U.S. Merit Systems Protection Board 
Case Report for October 18, 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:  Greg K. Shirley
Agency:  Department of the Interior
Decision Number:  2013 MSPB 76
Docket Number:  CH-0752-10-0514-C-1
Issuance Date:  September 27, 2013
Appeal Type:  Adverse Action by Agency - Removal
Case Type:  Compliance

Compliance - Settlement-Related

    The appellant petitioned for review of an initial decision that denied his petition for enforcement of the settlement agreement that resolved his removal appeal.  The appellant was formerly employed as a Park Ranger with the National Park Service.  As a requirement of his position, he held a Level II law enforcement commission.  The agency maintains a special office, the Law Enforcement Security and Emergency Services Division (LESES), that maintains an official file for each NPS employee who is a commissioned law enforcement officer, and each NPS unit is required to submit to the LESES information about and copies of documents effecting any action regarding the status of a commission.  The appellant's law enforcement commission was suspended as part of the disciplinary process resulting in the appellant's removal.  On appeal to the Board, that removal was resolved in a written settlement agreement under which the appellant resigned for personal reasons and the agency agreed to remove all references to the adverse action from the appellant's Official Personnel File (OPF). The settlement agreement did not say anything with respect to the appellant's law enforcement commission, which remained suspended.  About a year after the settlement agreement, the appellant applied for, was selected, and accepted a Park Ranger position in a different location from where he had previously worked.  As part of the routine paperwork associated with bringing the appellant on board, it was learned that his law enforcement commission was suspended, and that there was a settlement agreement associated with an MSPB proceeding.  As the appellant could not be brought on as a Park Ranger because he did not have the requisite law enforcement commision, the agency brought him on in a lower-paying position that did not require a law enforcement commission.  

     The appellant filed a petition for enforcement contending that the commission file maintained by LESES is part of his OPF, and that the agency materially breached the clean record provision of the settlement agreement by maintaining documents showing that his commission was suspended for the same alleged misconduct on which his removal was based.  In denying the petition for enforcement, the administrative judge found, among other things, that the commission file was not part of the appellant's OPF.  

Holdings:  The Board denied the appellant's petition for review and affirmed the administrative judge's finding that the agency did not breach the settlement agreement:

1. The Board agreed with the appellant that the commission file contains documents "related to" his removal.  Accordingly, if the clean record provision of the settlement agreement applied to the commission file, the Board would conclude that the agency breached that provision.

2.  The commission file maintained by the LESES was not part of the appellant's Official Personnel File.  

3. The agency did not breach the nondisclosure provision of the settlement agreement.  The Board concluded that the parties' agreement not to disclose information about the agreement "to anyone" meant that they committed themselves not to reveal such information to third parties.  The LESES is not a third party; it is a component of the National Park Service.  The settlement agreement did not preclude the agency from disclosing information to itself.  



Appellant:  Phan V. Tram
Agency:  United States Postal Service
Decision Number:  2013 MSPB 77
Docket Number:  SF-0353-09-0549-C-1
Issuance Date:  September 27, 2013
Appeal/Action Type:  Restoration to Duty After Recovery from Compensable Injury
Case Type:  Compliance

Compliance

    The appellant petitioned for review of an initial decision that denied her petition for enforcement of a Board order.  In the proceeding on the merits, the issue was whether the agency search the entire local commuting area for work that the appellant could perform.  The administrative judge found that the agency had violated the appellant's restoration rights as an employee who had partially recovered from a compensable injury, and ordered the agency to reinstate the appellant retroactive to April 9, 2009, including back pay and benefits. The Board granted the agency's petition for review of that initial decision, holding that retroactive restoration was not the appropriate status quo ante remedy.  It ordered the agency to conduct a proper job search retroactive to April 9, 2009, and to consider the appellant for any suitable assignments available during that time period consistent with the agency's restoration obligations. In denying the appellant's subsequent petition for enforcement, the administrative judge found that the agency had conducted a proper search but was unable to identify any work within the appellant's medical restrictions.  The judge found that the agency therefore proved that it complied with the Board's order.  

Holdings:  The Board denied the appellant's petition for review and affirmed the initial decision, still denying her petition for enforcement:

1. The Board rejected the appellant's contention that the evidence adduced by the agency was insufficient to support the judge's finding that it had conducted a proper search for available work within the appellant's medical restrictions and had found no such available work.  

2. Because the agency has proven its compliance with the Board's order, the appellant has not shown that the agency was obligated to provide her with back pay until her return to duty in January 2013.  



Appellant:  Nellie M. Ingram
Agency:  Department of Defense
Decision Number:  2013 MSPB 78
Docket Number:  DC-0752-10-0264-B-1
Issuance Date:  September 30, 2013
Appeal Type:  Adverse Action by Agency
Action Type:  Reduction in Grade/Pay

Jurisdiction
 - Adverse Actions
 - Non-Critical Sensitive Positions

    The appellant petitioned for review of an initial decision that affirmed the agency's demotion action.  The appellant served in the non-critical sensitive position of Supervisory Store Associate. The agency denied the appellant's eligibility for access to classified information "and/or" to occupy a sensitive position based on information obtained from an investigation of her personal history and a credit report that raised concerns about her trustworthiness, reliability, and judgment.  Based on this, the agency demoted her from the Supervisory Store Associate position to the position of Lead Store Associate, a non-sensitive position.  The appellant appealed this action to the Board.  

Holdings:  The Board denied the appellant's petition for review and affirmed the initial decision, finding that the agency's demotion action promoted the efficiency of the service:

1. The Federal Circuit's recent en banc decision in Kaplan v. Conyers, No. 2011-3207 (Fed. Cir. Aug. 20, 2013), sets out the governing legal principles for this case.  The court there held that the limited scope of Board review set forth in the Supreme Court's decision in Department of the Navy v. Egan, 484 U.S. 518 (1988), applies to Board review of determinations concerning the eligibility of an individual to occupy a "sensitive" position, regardless of whether the position requires access to classified information.  Under Egan, in an appeal of an adverse action based on the denial of a security clearance, the Board has authority to review only:  (1) whether an Executive Branch employer determined the employee's position required a security clearance; (2) whether the clearance was denied or revoked; (3) whether the employee was provided with the procedural protections specified in 5 U.S.C. 7513; and (4) whether transfer to a non-sensitive position was feasible.

2. The agency's action must be affirmed under Egan.  The appellant's position as a Supervisory Store Associate required that she maintain eligibility to access non-critical sensitive information; that eligibility was denied; and the agency complied with the procedural protections of 5 U.S.C. 7513 in demoting the appellant to a vacant non-sensitive position.  Because the Federal Circuit has concluded that non-critical sensitive positions implicate national security are analogous to positions requiring security clearances, the Board found that the agency's demotion action promoted the efficiency of the service and must be affirmed.  



COURT DECISIONS

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

Jackson v. Government Printing Office, No. 2012-3198 (Oct. 10, 2013) (MSPB Docket No. DC-0752-12-0075-I-1) (affirming per Rule 36 the Board's decision, which sustained the agency's removal action)

Perkins v. Merit Systems Protection Board, No. 2013-3074 (Oct. 11, 2013) (MSPB Docket No. DA-315I-12-0162-I-1) (affirming the Board's decision, which dismissed for lack of jurisdiction Perkins' appeal of the termination of his probationary promotion)

Cruz v. Department of Homeland Security, No. 2013-3083 (Oct. 11, 2013) (affirming an arbitration decision that sustained Cruz's removal)

Siders v. Office of Personnel Management, No. 2013-3103 (Oct. 11, 2013) (MSPB Docket No. AT-0831-12-0162-I-1) (affirming the Board's decision, which affirmed OPM's decision denying a claim for a former-spouse survivor annuity)

Modrowski v. Department of Veterans Affairs, No. 2013-3087 (Oct. 11, 2013) (MSPB Docket No. CH-0752-98-0126-C-3) (affirming the Board's decision, which denied Modrowski's petition for enforcement of a settlement agreement)

Mojarro v. U.S. Postal Service, No. 2013-3109 (Oct. 15, 2013) (MSPB Docket No. SF-0353-11-0827-I-1) (affirming per Rule 36 the Board's decision, which dismissed Mojarro's restoration appeal for lack of jurisdiction)

Mojarro v. U.S. Postal Service, No. 2013-3108 (Oct. 15, 2013) (MSPB Docket Nos. SF-0752-09-0694-M-1 and SF-0752-10-0222-M-1) (affirming per Rule 36 the Board's decision, which found that the appeals had been resolved by a valid settlement agreement)

Baney v. Merit Systems Protection Board, No. 2013-3088 (Oct. 15, 2013) (MSPB Docket No. DA-4324-12-0108-I-1) (affirming the Board's decision, which dismissed Baney's USERRA appeal for lack of jurisdiction)

Dela Rosa v. Office of Personnel Management, No. 2013-3078 (Oct. 15, 2013) (MSPB Docket No. SF-831E-12-0107-I-1) (affirming the Board's decision, which found that Dela Rosa's application for disability retirement benefits was untimely filed)

Welcome v. Merit Systems Protection Board, No. 2013-3093 (Oct. 16, 2013) (MSPB Docket Nos. AT-0752-12-0317-I-1 and AT-0752-12-0469-I-1) (affirming the Board's decision, which held that Welcome's removal appeal was moot and dismissing his appeal of an allegedly involuntary retirement for lack of jurisdiction)

Asatov v. Agency for International Development, No. 2013-3068 (Oct. 16, 2013) (MSPB Docket No. PH-3330-12-0145-I-1) (affirming the Board's decision, which denied Asatov's VEOA request for corrective action)

Asatov v. Department of Labor, No. 2013-3047 (Oct. 16, 2013) (MSPB Docket Nos. PH-3330-12-0390-I-1, PH-3330-12-0391-I-1, and PH-3330-12-0392-I-1) (affirming the Board's decision, which denied Asatov's VEOA requests for corrective action)

Camaj v. Department of Homeland Security, No. 2013-3060 (Oct. 16, 2013) (MSPB Docket No. NY-0752-11-0048-I-1) (affirming the Board's decision, which sustained the agency's removal action)
     
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