U.S. Merit Systems Protection Board 
Case Report for November 8, 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:  Joseph Wible, Jr.
Agency:  Department of the Army
Decision Number:  2013 MSPB 87
Docket Number:  CH-0839-13-0267-I-1
Issuance Date:  November 1, 2013
Appeal Type:  FERCCA
Action Type:  Retirement/Benefit Matter

Retirement - FERCCA
Veterans' Rights/VEOA
Right to a Hearing - When No Disputed Issues of Material Fact

    The appellant petitioned for review of an initial decision that dismissed his appeal for lack of jurisdiction under either the Veterans Employment Opportunities Act of 1998 (VEOA) or the Federal Erroneous Retirement Coverage Corrections Act (FERCCA).  At issue was whether the appellant was placed under the wrong retirement system (CSRS Offset instead of CSRS) during the period from May 3 through September 24, 1993.  The administrative judge dismissed the VEOA claim because the appellant had not exhausted the required administrative process with the Department of Labor.  The judge found that FERCCA did not apply because the period of alleged erroneous coverage was less than 3 years.  

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

1. The Board has jurisdiction over a determination that a retirement coverage error is not covered under FERCCA.

a. FERCCA was enacted to address problems created when employees are placed in the wrong retirement plan for an extended period.  Under 5 C.F.R. 839.101(b), an employee must generally be in the wrong retirement plan for at least 3 years to be eligible under the statute.  

b. Despite the above, the Board nonetheless has jurisdiction to consider a claim that an employee was placed in the wrong retirement plan for a shorter period.  

2. The appellant has a right to a hearing.

a. Although there do not appear to be any disputed material facts and the outcome of the appeal appears to be a matter of law, the Board cannot resolve the appeal at this time because the appellant requested a hearing.

b. Where, as here, the appellant bears the burden of proving entitlement to retirement benefits, the Board has the discretion to decide the case without a full evidentiary hearing.  Where there is no dispute of material fact and the outcome of the appeal is a matter of law, the hearing required under 5 U.S.C. 7701(a)(1) may be limited to an opportunity to present oral argument on the dispositive legal issue.  

3. The administrative judge properly found that the Board lacks jurisdiction over the appellant's VEOA claim.

4. The appellant may have a claim regarding his reemployment rights following a period of military service.  



Appellant:  Jeffrey Hill
Agency:  Department of the Army
Decision Number:  2013 MSPB 88
Docket Number:  CH-0752-12-0101-I-1
Issuance Date:  November 1, 2013
Appeal Type:  Adverse Action by Agency
Action Type:  Removal

Adverse Action Charges - Poor Judgment
Penalty - Mitigation

    Both parties petitioned for review of an initial decision that sustained the charges against the appellant, but mitigated the penalty from a removal to a 60-day suspension.  The agency removed the appellant from his position as a Lockmaster with the U.S. Army Corps of Engineers on charges of poor judgment and providing a false statement to his supervisor during an investigation.  The first charge containted two specifications:  (1) that the appellant simultaneously locked two vessels into the main and auxiliary chambers by himself, even though accepted locking procedures required that the appellant either lock one vessel while the other vessel waited or call for a training lock operator to lock one vessel while the appellant locked the other vessel; and (2) the appellant had a temporary clerical employee, who had no training as a lock operator, assist him in the locking process at issue, even though it was standard practice to allow only trained lock personnel to operate the lock equipment while locking a vessel.  The second charge alleged that the appellant falsely denied both verbally and in writing that the clerical employee assisted him in locking the vessels.  After holding a hearing, the administrative judge found that the agency proved both charges, but mitigated the penalty to a 60-day suspension.

Holdings:  A majority of the Board, Member Robbins dissenting, reversed the portion of the initial decision that sustained the charge of poor judgment, and vacated the administrative judge's penalty analysis, but still mitigated the penalty to a 60-day suspension:

1. After reviewing the evidence, the Board found that the agency failed to prove either specification of the charge of poor judgment.

2. Because the agency only proved its falsification charge, the maximum reasonable penalty is a 60-day suspension.

_________________________________________

    In his dissenting opinion, Member Robbins explained why he believed the agency proved its charge that the appellant exercised poor judgment.  He further stated that, regardless of whether the poor judgment charge was sustained, the agency appropriately applied the Douglas factors in reaching its decision to remove the appellant, stating that mitigation does not afford the proper weight to the seriousness of the falsification offense or to the fact that the appellant is held to a higher standard of conduct as a supervisor.  



Appellant:  Kenneth Randy Resnick
Agency:  Office of Personnel Management
Decision Number:  2013 MSPB 89
Docket Number:  AT-0831-12-0821-I-1
Issuance Date:  November 4, 2013
Action Type:  Retirement/Benefit Matter

Retirement
 - Entitlement to Annuity as Former Air Traffic Controller
Equitable Estoppel

    The appellant petitioned for review of an initial decision that affirmed OPM's reconsideration decision denying his application for a CSRS annuity as a former air traffic controller.  The appellant resigned from his position as an air traffic controller effective April 22, 2007, when he was 45 years old.  At that time, he had a little over 23 years of creditable service in that position.  Shortly before his 50th birthday, the appellant submitted an application for an immediate retirement under CSRS.  The issue was whether the appellant met the requirements for such an annuity under 5 U.S.C. 8336(e), which provides in relevant part:  "An employee who is voluntarily or involuntarily separated from the service . . . after completing 25 years of service as an air traffic controller or after becoming 50 years of age and completing 20 years of service as an air traffic controller, is entitled to an annuity."  OPM found that the appellant did not meet the requirements of the statute because he was less than 50 years of age when he separated from the service.  The administrative judge affirmed this finding on appeal to the Board.  Regarding the appellant's testimony that he relied on his facility manager's assurance that he would qualify for an annuity once he turned 50 years old even if he resigned prior to that time, the judge found that the appellant's reliance on such errouneous advice from a government official could not be the basis for an award of a retirement benefits to which he was not otherwise entitled, citing Office of Personnel Management v. Richmond, 496 U.S. 414 (1990).  

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

1. Relying on a plain language reading of the statute and statutory rules of construction, the Board found that, as applied to the facts of this case, only employees who were separated after becoming 50 years of age and completing 20 years of service as an air traffic controller are entitled to an annuity.

2. The administrative judge correctly ruled that, under the Supreme Court's decision in Richmond, the doctrine of equitable estoppel does not provide a basis for changing the result.



COURT DECISIONS


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

Taylor v. Merit Systems Protection Board, No. 2013-3113 (Nov. 7, 2013) (MSPB Docket No. AT-0752-12-0258-I-1) (dismissing for lack of jurisdiction the Board's final order dismissing Taylor's appeal from an agency's final decision on an EEO complaint as untimely filed)

Hughes v. Department of Homeland Security, No. 2013-3101 (Nov. 7, 2013) (MSPB Docket No. DA-0752-12-0256-I-1) (affirming the Board's decision, which dismissed the appeal for lack of jurisdiction on the basis that Hughes failed to establish that she is an "employee" within the meaning of 5 U.S.C. 7511)

Jones v. Department of Health & Human Services, No. 2013-3114 (Nov. 7, 2013) (MSPB Docket Nos. DE-3330-11-0370-I-1 and DE-3330-11-0380-I-1) (affirming the Board's decision, which denied Jones's requestion for corrective action under VEOA)



FEDERAL REGISTER NOTICE BY MSPB
How Jurisdiction is Established over Board Appeals

     On November 8, 2013, the Merit Systems Protection Board (MSPB or the Board) issued a Federal Register notice (78 Fed. Reg. 67076) inviting public input concerning options the MSPB is considering to revise its regulations governing how jurisdiction is established over Board appeals.  Written comments are invited on or before December 9, 2013.  The Board noted that its June 2012 proposed rule included a proposed amendment to 5 C.F.R. 1201.56.  Then, as now, section 1201.56 provides, without exception, that the Board's jurisdiction must be proved by preponderant evidence.  In the proposed rule, the Board noted that this provision is in conflict with a significant body of Board case law holding that certain jurisdictional elements may be established by making non-frivolous allegations.  The Board proposed to amend this regulation to allow the use of non-frivolous allegations to establish certain jurisdictional elements.  The MSPB received numerous thoughtful comments concerning the proposed regulation and, because many of the comments addressed matters that went well beyond the scope of the original proposed rule, the Board decided to withdraw the proposed rule and reconsider the existing regulation in light of the comments and internal discussions spurred by the comments.  

     The Board directed an internal MSPB working group to thoroughly review the matter.  The regulations working group developed several options for the Board to consider, and the Board has determined that it would be appropriate to seek public comment on four options.  The options are available at the Board's public website (http://www.mspb.gov/regulatoryreview/index.htm) (link to the Options document itself).  

     Options A and B are intended to make MSPB regulations consistent with existing Board and Federal Circuit case law.  Option A would amend section 1201.56(b) to state that the appellant bears the burden of proof on jurisdiction, generally by a preponderance of the evidence, and that the administrative judge will inform the parties of the proof required in each case.  Option B would similarly amend section 1201.56(b) to provide that the appellant bears the burden of proof on jurisdiction, generally by a preponderance of the evidence.  It would add a regulation, 1201.57, that would address how jurisdiction is established in IRA, VEOA, and USERRA appeals.  Option B would also clarify the burdens of proof on merits and other issues.  

     Options C and D would in some instances conflict with and supersede Board and Federal Circuit case law.  Option C would amend the Board's regulations to state that all Board appeals include "who" and "what" jurisdictional elements that must be established by preponderant evidence, and identify the 8 appeal types that require allegations as to specific merits issues in order to establish jurisdiction.  This option would also include regulatory language stating that the MSPB is not required to hold an evidentiary hearing on matters on which the appellant bears the burden of proof when there is no genuine issue of material fact to be resolved.  Associated with Option C is an MSPB Jurisdictional Matrix that lists the "who" and "what" jurisdictional elements for all appeals within the Board's appellate jurisdiction.  Option D is the same as Option C, except that it does not include the proposed regulatory language authorizing an appeal to be decided when there is no genuine issue of material fact to be resolved.  Option D would continue the Board's current practice of affording appellants the opportunity for a hearing, if requested, in all cases within its jurisdiction.

     Contrary to the regulation that was proposed in June 2012, which used the phrase "would establish," all four options would define a non-frivolous allegaton as one that, if proven, "could establish" the matter at issue.  

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