U.S. Merit Systems Protection Board 
Case Report for April 20, 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.

BOARD DECISIONS


Appellant:  Daniel-Lynn Whittacre
Agency:  Office of Personnel Management
Decision Number:  2012 MSPB 52
Docket Number:  DC-0845-11-0740-I-1
Issuance Date:  April 13, 2012
Appeal Type:  FERS - Collection of Overpayment
Action Type:  Retirement/Benefit Matter

Retirement - Annuity Calculation

    The appellant petitioned for review of an initial decision that affirmed OPM's reconsideration decision finding that the appellant had received an overpayment of interim disability retirement annuity payments.  In making this determination, OPM found that the appellant was not entitled to service credit for a period when he was in a leave without pay status while performing military duty because the appellant had not paid a deposit for such service.  

Holdings:  The Board reversed OPM's reconsideration decision and remanded the appeal to OPM to make a new determination of the amount of the disability retirement annuity to which the appellant is entitled:

1.  5 U.S.C. 8411(d) specifically provides tht creditable service "shall be allowed for leaves of absence without pay granted an employee while performing military service."  This provision does not require payment of a deposit to obtain service credit.  Similarly, OPM's regulations make no mention of a deposit requirement to obtain service credit for periods of civilian service while in a military leave without pay status.  Accordingly, the appellant was entitled to service credit for the period of service in question.  

2.  A remand to OPM is necessary because the current record does not permit the Board to determine the correct amount of the appellant's retirement annuity and whether he received an overpayment.  



Appellant:  Nathaniel Jerome Willingham
Agency:  Department of the Navy
Decision Number:  2012 MSPB 53
Docket Number:  DC-3330-10-0370-I-1
Issuance Date:  April 13, 2012
Appeal Type:  Veterans Employment Opportunities Act

Veterans' Rights - VEOA
Jurisdiction

    The appellant petitioned for review of an initial decision that dismissed his VEOA appeal for lack of jurisdiction, but found in the alternative that, if the Board had jurisdiction, the appellant failed to show that he was entitled to relief.  The appellant contended that his rights as a preference eligible were violated when the Marine Corps Community Services (MCCS), which is a Non-Appropriated Fund Instrumentality (NAFI) operating under the authority of the Department of the Navy, canceled a vacancy announcement under which he had applied and filled the position by reassigning a current MCCS employee to the position.  The administrative judge held that the Board lacks jurisdiction because NAFI positions are not within the Board's VEOA jurisdiction.  He further determined that, if the Board had jurisdiction, the appellant was not entitled to corrective action.  

Holdings:  The Board found that the appellant established jurisdiction, but that the appellant failed to show that he was entited to relief under VEOA:

1.  The appellant made nonfrivolous allegations that the MCCS is an "agency" within the meaning of 5 U.S.C. 3330a.  

2.  The appellant otherwise established jurisdiction over his VEOA appeal.

3.  The judge did not err in holding that the appellant failed to show he was entitled to relief under VEOA.  

a.  Although the authority of an agency to cancel a NAFI vacancy is a question of first impression, the Board has ruled that, in the competitive service, an agency may cancel a vacancy announcement for any reason that is not contrary to law.

b.  The agency's regulation did not require the agency to make a selection from the referral list, nor did it prohibit the non-competitive reassignment of an employee who was already at that same grade.

c.  The Board found no basis for disturbing the judge's determination that the agency did not exhibit bad faith in cancelling the vacancy announcement.



Appellant:  Michael S. Guy
Agency:  Department of the Army
Decision Number:  2012 MSPB 54
Docket Number:  DE-1221-10-0115-A-1
Issuance Date:  April 16, 2012
Appeal Type:  Individual Right of Action (IRA)
Action Type:  Attorney Fee Request

Attorney Fees - Reasonableness

    The agency petitioned for review of an addendum initial decision in which the administrative judge awarded the appellant $27,373.50 in attorney fees.  The appellant, a GS-7 Paramedic, filed an IRA appeal in which he alleged that the agency took several personnel actions in retaliation for an email he wrote raising concerns about patient safety and possible rule violations.  In an initial decision that became the Board's final decision, the administrative judge found that the appellant made a protected disclosure, and that one of the personnel actions -- a counseling memorandum -- was taken in retaliation for the protected disclosure.  In his motion for attorney fees, the appellant listed 166.16 attorney hours at $225 per hour, for a total of $37,386.  In addition to the hours devoted to the IRA proceeding before the Board, the appellant claimed time spent in connection with the preceding compaint before the Office of Special Counsel (OSC), a subsequent petition for enforcment, and hours devoted to the attorney fee petition itself.  He reduced his fee request by $5,400 to account for 19 hours devoted to personnel actions on which he did not prevail, and 5 hours devoted to compliance issues and a nonselection that was not at issue in the underlying IRA appeal.  

     The administrative judge found that the appellant was a prevailing party and therefore entitled to an award of attorney fees under 5 U.S.C. 1221(g)(2).  She further found that the claimed hourly rate of $225 was reasonable, but that the award should be reduced to account for the appellant's limited success in the underlying IRA appeal.  Having determined that it was possible to do so by eliminating specific hours devoted to unsuccessful claims, she reduced the award by an additional 8 hours for time spent on nonselections.  In addition, she reduced 5.5 hours spent on compliance issues, and reduced the 21 hours claimed for the appellant's jurisdictional response to 14 hours.  Over the agency's objection, she found that the appellant was entitled to compensation for all time spent filing a complaint with OSC, as the complaint was a jurisdictional prerequisite for the IRA appeal.  In its petition for review, the agency argued that the judge erred in finding that $225 was a reasonable rate, and failed to eliminate all of the hours devoted to the appellant's unsuccessful claims.  The agency argued that the judge should have either attempted to segregate additional hours, or else reduced the award by a percentage to account for the appellant's limited success.  In either event, it contends that the award of $27,373.50 is unreasonable, and renders its memorandum "the most expensive counseling memorandum in history."

Holdings:  The Board affirmed the initial decision as modified, still awarding $27,373.50 in attorney fees:

1.  In awarding an attorney fee, the starting point is to take the hours reasonably spent on the litigation multiplied by a reasonable hourly rate, which results in the "lodestar" which the Board uses in determining the fee award.  The initial calculation should exclude hours for which the prevailing party failed to provide adequate documentation, and should also exclude hours that were not reasonably expended.  In the second phase of the analysis, the lodestar may be adjusted upward or downward based on other considerations, including the crucial factor of the "results obtained."

2.  $225 per hour was a reasonable rate for the legal services performed.  

3.  The Board found that 134.66 hours were reasonably spent on the OSC and IRA proceedings, yielding an initial lodestar figure of $30,298.50.  The appellant was entitled to attorney fees for time spent on the OSC complaint because exhaustion of administrative remedies before OSC is a jurisdictional prerequisite for filing an IRA appeal, and that work contributed significantly to the appellant's success before the Board.  

4.  If, as was the case here, a party has achieved only "partial or limited success," an award based on the hours reasonably spent on the litigation as a whole times an hourly rate may be an excessive amount, even when the claims were interrelated, nonfrivolous, and raised in good faith.  In this cirumstance, the tribunal awarding fees may make an equitable adjustment as to what reduction is appropriate by identifying specific hours that should be eliminated or, in the alternative, reducing the overall award by a percentage to account for the limited degree of success.  The former method is preferred where it is practicable to segregate the hours devoted to related but unsuccessful claims.  The judge correctly determined that it was possible to eliminate specific hours devoted to unsuccessful claims.  The Board discerned no error in the judge's decision to eliminate 27 hours as devoted exclusively to personnel actions on which the appellant did not prevail.

5.  The resulting figure of $24,223.50 does not so shock the conscience that the Board should second-guess the judge's considered judgment that the amount fairly reflects the appellant's limited degree of success.  While the counseling memorandum alone may not be of great import, that is not the only measure, or even the most significant measure, of the appellant's success in this appeal.  The Board did not merely order the agency to rescind that memorandum; it also made a public finding that the agency engaged in illegal whistleblowing reprisal, and referred the matter to OSC for investigation and possible disiplinary action.  The award of attorney fees in this or any other successful IRA appeal serves the public interest insofar as it may encourage employees and attorneys to pursue remedies for action of whistleblowing resprisal, thereby discouraging agencies from engaging in such acts, which in turn serves the goal of eliminating government wrongdoing.

6.  The appellant is entitled to compensation for reasonable fees incurred with respect to his successful attorney fee petition.



Appellant:  Massoud Rahgozar
Agency:  Department of the Air Force
Decision Number:  2012 MSPB 55
Docket Number:  DE-0752-10-0179-I-1
Issuance Date:  April 16, 2012
Appeal Type:  Adverse Action by Agency
Action Type:  Removal

Adverse Action Charges - Revocation of Security Clearance

    The appellant petitioned for review of an initial decision that affirmed his removal.  In 2002, the agency issued a decision revoking the appellant's access to classified position, which was a condition of his employment.  The agency did not remove the appellant when he lost his security clearance, however; it changed his position's sensitivity code by altering his duties so that he could continue working in the position without a security clearance.  The appellant worked in this arrangement until 2008, when the agency changed the sensitivity code of the appellant's position to again require a security clearance.  In response, the appellant's commander requested reinstatement of the appellant's security clearance.  The agency's Central Adjudication Facility denied the commander's request, and the agency removed the appellant from his position based upon his "failure to obtain a Secret clearance."  In affirming the appellant's removal, the administrative judge identified the only issue as whether the appellant proved that the agency committed harmful error, i.e., violated its regulations, by denying him a new security clearance process before removing him.  She concluded that the appellant received all of the procedural protections to which he was entitled during the original security clearance revocation process; his commander's subsequent request to reinstate the security clearance was not a request for a new clearance, and therefore did not trigger the procedural protections required for the denial of a clearance.  

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.  Under the agency's regulations, the appellant was entitled to appeal an "unfavorable administrative action" such as the Central Adudication Facility's determination to a Personnel Security Appeal Board.

2.  The appellant suffered an "unfavorable personnel security determination" in 2002 -- the revocation of his security clearance.  He did not suffer an "unfavorable administrative action" at that time, however, because that requires both an unfavorable personnel security determination and an adverse action based upon it.  He suffered an adverse action (removal) in 2009, but the parties disputed whether the removal was an "unfavorable administrative action" because they disagree on whether the denial of the request to reinstate his security clearance constituted an "unfavorable personnel security determination," that is, whether it triggered the same protections as a denial of a new security clearance.  

3.  The Board found that an individual seeking reinstatement of a clearance may be entitled to the same procedural protections as an individual challenging the denial of a clearance.  The Board remanded the appeal to the regional office to make definitive findings on this question.  




Appellant:  Tina M. Wilson
Agency:  Department of Homeland Security
Decision Number:  2012 MSPB 56
Docket Number:  DC-0752-10-0706-I-1
Issuance Date:  April 17, 2012
Appeal Type:  Adverse Action by Agency
Action Type:  Removal

Constitutional Issues - Due Process
Harmful Procedural Error

    The appellant petitioned for review of an initial decision affirming her removal on misconduct charges, including that she had misused the agency's Treasury Enforcement Communications System (TECS).  The appellant argued that the deciding official relied on uncharged and unsubstantiated misconduct in his decision to remove her.  Specifically, the appellant asserted that the deciding official improperly concluded that she had shared information that she obtained from TECS with unauthorized individuals.  This allegation was not included in the agency's notice of proposed removal.

Holdings:  The Board vacated the initial decision and remanded the case to the regional office for further adjudication:

1.  When a deciding official receives new and material information by means of ex parte communications, "then a due process violation has occurred and the former employee is entitled to a new constitutionally correct removal procedure."  Ultimately, the question is whether the ex parte communication is so substantial and so likely to cause prejudice that no employee can fairly be required to be subjected to a deprivation of property under such circumstances.  These rules apply not only to whether a charge of misconduct can be sustained but also to whether the ex parte communication affected the selection of the penalty to be imposed.

2.  The agency did not charge the appellant with sharing TECS information with unauthorized individuals, and there is no mention of such conduct in either the agency's proposal or decision notice.  The record reveals that the deciding official concluded that the appellant shared TECS information with unauthorized individuals and relied upon this conclusion in his penalty determination.  

3.  A remand is necessary to determine whether the agency deprived the appellant of minimum due process of law.  If so, the adverse action must be reversed.  If no due process violation is found, the judge should determine whether the agency committed harmful error within the meaning of 5 U.S.C. 7701(c)(2)(A).  


Appellant:  Juarene W. Cason
Agency:  Department of the Army
Decision Number:  2012 MSPB 57
Docket Number:  AT-0752-11-0986-I-1
Issuance Date:  April 17, 2012
Appeal Type:  Adverse Action by Agency
Action Type:  Removal

Board Procedures
 - Dismissing an Appeal as Withdrawn


    The appellant petitioned for review of an initial decision that dismissed her appeal as withdrawn.  The appellant filed an appeal of her removal on September 23, 2011.  Five days later, she filed a grievance over the removal action.  The following month, the agency moved to dismiss the appeal based on a settlement agreement signed on September 30, which provided that the agency would allow the appellant to retire on October 31, 2011, in lieu of removal, and that the agency would carry the appellant in a leave without pay status from September 22 through October 3.  Based on this language in the settlement agreement, the administrative judge found that the appellant had waived her right to appeal her removal to the Board and dismissed the appeal as withdrawn.  In her petition for review, the appellant claimed that she signed the settlement agreement under duress and appeared to challenge the merits of the removal action.  

Holdings:  The Board vacated the initial decision and remanded the appeal to the regional office for further adjudication:  

1.  An appellant's withdrawal of an appeal is ordinarily an act of finality and, absence unusual circumstances, the Board will not reinstate an appeal once it has been withdrawn.  However, a relinquishment of one's right to appeal to the Board must be by clear, unequivocal, and decisive action.  

2.  There is no evidence in the record that the appellant ever withdrew her appeal.  The agency moved to dismiss the appeal based on the terms of the settlement agreement.  There is no evidence that the administrative judge made any attempt to contact the appellant to determine whether she was withdrawing her appeal based on the settlement agreement.

3.  Even if the judge inadvertently dismissed the appeal as "withdrawn by the appellant" instead of "as settled," the judge failed to properly document the record below to support such a dismissal.  A remand is necessary to determine whether the criteria for dismissing the appeal as settled have been met.  




COURT DECISIONS

Petitioner:  Jeffrey B. Norris
Repondent:  Securities and Exchange Commission
Tribunal:  U.S. Court of Appeals for the Federal Circuit
Docket Number:  2011-3129
Issuance Date:  April 10, 2012

Constitutional Issues - Due Process
Penalty

    Norris petitioned for review of an arbitrator's decision affirming his removal from his position as a Trial Attorney.  The removal was based on 3 inappropriate emails sent by the appellant in 2008.  The agency's notice of proposed removal noted that the agency had previously initiated disciplinary action against Norris for similar activity in the past.  In his response to the proposed removal, Norris urged that his actions were influenced by several personal circumstances, including his wife's becoming fully disabled, his daughter's suffering from Asperger's Disorder, and his own Attention Deficit Hyperactivity Disorder (AD/HD).  The deciding official noted her consideration of the appellant's explanation, but concluded that Norris did "not have the potential for rehabilitation because prior disciplinary actions have not prevented [his] impulsive and improper e-mails."  During the hearing before the arbitrator, the deciding official testified that sometime before the termination proceeding, she had learned that Norris had a confrontation with agency commissioners in 2007 and that he was therefore barred from presenting cases to commissioners in the future.  She testified that Norris's conduct in connection with this incident and the subsequent presentations bar had a "direct impact on how that attorney . . . is able to perform his duties."  In mitigation of the charges against him, Norris presented evidence that his personal circumstances had improved in early 2009 such that the improper conduct was unlikely to recur in the future.  This included testimony from his psychiatrist that he was taking medication and attending support groups, and that Norris was unlikely to send emails such as those that formed the basis of his removal.  In affirming Norris's removal, the arbitrator considered each of the 12 "Douglas factors."  In considering "the effect of the offense upon the employee's ability to perform at a satisfactory level and its effect upon supervisors' confidence in the employee's ability to perform assigned duties," the arbitrator concluded that this factor was "neutral."  The arbitrator rellied upon the deciding official's testimony that Norris's aggressive behavior had caused him to be barred from presenting cases to commissioners and that she had lost confidence in his ability to maintain confidential information or good working relationships with other staff members. 

Holdings:  Finding that the arbitrator erroneously failed to consider new evidence bearing upon the reasonableness of the removal penalty, the court vacated the removal and remanded the matter to the arbitrator for further proceedings:

1.  The court concluded that there is no evidence that the deciding official improperly considered ex parte information in determining the penalty to be imposed.

a.  Ex parte communications that introduce new and material information, whether material to the merits of the underlying charge or material to the penalty to be imposed, violate due process, and consideration of ex parte communications is a procedural error in violation of 5 C.F.R. 752.404.  

b.  A deciding official's mere knowledge of prior misconduct by the employee obtained before the commencement of disciplinary proceedings does not constitute an improper ex parte communication.  There is nothing inherently wrong with a deciding official's having background knowledge of an employee's prior work history or performance record.  Such knowledge only raises due process or procedural concerns where that knowledge is a basis for the deciding official's determination on either the merits of the underlying charge or the penalty to be imposed.

c.  The deciding official testified only to her knowledge of the incident involving the commissioners, and that this conduct has an impact on how an attorney is able to perform his duties.  She did not testify that this incident played any role in her decision to impose removal.  

2.  While it was improper for the arbitrator to consider Norris's behavior in front of the commissioners, it is far from clear that this consideration played a significant role in the arbitrator's decision to sustain the removal action.  The court determined that it need not determine whether this constituted harmful error in light of its further finding of error.

3.  The arbitrator erred in failing to consider post-removal evidence presented at the hearing regarding Norris's AD/HD treatment, the improved medical conditions of his wife and daughter, and the conclusion of Norris's psychiatrist that the improper conduct was unlikely to be repeated.  Arbitrators, like the Board, must review de novo the merits of an agency's decision to take adverse action against the employee.  The Board and arbitrators must consider all relevant evidence, regardless of whether all of that evidence was available to the agency's deciding official.  Accordingly,
the court held that where new evidence in mitigation of the penalty is presented to the Board (or the arbitrator), the evidence must be considered in determining whether the agency's imposed penalty was reasonable.  


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