U.S. Merit Systems Protection Board 
Case Report for February 15, 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.


Appellant:  Jacques A. Durr
Agency:  Department of Veterans Affairs
Decision Number:  2013 MSPB 12
Docket Number:  AT-1221-10-0216-W-2
Issuance Date:  February 8, 2013
Appeal Type:  Individual Right of Action (IRA)

Whistleblower Protection Act
 - Protected Disclosure
 - Clear and Convincing Evidence
Preservation of Error
Ex Parte Communication

    The appellant petitioned for review of an initial decision that denied his request for corrective action in this IRA appeal.  The appellant was a Physician at an agency medical facility.  He had been employed for 19 years under a series of temporary appointments because he was not a U.S. citizen and not eligible to hold a permanent appointment.  After becoming  U.S. citizen in June 2006, he requested that his appointment be converted to a permanent position.  Although this request was ultimately approved, he alleged that the agency unreasonably delayed his conversion because of his whistleblowing disclosures, and that, if the request had been promptly approved, his subsequent termination from the agency in November 2008 would not have been a probationary termination, but would have instead been an adverse action removal with full appeal rights to the Board.  The administrative judge found that the appellant made a protected disclosure in a September 2003 to the Office of Special Counsel (OSC) regarding his malfunctioning computer and the agency's malfunctioning local area network, which he reasonably believed evidenced a substantial and specific danger to patients and thus public health or safety.  The judge further assumed for purposes of her decision that the appellant made a protected disclosure in 2003 when he placed his non-functioning computer in a trash bin as a symbolic act to call attention to his complaints regarding the hospital's malfunctioning computer system, and when he left a voice mail message on the answering machine of the agency's Information Resources Management Service informing them of what he had done.  The judge found that the letter to OSC was not a contributing factor in any delay in processing his appointment to a permanent position because there was no evidence that anyone involved in that process had knowledge of the letter.  The judge further found that, even assuming that the second alleged disclosure was protected and that this was a contributing factor in the length of time it took the agency to process his request for permanent status, the agency proved by clear and convincing evidence that it would have processed the appellant's request in the same manner absent the protected activity.  The judge found in this regard that, although the chief of medicine took 1 month to forward the appellant's conversion request, he credibly testified that he had concerns regarding the appellant unrelated to the computer incident, and that the relevant agency officials did not have a strong motive to retaliate against the appellant for this incident.

     In his petition for review, the appellant asserted numerous reasons why the agency's evidence in support of its delay was not strong and why the agency did not prove by clear and convincing evidence that it would have taken the same actions in the absence of his disclosures.

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

1. In finding that the agency met the clear and convincing evidence burden, the initial decision did not fully evaluate the relevant evidence as set forth in Whitmore v. Department of Labor, 680 F.3d 1353 (Fed. Cir. 2012).  

a. In Whitmore, the court held that whether evidence is sufficiently clear and convincing cannot be evaluated by looking only at the evidence that supports the conclusion reached.  It stated that if "considerable countervailing evidence is manifestly ignored or disregarded in finding a matter clearly and convincingly proven, the decision must be vacated and remanded for further consideration so that all the pertinent evidence is weighed."  The court further stated that, in considering the existence and strength of any motive to retaliate, "[t]hose responsible for the agency's performance overall may well be motivated to retaliate even if they are not directly implicated by the disclosures, and even if they do not know the whistleblower personally, as the criticism reflects on them in their capacities as managers and employees."  

b.  After reviewing evidence and argument presented by the appellant on review, the Board concluded that the judge had not fully addressed these matters as required by Whitmore.  Because proper evaluation of this evidence and argument may involve resolving conflicting evidence and testimony based upon the demeanor of witnesses, the judge is in the best position to resolve such questions and remand is appropriate.

2. Because the appellant did not have a full and fair opportunity to present evidence and argument proving by preponderant evidence that he reasonably believed that he made a protected disclosure in 2003 when he placed a non-functioning computer in the trash and left a message about that matter in a voice mail, he is entitled on remand to a supplemental hearing on that issue if he so requests.

3.  The Board rejected the appellant's arguments regarding the introduction of evidence at the hearing because he did not preserve the error by objecting at the appropriate time or because the evidence sought to be introduced is not new and material.

4. The judge does not appear to have fully complied with the Board's regulations concerning ex parte communication in connection with her in camera review of certain evidence.  To the extent the judge has not already done so, she shall on remand retroactively apply those regulations.  

Appellant:  Harolean Norris Martin
Agency:  Office of Personnel Management
Decision Number:  2013 MSPB 13
Docket Number:  SF-0845-12-0170-I-1
Issuance Date:  February 8, 2013
Appeal Type:  FERS - Collection of Overpayment - Debts
Action Type:  Retirement/Benefit Matter

 - Annuity Overpayment
Jurisdiction - Whether Agency Action Completely Rescinded
Timeliness - New Appeal

    The appellant petitioned for review of an initial decision that dismissed her appeal for lack of jurisdiction.  In an initial determination issued in November 2004, OPM notified the appellant of its determination that she had been overpaid $18,692 in annuuity payments, and that it intended to recover the overpayment by having the appellant's indebtedness withheld from her recurrent workers' compensation benefits.  The appellant timely sought reconsideration, and OPM issued a reconsideration decision in February 2006 stating that it was affirming its initial determination, but that the amount of the overpayment had been changed to $13,143.  The appellant has asserted that neither she nor her representative received a copy of this reconsideration decision.  In April 2006, OPM issued the appellant another letter in which it indicated that the appellant had received an overpayment of $18,692, and which made no reference to the February 2006 reconsideration decision.  The appellant responded to the letter, but OPM did not respond.  In May 2006, OPM notified the Office of Workers' Compensation Programs (OWCP) that due process had been provided to the appellant and that it should begin withholding funds, and OWCP began deducting $300 per month in July 2006.  The appellant sent additional letters to OPM, but OPM did not respond.  The appellant filed this appeal in December 2011.  OPM stated that it had decided to rescind its February 2006 reconsideration decision, and moved that the appeal be dismissed for lack of jurisdiction.  It stated that, once the appeal was dismissed, it would recompute the amount of the overpayment and, "if warranted," issue a new final decision.  OPM did not allege or provide evidence that it had returned the money that had already been deducted from the appellant's OWCP benefits.

Holdings:  The Board granted the appellant's petition for review and remanded the case for further adjudication:

1. If OPM completely rescinds a reconsideration decision, the rescission divests the Board of jurisdiction over the appeal in which the reconsideration decision is at issue, and the appeal must be dismissed.  However, an agency's unilateral modification of its action after an appeal has been filed cannot divest the Board of jurisdiction unless the appellant consents to such divestiture or unless the agency completely rescinds the action being appealed.

2.  The February 2006 reconsideration decision is not the subject of this appeal; the decision the appellant was challenging was OPM's April 2006 letter, which superseded the February 2006 decision with respect to the amount of the alleged overpayment and the repayment schedule.  

3.  The April 2006 letter is tantamount to a final decision within the Board's jurisdiction.

4.  OPM's attempt to unilaterally divest the Board of jurisdiction by "rescinding" the already-superseded February 2006 reconsideration decision is unavailing.  Among other reasons, OPM has not restored the appellant to the status quo ante.  

5.  On remand, the administrative judge should address the timeliness of the appeal.  


Petitioner:  Sheri Lynn Denney
Respondent:  Office of Personnel Management
Tribunal:  U.S. Court of Appeals for the Federal Circuit
Docket Number:  2012-3094
Issuance Date:  February 8, 2013

 - Annuity Calculation
 - Availability Pay - Part-Time Service

    The issue in this case was whether Denney was entitled to include "availability pay" in the calculation of her retirement annuity.  Both OPM and the Board resolved that question in the negative.  Denney served as a criminal investigator or special FBI agent from 1983 until her retirement in 2008.  From 1983 until early 2001, she was eligible for and received "availability pay" under 5 U.S.C. 5545a.  To be eligible for availability pay, a criminal investigator must work at least 40 hours per week and actually work or be available to work an additional 2 hours per regular workday.  Beginning February 25, 2001, Denney began working part-time and was no longer eligible for, and no longer received, availability pay.  After she retired in 2008, Denney's retirement annuity was calculated under 5 U.S.C. 8415.  The first step is to calculate "average pay" -- using the "annual rate of basic pay that would be payable for full-time service in the position -- for the employee's "high three" years of service.  The second step is to prorate the calculated average pay in accordance with the employee's ratio of full-time to part-time service.  In this case, OPM determined that Denney's last 3 years of service -- 2006 to 2008 -- were her "high three" years.  In calculating average pay for that period, OPM did not include availability pay because Denney was not eligible for and did not receive availability pay.  

Holdings:  The court held that OPM properly did not include availability pay in calculating Denney's "average pay" for her high three years.  Denney's argument hinges on the notion that availability pay is automatically part of basic pay.  The relevant statutory language as well as the facts of this case demonstrate that the forms of additional pay enumerated in the statute, including availability pay, are part of basic pay for retirement annuity purposes only when an employee was eligible for and received such additional pay during the employee's high-three years of service.  Denney did not meet this requirement.

Petitioner:  Rayland Young
Respondent:  Department of Housing & Urban Development
Tribunal:  U.S. Court of Appeals for the Federal Circuit
Docket Number:  2011-3232
Issuance Date:  February 12, 2013

Constitutional Issues - Due Process
Harmful Procedural Error

    The court reviewed an arbitrator's opinion and award denying Young's grievance challenging his termination from employment.  The basis for the termination was Young's alleged misconduct during an earlier arbitration hearing concerning his 5-day suspension for disruptive behavior, misrepresentation of authority, and use of insulting language to and about other employees.  During a recess in that proceeding, Young allegedly shouted at an individual (Darr) who had just testified, "You are a racist.  Your are a member of the KKK, and you should be shot."  Young denied the accusation.  After Young's removal had been proposed, and after he had provided written and oral responses to the notice of proposed removal, the agency's deciding official conducted interviews with a number of witnesses in the case.  Young was not notified of these interviews and he did not have the opportunity to reply to the information gained from those interviews.  Both the deciding official and the arbitrator found Darr's testimony to be more credible than that of Young and his witnesses, finding that there were inconsistencies in the stories related by the latter.  The arbitrator found Young's due process arguments to be unfounded because Young had been given adequate time at the end of his arbitration hearing to address them.

Holdings:  A majority of the court, Judge Prost dissenting, reversed the arbitrator's decision, finding that the agency violated Young's due process rights and committed harmful procedural error:

1.  Under Stone v. Fed. Deposit Ins. Corp., 179 F.3d 1368 (Fed. Cir. 1999) and Ward v. U.S. Postal Service, 634 F.3d 1274 (Fed. Cir. 2011), when an employer obtains new and material information through ex parte communications, an employee's constitutional due process guarantee of notice and the opportunity to respond are undermined.  Where an employee has notice only of certain charges or portions of the evidence and the deciding official considers new and material information, procedural due process guarantees are not met because the employee is no longer on notice of the reasons for dismissal and/or the evidence relied upon by the agency.  

2.  In Stone, the court identified factors to consider when determining if new and material information has been introduced:  (1) whether the ex parte communication introduces "cumulative" information or new information; (2) whether the employee knew of the communication and had a chance to respond to it; and (3) whether the ex parte communication resulted in undue pressure upon the deciding official to rule in a particular manner.  

3.  Regarding the first factor, the ex parte communications in this case were more than "confirming and clarifying information" that was already on the record because the deciding official described the ex parte communication as a "huge" departure from written statements already on the record, and admitted that the ex parte communications were the most critical statements in her mind.

4.  As the court observed in Ward, the third Stone factor, undue pressure, is less relevant in determining whether a due process violation occurred where, as here, the deciding official admits that the ex parte communications influenced her determination.

5.  Regarding the second Stone factor, unlike in Blank v. Department of the Army, 247 F.3d 1225 (Fed. Cir. 2001), the arbitrator performed no due process analysis whatsoever.  Young's opportunity to reflect on the deciding official's activities post-termination does not address whether Young had notice and an opportunity to be heard at the investigation stage.  The controverted ex parte contacts occurred after Young had made his written and oral statements to the deciding official.  Young was entitled to "procedural fairness at each stage of the removal proceedings," not just upon review of the termination decision.  No amount of time for reflection can excuse past due process violations.

6. The majority concluded as a matter of law that the ex parte communications in this case were so substantial and so likely to cause prejudice that no employee can fairly be required to be subjected to a deprivation of property under these circumstances.

7. Even if Young's due process rights had not been violated, the deciding official's conduct resulted in harmful procedural error, requiring reversal, in that the agency violated 5 C.F.R. 752.404(g)(1), which provides that a deciding official may "consider only the reasons specified in the notice of proposed action and any answer of the employee" in arriving at a removal decision.  

     In her dissenting opinion, Judge Prost stated:

 Young received all the process he was due--and more.  The majority views the termination proceedings with blinders, focusing solely on one particular portion of [the deciding official's] investigation without considering the extensive pre- and post-termination proceedings that Young received.  In doing so, the majority creates an unnecessarily stringent due process standard that bumps up against Supreme Court precedent and opens the door to meritless claims by duly-terminated employees.  

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

Seda v. Department of the Army, No. 2012-3173 (Feb. 8, 2013) (MSPB Docket No. PH-0752-10-0382-B-1 and PH-0752-10-0382-I-1) (affirming the Board's decision, which sustained Seda's removal and denied his affirmative defense of whistleblower reprisal)

Frederick-Bey v. Merit Systems Protection Board, No. 2012-3165 (Feb. 8, 2013) (MSPB Docket No. DC-0752-11-0799-I-1 ) (affirming the Board's decision, which dismissed the appeal as withdrawn)

Prasch v. Office of Personnel Management, No. 2012-3185 (Feb. 11, 2013) (MSPB Docket No. AT-0845-11-0223-I-1) (affirming the Board's decision, which found that Prasch had received an overpayment of annuity benefits and was not entitled to a waiver of OPM's right to recover that overpayment)

Gerhard v. Office of Personnel Management, No. 2012-3187 (Feb. 11, 2013) (MSPB Docket No. AT-0731-11-0735-I-1) (affirming the Board's decision, which affirmed OPM's suitability action OPM cancelling any eligibility that Gerhard had or may have had for covered positions and debarring her from federal service until January 2014)

Beyers v. Department of State, No. 2012-3099 (Feb. 12, 2013) (MSPB Docket No. DC-3330-11-0538-I-1) (vacating and remanding the Board's decision, which dismissed Beyers' VEOA claim on the ground that the petitioner’s claim was barred by law of the case principles in a case where Beyers was denied employment for a position based on a failed suitability determination)

Williams v. U.S. Postal Service, No. 2012-3200 (Feb. 12, 2013) (MSPB Docket No. AT-0752-10-0284-B-1) (affirming the Board's decision, which affirmed Williams's removal based on leave-related charges)

Barnett v. Department of Veterans Affairs, No. 2012-3189 (Feb. 12, 2013) (MSPB Docket No. DC-0432-12-0392-I-1) (affirming the Board's decision, which affirmed Barnett's removal for unacceptable performance)

Abrego v. Department of Homeland Security, No. 2012-3070 (Feb. 12, 2013) (MSPB Docket No. DA-0752-11-0025-I-1) (affirming per Rule 36 the Board's decision, which affirmed Abrego's removal)

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