U.S. Merit Systems Protection Board 
Case Report for January 4, 2013

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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:  Cruz P. Garza
Agency:  Department of the Navy
Decision Number:  2012 MSPB 131
Docket Number:  DA-0752-12-0248-I-1
Issuance Date:  December 20, 2012
Appeal Type:  Adverse Action by Agency
Action Type:  Removal

Jurisdiction - Reemployed Annuitant

    The appellant petitioned for review of an initial decision that dismissed his separation appeal for lack of jurisdiction.  The appellant separated from the federal service in 2003 and has received a discontinued service annuity under the Federal Employees' Retirement System (FERS) since that time.  In September 2010, the agency selected the appellant for the position of Engineering Technician.  In February 2012, the agency rescinded the appointment, explaining that when the appellant was hired it had failed to comply with its own requirements and procedures for hiring reemployed annuitants, and the appellant filed an appeal with the Board.  In dismissing the appeal for lack of jurisdiction, the administrative judge found that the appellant was employed as a reemployed annuitant and, as such, served at the will of the appointing authority and possessed no Board appeal rights.  

Holdings:  The Board affirmed the initial decision as modified, still dismissing the appeal for lack of jurisdiction:

1.  The Board's jurisdiction is not plenary; it is limited to those matters over which it has been given jurisdiction by law, rule, or regulation.  

2.  Under 5 U.S.C. 3323(b)(1), an annuitant is not barred by reason of his retired status from employment in an appointive position for which the annuitant is qualified.  An annuitant so reemployed, however, serves at the will of the appointing authority, and generally has no right to appeal an adverse action to the Board.  

3.  The Board has held that, under the Civil Service Retirement System, an individual's reemployment after discontinued service retirement does not constitute employment as a reemployed annuitant.  That is not the case under FERS, however, and the appellant's reemployment after discontinued service retirement under FERS was as a reemployed annuitant.  As such, he served at the will of the appointing authority and had no right to appeal his separation to the Board.  



Appellant:  Karen E. Boone
Agency:  Office of Personnel Management
Decision Number:  2012 MSPB 132
Docket Number:  PH-0845-12-0153-I-1
Issuance Date:  December 21, 2012
Appeal Type:  FERS - Collection of Overpayment
Action Type:  Retirement/Benefit Matter

Retirement - Annuity Overpayment

    The appellant petitioned for review of an initial decision that affirmed OPM's determination that she had received an overpayment of $3,529.48 in FERS retirement annuity benefits and was not entitled to waiver of recovery the overpayment, but which modified the appellant's repayment schedule from $98 per month to $50 per month.  

Holdings:  The Board affirmed the initial decision as modified, finding that a further adjustment of the payment schedule to $5 per month was appropriate:

1.  Generally, the recovery of a FERS overpayment should be waived if the recipient is without fault and recovery would be against equity and good conscience.  OPM policy provides that individuals who know or suspect that they are receiving overpayments are expected to set aside the amount overpaid pending recoupment, and that in the absence of exceptional circumstances -- which do not include financial hardship -- recovery is not against equity and good conscience.  Here, the appellant conceded that she knew she was probably receiving an overpayment, but not the extent of it.  

2.  The Board found that the appellant did not demonstrate exceptional circumstances based on her health-related indebtedness and other financial problems.

3.  Although the appellant was ot entitle to waiver of the overpayment, an adjustment of the repayment schedule was warranted because the current repayment schedule would cause the appellant financial hardship.  The record indicated that the appellant's monthly expenses exceed her monthly income.  In such cases, the Board has reduced OPM's repayment schedule to $5 per month.  



Appellant:  George Camaj
Agency:  Department of Homeland Security
Decision Number:  2012 MSPB 133
Docket Number:  NY-0752-10-0130-I-2
Issuance Date:  December 21, 2012
Appeal Type:  Adverse Action by Agency
Action Type:  Suspension - Indefinite

Indefinite Suspensions

    The agency petitioned for review of an initial decision that reversed the agency's decision to continue the appellant's indefinite suspension beyond October 8, 2009.  The appellant was a Deportation Officer with U.S. Immigration and Customs Enforcement.  In February 2009, a criminal complaint was filed against him in federal district court charging him with 3 counts of willfully and without authorization accessing and obtaining information from the Treasury Enforcement Communications System in violation of 18 U.S.C. 1030(a)(2).  In a decision issued in June 2009, the agency indefinitely suspended the appellant on the ground that it had reasonable cause to believe he had committed a crime for which a sentence of imprisonment might be imposed.  The decision stated that the suspension would be in effect until the later of (1) the resolution of the pending criminal charges, (2) the completion of any agency investigation concerning matters that formed the basis of the criminal charges, or (3) the notice period of any adverse action proposed concerning matters that formed the basis of the criminal charges.  In August 2009, the appellant entered into an Agreement for Pretrial Diversion (PTD) with the U.S. Attorney's Office, which provided that prosecution would be deferred for 6 months in exchange for the appellant's acceptance of responsibility to complete the PTD program.  In the agreement, the appellant admitted that he had committed the conduct that formed the basis for the criminal charges.  On September 8, 2009, the criminal complaint againt the appellant was dismissed without prejudice on the basis of the PTD agreement.  By letter dated February 22, 2010, the U.S. District Court Pretrial Services Agency notified the Assistant U.S. Attorney that the appellant had complied with the terms of the PTD agreement, and the criminal charges against the appellant were dismissed.  

     After the criminal charges against the appellant were dismissed, the agency proceeded to investigate the appellant regarding alleged misconduct separate from the conduct referred to in the criminal complaint and the PTD agreement.  In March 2010, the appellant filed the instant appeal, alleging that the agency had continued his indefinite suspension for an unreasonable period of time after the criminal case was dismissed.  The agency removed the appellant, effective November 16, 2010, on charges of conduct unbecoming a law enforcement officer and misuse of an official government database.  The latter charge included conduct not referred to in the criminal complaint.  The administrative judge reversed the agency's decision to continue the indefinite suspension beyond October 8, 2009.  In reaching that decision, the judge found that the criminal charges had been resolved on September 8, 2009, and that 30 days was a "reasonable amount of time for the agency to investigate and effect the disciplinary action against the appellant."  

Holdings:  The Board granted the agency's petition for review, vacated the initial decision, and ordered the agency to terminate the appellant's indefinite suspension effective February 22, 2010:

1.  The judge erred in finding that the criminal charges were resolved on September 8, 2009, when the charges were dismissed without prejudice pending the appellant's successful completion of the PTD program.  The criminal prosecution had only been "deferred," and could have been reinstituted at any time if the appellant violated any of the conditions of the PTD program.  The criminal charges were not resolved until February 22, 2009, when the Pretrial Services Agency certified the appellant's completion of the PTD and recommended that the pending charges be dismissed.  Until that date, the agency had reasonable cause to believe a sentence of imprisonment could be imposed and was permitted to keep the appellant on indefinite suspension.

2.  The agency had no proper basis for continuing the indefinite suspension beyond February 22, 2010.  

a.  The agency did not issue a proposed removal until nearly 3 months after resolution of the criminal charges.  This delay was at least in part the result of the agency's decision to investigate additional alleged misconduct before initiating adverse action proceedings against the appellant.  However, the time required for that further investigation did not itself warrant continuation of the indefinite suspension because the mere existence of an open agency investigation into alleged misconduct does not serve as cause for taking or continuing an adverse action.

b.  No delay would have been justified had the agency instead elected to pursue an adverse action based solely on the conduct that formed the basis of the criminal charges, as the appellant had already admitted to that misconduct.  



Appellant:  Shane Hudlin
Agency:  Office of Personnel Management
Decision Number:  2012 MSPB 134
Docket Number:  SF-0731-10-0977-I-2
Issuance Date:  December 26, 2012
Appeal Type:  Suitability
Action Type:  Applicant Ineligible

Suitability
Falsification

    The appellant petitioned for review of an initial decision that affirmed OPM's determination that the appellant was unsuitable for employment.  The appellant applied for the position of Special Agent with the Drug Enforcement Administration in August 2008.  In support of his application, the appellant submitted an Optional From 306, Declaration for Federal Employment.  In April 2009, he completed Standard Form 86, Electronic Questionnaires for Investigations Processing for the purpose of assisting OPM in conducting a background investigation.  Both forms asked questions about the appellant's former employment and on both he stated that he had not been fired from a job, quit a job after being told he would be fired, or left a job by mutual agreement under adverse circumstances.  As part of his background investigation, the appellant took and passed a polygraph examination in which he denied falsifying any information on his SF-86.  The appellant subsequently contacted his former employers to let them know that a background investigator would be contacting them and to request his employee files.  In response, he received a packet from a former employer, Vitamin Adventure, and at this time the appellant claims to have first learned that Vitamin Adventure considered him fired from the company.  The appellant promptly notified the background investigator to explain the situation.  

     As a result of its background investigation, OPM informed the appellant that two issues raised a serious question about his suitability for employment:  (1) misconduct or negligence in employment; and (2) material, intentional false statement, or deception or fraud in examination or appointment.  Specifically, OPM alleged that the appellant had been terminated from his employment at Vitamin Adventure after he had given a substantial and unauthorized discount to two individuals who appeared to be his friends or acquaintances, and that he made intentional false statements in connection iwth his application for employment regarding the termination.  OPM later sustained the charges and rated the appellant's application for the position of Special Agent ineligible, canceled any eligibilities he may have had for any covered position, and debarred him from competition for, or appointment to, any covered position for a specified period.  On appeal to the Board, and after a hearing, the administrative judge issued an initial decision affirming OPM's suitability determination.  The judge found that OPM failed to prove the charge of misconduct or negligence in employment, but that OPM did prove its charge of material, intentional false statement, or deception or fraud in examination or appointment.  In so doing, she found that, "although it [was] a close call, [she was] nevertheless persuaded that more likely than not, the appellant provided intentional false statements on his federal application forms and to OPM's investigator."

Holdings:  The Board reversed the initial decision in part and ordered OPM to cancel its negative suitability determination:

1.  Pursuant to OPM regulations at 5 C.F.R. part 731, the Board has jurisdiction over certain matters involving suitability for federal employment.  In order to prevail in a covered suitability action, OPM must demonstrate by preponderant evidence that the appellant's conduct or character may have an impact on the integrity or efficiency of the service based on one of the specific factors listed in 5 C.F.R. 731.202(b).  Two factors that will support a finding of unsuitability are misconduct or negligence in employment, and making a material, intentional false statement, or deception or fraud in an examination or appointment.  

2.  After a review of the relevant evidence, the Board found that OPM failed to prove its falsification charge.  

a.  To establish unsuitability based on falsification, the agency must prove by preponderant evidence that the appellant knowingly provided incorrect information with the intention of defrauding the agency.  Because there is seldom direct evidence on the issue, circumstantial evidence must generally be relied upon to establish intent.

b.  In finding that OPM failed to prove its falsification charge, the Board observed, among other things, that there is "no evidence that anyone at Vitamin Adventure informed the appellant that he was terminated or that he actually understood he was being terminated, and he passed a polygraph examination in which he claimed that he had not falsified any information on his SF-86."  

3.  The Board ordered OPM to cancel its suitability determination and return the appellant to all appropriate open eligibility lists for employment.  



Appellant:  Debra A. Lopes
Agency:  Department of the Navy
Decision Number:  2012 MSPB 135
Docket Number:  PH-0752-12-0279-I-1
Issuance Date:  December 31, 2012
Appeal Type:  Adverse Action by Agency
Action Type:  Removal

Interlocutory Appeals

    This case was before the Board based on the administrative judge's order certifying an interlocutory appeal regarding the effect to afford the judge's findings in the appellant's prior removal appeal in the current appeal.  Effective November 20, 2009, the agency removed the appellant from her position as an Information Technology Specialist on charges that she misused her government telephone, laptop computer, and desktop computer.  In a March 2010 initial decision, the administrative judge found that the agency proved its charges that the appellant misused her government telephone and desktop computer, that the agency established a nexus between the sustained misconduct and the efficiency of the service, and that the penalty of removal was reasonable.  In a June 2011 Opinion and Order, 116 M.S.P.R. 470, the Board concluded that the agency violated the appellant's right to due process of law by improperly considering prior discipline and alleged past instances of misconduct that were not listed in the notice of proposed removal.  It ordered the agency to cancel the removal and stated that the agency "may not remove the appellant unless and until she is afforded a new 'constitutionally correct removal procedure.'"  

     Effective March 2, 2012, the agency removed the appellant a second time based on misuse of her government telephone and desktop computer, and the current appeal was filed.  In a June 4, 2012 order, the administrative judge ruled that he would schedule a hearing "which will address only the agency's penalty selection and the appellant's affirmative defenses," and that he would not "relitigate the charges . . . as the identical charges were previously sustained in [his March 25, 2010 initial decision] and [his] findings with respect to those charges were left undisturbed by the Board's " June 17, 2011 decision.  The correctness of that ruling was the issue in this interlocutory appeal.  

Holdings:  The Board affirmed the judge's ruling as modified, and returned the case to the regional office for further adjudication:

1.  Because the Board explicitly made no finding regarding the merits of the agency's charges and there has not been a final decision regarding those charges, the Board concluded that the administrative judge cannot rely on his previous initial decision as a basis for findings in the present appeal.  

2.  The judge may incorporate into the record any portions of the record from the previous appeal that he deems appropriate, including the hearing testimony of some or all of the witnesses.  He must, however, also afford the parties the opportunity to adduce additional evidence that is relevant and nonduplicative of the evidence already in the record.  



Appellant:  Rogers Butler
Agency:  Department of Veterans Affairs
Decision Number:  2013 MSPB 1
Docket Number:  CH-0752-12-0280-I-1
Issuance Date:  January 2, 2013
Appeal Type:  Adverse Action by Agency
Action Type:  Removal

Timeliness - New Appeal

    The appellant petitioned for review of an initial decision that dismissed his removal appeal as untimely filed.  The sole issue in this case was whether the appellant timely filed this mixed appeal under 5 C.F.R. 1201.154(b)(1) (2012), which provided that, when an "appellant has filed a timely formal complaint of discrimination with the agency," the "appeal must be filed within 30 days after the appellant receives the agency resolution or final decision on the discrimination issue."  Here, the final agency decision (FAD) on discrimination was issued on November 23, 2011, and the appeal was filed on February 17, 2012.  The appellant claimed that the appeal was timely filed because he did not receive the FAD until January 27, 2012.  Relying on a presumption that mailed documents are received within 5 days, the administrative judge found that the appeal was filed more than 7 weeks late and that the appellant had not established good cause for the delay in filing.  

Holdings:  The Board reversed the initial decision, finding that the appeal had been timely filed, and remanded the case to the regional office for adjudication on the merits:

1.  Both the Board and the Federal Circuit have held that section 1201.154 generally requires that the Board go by the date of actual receipt, even in situations in which the appellant's receipt was delayed by his or her negligence.

2.  The only evidence of actual receipt indicates that the appellant did not receive the FAD until January 27, 2012.

3.  Even if it were otherwise appropriate to invoke the presumption that a document is received 5 days after mailing, it would be inappropriate to apply it in this case because the agency failed to establish that the FAD was mailed to the appellant on the date it was issued.  




COURT DECISIONS

Petitioner:  Richard L. Abrams
Respondent:  Social Security Administration
Tribunal:  U.S. Court of Appeals for the Federal Circuit
Docket Number:  2011-3177
Issuance Date:  December 28, 2012

Actions Against ALJs

    Abrams, an administrative law judge with the agency's Office of Disablity Adjudication and Review, appealed from a Board decision upholding his removal on a charge of failure to follow instructions regarding the timely processing of cases assigned to him.  

Holdings: The court affirmed the Board's decision sustaining Abrams' removal:

1.  The court must affirm a Board decision unless the court finds it to be (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, (2) obtained without procedures required by law, rule, or regulation having been followed, or (3) unsupported by substantial evidence.  Under the substantial evidence standard, the court reverses the Board’s decision only "if it is not supported by 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'"  

2.  The court considered and found to be without merit each of Abrams' arguments:  (1) that the agency's charge of "failure to follow instructions" was an improper attempt to enforce the agency's benchmarks for timely processing, and thus could not constitute good cause for removal; (2) that the Board erred in finding "good cause" for discipline because performance-based misconduct actions require objective, articulated performance standards; and (3) failure to follow the directives could not have provided the basis for "good cause" removal because the directives interfered with Judge Abrams' “qualified decisional independence" in addressing "live cases."  


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

Warren v. Department of Transportation, No. 2011-3223 (Jan. 3, 2013) (MSPB Docket No. DE-0839-10-0139-I-1) (affirming per Rule 36 the Board's decision, 116 M.S.P.R. 554 (2011), which sustained the agency's decision denying Warren's request for relief under the Federal Erroneous Retirement Coverage Correction Act) 
    

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