U.S. Merit Systems Protection Board 
Case Report for March 9, 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.


Appellants:  Kelly J. Smith and Stanley M. Walker
Agency:  Department of the Army
Decision Number:  2012 MSPB 24
Docket Numbers:  AT-0752-11-0110-I-1 and AT-0752-11-0111-I-1
Issuance Date:  March 2, 2012
Appeal Type:  Adverse Action by Agency
Action Type:  Reduction in Pay

Reduction in Pay
Law Enforcement Availability Pay

    The agency petitioned for review of an initial decision that reversed its actions reducing the appellants' pay.  The agency determined that there was an insufficient amount of work to justify certifying the appellants' continued entitlement to Law Enforcement Availability Pay (LEAP), and their LEAP pay was terminated.  On appeal, the administrative judge determined that the denial of certification was not for one of the reasons listed in the Office of Personnel Management's (OPM's) regulations, and constituted a reduction in pay.  The judge concluded that the agency had not established that its decisions to deny certifications were based on a valid reason and that it had therefore failed to support its decisions by preponderant evidence.  

Holdings:  The Board affirmed the initial decision as modified, still reversing the agency's actions:

1.  The Law Enforcement Availability Pay Act, 5 U.S.C. § 5545a, requires that each criminal investigator receiving availability pay and the appropriate supervisory officer make an annual certification that the investigator has met, and is expected to meet, the requirement that the annual average of unscheduled duty hours worked is in excess of each regular work day by at least 2 hours per day.  

2.  The statute is ambiguous as to when certification can be denied.  It could be read as focusing on the investigator's demonstrated and expected ability and willingness to perform unscheduled duty hours, or it could be interpreted as requiring consideration of the agency's past and projected workload.  OPM has promulgated a regulation, 5 C.F.R. 
§ 550.184(d), which adopts the former interpretation.  This regulation identifies only two circumstances in which an agency may deny certification:  (1) when an investigator has failed to perform unscheduled duty as assigned or reported; or (2) when he is unable to perform scheduled duty for an extended period due to physical or health reasons.  

3.  Because OPM's regulation is a
reasonable interpretation of the statute, the Board must defer to it, even if OPM's interpretation differs from what the Board believes is the best construction.  Here, OPM's interpretation is not only a reasonable one, it is consistent with the statute's legislative history, which supports a finding that Congress intended that LEAP would be the basis for providing guaranteed compensation to covered employees and that agencies would be able to involuntarily terminate employees' entitlement to LEAP only for inability or unwillingness to perform the unscheduled duty that is a fundamental part of a position that is subject to LEAP.  

Appellant:  James A. Scott
Agency:  Office of Personnel Management
Decision Number:  2012 MSPB 25
Docket Number:  CH-0731-09-0578-R-1
Issuance Date:  March 5, 2012
Appeal Type:  Suitability

Suitability Determinations

    The OPM Director petitioned the Board to reconsider its decision in Scott v. Office of Personnel Management, 116 M.S.P.R. 356 (2011), which reversed the appellant's suitability-based removal.  This decision was based on the Board's ruling in Aguzie v. Office of Personnel Management, 116 M.S.P.R. 64 (2011), which held that OPM lacks authority under 5 C.F.R. part 731 to make suitability determinations or to take or direct suitability actions against an individual based solely on conduct occurring after his admission into the competitive service, and that such an action constituted a removal under 5 U.S.C. chapter 75, subchapter II.  

Holdings:  The Board affirmed its previous decision, with one modification:  to the extent that the previous decision could be interpreted as an attempt by the Board to bar OPM from conducting suitability investigations or making suitability determinations when those actions are taken indepedent of any action with the Board's jurisdiction.  The Director is correct that the Board lacks jurisdiction over a suitability investigation that does not result in a removal or other action over which the Board has been granted jurisdiction.  

Appellant:  Mia S. Rhee
Agency:  Department of the Treasury
Decision Number:  2012 MSPB 26
Docket Number:  SF-0752-11-0122-I-1
Issuance Date:  March 5, 2012
Appeal Type:  Adverse Action by Agency
Action Type:  Suspension - More than 14 Days

Adverse Action Charges - Lack of Candor
Retaliation for Protected Activity

    The agency petitioned for review of an initial decision that reversed its 30-day suspension of the appellant on a charge of lack of candor.  The basis for the charge was the appellant's response to an email from her immediate supervisor, which noted that the appellant's Memorandum of Contact regarding an interview was placed on an agency database (SharePoint) on October 9, 2009, concerning an interview that was conducted on September 29, 2009, asked whether the memorandum was prepared within 5 work days and, if so, why it wasn't on the agency database.  The appellant responded, "Yes, it was on [SharePoint] on 10/2/09 after personal interview with Detective Mesa on 10/1/09."  The agency brought the lack of candor charge after an agency investigation indicated that Memorandum was not placed on SharePoint until October 9.  The appellant maintained that she created the Memorandum on October 2 and that she thought she had saved it to SharePoint the same day.  Following a hearing, the administrative judge found that the agency did not prove its charge by preponderant evidence.  The judge also found that the agency's action was taken in retaliation for a prior Board appeal, EEO activity, and several grievances.  

Holdings:  The Board denied the agency's petition for review and affirmed the initial decision:

1.  The administrative judge applied the correct legal standard in adjudicating the lack of candor charge.  A lack of candor charge requires the agency to produce some evidence that the appellant's actions, under the circumstances, involved an "element of deception."  Here, the agency charged that the appellant "knew . . . that the [Memorandum] was not, in fact, on SharePoint on October 2, 2009."  Proving the charge required the agency to establish that the appellant's response was not merely incorrect, but that it also involved an element of deception in that, when she responded, she knew that the document in question was not in fact on SharePoint on October 2, 2009.  

2.  The administrative judge correctly determined that the agency failed to prove its lack of candor charge.

3.  The agency failed to identify a basis for disturbing the judge's determination that the appellant proved retaliation for her prior Board appeal, her prior EEO activity, and her several grievances.  

Appellant:  Keith Andrew Fields
Agency:  United States Postal Service
Decision Number:  2012 MSPB 27
Docket Number:  PH-0752-09-0568-B-1
Issuance Date:  March 6, 2012
Appeal Type:  Adverse Action by Agency
Action Type:  Removal

PFA - Timeliness

    The appellant petitioned for review of a a remand initial decision that dismissed as untimely filed the appeal of his alleged constructive suspension.  In a previous decision, the Board found that the appellant's claim that the agency did not allow him to return to duty following an arbitrator's award constituted a nonfrivolous allegation of a constructive suspension with the Board's jurisdiction, and remanded that claim for adjudication.  The Board noted that the appellant's appeal appeared to have been untimely filed and directed that, on remand, the administrative judge should, to the extent necessary, decide whether good cause existed for the apparent untimely filing.  On remand, the administrative judge dismissed the appeal as untimely filed without ruling on whether the appellant had established jurisdiction.

Holdings:  The Board vacated the remand initial decision and remanded for further adjudication:

1.  Although the existence of Board jurisdiction is a threshold issue, in an appropriate case, an administrative judge may dismiss an appeal as untimely filed if the record on timeliness is sufficiently developed and the appellant shows no good cause for the untimely filing.  Such an approach is not appropriate, however, if the jurisdictional and timeliness issues are "inextricably intertwined," i.e., if resolution of the timeliness issue depends on whether the appellant was subjected to an appealable action.  

2.  The issues of timeliness and jurisdiction are generally considered to be inextricably intertwined in a constructive suspension appeal because a failure to inform an employee of Board appeal rights may excuse an untimely filed appeal, and whether the agency was obligated to inform the employee of appeal rights depends on whether the employee was affected by an appealable action.  Such was the case here.  

Appellant:  Jewel Lee Dorney
Agency:  Department of the Army
Decision Number:  2012 MSPB 28
Docket Number:  DC-1221-11-0556-W-1
Issuance Date:  March 6, 2012
Appeal Type:  Individual Right of Action (IRA)

Whistelblower Protection Act
 - Jurisdiction
 - Protected Disclosure
 - Contributing Factor

    The appellant petitioned for review of an initial decision that dismissed her IRA appeal for lack of jurisdiction.  The appellant served as a nurse practioner at an agency health clinic for several years before she resigned in 2005 or 2006.  While employed, she brought to the attention of the Inspector General her concerns that "federal labor laws to ensure fair compensation" had not been followed by the clinic.  She said she also discussed this concern with staff from the civilian personnel advisory center and her union, and that she testified before a medical board regarding practices at the clinic, including uncompensated work time.  The appellant alleged that several actions were taken in reprisal for voicing her concerns:  that the clinic administrator directed that she be reprimanded; that a job offer was withdrawn because of negative statements made by this administrator about her; and that she had applied for positions at the clinic but was informed that the clinic administrator declined to accept her resumé.  The administrative judge dismissed the appellant's IRA appeal on the basis that none of the appellant's claimed disclosures was protected.  The judge additionally found that, although the selecting position based his decision in some part on a recommendation by the clinic administrator, the appellant failed to make a nonfrivolous allegation that her purportedly protected activity was a contributing factor in her non-selection.  

Holdings:  The Board reversed the initial decision, finding that the appellant has established jurisdiction over her IRA appeal, and remanded the appeal for adjudication on the merits:

1.  The appellant made nonfrivolous allegations of protected disclosures.  
Title 5 contains provisions (sections 5542-5543) requiring compensation for time worked in excess of 40 hours in an administrative work week.  The judge erred in holding that the appellant failed to make a nonfrivolous allegation of a protected disclosure.  The appellant's assertions must be addressed further to resolve whether a reasonable person would have believed that the agency's activities reported by the appellant violated federal law and regulations regarding compensation.  

2.  The administrative judge erred in not addressing the issue of the appellant's alleged reprimand and the administrator's alleged refusal to consider the appellant's applications for additional positions for which the administrator was the selecting official.  All of these matters are covered personnel actions and the appellant exhausted her remedy with OSC with respect to them.  

3.  The appellant made a nonfrivolous allegation that her disclosures were a contributing factor in covered personnel actions.  

a.  The administrative judge erred in holding that a deciding official must have knowledge of an individual's whistleblowing activities in order for the Board to find that those activities were a contributing factor in the taking or failure to take a personnel action.  An appellant can show that a disclosure was a contributing factor by proving that the official taking the action had constructive knowledge of the protected disclosure.  An appellant may establish constructive knowledge by demonstrating that an individual with actual knowledge influenced the official taking the retaliatory action.  Here, the record shows that the clinic administrator influenced the decision of the selecting official.  

b.  The length of time between a disclosure and a personnel action is not dispositive of the question of whether a disclosure was a contributing factor to the personnel action.  Other relevant considerations are the strength or weakness of the agency's reasons for taking a personnel action, whether the whistleblowing was personally directed at the proposing or deciding officials, and whether these individuals had a desire or motive to retaliate against the appellant.  The appellant established that her protected disclosures were a contributing factor under the facts of this case.  

Appellant:  Michael B. Graves
Agency:  Department of Veterans Affairs
Decision Number:  2012 MSPB 29
Docket Numbers:  SF-3330-10-0654-I-1 and SF-300A-10-0660-I-1
Issuance Date:  March 7, 2012
Appeal Type:  Veterans Employment Opportunities Act

Veterans' Rights/VEOA
 - Exhaustion of DOL Remedy
Employment Practices

    Both parties petitioned for review of an initial decision that granted in part the appellant's request for corrective action under VEOA and dismissed an employment practices appeal under 5 C.F.R. part 300 for lack of jurisdiction.  The appellant alleged that the agency had violated his veterans' preference rights in connection with his application for a title 38 "hybrid" position, and that it had committed improper employment practices under part 300.  At the time the appellant filed his Board appeal, the agency had not yet made a selection for the position in question.  A selection was made while the appeal was pending.  The judge found that the appellant had established jurisdiction over the VEOA appeal, and that the agency violated the appellant's veterans' preference rights because it did not comply with the competitive service requirements set for in 5 U.S.C. §§ 3317 and 3318 when it selected a non-veteran for the position,  and ordered the agency to reconstruct the selection process.  The judge found that the appellant failed to establish jurisdiction over an employment practices appeal.

Holdings:  The Board dismissed the VEOA appeal for lack of jurisdiction and affirmed the administrative judge's dismissal of the employment practices appeal:

1.  To establish jurisdiction over a VEOA appeal, an appellant must, among other things, show that he exhausted his administrative remedy with DOL.  The purpose of this requirement is to afford the Department of Labor (DOL) the opportunity to conduct an investigation that might lead to corrective action before involving the Board in the case.

2.  In his complaint to DOL, which was filed well before any selection was made for the position in question, the appellant referred to matters other than a selection.  At no time did the appellant file a complaint with DOL alleging that the agency's selection of a non-veteran violated his veterans' preference rights.  

3.  Because the appellant did not afford DOL an opportunity to conduct an investigation that might lead to corrective action with respect to his non-selection, he has not exhausted his DOL remedy, and has not established jurisdiction over an appeal contesting his non-selection.

Appellant:  Nadeen M. Smith
Agency:  Department of the Air Force
Decision Number:  2012 MSPB 30
Docket Number:  DC-0351-11-0450-I-1
Issuance Date:  March 7, 2012
Appeal Type:  Reduction In Force

 - Reduction in Force - Demotion

    The appellant petitioned for review of an initial decision that dismissed her appeal for lack of jurisdiction.  The agency informed the appellant that, due to a reorganiation, she had been reached for a reduction in force (RIF) action.  It offered her a "change-to-lower grade" in lieu of being separated, and the appellant accepted.  On appeal to the Board, the administrative judge dismissed the appeal for lack of jurisdiction, finding that the appellant's reassignment did not result in an appealable reduction in pay.  

Holdings:  The Board granted the appellant's petition for review, vacated the initial decision, and remanded the case to the regional office for adjudication on the merits:

1.  While the appellant indicated on her appeal form that she was appealing a "reduction in grade or pay," it was apparent that she was seeking to appeal a RIF action, not a reduction in pay under 5 U.S.C. chapter 75.  

2.  An employee who has been "demoted" by a RIF action may appeal to the Board under 5 C.F.R. § 351.901.  When, as here, an employee is changed from one wage schedule to another, a "demotion" ocurrs when the new position has a lower rate of pay.  Here, the GS-09 Budget Analyst position to which the appellant was assigned had a lower rate of pay than the YA-0301-02 Pay Pool Advisor position she previously occupied.  The appellant therefore established jurisdiction over her RIF appeal.

Appellant:  George M. Ellis
Agency:  Department of the Navy
Decision Number:  2012 MSPB 31
Docket Number:  SF-0752-11-0051-I-1
Issuance Date:  March 7, 2012
Appeal Type:  Adverse Action by Agency
Action Type:  Constructive Adverse Action

 - Reduction in Grade or Pay

    The appellant petitioned for review of an initial decision that dismissed his appeal of an alleged reduction in grade or pay for lack of jurisdiction.  The appellant received an appointment to a position under the National Security Personnel System (NSPS) in April 2009.  In October 2009, the President signed into a law which repealed the statutory authority for the NSPS and called for the conversion of all NSPS employees to the pay and personnel system that applied prior to conversion to NSPS, or that would have applied had NSPS never been established.  The agency converted the appellant's position to GS-0301-12 Range and Training Planner.  He filed an appeal alleging that the agency reduced him in pay and grade.  The administrative judge found that the appellant did not make a nonfrivolous allegation that he had been reduced in pay or grade, and dismissed the appeal for lack of jurisdiction.

Holding:  The Board affirmed the initial decision as modified, still dismissing the appeal for lack of jurisdiction.  This appeal is similar to that in the recently decided case of Arrington v. Department of the Navy, 2012 MSPB 6, in which the Board found that there was an appealable reduction in grade.  Unlike Arrington, who had been a Grade 13 under the General schedule before being converted to the NSPS, and who was returned to the General Schedule as a GS-12 when the NSPS was abolished, the appellant in this case had not previously been a higher ((or any) grade in the General Schedule before being placed in the NSPS.  As the Board indicated in the Arrington decision, the finding that she had been reduced in grade was limited to the particular circumstances of that appeal.

Appellant:  Alice W. Poole
Agency:  Department of the Army
Decision Number:  2012 MSPB 32
Docket Number:  AT-0839-10-1110-I-1
Issuance Date:  March 8, 2012
Appeal Type:  FERCCA
Action Type:  Retirement/Benefit Matter

Retirement - FERCCA

    The appellant petitioned for review of an initial decision that found she was ineligible to accrue further retirement benefits as a reemployed annuitant of the Department of Defense.  After retiring from the Department of Defense with a (Civil Service Retirement System (CSRS) annuity in 1998, the appellant returned to service as a reemployed annuitant in two separate capacities, the second with the Department of the Army.  The Army determined that the appellant was not eligible for CSRS retirement coverage during her reemployment with that agency, and that she was required by law to be placed under the FICA retirement system.  On appeal to the Board, the administrative judge determined that there was jurisdiction under 5 U.S.C. § 8347(d)(1), and sustained the agency's decision.  

Holdings:  The Board affirmed the initial decision as modified; it clarified the basis for exercising jurisdiction, but affirmed the initial decision insofar as it found that the appellant could not accrue additional retirement benefits under CSRS:

1.  Under 5 U.S.C. § 9902(g)(1), a reemployed annuitant of DOD is not generally considered an employee for purposes of CSRS.  (For purposes of section 9902, the Department of the Army is a component of the Department of Defense.)   There is an exception for individuals who were retired under 5 U.S.C. § 8336(d)(1), known as discontinued service retirement, but the appellant did not retire under that provision.

2.  The Board cannot exercise jurisdiction under the Civil Service Retirement System.

3.  The Board has jurisdiction under the Federal Erroneous Retirement Coverage Act (FERCCA).  

4.  The agency correctly found that the appellant was subject to 5 U.S.C. § 9902(g), which precludes her from coverage under CSRS or CSRS-Offset.  Accordingly, she is not entitled to the remedy she seeks.  

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