U.S. Merit Systems Protection Board 
Case Report for April 19, 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:  Kathryn Michelle Walker
Agency:  Department of the Army
Decision Number:  2013 MSPB 29
Docket Number:  PH-315H-12-0281-I-1
Issuance Date:  April 12, 2013
Appeal Type:  Termination of Probationers

Jurisdiction - Probationers

    The appellant petitioned for review of an initial decision that dismissed her probationary termination appeal for lack of jurisdiction without a hearing.  On March 28, 2011, the appellant was appointed to a competitive service position that was subject to a 1-year probationary period.  On March 9, 2012, the agency furnished her a letter notifying her that it was terminating her employment effective that day for alleged performance and conduct deficiencies.  On appeal to the Board, the appellant alleged among other things, that she had completed her probationary period, in that the agency did not actually separate her from service on March 9, 2012, but rather carried her on the rolls in leave without pay status until April 6, 2012.  She submitted copies of leave and earning statements to support this contention.  The agency argued that the leave and earnings statements do not reflect a belated separation as the appellant claims they do, but merely reflect that Defense Finance and Accounting Services was unaware of the separation until some weeks after it occurred.

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

1. Although there is no statutory requirement that the Board hold a hearing on the threshold issue of jurisdiction, a hearing should be held if an appellant makes a nonfrivolous allegation of jurisdiction.  Although a judge may consider an agency's documentary evidence in this regard, the judge may not weigh the evidence and resolve conflicting factual assertions.

2. The appellant has raised a nonfrivolous allegation of jurisdiction that requires an evidentiary hearing to resolve the parties conflicting assertions.

a. The facts and assertions in this case are very similar to those in two other cases in which the Board determined that a jurisdictional hearing was required, Liu v. Department of Agriculture, 106 M.S.P.R. 178 (2007), and Coleman v. Department of the Army, 106 M.S.P.R. 436 (2007).  

b. Liu and Coleman are not inconsistent with the Board's previous decision in Vandewall v. Department of Transportation, 52 M.S.P.R. 150 (1991), as the agency contended.  The Board agreed with the agency that the approval date on the SF-50 is immaterial to the effective date of the termination, but disagreed that Liu or Coleman stand for a contrary proposition.  The finding that the appellant made a nonfrivolous allegation does not rely on the approval date of the SF-50; it is based on the discrepancy documented in the leave and earnings statement.

3.  The Board found the appellant's contention that she was terminated for pre-appointment reasons to be unsupported.



Appellant:  David A. Brenner
Agency:  Department of the Interior
Decision Number:  2013 MSPB 30
Docket Number:  SF-0752-09-0804-A-1
Issuance Date:  April 16, 2013
Appeal Type:  Adverse Action by Agency
Action Type:  Attorney Fee Request

Attorney Fees
 - Incurred - Status as Attorney

    The appellant petitioned for review of an addendum initial decision that denied his application for attorney fees and associated costs.  In the underlying appeal, a 30-day suspension was mitigated to a 3-day suspension.  In the attorney fees proceeding, the dispositive issue was whether the appellant's representative was an attorney eligible for an award of attorney fees under 5 U.S.C. 7701(g)(1).  The appellant did not claim that the representative (Zvenia) was admitted to practice law before either the United States Supreme Court or the highest court of any state or the District of Columbia.  Rather, he contended that Zvenia qualified as an attorney eligible for a fee award based on his tribal court admissions and voluntary bar association memberships.  

Holdings:  The Board affirmed the addendum initial decision:

1. Under section 7701(g)(1), the Board may require payment by the agency of reasonable attorney fees incurred if the employee is the prevailing party and the Board determines that payment is warranted in the interest of justice.  Attorney fees are incurred where an attorney-client relationship exists and counsel has rendered legal services on behalf of the appellant in an appeal before the Board.

2. An attorney-client relationship does not exist between an appellant and his non-attorney representative.  An appellant would not have incurred attorney fees under the statute unless the representative was appearing as an attorney.  

3. The ordinary meaning of the term "attorney" in fee-shifting statutes is someone licensed by the government to practice law generally.  This includes an individual who is a member in good standing of the bar of the highest court of a "State."  A "State" means any of the 50 states, a territory or possession of the United States, or the District of Columbia.  Because it was undisputed that Zvenia is not a member in good standing of the bar of the highest court of one of the 50 states or the District of Columbia, he could practice as an attorney and incur attorney fees only if one or more of the tribes in which he is authorized to practice qualifies as a "territory or possession of the United States."  The Board found that this was not the case.  



Appellant:  Albert A. Cerilli, Jr.
Agency:  Office of Personnel Management
Decision Number:  2013 MSPB 31
Docket Number:  NY-0831-12-0150-I-1
Issuance Date:  April 17, 2013
Action Type:  Retirement/Benefit Matter

Retirement
 - Survivor Annuity

    The appellant petitioned for review of an initial decision that affirmed an OPM reconsideration decision denying his request for an increased survivor annuity benefit.  When the appellant's late wife retired under the Civil Service Retirement System (CSRS) in 2006, she chose a reduced annuity with a partial survivor annuity for the appellant equal to 55% of $3600 a year, and he signed a consent form associated with his wife's election.  After the appellant's wife died in 2010, OPM advised him that he was entitled to, and would receive, a monthly survivor benefit of $178.  The appellant replied that this figure was "not plausible," explaining that he agreed to a reduced New York State pension in order to leave his wife 25% of his total pension upon his death and that it was his understanding that he was to receive 25% of her pension.  He suggested that he had signed the consent form without reading it, and argued that he would not knowingly have agreed to receive such a small benefit.  On appeal to the Board, the appellant repeated this argument and also alleged that he did not personally complete all portions of the consent form.  After conducting a hearing, the administrative judge affirmed OPM's reconsideration decision.  In his petition for review, the appellant repeats the arguments made below, and also challenges OPM's proof that it met its statutory obligation to send the appellant's wife notice that she had 18 months after retirement to increase the amount of a survivor annuity.  

Holdings:  The Board affirmed the initial decision:

1. Under the CSRS, the surviving spouse of a retired federal employee is entitled to an annuity equal to 55% of the retiree's annuity unless the survivor consented in writing to receive no annuity or a reduced annuity at the time of the employee's retirement.  A retiree may, within 18 months after retirement, choose to increase the size of a less-than maximum survivor annuity benefit for her spouse.

2. The judge appropriately found that the appellant signed the consent form, consenting to receive 55% of $3600, before a notary.  That he did so without reading it, based on an understanding he claims he had with his wife, does not render his consent invalid.

3. The Board found that the appellant had failed to establish that waiver of the 18-month statutory deadline for increasing the amount of the survivor annuity was warranted on the basis that OPM failed to give the notice provided by law.  OPM provided credible evidence establishing a presumption that it sent the appellant's wife the required notice.  To the extent that McDonald v. Office of Personnel Management, 115 M.S.P.R. 236 (2010), could be read as requiring OPM to submit the mailing list it used in order to meet its burden of proof, it is overruled.  



Appellant:  Debra L. Walker-King
Agency:  Department of Veterans Affairs
Decision Number:  2013 MSPB 32
Docket Number:  DA-0752-11-0475-C-1
Issuance Date:  April 17, 2013
Appeal Type:  Adverse Action by Agency
Case Type:  Compliance

Compliance
 - Settlement-Related
 - Interpretation/Construction of Settlement

    The appellant petitioned for review of an initial decision that denied her petition for enforcement of a settlement agreement that resolved an appeal of her removal.  The settlement agreement provided that:  "If [the appellant] is physically qualified and returns to duty no later than December 1, 2011, the parties agree to reinstate her to employment" retroactive to the date of her removal, and provided that she "understands and agrees that prior to being reinstated she must complete and pass a pre-employment physical . . . ."  The appellant completed a pre-employment physical on November 30, 2011, and submitted an evaluation from her treating physician reflecting that the appellant could not use her right arm for 3 to 4 months as a result of rotator cuff surgery she underwent in September 2011.  The treating physician stated that the appellant was "[n]ot qualified without accommodation."  Separately, on December 2, 2011, the appellant contacted the agency and left a voicemail message stating that she "did fail my physical because I'm physically not ready to come back to work just yet."  The agency did not reinstate the appellant to employment on the basis that she had not met the condition that she be "phsically qualified" by December 1, 2011.  In the compliance proceeding before the administrative judge, the appellant contended that the settlement agreement required the agency to provide her with a reasonable accommodation under the Rehabilitation Act in connection with her efforts to return to work.  The judge concluded that the appellant was not physically qualified to perform her job on or before December 1, 2011, and that she failed to establish a breach of the settlement agreement by the agency.

Holdings:  A majority of the Board, Member Robbins dissenting, granted the appellant's petition for review and remanded the case to the regional office for further adjudication:

1. A contract is ambiguous when it is susceptible to differing, reasonable interpretations.  

2.  Because the term "physically qualified" is ambiguous, a remand is necessary.

a. The term "physically qualified" is not defined in the settlement agreement.

b. The appellant's interpretation that the term incorporates whether she could perform the essential functions of her job with a reasonable accommodation under the Rehabilitation Act is a reasonable one.  So is the agency's interpretation that the term required that the appellant be able to perform the essential functions of her job without accommodation.

c. Where a contract is ambiguous, it is appropriate to consider extrinsic evidence of the parties' intent in reaching their agreement, and remand is necessary to gather and consider such evidence.  

3. If it is determined that the parties did not have a meeting of the minds regarding the meaning of the term "physically qualified," the settlement agreement could be set aside in its entirety with the underlying removal appeal being reinstated, or the appellant could choose to accept the agreement under the agency's interpretation.  

    In a dissenting opinion, Member Robbins stated that the Board was "stretching to find ambiguity where none exists within the plain meaning of the language of the settlement agreement . . . ."  He stated that the term "physically qualified" is "simple and unmodified," and that adding the modifier "with reasonable accommodation" after the term would also have been simple and unambiguous.  



COURT DECISIONS

Petitioner:  Marie C. Conforto
Respondent:  Merit Systems Protection Board
Tribunal:  U.S. Court of Appeals for the Federal Circuit
Docket Number:  2012-3119
Issuance Date:  April 18, 2013

Jurisdiction
 - Alleged Involuntary Retirement
 - Discrimination
 - Appeal Rights

    At issue in this case was whether the Federal Circuit was the correct court to review the Board's action dismissing an appeal for lack of jurisdiction on the basis that Ms. Conforto had failed to make a nonfrivolous allegation that her retirement from her position with the Navy was involuntary.  She alleged that the actions taken by the agency that induced her to retire were motivated by age and sex discrimination, as well as retaliation for her prior equal employment opportunity activity.  Although Ms. Conforto sought review in the Federal Circuit, she then challenged that court's jurisdiction to hear her appeal in light of the Supreme Court's recent decision in Kloeckner v. Solis, 133 S. Ct. 596 (2012).  

Holdings:  The court concluded that it had jurisdiction and affirmed the Board's decision:

1. In a "mixed case," i.e., a case that is appealable to the MSPB, and in which the appellant also alleges that she was subjected to unlawful discrimination, the Board reviews both the appealable employment action and the related discrimination claim.  If an employee loses her mixed case appeal on the merits of her discrimination claim, she may obtain further review of the adverse decision, either from a district court or from the EEOC and then a district court, but not from the Court of Appeals for the Federal Circuit.  

2. In Kloeckner v. Solis, the Supreme Court held that, when the Board dismisses a mixed case on procedural grounds such as untimeliness, court review would properly be in a district court, not the Federal Circuit.  

3. When the Board dismisses an appeal for lack of jurisdiction, court review properly lies in the Federal Circuit, not with a district court.

a.  Section 7703(b)(1) of Title 5 states that, except for one relevant exception provided in section 7703(b)(2), review of a final order of the Merit Systems Protection Board will be in the Federal Circuit.  Section 7703(b)(2) states that "cases of discrimination subject to the provisions of section 7702" shall be filed in the district court.  Therefore, appeals of Board decisions must be brought in the Federal Circuit unless they are subject to section 7702.  Section 7702, in turn, applies to cases in which an employee "(A) has been affected by an action which the employee . . . may appeal to the Merit Systems Protection Board" and "(B) alleges . . . discrimination."  These are the mixed case appeals.

b. Because an employee "may appeal to the Merit Systems Protection Board" only if the employee's claim is within the Board's appellate jurisdiction, the plain import of this statutory language is that a purported mixed case appeal is reviewed by a district court only if the Board has jurisdiction to decide the appeal from the adverse action in issue.  

c. It therefore follows that sections 7703(b)(1) and 7702(a)(1)(A) give the Federal Circuit jurisdiction to review a Board determination that an employee's case is not appealable to the Board, regardless of whether the employee has sought to raise claims of agency discrimination.  The statute, moreover, requires that the Board actually have jurisdiction over the employee's claim, not merely that the employee allege Board jurisdiction.  

4. Disagreeing with the dissent, the majority stated that its decision did not deprive a litigant such as Ms. Conforto of the right to a ruling on her discrimination claims.  A federal employee in her position can elect to bypass the MSPB altogether and file a complaint against her agency in district court.  

5. The majority also disagreed with the dissent's assertion that, in the context of claims of involuntary separation, deciding the issue of Board jurisdiction necessarily requires the court to decide the merits of the employee's discrimination claim, because the issues of discrimination and Board jurisdiction are "identical."  The two questions -- involuntariness and discrimination -- present distinct issues.  Coercion can be found without proof that the improper conduct was the product of discrimination, and discrimination can be found without proof that the discriminatory conduct was so serious as to compel the employee to resign or retire.

6. On the merits of the jurisdictional issue, the Board was correct in ruling that Ms. Conforto failed to make a nonfrivolous showing that her retirement was "involuntary and thus tantamount to a removal."  

     In a dissenting opinion, Judge Dyk expressed the view that the "majority holds that this circuit has jurisdiction to review Merit Systems Protection Board ("Board") decisions in mixed cases involving discrimination allegations even though, as the Supreme Court recently held, Congress specifically exclusded those cases from our jurisdiction and required review in district court."  Judge Dyk saw no proper basis for distinguishing between jurisdictional issues and procedural issues, and that the holding of Kloeckner v. Solis should therefore apply here.  



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

Lovett v. Internal Revenue Service, No. 2012-3030 (April 12, 2013) (affirming an arbitrator's decision sustaining Lovett's removal)

Jones v. Department of Justice, No. 2012-3144 (April 16, 2013) (MSPB Docket No. SF-315H-11-0741-I-2) (affirming the Board's decision, which affirmed the agency's decision to terminate Jones' probationary employment)



FEDERAL REGISTER NOTICE

     On April 19, 2013, the Merit Systems Protection Board issued a final rule amending its rules of practice and procedure in order to correct several minor errors inadvertently introduced into the Board's regulations during a recent comprehensive revision of the Board's adjudicatory regulations.  78 Fed. Reg. 23457.  The regulations amended were:  

  • 5 C.F.R. 1201.74(a) (orders for discovery) to correct references to section 1201.73; 
  • 5 C.F.R. 1201.112(a)(4) (jurisdiction of judge) to clarify an administrative judge's authority to vacate an initial decision to accept a settlement agreement into the record; 
  • 5 C.F.R. 1201.114(k) (petition an cross petition for review - content and procedure) regarding requirements for the submission of new evidence or argument; and 
  • 5 C.F.R. 1208.22(c) (VEOA - time of filing) to specify the correct deadline for filing a VEOA appeal).

U.S. Merit Systems Protection Board | Case Reports