U.S. Merit Systems Protection Board 
Case Report for September 13, 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.


Appellant:  Charles Winfield Reid
Agency:  Office of Personnel Management
Decision Number:  2013 MSPB 67
Docket Number:  AT-0831-13-0010-I-1
Issuance Date:  September 5, 2013
Action Type:  Retirement/Benefit Matter

 - Requirement of Final OPM Decision

    The appellant petitioned for review of an initial decision that dismissed his appeal for lack of jurisdiction on the basis that OPM had not issued a final decision on the retirement matter that he was contesting.  

Holdings:  The Board reversed the initial decision and remanded the case to the regional office for adjudication on the merits:

1. In general, the Board has jurisdiction over OPM determinations affecting an appellant's retirement rights or interests only after OPM has issued a final decision in the matter.  The absence of such a decision does not preclude Board review when OPM fails to advise the appellant of his right to request reconsideration and OPM does not intend to issue any further decision to the appellant.

2. After detailing the appellant's efforts over a 3-year period to obtain a final decision, the Board determined that a letter issued by OPM in August 2012 was tantamount to an appealable final decision. 

Appellant:  Georgiana R. Johnson
Agency:  United States Postal Service
Decision Number:  2013 MSPB 68
Docket Number:  SF-0752-12-0510-I-1
Issuance Date:  September 9, 2013
Appeal Type:  Adverse Action by Agency
Action Type:  Removal

Appeal Rights in Mixed Cases

    The appellant petitioned for review of an initial decision that affirmed her removal from federal service for inability to perform the essential functions of her position.  When she filed her appeal with the Board, the appellant alleged disability discrimination.  Subsequently, acting through her counsel, she withdrew that claim.  

Holdings:  The Board affirmed the initial decision on the merits, stating that it was issuing an Opinion and Order to provide guidance concerning appeal rights in mixed cases:

1. Consistent with the Supreme Court's decision in Kloeckner v. Solis, 133 S. Ct. 596 (2012), the Board will provide notice of mixed-case appeal rights in all cases in which the appellant was affected by an action that she may appeal to the Board and alleges prohibited discrimination, regardless of whether the Board decides the claim of discrimination.  

2. Although this was a mixed-case appeal when it was filed, it is no longer a mixed-case appeal because the appellant withdrew her discrimination claim.  The Board therefore stated that it was giving the appellant notice of non-mixed-case appeal rights.  

Appellant:  Joseph A. O'Donnell
Agency:  Department of Agriculture
Decision Number:  2013 MSPB 69
Docket Number:  CH-1221-12-0436-W-1
Issuance Date:  September 10, 2013
Appeal Type:  Individual Right of Action (IRA)

Whistleblower Protection Act
 - Protected Disclosure
Collateral Estoppel

    The appellant petitioned for review of an initial decision that dismissed his IRA appeal for lack of jurisdiction on the basis of collateral estoppel (issue preclusion).  As a Soil Conservationist with the agency's Natural Resources Conservation Service (NRCS), the appellant's duties include determining whether private landowners meet the agency's eligibility criteria for assistance.  The appellant made a determination that a particular landowner did meet the criteria for agency assistance, and the agency's Farm Service Agency (FSA) approved a contract with the landowner. The appellant's supervisor disagreed with the appellant's eligibility determination and directed the appellant to inform the FSA, which terminated its contract with the landowner, who appealed the decision.   When the FSA conducted a hearing, the appellant was asked to provide a review of the factors that the NRCS considered in making its adverse eligibility determination. Instead of conveying NRCS management's position on the matter, the appellant sent the FSA a memorandum stating his disagreement with that position.  The agency suspended the appellant for 3 days without pay for insubordination in issuing his memorandum.  The appellant filed a complaint with the Office of Special Counsel (OSC), which analyzed the complaint under 5 U.S.C. 2302(b)(9).  The appellant filed an IRA appeal with the Board after OSC closed the file without taking corrective action.  That appeal was dismissed for lack of jurisdiction on the basis that the appellant had failed to exhaust his administrative remedies with OSC, with the administrative judge finding that the appellant's complaint to OSC under 2302(b)(9) did not provide a basis for the Board to take jurisdiction over the matter as an IRA appeal because such appeals could only be brought under 5 U.S.C. 2302(b)(8).  The appellant then filed a second OSC complaint seeking corrective action under 2302(b)(8), and when OSC closed its file without taking corrective action, filed the present Board appeal.  The administrative judge dismissed the second appeal for lack of jurisdiction under the doctrine of collateral estoppel (issue preclusion).  

Holdings:  The Board vacated the initial decision, but still dismissed the appeal for lack of jurisdiction because the appellant failed to make a nonfrivolous allegation that he made a protected disclosure:

1. The judge erred in dismissing the appeal under the doctrine of collateral estoppel.

a. Application of the doctrine of collateral estoppel requires that the issue in the present action be identical to that involved in the prior action.

b. That requirement was not satisfied here, as the appellant's prior appeal involved allegations of resprisal under 2302(b)(9), not 2302(b)(8). Accordingly, the issue was not identical in the two Board appeals.

2. The appellant did not make a nonfrivolous allegation that his disclosure was protected.

a. It is well-settled that statutory protection for whistleblowers "is not a weapon in arguments over policy or a shield for insubordinate conduct.  Policymakers and administrators have every right to expect loyal professional service from subordinates."  
b. The appellant did not disclose either gross mismanagement or a violation of law, rule, or regulation.  An employee's disagreement with an agency ruling or adjudication does not constitute a protected disclosure even if that ruling was legally incorrect.  An erroneous agency ruling is corrected through the appeals process -- not through insubordination and policy battles between employees and their supervisors.  The orderly administration of agencies that rule on citizens' applications for benefits or redress requires that, for better or worse, supervisors and managers have the final say in such rulings.  A subordinate's refusal to abide his supervisor's instructions is not protected by 5 U.S.C. 2302(b)(8).  

Appellant:  Andrew M. Kolenc
Agency:  Department of Health and Human Services
Decision Number:  2013 MSPB 70
Docket Number:  DE-0752-12-0092-I-1
Issuance Date:  September 11, 2013
Appeal Type:  Adverse Action by Agency
Action Type:  Removal

Constitutional Issues - Due Process
Interim Relief

    The agency petitioned for review of an initial decision that reversed its removal action on the basis that the agency violated the appellant's due process rights.  The administrative judge determined that the deciding official improperly considered ex parte information that constituted new and material evidence.  In particular, the judge determined that the deciding official relied on information from a manager that contradicted a claim made by the appellant in his response to the proposed removal as to the disposition of a criminal charge concerning the appellant's operation of a government vehicle, without giving the appellant notice of the manager's information and an opportunity to respond to it.

Holdings:  The Board denied the agency's petition for review and affirmed the initial decision:

1. The Board denied the appellant's motion to dismiss the agency's petition for review on the basis that the agency failed to comply with the order to provide interim relief.  Although the agency did not timely and fully comply with the order to provide interim relief, it has now complied and its delayed compliance was inadvertent.  

2. The administrative judge correctly found that the agency deprived the appellant of due process by considering ex parte information that constituted new and material evidence.

a. In Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368 (Fed. Cir. 1999), the Federal Circuit set out 3 factors for determining whether ex parte communications introduce new and material information:  (1) whether the information is merely cumulative; (2) whether the employee knew of and had an opportunity to respond to the information; and (3) whether the ex parte communications would likely result in undue pressure upon the deciding official to rule in a particular manner.

b. The Board concluded that the first two Stone factors supported a finding of a due process violation.  While the evidence concerning the third factor was more equivocal, this factor is less relevant where, as here, the ex parte information influenced the deciding official's ultimate determination.  

Appellant:  Daniel-Lynn Whittacre
Agency:  Office of Personnel Management
Decision Number:  2013 MSPB 71
Docket Number:  DC-0845-11-0740-R-1
Issuance Date:  September 11, 2013
Appeal Type:  FERS - Collection of Overpayment -  Debts
Action Type:  Retirement/Benefit Matter

Retirement - Service Credit - Overpayment
OPM Request for Reconsideration - Final Decision Requirement
Statutory Interpretation

    The Director of the Office of Personnel Management (OPM) petitioned the Board to reconsider its previous Opinion and Order in this case, 118 M.S.P.R. 33 (2012), which concerned whether the appellant received an overpayment of interim disability retirement annuity benefits.  The resolution of that issue depended on whether OPM erred in finding that the appellant was not entitled to service credit for a period of leave without pay (for active military service) in 2007-2008 because he had failed to make a military service credit deposit for that service.  In its earlier decision, the Board found that it was unable, based upon the current record, to determine whether the appellant in fact received an overpayment and, if so, the amount of that overpayment, and it remanded the appeal to OPM to issue a new reconsideration decision.  In its request for reconsideration, OPM argued that the Board's decision was incorrect as a matter of law as to the requirement for crediting time spent on military leave without pay.

Holdings:  The Board granted the OPM Director's request for reconsideration and reversed its previous Opinion and Order:

1. The request for reconsideration met the statutory requirement of a "final order or decision of the Board."

a. The Director's statutory authority to request reconsideration is limited to "any final order or decision of the Board."  5 U.S.C. 7703(d).  Because the Board's previous decision remanded the case to OPM, there was a question whether it was a "final order or decision."

b. Even though it remanded the case to OPM, the Board had found that the appellant was entitled to service credit for the period in question, which was a final decision on that legal issue.  

2. Statutes must be construed harmoniously whenever possible.  Where different statutes appear to be incongruent, the correct rule of interpretaton is, that if diverse statutes relate to the same thing, they ought all to be taken into consideration in construing any one of them, as if they were one law.

3. After examining the text of a number of statutes, the Board agreed with OPM that where, as here, military service interrupts civilian service, a deposit not exceeding the amount that would have been deducted and withheld from the employee's basic pay had he remained in civilian service during the period in question is required.  


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

Cooke v. Department of Defense, No. 2013-3030 (Sept. 12, 2013) (MSPB Docket No. DC-0752-10-0760-I-3) (affirming per Rule 36 the Board's affirmance of an indefinite suspension)

Sanborn v. Department of the Army, No. 2013-3046 (Sept. 12, 2013) (MSPB Docket No. DA-315H-11-0431-B-1) (affirming per Rule 36 the Board's decision, which dismissed Sanborn's petition for enforcement as moot)

Leija v. Department of Veterans Affairs, No. 2013-3048 (Sept. 12, 2013) (MSPB Docket Nos. DA-0752-11-0588-I-1, DA-0353-11-0513-I-1, and DA-0752-11-0537-I-1) (affirming the Board's holding that it lacked jurisdiction over Leija's restoration appeal, but vacating and remanding the Board's affirmance of her removal)

Sherman v. Merit Systems Protection Board, No. 2013-3015 (Sept. 12, 2013) (MSPB Docket No. SF-0752-12-0193-I-1) (affirming the Board's holding that it lacked jurisdiction over an allegedly involuntary resignation)
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