U.S. Merit Systems Protection Board 
Case Report for July 12, 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:  Camille J. Vaughn
Agency:  Department of the Treasury
Decision Number:  2013 MSPB 50
Docket Numbers:  CH-0752-11-0866-I-1 and CH-0752-11-0867-I-1
Issuance Date:  July 2, 2013
Appeal Type:  Adverse Action by Agency
Action Type:  Removal

Appeal Rights

    The appellant petitioned for review of an initial decision that sustained her 30-day suspension and removal.  

Holding:  The Board denied the appellant's petition for review and affirmed the initial decision, but issued an Opinion and Order to explain how recent changes in the law affect the notice of appeal rights in cases that include both claims of discrimination and reprisal for whistleblowing.  An appellant in such a case has three options for review of the Board's final decision:  (1) If the appellant wishes to challenge the Board's findings on her discrimination claims only, she may petition the EEOC for review; (2) the appellant may file a civil action in the appropriate federal district court; or (3) if the appellant wishes to challenge the Board's decision on her whistleblower claim, to the exclusion of any discrimination claim or other alleged prohibited personnel practice, she can file an appeal to any court of appeals of competent jurisdiction as provided in the WPEA.  The Board pointed out that the second option provides the most comprehensive review, as the district court could review the merits of the underlying action and any whistleblower claims under a deferential standard as well as de novo review of the appellant's discrimination claims.



Appellant:  Christine E. Bruce
Agency:  Office of Personnel Management
Decision Number:  2013 MSPB 51
Docket Number:  DC-844E-12-0571-I-1
Issuance Date:  July 8, 2013
Appeal Type:  FERS - Employee Filed Disability Retirement
Action Type:  Retirement/Benefit Matter

Disability Retirement
 - Timeliness of Application - Waiver for Mental Incompetence

    The appellant petitioned for review of an initial decision that affirmed OPM's final decision dismissing her application for disability retirement benefits as untimely filed.  The law provides that an application for disability retirement must be filed with an employee's employing agency before the employee separates from service or with the former employing agency or OPM within 1 year after the employee's separation.  The 1-year time limit may be waived if the employee is mentally incompetent at the date of separation or within 1 year thereafter and if the application is filed with OPM within 1 year from the date the employee is restored to competency or is appointed a fiduciary, whichever is earlier.  The appellant stopped coming to work in 1997 after suffering an incident of sexual harassment at work.  The agency carried her on leave without pay until July 19, 2004, when it removed her.  The appellant's brother was named as the appellant's legal guardian in July 2010 based on a court's determination that she lacked sufficient understanding or capacity to make or communicate responsible decisions concerning her person and lacked such capacity because of a mental disability.  The guardian filed an application for disability retirement on the appellant's behalf the following month, asserting that the appellant became mentally incompetent by July 19, 2004, because of severe symptoms of Major Depressive Disorder that rendered her unable to complete the application for disability retirement in a timely manner.

    On appeal to the Board, the appellant's guardian argued that, during the period in question, the appellant had so neglected her personal affairs because of severe psychiatric symptoms that she lost her home, was living in a homeless shelter, was facing law suits, multiple financial judments and bankruptcy, and was not responding to subpoenas.  He asserted that he had filed the application for disability retirement within 1 year of the effective date of the guardianship, noted that the appellant has been receiving Social Security disability benefits, and asserted that she has continued to be mentally incompetent "until present."  At the hearing, the appellant's Board-certified psychiatrist gave his opinion that the appellant was mentally incompetent during the year following her separation because of Major Depressive Disorder.  The appellant's brother and mother testified as to the appellant's behavior during the entire period from 2003 to the present. In affirming OPM's final decision, the administrative judge found that it was not shown that the appellant was incompetent before July 19, 2005, and remained incompetent until July 19, 2010, when her brother was appointed her legal guardian.  

Holdings:  The Board granted the appellant's petition for review, reversed the initial decision, and ordered OPM to waive the statutory time limit for filing the application for disability retirement and to consider that application on the merits:

1. This issue in this case is whether the appellant showed by preponderant evidence that she was mentally incompetent during the period from July 19, 2004, to July 19, 2005.

2. In determining whether an applicant was mentally incompetent for purposes of the time limit, the Board requires medical evidence supporting subjective opinions of mental incompetence.  The definition of mental incompetence "may be satisfied by one having some minimal capacity to manage his own affairs, and not needing to be committed."  

3. The judge erred in discounting the psychiatrist's 2010 and 2011 medical reports because, in the judge's view, he based his opinion of the appellant's incompetency solely on his interview of her and her family during those two years.  The psychiatrist also saw the appellant on 6 occasions in 2003, at which time he diagnosed the appellant as suffering from Major Depressive Order.  

4. Considering all the evidence in the case, including the family members' testimony as well as the psychiatrist's medical opinion, the appellant proved by preponderant evidence that she was mentally incompetent during the one-year period in question.  



Appellant:  Bruce D. Lange
Agency:  Department of Justice
Decision Number:  2013 MSPB 52
Docket Number:  DA-0752-12-0112-I-1
Issuance Date:  July 8, 2013
Appeal Type:  Adverse Action by Agency
Action Type:  Removal

Constitutional Issues - Due Process

    The agency petitioned for review of an initial decision that reversed the appellant's removal based upon a due process violation.  The agency removed the appellant from his position as a Special Agent with the Drug Enforcement Agency on charges of making a false statement and providing false documentation and having an improper association with a confidential informant. Because the appellant admitted to the charged conduct, the administrative judge noted that she would only adjudicate the reasonableness of the penalty.  Following a hearing, the judge reversed the removal based upon a Ward/Stone due process violation, finding that the deciding official was "clearly involved in the investigation of the appellant's conduct which led to his removal, as well as investigating alleged misconduct that is not included in the agency's proposal notice."  The judge explained that the deciding official served in a supervisory role in the agency's Office of Professional Responsibility (OPR) at the time OPR investigated the appellant's conduct and that, based upon his prior involvement with that investigation, the deciding official was not an impartial decision maker.  

Holdings:  The Board granted the agency's petition for review, vacated the initial decision in part, and remanded the case to the regional office for further adjudication:

1. An employee has a due process right to have an unbiased decision maker adjudicate his case.  The parameters of this legal doctrine have been clarified in two decisions issued after the initial decision in this case:  Martinez v. Department of Veterans Affairs, 119 M.S.P.R. 37 (2012), and Norris v. Securities & Exchange Commission, 675 F.3d 1349 (Fed. Cir. 2012).  

2. Under the clarified legal standard, the record does not support the conclusion that the agency denied the appellant's due process right to have an unbiased decision maker adjudicate his case.

a. An employee must assert "specific allegations indicating that the agency's choice of the deciding official made the risk of unfairness to the appellant 'intolerably high'" in order to establish  a due process violation based upon the identity of a deciding official.

b. A deciding official's awareness of background information concerning the appellant, his concurrence in the desirability of taking an adverse action, or his predisposition to impose a severe penalty does not disqualify him from serving as a deciding official on due process grounds.  The Federal Circuit recently held that a deciding official's mere knowledge of an employee's background does not rise to the level of a due process violation unless "that knowledge is a basis for the deciding official's determination on either the merits of the underlying charge or the penalty to be imposed."  

c. After examining the pertinent evidence, the Board concluded that the appellant failed to satisfy this high standard.  

3. The extent to which the deciding official relied upon the appellant's past discipline needs to be developed further on remand.  

a. The judge noted that the deciding official's Douglas factors worksheet contained a reference to the appellant's past discipline -- a letter of reprimand for poor judgment in 2004 -- which was not included in the agency's removal proposal.  The judge explained that although the deciding official testified that "he did not find the fact that the appellant had this prior discipline to be an aggravating factor," he also "acknowledged that he considered the factors listed in his written Douglas factor analysis" before rendering his penalty determination.  

b. Based on the current record, there remains an unresolved issue of fact as to whether the deciding official actually relied upon the appellant's past discipline in rendering his penalty analysis.  



COURT DECISIONS

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

Yeh v. Merit Systems Protection Board, No. 2012-3216 (June 27, 2013) (MSPB Docket No. CH-1221-11-0433-W-2) (affirming the Board's decision, which dismissed Yeh's IRA appeal for lack of jurisdiction)

Donaldson v. Department of Homeland Security, No. 2012-3160 (July 11, 2013) (MSPB Docket No. DC-3330-11-0862-I-2) (affirming the Board's decision, which found that Donaldson was not entitled to relief on his VEOA claim)

Donaldson v. Merit Systems Protection Board, No. 2012-3161 (July 11, 2013) (MSPB Docket No. DC-1221-12-0087-W-1) (affirming the Board's decision, which dismissed Donaldson's IRA appeal for lack of jurisdiction)
     
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