U.S. Merit Systems Protection Board 
Case Report for June 14, 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:  Peter J. Agoranos
Agency:  Department of Justice
Decision Number:  2013 MSPB 41
Docket Numbers:  CH-1221-11-0466-W-1 & CH-0432-11-0182-R-1
Issuance Date:  June 7, 2013
Appeal Type:  Individual Right of Action (IRA)

Whistleblower Protection Act
 - Election of Remedies
 - Timeliness

    The appellant petitioned for review of an initial decision that denied his request for corrective action in an IRA appeal.  The appellant filed a complaint with the Office of Special Counsel (OSC) alleging that the agency took several personnel actions against him, the last of which was a removal for unacceptable performance under 5 U.S.C. chapter 43, in retaliation for making whistleblowing disclosures.  He subsequently filed an appeal of the removal action with the Board, which noted the complaint pending before the OSC.  In a December 21, 2010 response to the administrative judge's Acknowledgment Order, the appellant submitted various documents, including the OSC's December 16, 2010 closure letter to the whistleblower complaint he had filed.  In a subsequent telephone status conference, the appellant stated that he intended to file an IRA appeal.  The judge explained that "should the appellant wish to keep the removal appeal separate from the IRA appeal, [he] would joint the appeals.  The agency would then be required to prove the removal action by substantial evidence and the whistleblowing allegation would be heard as an affirmative defense."  Seven days after the status conference, the appellant filed a separate IRA appeal.  The judge issued an initial decision dismissing the removal appeal, stating that the appellant expressed a desire "to have his challenge to the removal action incorporated within the IRA request for corrective action."  The agency moved to dismiss the IRA appeal as untimely filed, i.e., more than 60 days after OSC's closure letter.  The judge denied the motion, determining that the appellant effectively filed his IRA appeal on December 21, 2010, when he responded to he Acknowledgment Order, informed the Board of OSC's closure letter, and stated that his appeal was properly before the Board.  The judge reasoned that this filing should have been docketed as an IRA appeal.  The judge found that the appellant had established jurisdiction over the IRA appeal and, after holding a hearing, denied the appellant's request for corrective action on the merits.  

Holdings:  The Board affirmed the initial decision in the IRA appeal in part and vacated it in part, and remanded it for further adjudication; it also reopened the appellant's removal appeal for further adjudication:

1. The administrative judge properly found that the IRA appeal was effectively filed on December 21, 2010, and thus was timely filed.

2. The appellant's election to seek corrective action before OSC befoe filing a Board appeal was not a binding election and did not preclude his removal appeal.  

a. 5 U.S.C. 7121 contains three provisions giving employees options with regard to avenues of relief other than the negotiated grievance process for certain personnel actions.  Subsection (d) deals with actions that might constitute discrimination under 5 U.S.C. 2302(b)(1).  Subsection (e) deals with actions covered under 5 U.S.C. 4303 and 7512.  Under subsection (g), an individual who has been subjected to an action that is appealable to the Board and who alleges that he has been affected by a prohibited personnel practice other than discrimination may elect to pursue one, but only one, of the following remedial processes:  (1) an appeal to the Board under 5 U.S.C. 7701; (2) a grievance filed pursuant to the negotiated grievance procedure; or (3) a complaint following the procedures for seeking corrective action from OSC under 5 U.S.C. 1211-1222.  

b. For matters arising under subsections (d) and (e) of section 7121, the Board has long held that an agency's failure to provide proper notice of the "potential avenues of recourse" and of the limitations on those rights precludes finding that the employee has made a knowing and informed election and thus renders it invalid.  In Feiertag v. Department of the Army, 80 M.S.P.R. 264 (1998), however, the Board departed from the longstanding approach of enforcing only a knowing and informed election of remedies, holding that an election under subsection (g) is binding regardless of whether the "individual is aware of all of his options, and of the effect that pursuing a particular option will have on his ability to pursue other options."  

c. The Board found no principled basis for concluding that Congress intended that the election of remedies requirement in subsection (g) of section 7121 have an entirely different meaning than in two other subsections in the same provision.  Consistent with general rules of statutory construction, Congress can be assumed to have been aware of the Board's interpretation of subsections (d) and (e) when it enacted subsection (g) in 1994.  The Board therefore overruled Feiertag and held that for adverse actions appealable to the Board under sections 4303 and 7512, an employee's election of remedies under subsection (g) must be knowing and informed, and, if it is not, it will not be binding upon the employee.  

d. Here, the appellant's election to file a complaint with OSC was not a knowing and informed one.  The agency's removal action did not notify him of his right to file a request for corrective action with OSC or of the effect that such an election would have on his appeal rights before the Board.  

e. The Board rejected the agency's contention that the appellant had made a "strategic choice" before the administrative judge to forgo his rights under chapter 43 and to limit his appeal to one seeking corrective action for whistleblower retaliation.  The record does not show that the appellant received any notice that the consolidation of his appeals would result in the waiver or loss of any of his claims for relief in his removal appeal.  At the time the appellant requested dismissal of his removal appeal, Board precedent, upon which the appellant and his attorney could reasonably have relied, stated that when an individual who was affected by an action that is directly appealable to the Board chooses to file a whistleblower retaliation complaint to the OSC, the jurisdictional basis of any later appeal to the Board is the authority under which the agency took the personnel action, not 5 U.S.C. 1221, the statute authorizing IRA appeals.  The Board declared that this precedent had been superseded by enactment of subsection 7121(g) in 1994 and was no longer good law.  

3. The Board affirmed and vacated various aspects of the initial decision and remanded the case for further adjudication.

a. The appellant did not show error in the judge's findings that he did not make a protected disclosure regarding the baby birthdate pool.

b. The Board affirmed the judge's contributing factor findings regarding the performance-related actions, but vacated his finding regarding the appellant's non-selection for 31 lateral transfers.

c. The appeal was remanded to the regional office for findings in accordance with Whitmore v. Department of Labor, 680 F.3d 1353 (Fed. Cir. 2012), with respect to whether the agency proved by clear and convincing evidence that it would have taken the same actions against the appellant absent any protected disclosures.  

d. The Board affirmed the judge's finding that the agency's recommendation to the appellant that he undergo a psychiatric examination was a covered personnel action.  



Appellant:  John E. Van Lancker
Agency:  Department of Justice
Decision Number:  2013 MSPB 42
Docket Number:  SF-0432-12-0276-I-2
Issuance Date:  June 13, 2013
Appeal Type:  Performance
Action Type:  Removal

Jurisdiction
 - Affirmative Defense of Whistleblower Retaliation in Adverse Action Appeal of FBI Employee

    At issue in this interlocutory appeal was whether, in an appeal brought by a preference eligible Federal Bureau of Investigation (FBI) employee under 5 U.S.C. 4303 (removal for unacceptable performance), the appellant could pursue an affirmative defense of retaliation for protected whistleblowing.  

Holdings:  A majority of the Board, Vice Chairman Wagner dissenting, ruled that FBI employees cannot pursue an affirmative defense of retaliation for protected whistleblowing:

1. Under 5 U.S.C. 7701(c)(2)(B), an agency action cannot be sustained if the appellant shows that the agency based its action on a prohibited personnel practice described in 5 U.S.C. 2302(b).  Subsection (b)(8) of that section prohibits retaliation for protected whistleblowing.

2. It is undisputed that FBI employees are excluded from coverage under section 2302  ( 2302(a)(2)(C)(ii)) and therefore cannot file IRA appeals with the Board under 5 U.S.C. 1221.  The question is whether this precludes FBI employees who have been subjected to an action appealable to the Board under section 7701 can assert retaliation for protected whistleblowing as an affirmative defense under subsection 7701(c)(2)(B).

3. The starting point in every case involving construction of a statute is the language itself.  Subsection 7701(c)(2)(B) provides that an agency action shall not be sustained if "the decision was based on any prohibited personnel practice described in section 2302(b) of this title."  Because the FBI is specifically excluded from coverage under section 2302(b), the reference to that section in section 7701(c) is inapplicable.  

4. 5 U.S.C. 2303, entitled "Prohibited personnel practices in the Federal Bureau of Investigation," provides for the protection of all FBI employees from retaliation for protected whistleblowing.  If Congress intended to provide FBI preference eligible employees broader protections, such as the ability to bring whistleblower retaliation claims before the Board, it could have done so either by extending the coverage of section 2302 or by refraining from referencing section 2302(b) exclusively in section 7701(c)(2)(B).  Congress did neither.  Reading the two statutes together, the Board concluded that FBI employees are excluded from bringing a whistleblower retaliation claim before the Board in any form, including as an affirmative defense pursuant to section 7701(c)(2)(B).  

5. The Board acknowledged that there is a similarity between preference eligible FBI employees and preference eligible Postal Service employees whom the Board has found may raise whistleblower claims in conjunction with an otherwise appealable action.  Both types of employees are generally excluded from coverage under section 2302(a)(2)(C), and both have other avenues of redress for alleged whistleblower retaliation.  The crucial difference is that Congress directed that the FBI's whistleblower procedures be prescribed by the Attorney General.

    In a dissenting opinion, Vice Chairman Wagner expressed the view that the same rationale under which the Board found that preference eligible Postal Service employees may raise claims of retaliation for protected whistleblowing -- that "[b]y the plain terms of 7701 all employees who have the right to appeal must have the same rights"  -- applies equally to FBI employees.  



COURT DECISIONS

Petitioner:  Darrell T. Crawford
Respondent:  Department of the Army
Tribunal:  U.S. Court of Appeals for the Federal Circuit
Docket Number:  2012-3037
Issuance Date:  June 11, 2013

Compliance
Veterans' Rights - USERRA
 - Reassignment to Position of "Like Status"

    At issue in this case was the position to which Crawford was entitled when he resumed his federal civilian employment following a period of uniformed service.  At the time he was called to perform uniformed service, Crawford was a GS-11 Information Technology (IT) Specialist, whose duties primarily involved hardware-related duties, but also involved limited software-related duties.  That position was abolished during Crawford's uniformed service.  After his return to civilian service, Crawford was assigned as an IT Specialist at the same grade and location as his former position, but the new position involved primarily software-related duties.  Crawford alleged that this violated the requirement of 5 C.F.R. 353.209(a), which provides that, "[i]f the employee's position is abolished during such absence, the agency must reassign the employee to another position of like status, and pay."  He argued that the differences in duties associated with the positions precluded them from being of "like status."  The Board concluded that the positions were of "like status."  In so ruling, the Board used a "totality of the circumstances" analysis.  

Holdings: The court affirmed the Board's decision.  It agreed that a "totality of the circumstances" analysis was appropriate and with the application of that standard to the facts of the case.  



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

Stephens v. Office of Personnel Management, No. 2013-3049 (May 31, 2013) (MSPB Docket No. PH-0831-12-0106-I-1) (vacating and remanding the Board's decision, which which affirmed OPM's reconsideration decision to reduce Ms. Stephens' retirement annuity in order to provide a survivor annuity to her former husband)

Landvogt v. Office of Personnel Management, No. 2013-3016 (June 6, 2013) (MSPB Docket No. CH-0831-11-0684-I-1) (affirming the Board's decision, which affirmed OPM's determination that Ms. Landvogt was not entitled to receive retirement annuity benefits)

Boykin v. Office of Personnel Management, No. 2013-3058 (June 10, 2013) (MSPB Docket No. CH-844E-12-0166-I-1) (affirming the Board's decision, which affirmed OPM's denial of retirement benefits on the basis that Boykin had untimely applied for them)

Ghannam v. Merit Systems Protection Board, No. 2013-3050 (June 10, 2013) (MSPB Docket No. DC-0841-12-0179-I-1) (affirming the Board's decision, which dismissed for lack of jurisdiction Ghannam's challenge to OPM's calculation of her retirement annuity because OPM had not yet issued a final decision)

Johnson v. U.S. Postal Service, No. 2013-3044 (June 11, 2013) (MSPB Docket Nos. SF-0353-09-0587-R-1 and SF-0353-09-0587-X-1) (affirming in part, reversing in part, and remanding a Board decision involving Johnson's restoration rights as an employee who partially recovered from a compensable injury)

Parks v. Office of Personnel Management, No. 2013-3032 (June 11, 2013) (MSPB Docket No. SF-0831-12-0564-I-1) (affirming the Board's decision, which affirmed OPM's determination that Parks was not entitled to a former-spouse survivor annuity)

Alston v. Office of Personnel Management, No. 2013-3063 (June 11, 2013) (MSPB Docket No. SF-844E-12-0620-I-1) (affirming the Board's decision, which affirmed OPM's determination that Alston was not entitled to disability retirement benefits)

Scull v. Department of Homeland Security, No. 2012-3174 (June 13, 2013) (MSPB Docket No. SF-0752-09-0565-B-2) (affirming per Rule 36 the Board's decision, which dismissed Scull's appeal for lack of jurisdiction)
     

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