U.S. Merit Systems Protection Board 
Case Report for September 7, 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:  George T. Claiborne
Agency:  Department of Veterans Affairs
Decision Number:  2012 MSPB 101
Docket Number:  CH-315H-11-0479-I-2
Issuance Date:  August 30, 2012

Jurisdiction - "Employee"
Constitutional Issues - Due Process

    The appellant petitioned for review of an initial decision that dismissed his termination of employment appeal for lack of jurisdiction.  Effective May 26, 2009, the appellant received a temporary appointment to the competitive service position of Carpenter for a period not to exceed May 25, 2010.  On November 8, 2009, his appointment was converted to a term appointment not to exceed December 7, 2010.  On June 20, 2010, his term appointment was converted to a career-conditional appointment to the competitive service position of Maintenance Inspector, subject to a 1-year probationary period.  The agency terminated his employment effective March 31, 2011, citing performance issues.  The administrative judge dismissed the appeal for lack of jurisdiction, finding that the appellant was terminated during his probationary period and that he did not allege that he was terminated because of his marital status or for partisan political reasons.  The judge further found that the appellant could not "tack on" his service as a Carpenter to exceed the 1-year requirement allowing for adverse action appeal rights because he was unable to show that the Carpenter and Maintenance Inspector positions were in the "same line of work."  

Holdings:  The Board vacated the initial decision and reversed the appellant's separation:

1.  The appellant is an "employee" under 5 U.S.C. 7511(a)(1)(A)(ii) with adverse action appeal rights.

a.  An individual has adverse action appeal rights under 5 U.S.C. 7513 if he was an "employee" within the meaning of 5 U.S.C. 7511 at the time his employment was terminated.  

b.  Under subsection (a)(1)(A)(ii) of section 7511, an "employee" is defined as "an individual in the competitive service . . . who has completed 1 year of current continuous service under other than a temporary appointment limited to 1 year or less . . . ."  

c.  This provision does not require that positions be the same or similar to constitute "current continuous service."  

d.  The appellant's appointment to the Carpenter position, effective November 2, 2009, and not to exceed December 7, 2010, was not limited to a year or less, and therefore was not a "temporary" appointment within the meaning of subsection (a)(1)(A)(ii).

2.  The agency violated the appellant's right to due process of law because the agency did not provide him with an opportunity to respond to the agency's notice that his employment was being terminated.  Accordingly, the Board ordered the agency to cancel the termination and restore the appellant to employment.



Petitioner:  Kenneth A. Potter
Agency:  Office of Personnel Management
Decision Number:  2012 MSPB 102
Docket Number:  CB-1205-12-0007-U-1
Issuance Date:  September 4, 2012
Appeal Type:  Request for Regulation Review
Action Type:  Original Jurisdiction Cases

Original Jurisdiction - Regulation Review

    The petitioner requested that the Board review an instruction in the VetGuide, a veterans hiring manual maintained by OPM that is intended to assist human resources personnel.  Specifically, he objected to an instruction in the VetGuide that says a current career/career conditional employee who lacks time-in-grade may not apply as a Veterans Employment Opportunities Act candidate under an agency merit promotion announcement.  The petitioner alleged that this instruction causes human resources personnel to commit a prohibited personnel practice under 5 U.S.C. 2302(b)(11), because applying time-in-grade restrictions to veterans or preference eligibles who are current federal employees denies them an opportunity to compete.  The petitioner asked the Board to reconsider its existing case law that applying time-in-grade restrictions does not deprive veterans and preference eligibles the opportunity to compete.  OPM responded that the challenged instruction is a straightforward application of 5 C.F.R. 300.603(a), and that the petitioner failed to distinguish and provide a basis for the Board to reconsider or overrule its previous decisions on the subject.  

Holdings:  The Board denied the appellant's request:

1.  Under 5 U.S.C. 1204(f), the Board has jurisdiction to review rules and regulations promulgated by OPM.  The Board is authorized to declare an OPM rule or regulation invalid on its face if the Board determines that the provision would, if implemented by an agency, require any employee to commit a prohibited personnel practice.  Similarly, the Board has authority to determine that an OPM regulation has been invalidly implemented by an agency if the Board determines that the provision as implemented requires an employee to commit a prohibited personnel practice.  

2.  Because the VetGuide instruction at issue restates 5 C.F.R. 300.603(a), his request for Board review was construed as a challenge to the validity of that regulation.  

3.  In determining whether to exercise its regulation review authority, the Board considers, among other things:  the likelihood that the issue will be timely reached through ordinary channels of appeal; the availability of other equivalent remedies; the extent of the regulation's application; and the strength of the arguments against the validity of its implementation.  

4.  Only the third of these factors weighs in favor of review.  Taken as a whole, the factors weigh against review and the Board decided not to exercise its discretion to review the regulation and instruction in the VetGuide.




COURT DECISIONS

The U.S. Court of Appeals for the Federal Circuit issued a nonprecedential decision in the followings case:

McGinnis v. U.S. Postal Service, No. 2011-3168 (Sept. 6, 2012) (MSPB Docket No. AT-0752-10-1056-I-1) (affirming per Rule 36 the Board's decison, which affirmed the agency's action reducing McGinnis in grade and pay)



FEDERAL REGISTER NOTICE

The Equal Employment Opportunity Commission (EEOC) issued a final rule on July 25, 2012, 77 Fed. Reg. 43498, revising its regulations at 5 C.F.R. Part 1614, Federal Sector Equal Employment Opportunity, which will become effective September 24, 2012.  EEOC's Summary describes the revisions as follows:

The Equal Employment Opportunity Commission (“EEOC” or “Commission”) is issuing this final rule to revise its regulations for processing equal employment opportunity complaints by federal sector employees and job applicants. The revisions implement those recommendations of the Commission's Federal Sector Workgroup which require regulatory changes. The revisions include: reaffirming the existing statutory requirement that agencies comply with EEOC regulations, Management Directives, and Bulletins; providing for EEOC notices to non-compliant agencies; permitting pilot projects for EEO complaint processing; requiring agencies to issue a notice of rights to complainants when the investigation will not be timely completed; requiring agencies to submit complaint files and appeals documents to EEOC in digital formats; and making administrative judge decisions on the merits of class complaints final with both parties having the right to appeal to EEOC. The Commission is engaged in further review of the Federal sector EEO complaint process in order to improve its quality and efficiency. The current rulemaking constitutes the Commission's initial step in that review. The Commission will consider additional reforms, including, but not limited to, regulatory changes.


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