U.S. Merit Systems Protection Board 
Case Report for February 10, 2012

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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.


Appellant:  Herbert Russell
Agency:  Department of Health and Human Services
Decision Number:  2012 MSPB 13
Docket Number:  DC-3330-11-0405-I-1
Issuance Date:  February 2, 2012
Appeal Type:  Veterans Employment Opportunities Act

Veterans' Preference Rights - VEOA

      The appellant petitioned for review of an initial decision that denied his claim for relief under VEOA.  The appellant is an Army veteran who is receiving compensation for service-connected disabilities rated at 30 percent.  Because of his military service and disabilities, he is entitled to a 10-point veterans' preference when applying for most federal positions.  The appellant applied for a job vacancy using the agency's online QuickHire System.  QuickHire would create a separate fax coversheet for each supporting document that was supposed to be submitted, and each coversheet had a unique barcode. The QuickHire system would receive faxes electronically and file them by barcode.  If it received a second fax with the same barcode as an earlier fax, it would automatically erase the first fax and replace it with the second one.  Although applicants were told to use only QuickHire-generated coversheets, they were not warned that reusing a coversheet would cause the first fax to be erased.  The appellant submitted a letter from the Department of Veterans Affairs (VA) that showed his entitlement to a 10-point veterans' preference, and he received an automatically generated response showing that the agency had received the VA letter.  The appellant subsequently faxed another attachment, which caused the QuickHire system to delete the VA letter.  As a consequence, the agency's QuickHire file did not contain the VA letter, and the human resource specialist who scored his application awarded him only the basic 5-point veterans' preference rather than the 10-point preference to which he was entitled.  She ignored his application for a 10-point preference on the ground that the agency only accepts VA letters for that purpose.  Had the appellant received a 10-point preference, he would have been the top-ranked candidate.  With only the 5-point preference, he did not rank in the top 3, and the agency selected someone who was not preference eligible.

      On appeal to the Board, the administrative judge concluded that the appellant, not the agency, was responsible for his not receiving the 10-point preference, and denied his request for corrective action on that basis.
Holdings:  The Board reversed the initial decision and ordered corrective action.  It found that the agency was responsible for the appellant not receiving the 10-point preference to which he was entitled, and ordered the agency to reconstruct the selection process.  An agency may not deprive an applicant of his veterans' preference rights merely because the applicant has made a minor technical mistake in submitting his application.  

Appellant:  Robert Regdon
Agency:  Department of the Army
Decision Number:  2012 MSPB 14
Docket Number:  SF-0846-10-0976-I-2
Issuance Date:  February 8, 2012
Action Type:  Retirement/Benefit Matter


      The appellant petitioned for review of an initial decision that dismissed his appeal for lack of jurisdiction.  The appellant was appointed to a Nonappropriated Funds Instrumentality (NAFI) position in 1973, and enrolled in a NAFI retirement plan.  In 1992, he resigned from that position to accept an appropriated fund appointment, which was covered by the Federal Employees' Retirement System (FERS).  When he retired in 2009, he applied for retirement benefits through the Army's NAF Employee Benefits Program. The Benefits Operations Manager informed him via email that his only option for combining his NAFI and FERS retirement credits was to transfer the NAFI funds to FERS, contrary to the appellant's stated desire to retain Department of the Army NAFI retirement. She also informed him that he was required to make the election to combine his retirement plans into FERS that same day.  

      The appellant filed an appeal with the Board alleging that the agency issued a final decision affecting his retirement rights.  During the pendency of the appeal, the agency rescinded the Benefits Operations Manager's email, informed the appellant that it had not made a determination that his only option to obtain combined retirement credit was to transfer his NAFI contributions to FERS or that he was ineligible to transfer his FERS contributions to the NAFI retirement system. The administrative judge dismissed the appeal for lack of jurisdiction, finding that the Manager's email did not constitute a final decision affecting his rights or interests under FERS. The judge found in the alternative that, even if the email was a final decision over which the Board exercised jurisdiction, the Board no longer had jurisdiction because the agency had completely rescinded the email.
Holdings:  The Board affirmed the initial decision as modified, still dismissing the appeal for lack of jurisdiction:

1.  The Benefits Operations Manager's email was a final decision affecting the appellant's rights or interests under
under 5 C.F.R. part 847.

a.  Regulations under 5 C.F.R. part 847 allow qualifying employees who transfer from NAFI positions to FERS positions to transfer their FERS contributions to their NAFI retirement, and the agency is responsible for notifying its employees of their opportunity to make an election in this regard. The time limits for making an election may be waived under certain circumstances, including a lack of notice or counseling.

b.  The email from the agency's Benefits Operations Manager that gave the appellant erroneous information constituted an appealable final agency decision under part 847.  The agency clearly denied the appellant the opportunity to make an election, the email stated that the decision was made by the Chief of the NAF Benefits Program and, given that the appellant was only given one choice to combine retirement plans, which he had to elect immediately, it is clear that this decision was final.

2.  Because the agency completely rescinded the Manager's email,  there is no longer a final agency decision over which the Board can exercise jurisdiction.  The Board dismissed the appeal without prejudice to the appellant's filing a new appeal from any future final agency decision concerning his NAFI retirement.


The Court of Appeals for the Federal Circuit issued nonprecedential decisions in the following cases:

Batchelor v. Merit Systems Protection Board, No. 2011-3189 (Feb. 3, 2012) (MSPB Docket No. AT-0752-10-1089-I-1) (affirming the Board's decision, which dismissed an appeal as untimely filed)

Tarr v. Merit Systems Protection Board
, No. 2011-3208 (Feb. 8, 2012) (MSPB Docket No. DE-315H-09-0407-B-1) (affirming the Board's decision, which dismissed for lack of jurisdiction an appeal of termination of employment during the employee's probationary period)

Holdsworth v. U.S. Postal Service, No. 2011-3214 (Feb. 9, 2012) (MSPB Docket No. PH-0752-10-0295-I-1) (affirming the Board's decision, which sustained the appellant's removal for misconduct)

Pacious v. National Aeronautics & Space Administration, No. 2011-3215 (MSPB Docket No. DC-0752-10-0745-I-1) (affirming the Board's decision, which sustained the appellant's removal for misconduct)

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