U.S. Merit Systems Protection Board 
Case Report for November 2, 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:  Maria de la Cruz MaGowan
Agency:  Environmental Protection Agency
Decision Number:  2012 MSPB 120
Docket Number:  DC-1221-11-0737-W-1
Issuance Date:  October 26, 2012
Appeal Type:  Individual Right of Action (IRA)

Whistleblower Protection Act
 - Jurisdiction
 - Exhaustion of OSC Remedy
 - Protected Disclosure
 - Contributing Factor

    The appellant petitioned for review of an initial decision that dismissed her IRA appeal for lack of jurisdiction.  The appellant alleged, among other things, that in 2010 the agency converted approved sick leave to absence without leave (AWOL) in retaliation for a disclosure she made to the agency's Office of Inspector General (OIG) in 2003.  In dismissing the appeal for lack of jurisdiction, the administrative judge found, among other things, that the appellant did not make a nonfrivolous allegation that a protected disclosure was a contributing factor in the AWOL matter because of the 7-year lapse of time between the disclosure and the alleged retaliatory action.  

Holdings:  The Board found that the appellant established jurisdiction over her IRA appeal and remanded the case to the regional office for adjudication on the merits:

1.  To establish jurisdiction over an IRA appeal, an appellant must prove that she exhausted her administrative remedies before the Office of Special Counsel (OSC) and make nonfrivolous allegations that she made a protected disclosure and that the disclosure was a contributing factor in the agency's decision to take a covered personnel action.

2.  The appellant exhausted her administrative remedies before OSC.

3.  The appellant made a nonfrivolous allegation that she disclosed both a violation of law and a gross waste of funds in 2003.

4.  The appellant made a nonfrivolous allegation that her disclosure in 2003 was a contributing factor in the agency's decision to classify her as AWOL in 2010.  The appellant alleged in this regard that, when she requested a promotion in May 2010, about 6 months before the personnel action in question, the agency official specifically asked her about the 2003 OIG disclosure, demanded the details of the disclosure, and requested that the appellant provide her with a copy of the OIG report.  

5.  The Board noted that, after determining that the appellant failed to establish jurisdiction, the judge went on to consider whether the agency established by clear and convincing evidence that it would have taken the same personnel action in the absence of the alleged whistleblowing.  This was error because that is a merits issue, and the judge should not reach a merits issue without first finding jurisdiction over the appeal.  The Board therefore vacated the initial decision with respect to that finding.  

Appellant:  Katherine Adair Martinez
Agency:  Department of Veterans Affairs
Decision Number:  2012 MSPB 121
Docket Number:  AT-0752-10-0474-I-2
Issuance Date:  November 1, 2012
Appeal Type:  Adverse Action by Agency
Action Type:  Removal

Constitutional Issues - Due Process

    The agency petitioned for review of an initial decision that reversed the agency's removal action based on a finding that the agency violated the appellant's right to minimum due process of law.  The appellant held a position in the Senior Executive Service as Deputy Assistant Secretary for Information Protection and Risk Management.  In August 2009, the agency's Office of Inspector General (OIG) issued a report finding that the appellant had misused her official position, abused her authority, engaged in prohibited personnel practices, failed to provide proper contract oversight, and did not properly fulfill her duties as a Contracting Officer's Technical Representative.  The agency subsequently proposed the appellant's removal on 5 charges that relied on the findings in the OIG report.  The appellant presented oral and written replies to Roger Baker, the deciding official, who issued a decision sustaining all 5 charges and directed that she be removed from her position.  

     On appeal, the administrative judge advised the parties that she had identified a possible due process violation.  Specifically, she was concerned whether the appellant received a meaningful opportunity to respond to the proposed action because the deciding official had concurred in the OIG draft investigative report, which formed the basis of the charges in the removal action.  The judge concluded that, prior to undertaking the role of decision maker in the appellant's removal, Mr. Baker "painstakingly reviewed evidence . . . and issued findings that he concurred in the various violations" identified by the OIG in its draft investigative report.  By later acting as the deciding official in the removal action based on misconduct identified in the OIG's final report, the judge found that the risk was too high that the appellant missed her "only meaningful opportunity [to] invoke the discretion of the decisionmaker" before her removal took place, thereby violating the appellant's right to minimum due process of law.  

     In its petition for review, the agency argued that the judge "misapplied and failed to consider direct and relevant precedent concerning pretermination procedural due process rights available to federal employees," citing Svejda v. Department of the Interior, 7 M.S.P.R. 108 (1981), and Facciponti v. U.S. Postal Service, 15 M.S.P.R. 183 (1983).  

Holdings:  The Board granted the agency's petition for review, vacated the initial decision, and remanded the appeal to the regional office for further adjudication:

1.  In Svejda, the Board held there was not a due process violation where the same official who had sustained an employee's unsatisfactory performance rating was later designated as the deciding official for the employee's proposed performance-based removal action.  The Board explained that it would be a violation of due process "to allow an individual's basic rights to be determined either by a biased decisionmaker or by a decisionmaker in a situation structured in a manner such that [the] 'risk of unfairness is [i]ntolerably high.'"  The Board stated, however, that there is no general proscription of appointing a deciding official who is familiar with the facts of the case and who has expressed a predisposition contrary to the appellant's interests.

2.  In Facciponti, the deciding official testified that he saw the agency inspector's report concerning the misconduct long before the agency issued the proposal notice and that "he pretty much knew" that such a serious offense would warrant the appellant's removal from the agency.  In sustaining the removal action, the Board credited the deciding official's testimony that he had considered the appellant's responses, as well as the appropriateness of lesser penalties.  In subsequent similar cases, the Board concluded that the the fact that the deciding official may have been predisposed to severely discipline an employee before receiving his response to the notice of proposed adverse action did not constitute harmful procedural error or a violation of law if the appellant was afforded an opportunity to reply to the charges against him and, in fact, did submit a response that was considered by the deciding official before he made a final decision.  

3.  At this stage of the proceedings, there has been no showing that the appellant's rights were determined either by a biased decision maker or by a decision maker in a situation structured in a manner such that the risk of unfairness is intolerably high.  The burden is on the appellant to establish actual bias or an intolerable risk of unfairness.  The Board concluded that it was appropriate to remand the case for the judge to hold a hearing and consider all relevant evidence under the relevant precedent to determine if a due process violation occurred.

Petitioner:  Christopher Joseph Roesel
Agency:  Office of Personnel Management
Decision Number:  2012 MSPB 119
Docket Number:  CB-1205-11-0012-U-1
Issuance Date:  October 26, 2012
Appeal Type:  Request for Regulation Review

Regulation Review

    The petitioner requested the Board to exercise its authority under 5 U.S.C. 1204(f) to review an OPM regulation.  The basis for his request related to the failure of the Agency for International Development to issue a timely decision on his eligibility for a security clearance.  The petitioner cited the Intelligence Reform and Terrorism Prevention Act of 2004, codified at 50 U.S.C. 435b(g), which provides that "[d]eterminations on clearances not made within 60 days shall be made without delay," and asserted that the investigation into his application for a security clearance had lasted more than 132 days.  The petitioner contended that the Board's authority to review regulations issued by OPM applied to his claim because OPM is the lead agency on security clearances, and argued that OPM implicitly applied the statute in its manual, "End-to-End Hiring Initiative."  In its response, OPM noted that its manual provides, as required by the statute, a plan for processing 90% of all applications within 60 days, and that determinations on clearances taking longer than 60 days "shall be made without delay."  OPM contended that the Board should dismiss the petitioner's request because the guidance he cited is not a rule or regulation and because he has not identified any prohibited personnel practice that OPM's guidance would or has required.  

Holdings:  The Board denied the petitioner's request for regulation review:

1.  The Board has original jurisdiction under 5 U.S.C. 1204(f)(1) to review rules and regulations promulgated by OPM.  The Board may declare such a rule or regulation 1) invalid on its face if its implementation would require an employee to commit a prohibited personnel practice or 2) invalidly implemented if its implementation by an agency has required an employee to commit a prohibited personnel practice.  The Board's regulations require an individual requesting a regulation review to identify the OPM regulation being challenged and the reasons why implementation of the regulation requires commission of a prohibited personnel practice. 

2.  The hiring manual in question does not appear to be a rule or regulation within the meaning of section 1204(f) because its provisions do not directly implement or interpret statutory provisions.

3.  The petitioner does not challenge the language of the portion of the manual that he cites.  Instead, he challenges OPM's failure to promulgate a regulation giving specific content to the statutory language requiring security clearance determinations taking more than 60 days to be completed "without dely."  Nothing in section 1204(f) gives the Board authority to require OPM to issue a rule or regulation to implement a statute.  

4.  The petitioner has not identified a specific prohibited personnel practice or provided any reason to believe that OPM's manual would require an employee to commit a prohibited personnel practice.  


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

Pecard v. Department of Agriculture, No. 2011-3151 (Oct. 26, 2012) (MSPB Docket No. DA-3330-09-0730-B-1) (affirming the Board's decision, which denied Pecard's request for corrective action under the Veterans Employment Opportunities Act)

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