U.S. Merit Systems Protection Board 
Case Report for October 5, 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:  Ryan Zumwalt
Agency:  Department of Veterans Affairs
Decision Number:  2012 MSPB 115
Docket Number:  DE-1221-08-0449-C-3
Issuance Date:  September 28, 2012
Appeal Type:  Individual Right of Action (IRA)

Compliance - Settlement-Related

    The appellant petitioned for review of a compliance initial decision that denied his petition for enforcement.  The underlying IRA appeal of a 3-day suspension was resolved by a written settlement agreement.  The appellant had been disciplined for running a criminal background check on one his supervisors using the Utah Bureau of Criminal Investigations (BCI) database.  The appellant had asserted that his disclosure based on this background check was protected whistleblowing.  The settlement agreement provided in relevant part that the agency would cancel the 3-day suspension and purge all documents related to it from the appellant's personnel file.  The agreement further provided that the parties would "keep the terms of the agreement confidential" and the agency would disclose the terms of the agreement only to those management officials that it determined needed to know specific terms to implement them.  Shortly after the parties entered into the agreement, an agent for the agency's Office of Inspector General (OIG)  decided to investigate a rumor that the appellant and others had accessed the BCI databse for personal reasons.  The OIG agent contacted Utah officials to request the appellant's BCI database records.  When the Utah officials asked the OIG agent what had happened as a result of the BCI database search by the appellant, the OIG agent informed them that the appellant had received a 3-day suspension for improper access.  The appellant filed a petition for enforcement, alleging that the OIG agent's disclosure to the Utah officials constituted a breach of the settlement agreement.  The administrative judge found that the appellant did not show that the OIG agent's disclosure violated the terms of the settlement agreement.  The judge found that, because the agent was not in the supervisory chain of command at the appellant's facility, the responsible manager could not reasonably be expected to inform the OIG agent that the suspension was cancelled and purged.  The judge also found that the OIG agent was unaware of the settlement agreement when he decided to initiate his investigation.  

Holdings:  A majority of the Board, Member Robbins dissenting, granted the appellant's petition for enforcement, found that the agency materially breached the settlement agreement, and remanded the case for the appellant to elect between enforcing the settlement agreement or rescinding it and reinstating his IRA appeal:

1.  When an agency has contractually agreed to provide an employee with a clean record, the Board and the Court of Appeals for the Federal Circuit have consistently held that the clean record agreement contains an implied provision that precludes the agency's disclosure of information regarding the rescinded personnel action to third parties.  The general rule is that if an agency discloses information regarding the rescinded adverse action to any third party, then the agency has materially breached the clean record settlement.  

2.  There is no dispute that, after the agency entered into the settlement agreement with the appellant, the OIG agent, an agency employee, informed individuals outside the agency that the appellant had received a 3-day suspension for misuse of the BCI database.  Thus, the OIG agent's disclosure materially violated the parties' clean record settlement.  

3.  The judge's reliance on the fact that the OIG agent was not in the supervisory chain of command at the appellant's facility is misplaced.  Regardless of his position in the organizational structure, the OIG agent was an agency employee representing the interests of the agency when he disclosed the appellant's suspension.  The Supreme Court has stated that "an OIG's investigative office, as contemplated by the [Inspector General Act], is performed with regard to, and on behalf of, the particular agency in which it is stationed."

4.  When one party commits a material breach of a settlement agreement, the other party is entitled to either enforce the settlement agreement or to rescind it and to reinstate the underlying appeal.  The matter was remanded to the regional office to allow the appellant to make an informed choice between these alternatives.  

     In his dissenting opinion, Member Robbins stated that he would find that the agency did not breach the parties' settlement agreement because Inspector General (IG) personnel cannot be bound by an agreement between an employee and non-IG personnel.  After quoting extensively from the Inspector General Act, Member Robbins concluded that an IG, although associated with an agency, is independent from agency line managers.  He stated that the thrust of the Inspector General Act, which allows an IG to pursue its activities independent of the wishes or instructions of agency management, compels the conclusion that an agreement between agency management and an employee to which an IG is not a signatory is not binding on the IG.  To hold otherwise is to permit an agency to interfere with an IG's investigatory activities.  

Appellant:  Dean D. Lee
Agency:  Office of Personnel Management
Decision Number:  2012 MSPB 114
Docket Number:  SF-0831-11-0707-I-1
Issuance Date:  September 28, 2012
Action Type:  Retirement/Benefit Matter

Retirement - Survivor Annuity Election

    The appellant petitioned for review of an initial decision affirming an OPM reconsideration decision that denied his election of a survivor annuity as untimely filed.  The appellant was unmarried when he retired in July 2003.  He married in May 2006.  In October 2009, he filed a request to elect a survivor annuity for his spouse.  OPM denied the request on the basis that it was untimely under 5 U.S.C. 8339(k)(2)(A), which requires that such a request be filed within two years of the annuitant's marriage.  On appeal, the appellant sought waiver of the time limit on the basis of a mental condition that caused him to miss the filing deadline.  

Holdings:  The Board affirmed the initial decision as modified:

1.  Under section 8339(k)(2)(A), an appellant must show that he elected to provide a survivor annuity for his spouse "in a signed writing received" by OPM within 2 years after his marriage.  

2.  In Schoemakers v. Office of Personnel Management, 180 F.3d 1377 (Fed. Cir. 1999), the Board's reviewing court held unequivocally that 5 U.S.C. 8339(k)(2)(A) does not permit waiver of the filing deadline based on mental incapacity, contrasting that statute with the one covering disability retirement applications, which expressly provides for a waiver on the basis of mental incapacity.


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

Mann v. Department of the Army, No. 2012-3059 (Sept. 28, 2012) (MSPB Docket No. AT-3330-11-0335-I-1) (affirming the Board's decision, which found that the agency did not violate Mann's veterans' preference rights when it did not select him for a position)

Donaldson v. Department of Homeland Security, No. 2012-3106 (Oct. 4, 2012) (MSPB Docket Nos. DC-3330-11-0367-I-1, DC-4324-11-0475-I-1, and DC-3330-11-0637-I-1) (affirming the Board's decision, which affirmed initial decisions finding that the agency did not violate Donaldson's rights under the Uniformed Services Employment and Reemployment Rights Act and the Veterans Employment Opportunities Act)

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