U.S. Merit Systems Protection Board 
Case Report for November 9, 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:  Tony D. Hopper
Agency:  Office of Personnel Management
Intervenor:  Director of Office of Personnel Management
Decision Number:  2012 MSPB 122
Docket Number:  CH-0731-09-0798-I-3
Issuance Date:  November 5, 2012

Jurisdiction and Board Procedures
 - Suitability Action versus Adverse Action

    OPM petitioned for review of an initial decision that mitigated the appellant's removal due to a negative suitability determination under the reasoning set forth in Aguzie v. Office of Personnel Management, 116 M.S.P.R. 64 (2011), and the OPM Director requested to intervene in support of the petition.  OPM argued that it was an error of law for the administrative judge to adjudicate the appeal as an adverse action under chapter 75 of the United States Code instead of as a suitability action under 5 C.F.R. 731.501 and that the Board's decision in Aguzie should be overruled.  There was no contention that the judge improperly applied Aguzie to the facts of this case.  In Aguzie, the Board held, among other things, that:  (1) When OPM directs an agency to remove a tenured employee pursuant to its authority under 5 C.F.R. part 731, the removal action is subject to the requirements of 5 U.S.C. chapter 75, subchapter II, including the Board appeal rights guaranteed under 5 U.S.C. 7513(d); (2) the OPM-directed removal of a tenured employee pursuant to 5 C.F.R. part 731 is an action taken by an "agency," that 5 U.S.C. chapter 75, subchapter II covers suitability-based removals of tenured employees, that the relevant question is whether the individuals who suffered suitability-based removals are "employees" under 5 U.S.C. 7511, and that, if so, the OPM-directed removal of a tenured employee is "taken under" 5 U.S.C. 7513 and is therefore appealable to the Board under 5 U.S.C. 7513(d); (3) in an appeal of an OPM-directed suitability removal, the Board must conduct an independent review of the penalty in light of the relevant Douglas factors, which may include facts not in OPM’s possession; and (4) the Board's statutory jurisdiction extends to review of the other suitability actions on appeal, i.e., debarment and cancellation of eligibilities, because they are components of a unitary penalty arising from the same underlying misconduct. 

Holdings:  The Board granted the Director's request to intervene, but denied the petition for review and affirmed the initial decision, reaffirming the correctness of its prior decision in Aguzie.  



Appellant:  Jason Levy
Agency:  Department of Labor
Decision Number:  2012 MSPB 123
Docket Number:  DC-0752-11-0837-I-1
Issuance Date:  November 6, 2012
Appeal Type:  Adverse Action by Agency

Jurisdiction
 - Reduction in Grade
 - Probationary Supervisory Position

    The appellant petitioned for review of an initial decision that dismissed his appeal of an alleged reduction in grade for lack of jurisdiction.  The appellant was a GS-14 Information Technology (IT) Specialist who applied for a GS-15 Supervisory IT Project Manager position.  The selecting official selected him on June 30, 2011, and the appellant accepted the position on Friday, July 1, 2011.  In an email the same date, a human resources specialist indicated that the agency would assign him to the position effective Sunday, July 3, 2011.  The appellant was out of the office on annual leave from Monday, July 4, through Friday, July 22.  When he returned to work on Monday, July 25, he was informed that his appointment was being held "in abeyance" and that he was being placed on administrative leave while the agency's Office of Inspector General conducted an investigation.  The appellant filed an appeal alleging that the agency demoted him from a GS-15 position to a GS-14 position without affording him due process.  The administrative judge dismissed the appeal for lack of jurisdiction without holding the requested hearing, finding that the appellant failed to make a nonfrivolous allegation that he ever performed the duties of the GS-15 position.

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

1.  To be entitled to a jurisdictional hearing, an appellant need only raise nonfrivolous allegations that the Board has jurisdiction over his appeal.

2.  In Deida v. Department of the Navy, 110 M.S.P.R. 408 (2009), the Board has held that, to establish jurisdiction in an appeal from the cancellation of a promotion as a reduction in grade, the appellant must show that: (1) the promotion actually occurred; that is, it was approved by an authorized appointing official aware that he or she was making the promotion; (2) the appellant took some action denoting acceptance of the promotion; and (3) the promotion was not revoked before the appellant actually performed in the position.  

3.  The Deida holding was based on a decision by the Court of Appeals for the District of Columbia Circuit, which related to a class of individuals who had received written confirmation of their selection for federal employment, but whose appointments were withdrawn in accordance with a hiring freeze ordered by the President.  That case required the court to consider whether the individuals met the definition of "employee" under 5 U.S.C. 2105(a).  In the present case, by contrast, there is no question that the appellant was, at all relevant times, a federal employee; the only question is what position and grade the appellant occupied.  

4.  For cases such as this one, the Board modified the jurisdictional test so that it requires the following showing to establish jurisdiction:  (1) The promotion actually occurred; that is, that it was approved by an authorized appointing official aware that he or she was making the promotion; (2) the appellant took some action denoting acceptance of the promotion; and (3) the promotion was not revoked before it became effective.  In some cases, such as this one, there is an additional jurisdictional element, i.e., that the employee who has received an initial appointment as a supervisor has successfully completed the required probationary period.  See 5 U.S.C. 3321(a); 5 C.F.R.
315.904 & .905.  

5.  Because the appellant did not receive notice of the requirements for establishing jurisdiction, as now revised, a remand is necessary in order to determine whether he can establish jurisdiction.



Appellant:  Debra S. Litton
Agency:  Department of Justice
Decision Number:  2012 MSPB 124
Docket Number:  DA-0752-10-0388-X-2
Issuance Date:  November 8, 2012
Appeal Type:  Adverse Action by Agency
Case Type:  Compliance Referral

Compliance

    This case was before the Board pursuant to the administrative judge's Recommendation finding the agency noncompliant with the Board's August 1, 2011 Final Order, which instructed the agency to cancel the appellant's demotion and restore her to her position of GS-12 Facilities Manager.  In the underlying appeal, the appellant's demotion and reassignment were reversed because the proposing official listed on the proposal notice did not sign that document, authorize anyone to sign the document on his behalf, or otherwise take part in the proposal process.  On review, the agency argued that, had the actual proposing official been permitted to testify, it would have established that the agency's procedural error was not harmful because it did not affect the appellant's response to the proposal or the deciding official's decision.  After the Board rejected that argument, and after finding that the agency complied with its obligations by returning the appellant to her GS-12 position, the agency initiated a new adverse action in January 2012, proposing the appellant's demotion and reassignment based on the same reasons set forth in the original demotion.  The appellant then filed the present compliance proceeding.  The judge found that the agency's "unexplained decision to propose disciplinary action against the appellant more than two years after the events in question and more than a year after the Initial Decision was issued reversing the agency's action on procedural grounds to be retaliatory."  The agency argued that double jeopardy does not apply to administrative proceedings and that an agency can renew an adverse action in a proceeding that was invalidated on procedural grounds.  

Holdings:  The Board found that the agency is in compliance with its Final Order and dismissed the appellant's petition for enforcement:

1.  At no point during any of the prior proceedings did the Board inform the agency that unless it promptly corrected its procedural failure by providing the appellant with full procedural rights in a new disciplinary action, it would forfeit its right to take such an action if it chose instead to exhaust its rights under the review processes outlined in each of the Board's notices and discisions.  Nothing in the Board's regulations contemplates than an agency's pursuit of its statutory and regulatory review rights precludes it from later taking a new action.

2.  There is no basis for finding bad faith in the agency's actions.  The agency acted promptly by issuing the new proposal notice less than a month after the Board's Final Order ultimately found it in compliance.

3.  The agency did not mislead or deceive the Board into finding compliance and dismissing the appellant's first petition for enforcement.  The agency clearly infomred the appellant that, "[a]t this time, you are advised you will remain in the Facilities Manager position."  




COURT DECISIONS

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

Noble v. Department of Justice, No. 2012-3138 (Nov. 8, 2012) (MSPB Docket No. DE-0432-10-0423-I-2) (affirming the Board's decision, which sustained the agency's performance-based removal action)
     
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