U.S. Merit Systems Protection Board 
Case Report for August 16, 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:  Barbara R. King
Agency:  Department of the Air Force
Decision Number:  2013 MSPB 62
Docket Number:  DA-0752-09-0604-P-1
Issuance Date:  August 14, 2013
Appeal Type:  Adverse Action by Agency
Action Type:  Compensatory Damages

Whistleblower Protection Act
 - Retroactive Application of New Legislation

    At issue in this interlocutory appeal was whether the provision of the Whistleblower Protection Enhancement Act of 2012 (WPEA) providing for compensatory damages applies to cases that were pending on the effective date of the WPEA.  The administrative judge answered that question in the negative.  

Holdings:  The Board held that compensatory damages are not available in cases pending on the effective date of the WPEA:

1. Congress did not expressly provide that the terms of the WPEA would apply retroactively to conduct occurring before its enactment.

2.  The proper analytical framework for examining the issue is that set forth in Landgraf v. USI Film Products, 511 U.S. 244 (1994).  Applying that framework, the Board concluded that the addition of compensatory damages significantly alters the consequences of relevant past events and would undeniably attach an important new legal burden to the agency's past conduct that did not previously exist.

3. An additional reason that the compensatory damages provision may not be applied retroactively is because Congress did not expressly waive sovereign immunity for pre-enactment conduct.  

4. The compensatory damages provision of the WPEA does not clarify the WPA.  Accordingly, the reasoning supporting the Board's conclusion in Day v. Department of Homeland Security, 2013 MSPB 49, regarding which disclosures are protected under the WPA cannot be applied in this case.  



Appellant:  Ronald J. Herman
Agency:  Department of Justice
Decision Number:  2013 MSPB 60
Docket Number:  DC-1221-10-0164-B-2
Issuance Date:  August 12, 2013
Appeal Type:  Individual Right of Action (IRA)

Whistleblower Protection Act
 - Protected Disclosure
 - Clear and Convincing Evidence
Sanctions - Spoliation

    The appellant petitioned for review of a remand initial decision that denied his request for corrective action in this IRA appeal.  The appellant alleged that the agency retaliated against him for making thee whistleblowing disclosures by issuing him two letters of counseling, by giving him an unfavorable mid-year performance review, and by reassigning him to a different position.  The administrative judge dismissed the appeal for lack of jurisdiction on the basis that the appellant failed to make a nonfrivolous allegation that he had made a protected disclosure.  On review, the Board reversed that finding and remanded the appeal for a hearing on the merits.  On remand, the judge exercised his discretion to take evidence on the merits issues in the order he deemed most efficient.  He bifurcated the hearing and allowed testimony only on the issue of whether the agency established by clear and convincing evidence that it would have taken the actions against the appellant in the absence of his whistleblowing.  He found that the agency proved by clear and convincing evidence that it would have taken the same actions in the absence of the appellant's whistleblowing and denied corrective action, without considering whether the appellant established his prima facie case.  

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

1. The administrative judge did not abuse his discretion in denying the appellant's motion for sanctions for the agency's alleged
spoliation where the appellant's motion was filed on the day before the scheduled hearing.

2. The record is not sufficiently developed for the Board to determine whether the agency carried its burden by clear and convincing evidence.

a. The remand initial decision did not meet the stringent requirements of Whitmore v. Department of Labor, 680 F.3d 1353 (Fed. Cir. 2012), for finding that an agency has met its burden to establish by clear and convincing evidence that it would have taken the same action in the absence of protected whistleblowing.

b. The Board emphasized the very narrow circumstances in which it is appropriate to bifurcate hearings in IRA appeals.  Here, the resolution of both the merits of the appellant's showing of a contributing factor and the agency's affirmative defense is required.  The case must therefore be remanded for further adjudication.  



Appellant:  Margie A. Bemiller
Agency:  Office of Personnel Management
Decision Number:  2013 MSPB 61
Docket Number:  CH-831E-11-0862-I-2
Issuance Date:  August 13, 2013
Appeal Type:  CSRA - Employee Filed Disability Retirement

Disability Retirement

    The appellant petitioned for review of an initial decision that affirmed OPM's denial of her application for disability retirement benefits.  She applied for benefits based on fibromyalgia and chronic pain.  The administrative judge determined that the appellant had documented the deficiencies in conduct and attendance that led to her employing agency's removal action but did not show that the medical conditions upon which her application was based caused these deficiencies.

Holdings:  A majority of the Board, Member Robbins dissenting, granted the appellant's petition for review, reversed the initial decision, and ordered OPM to grant the appellant's application for disability retirement:

1. An applicant for disability retirement may meet her burden to show that she was unable to render useful and efficient service in her position because of illness or injury in two ways: (1) by showing that the medical condition from which she suffers caused a deficiency in performance, attendance, or conduct; or (2) by showing that the medical condition is incompatible with useful and efficient service or retention in her position.  Under the first method, an applicant may establish entitlement by showing that the medical condition affected her ability to perform specific work requirements, prevented her from being regular in attendance, or caused her to act inappropriately.  Under the second method, she may show that the medical condition is inconsistent with working in general, in a particular line of work, or in a particular setting.  

2. After reviewing the relevant evidence, the Board concluded that the appellant satisfied the second method of establishing entitlement to disability retirement, if not the first, and ordered OPM to grant her application for benefits.  

    In his dissenting opinion, Member Robbins pointed out that an applicant for disability retirement must establish that she became disabled while employed, and that the majority relied heavily on doctors' assessments rendered 15 months after the appellant was separated from her employing agency.  He concluded that these reports, when read as a whole, seem more relevant to the appellant's condition 15 months after her separation than to her condition while employed.  


Appellant:  Catherine Anne Hughes
Agency:  Office of Personnel Management
Decision Number:  2013 MSPB 63
Docket Number:  DC-0831-11-0677-I-1
Issuance Date:  August 15, 2013
Action Type:  Retirement/Benefit Matter

Retirement
 - Survivor Annuity
 - Offset For Social Security

    The appellant petitioned for review of an initial decision that affirmed an OPM final decision that her survivor annuity would be offset based on her entitlement to benefits under the Social Security Act.  OPM determined that such an offset was required because the appellant was "entitled, or on proper application would be entitled," to social security benefits. OPM found that, although the appellant was working and could not collect the social security benefit, this did not negate her "eligibility" for the benefit.  

Holdings:  The Board granted the appellant's petition for review, reversed the initial decision, and ordered OPM to recalculate the appellant’s survivor annuity consistent with the Board's decision to account for the fact that she is not entitled to social security survivor benefits:  

1. The relevant statute requires offset when the annuitant is "entitled (or would on proper application also be entitled) to" 
social security survivor benefits.  Although the term "entitled " is not defined in the statute, in context it clearly contemplates a benefit that a person has a legal right to actually receive.  

2. The appellant was not "entitled" to social security survivor benefits because she had no right to receive such benefits.




COURT DECISIONS

Petitioner:  Jane L. Gallo
Respondent:  Department of Transportation
Tribunal:  U.S. Court of Appeals for the Federal Circuit
Docket Number:  2011-3094
Issuance Date:  August 5, 2013

Attorney Fees
 - Authority to Award

    Gallo requested attorney fees under the Back Pay Act for fees incurred in her previous appeals to the Federal Circuit and the Court of Claims.  The issue was whether the court has the legal authority to award attorney fees under the Back Pay Act based on language added to 49 U.S.C. 40122 by legislation enacted in 2012.  

Holdings: The court concluded that it lacks the statutory authority to award Gallo attorney fees.  



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

Daniel v. Merit Systems Protection Board, No. 2013-3040 (Aug. 7, 2013) (MSPB Docket No. AT-0752-11-0374-I-2) (affirming the Board's decision, which dismissed the appeal for lack of jurisdiction)

Spearman v. Merit Systems Protection Board, No. 2013-3053 (Aug. 8, 2013) (MSPB Docket No. DC-0752-12-0306-I-1) (affirming the Board's decision, which dismissed the appeal for lack of jurisdiction)

Graves v. Department of the Navy, No. 2013-3077 (Aug. 9, 2013) (MSPB Docket No. SF-3330-10-0788-X-1) (affirming the Board's decision, which dismissed Graves' petition for enforcement of a final Board decision)

Conway v. Merit Systems Protection Board, No. 2013-3084 (Aug. 13, 2013) (MSPB Docket No. NY-0752-07-0253-I-1) (affirming the Board's decision, which dismissed Conway's petition for review as untimely filed)

Asatov v. Department of the Air Force, No. 2013-3028 (Aug. 13, 2013) (MSPB Docket No. PH-3330-12-0120-I-1) (affirming the Board's decision, which denied Asatov's request for corrective action under VEOA)

Stewart v. Merit Systems Protection Board, No. 2012-3210 (Aug. 14, 2013) (MSPB Docket No. SF-0353-11-0710-I-1) (affirming the Board's decision, which dismissed Stewart's petition for review for lack of jurisdiction)


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