U.S. Merit Systems Protection Board 
Case Report for June 22, 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:  John W. McDevitt
Agency:  Office of Personnel Management
Decision Number:  2012 MSPB 72
Docket Number:  SF-0831-11-0480-I-1
Issuance Date:  June 8, 2012
Action Type:  Retirement/Benefit Matter

 - Deposits - Post-1956 Military Service
 - Administrative Error

    At issue was whether the appellant could make a post-retirement deposit for his post-1956 military service so that credit for his military service would be reflected in his retirement annuity.  When the appellant was filling out the paperwork for his retirement, he asked the agency's retirement counselor whether he could make a deposit for his 4 months of service in U.S. Army National Guard in 1969-70 so that such service would be reflected in his retirement annuity and he received a negative response.  When he learned from OPM after his retirement that this information was incorrect, he sought to make a post-retirement deposit for the military service.  OPM ruled that he could not do so, and that determination was affirmed in the administrative judge's initial decision.  

Holdings:  The Board reversed the initial decision and ordered OPM to allow the appellant to make a deposit for his post-1956 military service.

1.  An individual is allowed to make a post-retirement deposit for post-1956 military service only if the failure to make the deposit at the time of retirement resulted from administrative error.  The Board may find administrative error and waive the deposit deadline when the employee can show that he relied on misinformation in electing not to make the deposit.  The Federal Circuit has ruled in this regard that, "when an employee, at the time of an election, asks for information regarding the amount of the military deposit or the consequences of failing to make the deposit, the government commits administrative error under 5 C.F.R. 831.2107(a)(1) if its response either misrepresents the dollar amounts in question or is so indirect, inaccurate, or incomplete as to confuse or mislead the employee as to the amount of the deposit or the effect of any failure to make the deposit on the annuity recalculation."  

2.  Under the circumstances of this case, the information provided by the appellant's employing agency during the retirement process was inaccurate and incomplete and therefore constituted administrative error.

Appellant:  Angela K. Burton
Agency:  Department of the Air Force
Decision Number:  2012 MSPB 73
Docket Number:  DE-315I-11-0023-I-1
Issuance Date:  June 8, 2012
Appeal Type:  Termination of Supervisory Employee
Action Type:  Probationary Termination

 - Supervisory Probationary Period
 - Marital Status Discrimination

    The appellant petitioned for review of an initial decision that dismissed her supervisory probationary appeal for lack of jurisdiction.  The agency terminated the appellant's promotion to a supervisory position during her 1-year probationary period and returned her to her former non-supervisory position for failure to complete her probation as a result of alleged deficient performance and misconduct.  On appeal to the Board, she alleged, among other things, that the agency's action was based on discrimination due to her marital status.  She alleged in this regard that her second-line supervisor informed her that one of the reasons she was being returned to her non-supervisory position was because she was a single mother.  The administrative judge found that the appellant had made a nonfrivolous allegation of marital status discrimination entitling her to a jurisdictional hearing.  After conducting the hearing, the judge determined that the supervisor's testimony was more credible than the appellant's, and that there was ample evidence of the appellant's performance deficiencies.  The judge concluded that the appellant had not met her overall burden and therefore had not succeeded in establishing jurisdiction.

Holdings:  The Board affirmed the initial decision as modified, still dismissing the appeal for lack of jurisdiction:

1.  Under 5 C.F.R. 315.908, an appellant "has no appeal right" unless she nonfrivolously alleges that the action "was based on partisan political affiliation or marital status."  

2.  Under the long-standing test established in Stokes v. Federal Aviation Administration, 761 F.2d 682 (Fed. Cir. 1985), a probationary employee faces a two-step process in establishing Board jurisdiction based on a claim of marital status discrimination.  The appellant must first make an allegation of marital status discrimination supported by factual assertions indicating that the allegation is not a pro forma pleading.  If the appellant makes such a facially nonfrivolous allegation, she has a right to a hearing at which she must support her allegation with a showing of facts which would, if not controverted, require a finding that the agency action was motivated by marital status discrimination.  If, and only if, the appellant makes the required showing in support of her allegation, and the agency is unable to successfully controvert that factual showing, dismissal for lack of jurisdiction is inappropriate, and the Board should proceed to determine the merits of the case, i.e., whether the agency has articulated and supported a nondiscriminatory reason for its action, and whether the probationary employee has shown that reason to be mere pretext.  

3.  Under Stokes, the agency successfully controverted the appellant's allegation of marital status discrimination at the jurisdictional hearing, thus precluding the appellant from meeting her burden on jurisdiction.  The administrative judge proceded to weigh the evidence in support of the agency's stated reason for the action against the appellant's evidence of discrimination, thereby making a judgment on the merits of the appeal and not a jurisdictional determination.

4.  The Federal Circuit's en banc decision in Garcia v. Department of Homeland Security, 437 F.3d 1322 (Fed. Cir. 2006), abrogated its earlier decision in Stokes, creating a different two-step process for establishing jurisdiction.  If the appellant makes a nonfrivolous claim of Board jurisdiction, i.e., claims that, if proven, establish the Board's jurisdiction, she has a right to a hearing.  At the hearing, the appellant must prove jurisdiction by a preponderance of the evidence.  If the Board determines that the appellant failed to prove jurisdiction by a preponderance of the evidence, then the Board does not have jurisdiction.

5.  Having won the right to a hearing by alleging facts that would, if proven, establish jurisdiction, the appellant was required to prove the basis for jurisdiction, i.e., marital status discrimination, by a preponderance of the evidence.  Because the judge properly found that she failed to meet that ultimate burden, the Board lacks jurisdiction over her appeal.  


     In a June 20 Memorandum issued to federal executive departments and agencies, the United States Office of Special Counsel (OSC) identified legal restrictions and guidelines that agencies should consider when evaluating their policies and practices regarding monitoring of employee electronic mail and other communications.  The Memorandum "strongly urge[d] executive departments and agencies (agencies) to evaluate their monitoring policies and practices, and take measures to ensure that these policies and practices do not interfere with or chill employees from using appropriate channels to disclose wrongdoing."  The Memorandum placed particular emphasis on communications between federal employees and OSC and agencies' Offices of Inspector General, stating that targeting protected disclosures to the OSC and IGs is highly problematic because such targeting undermines the ability of employees to make confidential disclosures.  


Petitioner:  Michael B. Elgin, et al.
Respondent:  Department of the Treasury, et al.
Tribunal:  United States Supreme Court 
Docket Number:  11-45
Issuance Date:  June 11, 2012

Constitutional Issues

Holding:  The Supreme Court held that the Civil Service Reform Act "provides the exclusive avenue to judicial review when a qualifying employee challenges an adverse employment action by arguing that a federal statute is unconstitutional."  The Court held that, even if the Merit Systems Protection Board did not have the authority to consider the constitutionality of a federal statute, the Court of Appeals for the Federal Circuit has such authority and the MSPB can develop the necessary factual record for such determinations.  

The U.S. Court of Appeals for the Federal Circuit issued nonprecedential decisions in the followings cases:

Hobson v. Merit Systems Protection Board, No. 2012-3048 (June 11, 2012) (MSPB Docket No. DE-3330-11-0269-I-1) (affirming the Board's decision, which dismissed a VEOA appeal as withdrawn)

Scott v. Department of Agriculture, No. 2012-3050 (June 11, 2012) (MSPB Docket No. DA-0752-11-0134-I-1) (affirming the Board's decision, which dismissed for lack of jurisdiction Scott's appeal of a removal action taken pursuant to a last chance agreement)

Field v. Department of Veterans Affairs, No. 2012-3043 (June 11, 2012) (MSPB Docket No. DC-0752-10-0169-I-1) (affirming the Board's decision, which sustained Field's removal for misconduct)

Davis v. U.S. Postal Service No. 2012-3069 (June 12, 2012) (MSPB Docket No. DA-0752-10-0459-B-1) (affirming the Board's decision, which sustained Davis's removal for unacceptable conduct)

Burks v. Railroad Retirement Board, No. 2011-3196 (June 12, 2012) (MSPB Docket No. CH-0752-10-0197-I-1) (affirming the Board's decision, which sustained Burks's removal for misconduct)

Losada v. Department of Defense, No. 2012-3020 (June 12, 2012) (MSPB Docket No. DC-0752-10-0800-I-1) (vacating and remanding the Board's decision, which sustained Losada's removal for misconduct)

Edwards v. Merit Systems Protection Board, No. 2011-3236 (June 12, 2012) (MSPB Docket No. SF-0752-11-0678-I-1) (affirming the Board's decision, which dismissed Edwards' appeal of the termination of his probationary employment for lack of jurisdiction)

Duggan v. Department of Defense, No. 2012-3025 (June 13, 2012) (MSPB Docket No. SF-1221-10-0159-W-1) (affirming the Board's decision, which found that Duggan did not establish that two personnel actions were taken in retaliation for protected whistleblowing)

Hilliard v. Merit Systems Protection Board, No. 2012-3025 (June 13, 2012) (MSPB Docket No. DC-0752-10-0451-I-3) (affirming per Rule 36 the Board's decision, which dismissed Hilliard's appeal for lack of jurisdiction)

Messenger v. Department of Labor, No. 2012-3016 (June 13, 2012) (MSPB Docket No. DC-352C-08-0748-A-1) (affirming per Rule 36 the Board's decision, which denied Messenger's motion for attorney fees)

Sterrett v. Department of the Navy, No. 2011-3210 (June 14, 2012) (MSPB Docket No. SF-0752-10-0403-I-1) (affirming per Rule 36 the Board's decision, which sustained Sterrett's removal)

Searcy v. Merit Systems Protection Board, No. 2012-3033 (June 14, 2012) (MSPB Docket No. AT-0752-11-0243-I-1) (affirming the Board's decisions in two appeals, one dismissing USERRA, VEOA, and VRRA claims, and one dismissing a claim of a constructive removal as untimely)

Agbaniyaka v. Department of the Treasury, No. 2011-3211 (June 19, 2012) (MSPB Docket No. CB-7121-10-0015-R-1) (affirming the Board's decision, which upheld an arbitrator's decision affirming Agbaniyaka's removal from his position as a Revenue Agent with the IRS for willfully understating his federal tax liability for tax years 2001 through 2004)

Doe v. U.S. Postal Service, No. 2011-3162 (June 20, 2012) (MSPB Docket No. PH-0752-10-0292-I-1) (vacating and remanded the Board's decision, which sustained Doe's removal, finding that there were procedural errors in the administrative process)

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