U.S. Merit Systems Protection Board 
Case Report for August 24, 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:  Mari C. Alegre
Agency:  Department of the Navy
Decision Number:  2012 MSPB 96
Docket Number:  PH-3330-11-0232-I-2
Issuance Date:  August 10, 2012
Appeal Type:  Veterans Employment Opportunities Act (VEOA)

VEOA/Veterans' Preference Rights
 - Exhaustion of Administrative Remedy
 - Equitable Tolling
Board Procedures - Adjudicatory Error

    The appellant petitioned for review of an initial decision that dismissed her VEOA appeal.  The appellant filed two separate complaints ("001" and "002") with the Department of Labor (DOL) concerning two vacancy announcements for positions as an Administrative/Technical Specialist position in both the 501 and 343 series.  In November 2009, DOL issued the appellant a letter closing the 002 complaint concerning the series 501 positions and provided her with Board appeal rights.  The next day, the appellant withdrew her 001 complaint concerning the series 343 positions after DOL informed her that the agency stated that the selection process for those positions was not final.  In March 2011, the appellant filed a Board appeal with respect to both DOL complaints and positions in both series.  She asserted that the agency investigative file she received in January 2011 concerning a discrimination complaint she had filed contained new evidence showing that the agency violated her veterans' preference rights in connection with the vacancies in both series.  She asserted, among other things, that she withdrew the 001 complaint concerning the series 343 positions based on misinformation supplied by the agency, and that the agency violated her pass over rights under 5 U.S.C. 3318.  In dismissing the appeal, the administrative judge found that the appellant failed to exhaust her DOL remedy with regard to the 001 complaint because she withdrew that complaint.  With regard to the 002 complaint, the judge found that the appeal was untimely because the appellant received her Board appeal rights in November 2009, but did not file her appeal until March 2011.

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.  An initial decision must identify and resolve all material issues of fact and law.

2.  The judge incorrectly stated that both of the appellant's DOL complaints referred to the series 343 positions and did not adjudicate the appellant's claims regarding the series 501 positions.  

3.  The judge dismissed the appeal as it related to the mischaracterized second series "0343" positions as untimely without considering whether the deadline should be equitably tolled.

4.  The appellant made a nonfrivolous allegations that the agency violated her pass over rights under 5 U.S.C. 3318.  



Appellant:  Henry E. Gossage
Agency:  Department of Labor
Decision Number:  2012 MSPB 97
Docket Number:  SF-4324-11-0228-I-1
Issuance Date:  August 10, 2012
Appeal Type:  Uniformed Services Employment and Reemployment Rights Act (USERRA)

USERRA/Veterans' Rights
Exhaustion of DOL Administrative Remedy
Collateral Estoppel (Issue Preclusion)

    The appellant petitioned for review of an initial decision that dismissed his USERRA appeal for lack of jurisdiction.  The appeal concerns the appellant's nonselection for the position of Industrial Hygienist in 2000.  Although the appellant made the certificate of eligibles, the agency requested that OPM made a determination regarding his suitability for employment, and OPM sustained the agency's request to have the appellant deemed unsuitable for employment in the position.  In a Board appeal filed in June 2001, the appellant challenged, among other things, OPM's negative suitability determination and his nonselection.  As to the latter, the appellant claimed discrimination and a violation of his rights as a veteran.  The Board adjudicated the matter as an appeal of OPM's negative suitability determination and dismissed the appeal on grounds of mootness and collateral estoppel.  On appeal, the Federal Circuit remanded for further consideration of the suitability determination and for consideration of the appellant's discrimination claims.  In a March 2009 Final Order, the Board instructed the appellant that he could now file appeals under VEOA and USERRA, stating that the appellant had delayed their filing pending resolution of his suitability appeal.  The appellant filed the present USERRA appeal in December 2010.  The administrative judge dismissed the appeal for lack of jurisdiction on the basis that he failed to prove that he exhausted his remedy with respect to the complaint he filed with the Department of Labor (DOL) in 2001.  

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

1.  An appellant may either file a USERRA complaint with the Secretary of Labor or file an appeal directly with the Board.  If an appellant first files a USERRA complaint with the Secretary of Labor, he may not file a USERRA appeal with the Board until the Secretary notifies the appellant that she was unable to resolve the complaint.  

2.  Here, although the judge found, and the appellant concedes, that the appellant filed a complaint alleging discrimination under USERRA with DOL in 2001, the record does not support this finding.  The record contains no evidence that DOL investigated the appellant's complaint as anything other than a claim under VEOA.  Accordingly, the Board has jurisdiction over the appellant's USERRA claim as a direct appeal under 38 U.S.C. 4324(b)(1).  

3.  The appellant has made sufficient nonfrivolous allegations to establish jurisdiction over his USERRA claim.

4.  The appellant's USERRA claim is not barred by the doctrine of collateral estoppel because that claim was not actually litigated in the prior Board appeal.



Appellant:  Friedrich C. Paetow
Agency:  Department of Veterans Affairs
Decision Number:  2012 MSPB 98
Docket Number:  AT-0752-11-0584-I-1
Issuance Date:  August 17, 2012
Appeal Type:  Adverse Action by Agency
Action Type:  Reduction in Grade

Adverse Action Charges - Inability to Maintain Physical Fitness Standards
Credibility Determinations

    The agency petitioned for review of an initial decision that reversed its demotion against against the appellant.  The appellant was employed as a police officer at a health care facility.  His position required that he maintain qualification in the use of firearms, and that he complete an annual psychological assessment to establish his suitability to carry a firearm as a condition of continued employment.  After an incident in March 2009 in which the appellant lost his temper and raised his voice in frustration while meeting with the Chief of the Police Service, he was referred for a fitness for duty examination with Dr. Teater, a clinical psychologist.  Dr. Teater found the appellant fit for duty in a weapons-carrying position.  Three months later, when the appellant underwent his annual fitness for duty evalutation with Dr. Teater, she concluded that he was not fit for duty in a weapons-carrying position, noting "significant changes" since the appellant's psychological assessment in July 2008.  The agency proposed the appellant's removal based on his failure to maintain firearm qualification standards.  The appellant submitted a written response containing medical documentation frm two mental health practitioners who had also conducted psychological evaluations of the appellant and found that he did meet the medical standards for his position.  The agency's deciding official sustained the charge but made the decision to demote the appellant instead of removing him.  

     On appeal to the Board, the appellant claimed that he was fit to perform the full range of duties as a police officer, including carrying a firearm, based on the psychological evaluation he underwent in January 2010 in connection with an application for employment with a county sheriff's office, and four additional psychological evaluations that he underwent at his own expense in August and September 2009 and March and May 2011.  All of these evaluations found the appellant fit for duty as a weapons-carrying officer.  In finding that the agency failed to prove its charge, the administrative judge determined that the medical evaluations provided by the appellant were more persuasive than the two conflicting evaluations prepared by Dr. Teater.  

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

1. The Board rejected the agency's contention that the judge incorrectly analyzed the agency's charge under the standard set forth at 5 C.F.R. 339.206, which pertains to disqualification of an employee on the basis of his medical history, rather than those set forth at 5 C.F.R. 339.301, which pertain to an employee's failure to pass a medical examination.  The agency did not cite any portion of 5 C.F.R. part 339 in its proposal or decision notice, and the judge analyzed the agency's charge precisely as it was written, namely, as the appellant's alleged "inability to maintain the physical fitness standards required to maintain [his] position as a VA Police Officer."  

2.  The Board found no basis for disturbing the judge's credibility determinations and findings of fact.

3.  The Board rejected the agency's contention that the judge erred by considering medical evidence that was not presented to the deciding official.  The case relied upon by the agency for this contention is distinguishable.  In any event, the result would be the same even if the Board limited its review to the psychological evaluations provided to the deciding official.  



Appellant:  Donald J. Magelitz
Agency:  Office of Personnel Management
Decision Number:  2012 MSPB 99
Docket Number:  PH-0831-10-0626-I-1
Issuance Date:  August 21, 2012
Action Type:  Retirement/Benefit Matter

Retirement - Former Spouse Annuity
Board Procedures - Reopening

    Counsel for the appellant's daughter filed a petition for review and motion to reopen an initial decision that ordered OPM to provide the appellant with an opportunity to make an election of a former spouse annuity for his ex-wife.  Pursuant to that decision, the appellant executed such an election in May 2011.  Counsel for the daughter challenged the validity of the former spouse election.  She alleged that the appellant "was suffering from dementia and myriad other psychological and physical problems and was not legally competent to execute the document."  Because the existing record was insufficient, the Clerk of the Board issued a show cause order directing all parties to submit evidence and argument as to the appellant's competence and other matters.  

Holdings:  The Board dismissed the petition for review and motion to reopen:

1.  The petition for review is dismissed as deficient under 5 C.F.R. 1201.31(a), which requires that, to designate a representative, a party must sign a document to that effect.  That was not done.  

2.  Counsel for the daughter failed to submit sufficient argument or evidence to warrant reopening the appeal.

a.  The Board will exercise its discretion to reopen only in unusual or extraordinary circumstances, such as the discovery of misrepresentation or fraud after the issuance of the initial decision.

b.  The relevant standard for mental incompetence is "an inability to handle one's personal affairs because of physical or mental disease or injury.  The party seeking to change the annuity agreement of record bears the burden of showing that the annuitant lacked the requisite capacity to make a valid election.

c.  The evidence submitted by counsel for the daughter does not call into doubt the appellant's mental competency to prosecute his appeal pro se.  There is no evidence or specific allegation concerning the appellant's inability to manage his personal affairs during the initial appeal proceedings.  To the contrary, the documents that the appellant filed with OPM and with the administrative judge during the initial appeal "are clear, lucid, and signed by him."



Appellant:  Minh Tuyet Ly
Agency:  Department of the Treasury
Decision Number:  2012 MSPB 100
Docket Number:  AT-0752-11-0981-I-1
Issuance Date:  August 23, 2012
Appeal Type:  Adverse Action by Agency
Action Type:  Removal

Adverse Action Charges - Falsification
Discrimination
Disparate Penalties

    The appellant petitioned for review of an initial decision that affirmed her removal for providing false/misleading information on an official employment document.  The appellant worked as a Tax Examining Technician for the IRS.  Both specifications related to her response to questions on Optional Form 306.  She denied that she had been fired from any job or quit after being told she would be fired during the last 5 years even though she had been discharged from one employer for unfavorable employment or conduct and was listed as not eligible for rehire.  She similarly did not disclose that she was discharged from a tax and accounting service for unfavorable employment or conduct and was listed as not eligible for rehire.  After conducting a hearing, the administrative judge found that the agency proved both specifications of its charge, that the appellant had not proved her affirmative defenses, and that the removal penalty was within the bounds of reasonableness.

Holdings:  The Board affirmed the initial decision as modified, finding that the agency proved its charge, that the appellant failed to prove her affirmative defenses, and that removal was a reasonable penalty.  





COURT DECISIONS

Petitioner:  John Berry, Director, Office of Personnel Management
Respondents:  Rhonda K. Conyers, Devon Haughton Northover, Merit Systems Protection Board
Tribunal:  U.S. Court of Appeals for the Federal Circuit
Docket Number:  2011-3207
Issuance Date:  August 17, 2012

Board Review of Eligibility to Occupy Noncritical Sensitive Position

    The Director of Office of Personnel Management sought review of Board decisions, 115 M.S.P.R. 572 (2010) and 115 M.S.P.R. 451 (2010), that held that the Supreme Court's decision in Department of the Navy v. Egan, 484 U.S. 518 (1988), limits Board review of an otherwise appealable adverse action only if that action is based upon eligility for or a denial, revocation, or suspension of access to classified information.  

Holdings:  The court reversed and remanded, finding that Egan prohibits Board review of agency determinations concerning eligibility of an employee to occupy a "sensitive" position, regardless of whether the position requires access to classified information.  Judge Dyk issued a dissenting opinion.



Petitioner:  Charles Dereck Adams
Respondent:  Department of Defense
Tribunal:  U.S. Court of Appeals for the Federal Circuit
Docket Number:  2011-3124
Issuance Date:  August 10, 2012

Jurisdiction - Retirement Matters
Security Clearance Determinations

    The court reviewed the Board's holding that it did not have jurisdiction to review the agency's termination of Adams' employment and the agency’s denial of his request for voluntary early retirement. The Board held that, because Adams was terminated based on revocation of his security clearance, Board review was limited to whether he received minimal due process on the security issues from the terminating agency. The Board also held that, since it did not have jurisdiction to review the merits of the appellant's termination, the Board did not have jurisdiction to review the agency's denial of his request for early retirement under the Voluntary Early Retirement Authority.  

Holdings:  The court affirmed the Board's ruling as to the security clearance procedures, but reversed the Board's ruling concerning its authority to review the denial of his retirement request:

1.  The Board correctly held that its review of Adams' removal was limited under the Supreme Court's decision in Department of the Navy v. Egan, 484 U.S. 518 (1988).  

2.  The Board has jurisdiction to review the agency's denial of Adams' request for early retirement.

a.  5 U.S.C. 7701(a) provides for appeal to the Board "from any action which is appealable to the Board under any law, rule, or regulation."  5 U.S.C. 8461(e) authorizes Board appeals from "an administrative action or order affecting the rights or interests of an individual . . . under the provisions of this chapter [5 U.S.C. chapter 84].  The voluntary early retirement benefit which Adams sought is provided for in chapter 84.  

b.  No statute or policy suggests that retirement issues are removed from appellate review when the retirement relates to revocation of a security clearance.  



Petitioner:  Anne Whiteman
Respondent:  Department of Transportation
Tribunal:  U.S. Court of Appeals for the Federal Circuit
Docket Number:  2011-3165
Issuance Date:  August 10, 2012

Collateral Estoppel (Issue Preclusion)
Settlement - Validity

    Whiteman appealed a Board decision dismissing her whistleblower retaliation action.  In February 2003, Whiteman and the agency entered into a written settlement agreement resolving her claim that the agency engaged in retaliation against her for making disclosures of violations of laws, rules, and regulations, as well as mismanagement and abuses of authority.  The agreement stated that it resolved all claims and disputes, known or unknown, as of the date of the agreement.  The agreement provided that she would be given a guaranteed one-time priority consideration for the next available funded operations supervisor position at a particular facility.  The agency posted a vacancy announcement for a covered position in October 2003 without notifing Whiteman.  This announcement was canceled and another one posted.  Whiteman's application was ultimately accepted and she started her new job in the supervisory position in April 2004.  In June 2004, Whiteman filed suit against the agency in U.S. district court alleging that the agency's delay in notifying her of the vacancy in October 2003 constituted a breach of the settlement agreement, and that the delay in hiring caused a reduction of her earnings due to pay scale changes affecting positions assumed after December 2003.  The court found that the agency had not breached the settlement agreement, and that, even if it had, Whiteman had suffered no damages because she could not have assumed the supervisory position prior to the December 2003 change in pay scale.  

     In 2008, Whiteman filed an individual right of action appeal contending that the agency retaliated against her for her whistleblowing activities during the period from 1998 to October 2003.  In particular, she argued that the agency intentionally delayed considering and promoting her and that it had exerted improper duress and coercion to induce her to sign the settlement agreement.  She contended that she was improperly precluded from obtaining the additional pay for the approximately 3-month period between January 2004, when the position first became vacant, and April 2004, when she was hired.  The administrative judge found that Whiteman was collaterally estopped from raising the alleged post-settlement delay in notifying her of the job opening, as that issue had previously been litigated in the district court proceeding.  The judge further found that the settlement agreement was valid and enforceable.  

Holdings:  The court reversed the Board's finding that Whiteman's post-settlement retaliation claim was collaterally estopped, and affirmed the Board's conclusion that the settlement agreement is valid and enforceable:

1.  The Board erred in finding that
Whiteman's post-settlement retaliation claim was collaterally estopped.  

a.  One of the requirements for the application of collateral estoppel is that the issue previously adjudicated is identical with the issue raised in the current appeal.

b.  The district court addressed only whether Whiteman was entitled to a higher rate of pay due to the agency's delay in considering her for the position.  The issue in the Board appeal is not whether the agency delayed in October 2003 in considering Whiteman, causing her to miss the opportunity for a higher salary, but whether after considering her the agency delayed from January to April in 2004 in appointing her to the position, causing the loss of 3 months pay.

2.  The Board correctly determined that the settlement agreement is valid and enforeceable.  



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

Machulas v. Merit Systems Protection Board, No. 2012-3081 (Aug. 9, 2012) (MSPB Docket No. PH-3443-11-0342-I-1) (affirming two Board decisions, one dismissing his first appeal regarding mishandling of unemployment compensation documents for lack of jurisdiction, and one dismissing his second appeal regarding withheld severance pay as barred by collateral estoppel)

Gingery v. Department of the Treasury, No. 2012-3057 (Aug. 13, 2012) (MSPB Docket Nos. CH-3330-11-0126-I-1 and CH-3330-11-0127-I-1) (affirming the Board's decision, which denied Gingery's claim that the agency violated his veterans preference rights when the agency, as part of a Board-mediated settlement, filled a vacancy for an Examination Technician position)

Malone v. Merit Systems Protection Board, No. 2012-3036 (Aug. 13, 2012) (MSPB Docket No. CH-1221-11-0078-W-1) (affirming the Board's decision, which dismissed Malone's IRA appeal for lack of jurisdiction)

Voorhis v. Department of Homeland Security, No. 2012-3221 (Aug. 13, 2012) (MSPB Docket No. DE-0752-09-0199-I-2) (affirming per Rule 36 the Board's decision, 116 M.S.P.R. 538 (2011) which affirmed the agency’s removal action and denied the appellant’s affirmative defense of whistleblower retaliation)

Morris v. Department of the Army, No. 2012-3131 (Aug. 14, 2012) (MSPB Docket No. SF-3443-09-0296-B-1) (affirming the Board's decision, which denied Morris' claim for corrective action under the Veterans Employment Opportunities Act)

Hall v. Merit Systems Protection Board, No. 2012-3063 (Aug. 14, 2012) (MSPB Docket No. AT-0752-11-0116-I-1) (affirming the Board's decision, which dismissed Hall's constructive suspension claim for lack of jurisdiction)


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