U.S. Merit Systems Protection Board 
Case Report for March 29, 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:  Clifford S. Nasdahl
Agency:  Department of Veterans Affairs
Decision Number:  2013 MSPB 21
Docket Number:  AT-0839-11-0993-I-1
Issuance Date:  March 15, 2013
Appeal Type:  FERCCA
Action Type:  Retirement/Benefit Matter

Retirement - FERCCA

    The agency petitioned for review of an initial decision that reversed its decision to correct the appellant's retirement coverage under the Federal Erroneous Retirement Coverage Act (FERCCA).  In an August 2011 letter, the agency notified the appellant that a review of his retirement records indicated that he was entitled to corrective action under FERCCA due to an error in his retirement plan coverage.  The agency determined that, when the appellant's appointment was converted from a temporary one to a career-conditional appointment in 1984, he should have been placed under Civil Service Retirement System (CSRS) Interim retirement coverage instead of CSRS coverage, and that the appellant should have been placed under CSRS Offset since 1987.  On appeal, the appellant asserted that the error in his retirement coverage had continued for 30 years and stated that he would like to remain covered by CSRS.  The administrative judge reversed the agency's determination, finding that the appellant's conversion to a career-conditional appointment in 1984 transformed his prior temporary appointments into CSRS-covered service.

Holdings:  The Board granted the agency's petition for review and reversed the initial decision, finding that the agency had properly corrected the appellant's retirement coverage:

1.  The applicable regulation, 5 C.F.R. 831.201(a)(1), provides that employees who are serving under appointments limited to 1 year or less, as the appellant was serving during the relevant time period, are excluded from CSRS retirement coverage.  When an employee serving in temporary appointments that are excluded from CSRS coverage is converted to a career-conditional appointment, retirement coverage does not attach retroactively to those prior periods of service.

2.  Accordingly, the agency correctly determined that the appellant should have been covered under CSRS Interim, which later became CSRS Offset upon his career-conditional appointment in 1984.  Under these circumstances, correction of the retirement coverage error is mandatory.



Appellant:  John Paul Jones, III
Agency:  Department of Health and Human Services
Decision Number:  2013 MSPB 22
Docket Numbers:  DE-3330-11-0370-I-1, DE-3330-11-0380-I-1
Issuance Date:  March 25, 2013
Appeal Type:  Veterans Employment Opportunities Act

Veterans' Rights - VEOA

    Both parties petitioned for review of an initial decision that granted in part the appellant's request for corrective action in these VEOA appeals.  The appellant, a 5-point preference eligible veteran, applied for positions with the agency as a Public Health Advisor under Vacancy Announcements 205 and 244, which were issued in February and March of 2010.  With respect to Announcement 205, the appellant had expressed his interest in positions to be filled in Kazakhstan, and his name was included on an applicant listing report (ALR) when a position in Kazakhstan opened.  The agency's automated QuickHire application system placed applicants in one of 3 categories on the ALR:  Best Qualified, Well Qualified; and Qualified.  The system placed the appellant in the Well Qualified category.    A Human Resources (HR) employee reviewed the Kazakhstan applicants' preference eligibility documentation to determine if the applicants were entitled to any preference claimed.  Although there was a notation next to the appellant's name indicating that he was entitled to veterans' preference, the HR employee superimposed a new notation erroneously indicating that the appellant was a nonveteran.  A certificate of eligibles for Announcement 205 was prepared that contained the names of only 2 candidates, both of whom were rated as Best Qualified.  Ultimately, however, the agency did not make a selection for the Kazakhstan position under Announcement 205, allowed the certificates to expire, and subsequently issued new announcements for the Public Health Advisor position.  With respect to Announcement 244, the agency's automated QuickHire system incorrectly listed the appellant as a nonveteran, but there was no request to fill a vacancy under Announcement 244 after the appellant submitted his application.

     In his Board appeal, the appellant alleged that the agency violated his veterans' preference rights by failing to select him for the position in Kazakhstan, as well as a position in Uganda, under Announcement 205, and that the agency violated his veterans' preference rights in Announcement 244 by incorrectly listing him as a nonveteran.   The administrative judge found that the agency violated the appellant's veterans' preference rights  in the rating process for the Kazakhstan position under Announcement 205 by failing to afford him any veterans' preference, and ordered the agency to fully reconstruct the selection process for the Kazakhstan position.  With respect to the Uganda position under Announcement 205, the judge found that the appellant failed to prove that he applied for a position in Uganda, and therefore lacked standing to challenge the Uganda selection process.  With regard to Announcement 244, the judge found that the appellant failed to show that the agency violated a law or regulation relating to veterans' preference because there was no vacancy to fill under this announcement after the appellant applied.  

Holdings:  The Board affirmed the initial decision insofar as it found that the agency violated the appellant's veterans' preference rights with respect to the ranking of candidates for the Public Health Officer position in Kazakhstan, but that reconstructing the selection process for that vacancy is not warranted, and affirmed the initial decision in other respects:

1. The administrative judge correctly found that the agency failed to accord the appellant veterans' preference in the rating process for the Kazakhstan position under Announcement 205.  

2.  Because the agency did not select anyone for the Kazakhstan position under Announcement 205, the appellant did not suffer any harm as a result of the agency's failure to afform him veterans' preference, and reconstruction of the selection process for the Kazakhstan position is not warranted.

3. The appellant failed to prove that the judge abused his discretion in his discovery and evidentiary rulings.

4. The judge correctly found that the appellant failed to establish that he applied for a position in Uganda.

5. The judge correctly denied the appellant's request for corrective action with respect to Announcement 244.



COUR DECISIONS


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

McDaniel v. Merit Systems Protection Board, No. 2012-3183 (March 8, 2013) (MSPB Docket NoS. SF-0353-11-0075-I-2, SF-0353-11-0167-I-2) (affirming the Board's decisions, which dismissed two restoration appeals for lack of jurisdiction)

Simpkins v. Office of Personnel Management, No. 2012-3201 (March 8, 2013) (MSPB Docket No. DC-844E-11-0968-I-1) (affirming the Board's decision, which dismissed a retirement appeal under the doctrine of res judicata)

Howard v. Department of Transportation, No. 2012-3143 (March 11, 2013) (MSPB Docket No. SF-1221-11-0384-W-1) (affirming the Board's decision, which found that the agency did not engage in retaliation for whistleblowing when it terminated Howard’s temporary assignment as a Supervisory Air Traffic Control Specialist returned him to his permanent position as a facility Air Traffic Control Specialist)

Baney v. Merit Systems Protection Board, No. 2013-3003 (March 11, 2013) (MSPB Docket No. DA-0752-12-0158-I-1) (affirming the Board's decision, which dismissed for lack of jurisdiction Baney's claim of an involuntary retirement)

Ingram v. Office of Personnel Management, No. 2013-3022 (March 12, 2013) (MSPB Docket No. DC-831E-09-0776-M-1) (affirming the Board's decision, which affirmed OPM's denial of Ingram's application for disability retirement)

Marshall v. Merit Systems Protection Board, No. 2013-3012 (March 12, 2013) (MSPB Docket No. NY-0353-11-0257-I-1) (affirming the Board's decision, which dismissed the appeal on the basis that Marshall failed to make a nonfrivolous allegation of an agency action constituting a denial of restoration)

Payton v. Merit Systems Protection Board, No. 2012-3212 (March 12, 2013) (MSPB Docket No. AT-1221-11-0957-W-1) (affirming the Board's decision, which dismissed this IRA appeal on the basis that Payton failed to make nonfrivolous allegations that she made whistleblowing disclosures)

Burnett v. Merit Systems Protection Board, No. 2012-3176 (March 12, 2013) (MSPB Docket No. CH-1221-11-0614-W-1) (affirming the Board's decision, which dismissed this IRA appeal as untimely filed)

Burnett v. Department of Justice, No. 2012-3102 (March 14, 2013) (MSPB Docket No. SF-0432-11-0400-I-1) (affirming per Rule 36 the Board's decision, which affirmed Burnett's removal for unacceptable performance under 5 U.S.C. chapter 43)

FEDERAL REGISTER NOTICE

     On March 20, 2013, the Merit Systems Protection Board announced the opportunity to file amicus briefs in King v. Department of the Air Force, an appeal currently pending before the Board on interlocutory appeal.  78 Fed. Reg. 17233.  The administrative judge certified for interlocutory review the question whether the provisions of the Whistleblower Protection Enhancement Act of 2012 (WPEA), Public Law 112-199, regarding damages may be applied retroactively to cases pending prior to the effective date of the WPEA.  Prior to enactment of the WPEA, corrective action available to individuals who have suffered reprisal for whistleblowing disclosures included reasonable and foreseeable "consequential" damages, which have been construed to be limited to pecuniary, out-of-pocket expenses, but not compensatory, or nonpecuniary, damages.  Under section 107(b) of the WPEA, corrective action may also include "compensatory damages (including interest, reasonable expert witness fees, and costs)."  The Board must determine in King whether to apply the WPEA standard or the previous law in determining what corrective action is available in appeals pending prior to the effective date of the WPEA.  

     All amicus briefs shall be captioned "Barbara R. King v. Department of the Air Force," and entitled "Amicus Brief," and must be filed with the Clerk of the Board.  The Board encourages interested persons and organizations to submit amicus briefs as attachments to email, which can be submitted in any commonly-used word-processing or PDF format, to [email protected]  All amicus briefs must be received by the Clerk of the Board on or before April 12, 2013.  
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