U.S. Merit Systems Protection Board 
Case Report for February 21, 2014

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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:  Kenneth P. Beyers
Agency:  Department of State
Decision Number:  2014 MSPB 8
Docket Number:  DC-3330-11-0538-M-1
Issuance Date:  February 12, 2014
Appeal Type:  Veterans Employment Opportunities Act

Veterans' Rights - VEOA

    This case was before the Board on remand from the U.S. Court of Appeals for the Federal Circuit.  The appellant applied for a position in the Foreign Service of the U.S. Department of State and received a conditional offer of employment, subject to satisfactory completion of the Foreign Service's suitability review process.  The agency's background examination turned up unfavorable information, and its Final Review Panel terminated his candidacy for employment.  In the decision reviewed by the court, the Board dismissed the appeal for failure to state a claim on which relief may be granted.  In remanding the case for a determination whether the appellant might have a valid VEOA claim, the court directed the Board to address whether it may or must address suitability issues in the context of the appellant's VEOA claim.  

Holdings:  The Board denied the appellant's request for corrective action under VEOA on the merits.  The appellant failed to meet all qualifications for the Foreign Service position in question.  He had received a conditional offer of employment contingent upon satisfactory security, medical, and suitability issues.  The appellant was found not to be suitable and therefore not to have met all qualifications for employment.  The Board noted that the appellant had not identified any statute or regulation relating to veterans' preference allowing an agency to disregard findings made during a suitability determination that would otherwise disqualify a preference eligible.



Appellant:  Ignacio B. Ulep
Agency:  Department of the Army
Decision Number:  2014 MSPB 9
Docket Number:  PH-0752-12-0397-I-1
Issuance Date:  February 14, 2014
Appeal Type:  Adverse Action by Agency
Action Type:  Suspension - More than 14 Days

Indefinite Suspension
 - Denial of Access to Classified Information
 - Harmful Procedural Error

    The agency petitioned for review of an initial decision that reversed its decision to indefinitely suspend the appellant.  The appellant's position as an Information Technology Specialist requires a security clearance, i.e., eligibility for access to classified information.  Following his arrest on criminal charges in Virginia in March 2012, the agency informally suspended his security clearance.  The agency later suspended the appellant indefinitely for failure to maintain a necessary condition and qualification of his employment due to the suspension of his security clearance.  On appeal to the Board, the administrative judge reversed the action, finding that the agency had denied the appellant due process by failing to provide a meaningful opportunity to respond to the deciding official.  

Holdings:  The Board affirmed the initial decision as modified, still reversing the indefinite suspension:

1. 5 U.S.C. 7513 is not the only source of procedural protections for employees subject to adverse actions; agencies must also comply with the procedures set forth in their own regulations.  

2. Under the agency's regulations, "no unfavorable administrative action shall be taken" unless the individual concerned has been afforded several specific procedures set forth in 32 C.F.R. 154.56(b).  Here, the agency took its adverse action without providing any of the procedures set forth in 154.56.  

3. Under 5 U.S.C. 7701(c)(2)(A), the Board may not sustain an agency's decision to impose an adverse action if the employee can show "harmful error in the application of the agency's procedures in arriving at such decision."  Here, the agency's error was plainly harmful, for if the agency had complied with its own regulations it would not have taken the action without first providing those procedural guarantees.  Consequently, the indefinite suspension cannot be sustained, regardless of whether it would otherwise promote the efficiency of the service.  



COURT DECISIONS

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

Ross v. Office of Personnel Management, No. 2013-3124 (Feb. 7, 2014) (MSPB Doc. No. DE-0831-12-0154-I-1) (affirming per Rule 36 the Board's decision, which affirmed OPM's denial of Ross's request for a former spouse annuity)

Gandia v. U.S. Postal Service, No. 2013-3162 (Feb. 7, 2014) (MSPB Doc. No. SF-0752-12-0185-I-1) (affirming the Board's decision, which affirmed Gandia's removal)

Cox v. Office of Personnel Management, No. 2013-3186 (Feb. 7, 2014) (MSPB Doc. No. AT-844E-13-1600-I-1) (affirming the Board's decision, which dismissed as untimely filed Cox's appeal of OPM's denial of his application for disability retirement)

Philbert v. Merit Systems Protection Board, No. 2014-3029 (Feb. 7, 2014) (MSPB Doc. No. DC-0752-13-0165-I-1) (affirming the Board's decision, which dismissed Philbert's petition for review as untimely filed without good cause shown)

Carlson v. Merit Systems Protection Board, No. 2013-3112 (Feb. 10, 2014) (MSPB Doc. No. DC-831E-13-0148-I-1) (affirming the Board's decision, which affirmed OPM's decision denying Carlson's application for disability retirement as untimely filed)

Hood v. Office of Personnel Management, No. 2013-3126 (Feb. 11, 2014) (MSPB Doc. No. DA-831E-12-0227-I-1) (affirming the Board's decision, which affirmed OPM's denial of Hood's application for disability retirement)

Connell v. Office of Personnel Management, No. 2013-3184 (Feb. 11, 2014) (MSPB Doc. No. SF-0831-13-0142-I-1) (affirming the Board's decision, which affirmed OPM's determination that Connell was not entitled to an increased survivor annuity)

Meunier v. Office of Personnel Management, No. 2013-3135 (Feb. 11, 2014) (MSPB Doc. No. CH-0831-12-0581-I-1) (affirming the Board's decision, which affirmed OPM's denial of Meunier's request for survivor annuity benefits)
     
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