agency’s reconsideration decision denying CBPO enhanced retirement coverage:

1. A federal employee who serves as a CBPO is entitled to the same enhanced retirement benefits as law enforcement officers and firefighters. The primary benefit of enhanced CBPO retirement coverage is that it allows qualified employees in covered service to take early optional retirement.

2. To qualify, an employee must occupy a covered position (primary coverage) or have transferred directly to a supervisory or administrative position without a break in service of more than 3 days, after occupying a covered position for at least 3 years (secondary coverage).

3. It was undisputed that the appellant occupied a primary service position for more than 3 years and that he transferred into the Asylum Officer position without a break in service. The dispositive issue was whether the appellant’s service as an Asylum Officer constituted secondary service.

4. As provided in the agency’s guidelines for implementing the law, service in the Asylum Officer position would not qualify as covered secondary service unless experience as a CBPO or equivalent experience was a “mandatory prerequisite” for the Asylum Officer position.

5. The administrative judge correctly found that experience as a CBPO or equivalent experience was not a mandatory prerequisite for the Asylum Officer position.

6. The appellant failed to show that the agency’s guidelines for determining whether service qualified as secondary service was arbitrary or unreasonable. The agency developed its guidelines in consultation with OPM and modeled its CBPO retirement system on the law enforcement officer retirement system.

COURT DECISIONS

Petitioner: Byrdie A. Turman-Kent

Respondent: Merit Systems Protection Board

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

Docket Number: No. 2011-3100

Issuance Date: September 9, 2011

Timeliness – PFR

The petitioner sought review of a Board decision dismissing her petition for review as untimely filed without good cause shown for the delay in filing. At issue in the underlying appeal was whether the petitioner qualified for a survivor annuity based on the service of her deceased husband. OPM denied the request on the basis that Mr. Kent never elected to provide a survivor annuity for the petitioner. In an initial decision issued in 2004, the Board’s administrative judge upheld OPM’s decision. Although that decision informed the petitioner that the decision would become final in June 2004 unless a petition for review was filed with the full Board, she did not do so until more than 6 years later, in August 2010. The Board dismissed the appeal as untimely filed, finding that the appellant failed to show that medical condition (intracerebral hemorrhage suffered in a 1986 stroke) provided good cause to excuse the lengthy delay in filing.

Holdings: A majority of the court, Judge Renya dissenting, affirmed the Board’s decision:

1. A petitioner bears a “heavy burden” to overturn the Board’s determination that good cause has not been shown for her untimely filing.

2. Board regulations require tardy petitioners to file a “specific and detailed description of the circumstances causing the late filing, accompanied by supporting documentation or other evidence.” The Board has held that when petitioners allege delay for medical reasons, they must affirmatively identify medical evidence that addresses the entire period of delay.

3. The petitioner did not provide the Board with medical evidence that accounted for the entire 6-year period of delay. In particular, there was no medical evidence regarding her condition between June 2004 and July 2006.

4. The length of delay is an important factor for the Board to consider in determining whether a petitioner has shown good cause for an untimely filing. The length of delay in this case—6 years—is exceptional.

5. The dissent’s reliance on Pyles v. Merit Systems Protection Board, 45 F.3d 411 (Fed. Cir. 1995), is inapposite. The petitioner in that case suffered from a disease that was progressive in nature. Here, there is no evidence that the intracerebral hemorrhage suffered by the petitioner is progressive in nature. To the contrary, evidence suggested that her conditioned had stabilized and even improved at certain points of time.

In his dissent, Judge Reyna stated that “binding law exists that is directly on point and that requires us to presume the continuation of a permanent medical condition throughout the entire period of delay.”

Non-precedential Decisions

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

Simmons-Roberts v. Department of Defense, No. 2011-3056 (Sept. 19, 2011) (MSPB Docket No. DA-0752-10-0054-I-1) (affirming the Board’s decision, which sustained the appellant’s removal)