A Month in Merit Protection: Recapping Civil Service News for February 2014

A Month in Merit Protection is a new feature on MSPB Watch, recapping news, developments, and notable cases at the U.S. Merit Systems Protection Board and the U.S. Office of Special Counsel. Send tips and items for editorial consideration to dpardo [at] mspbwatch [dot] org. Disclaimer: the following is not legal advice.

Initial Decisions

  • Administrative Judge Ronald J. Weiss reversed the agency’s removal of appellant, a Senior Executive and regional commissioner, finding that it failed to establish its charge of conduct unbecoming a Federal employee. Note: this case pertains to the fallout from the controversy involving the GSA’s $822,000 Las Vegas conference scandal, which came to light in 2012. Weller v. GSA, Docket No. DA-0752-12-0519-I-1 (Feb. 4, 2014)
  • AJ JoAnn M. Ruggiero granted a NOAA Special Agent’s request for corrective action, finding the agency wrongfully issued a low performance evaluation and may have denied him a promotion as a result of his disclosure that a fellow agent made a false law enforcement report. Rios v. Dep’t of Commerce, Docket No. NY-1221-10-0261-B-1 (Feb. 6, 2014) (coverage)
  • AJ Jeffrey S. Morris granted in part a Contract Specialist’s request for corrective action, finding that the agency wrongfully constructively suspended appellant for her disclosure that a (non-governmental) contractor employee was allowed to make key contracting decisions, which should have been made by government officials, in violation of acquisition regulations. The AJ found that the agency proved by clear and convincing evidence that it would have taken some but not all of the personnel actions at issue in the absence of the disclosures, and not a constructive suspension claim. Savage v. Dep’t of the Army, Docket No. AT-1221-12-0591-W-1 (Feb. 6, 2014)
  • In a 256-page decision, Chief Administrative Judge William L. Boulden reversed the agency’s removal of a radiologic technologist, finding that the decision was based on whistleblowing and grievance activity reprisal. Ayers v. Dep’t of the Army, Docket No. DA-0752-12-0396-I-3 (Feb. 21, 2014)

Precedential Decisions

  • The Board denied appellant’s Veterans Employment Opportunity Act claim, finding that a denial of a conditional offer of employment based on a negative suitability determination did not violate veterans’ preference. Beyers v. Dep’t of State, 2014 MSPB 8 (Feb. 12, 2014)
  • The Board denied the agency’s petition for review and upheld the order not sustaining appellant’s indefinite suspension. The Board found that the agency failed to provide appellant a meaningful opportunity to respond to its proposed suspension. Ulep v. Dep’t of the Army, 2014 MSPB 9 (Feb. 14, 2014)
  • The Board granted appellant’s PFR of an initial decision that affirmed his indefinite suspension on a charge of failure to meet a condition of employment (eligibility to occupy a sensitive position), reversed the ID, and held the indefinite suspension action as not sustained. The Board found that an element of the agency erroneously concluded that, because appellant’s temporary access to classified information had been removed, he was not eligible to occupy a sensitive position and therefore did not meet a condition of employment. Rather, another element has the authority to deny his eligibility to occupy a sensitive position but did not make such a determination. Jones v. Dep’t of the Navy, 2014 MSPB 10 (Feb. 24, 2014)
  • In a 2-1 decision, the Board denied appellant’s PFR of an initial decision that dismissed his individual right of action (IRA) appeals, modified the ID, and denied appellant’s request for corrective action. The majority found that appellant, a part time physician who alleged several disclosures to the Office of Special Counsel–concerning abusive medical billing practices, non-compliance with radiation exposure regulations, destruction of records, and harassment of a fellow employee–failed to exhaust proceedings before OSC because the information to support the disclosures was “quite brief,” and when given a chance to provide additional information he declined to do so. Vice Chair Anne Wagner dissented, saying she would find that appellant exhausted his OSC remedies with regards to some of the disclosures, given that, in her opinion, appellant “sufficiently articulated with reasonable clarity and precision the basis of his complaint,” and that the Board has “consistently found allegations of similar specificity . . . adequate to meet the administrative exhaustion requirement” in other cases. Clarke v. Dep’t of Veterans Affairs, 2014 MSPB 11 (Feb. 27, 2014)
  • On remand from the U.S Court of Appeals for the Federal Circuit, the Board found, by a 2-0 vote (Member Robbins not participating), that appellant, a former State Department employee then based in Iraq, nonfrivolously alleged a disclosure that substandard and inadequate body armor was being supplied to agency employees en route to Iraq. The Board held that appellant’s disclosure–made to persons who may not have had actual authority to remedy the wrongdoing–was protected under both the retroactive provision in the WPEA (section 101) as well as under the WPA, as, contrary to the WPEA’s Senate Report, “neither the Federal Circuit, nor the Board, had recently interpreted the WPA to preclude protection for a disclosure unless it was made to a person with actual authority to remedy the wrongdoing.” The Board remanded the case to the AJ for adjudication on the merits. Nasuti v. Dep’t of State, 2014 MSPB 12 (Feb. 27, 2014)
  • The Board granted appellant’s PFR of an initial decision that affirmed his removal based on the revocation of his security clearance, vacated the ID, and reversed the removal. The Board found, contrary to the AJ, that appellant’s position did not require a security clearance and that the agency therefore failed to prove its sole charge–that appellant failed to meet a condition of employment. The Board found notable the fact that the agency continued to employ appellant for four years after suspending his access to classified information. Gamboa v. Dep’t of the Air Force, 2014 MSPB 13 (Feb. 28, 2014)

Attorney Fee Awards

  • AJ Brian Bohlen awarded appellant $13,425 in attorney fees “as the prevailing party based on the Board’s Order requiring the agency to rescind its 30-day suspension on Due Process grounds.” Ms. Voeller was represented by Norman Jackman, Esq., of Lincoln, New Hampshire. Voeller v. Dep’t of the Army, Docket No. AT-0752-12-0447-A-1 (Feb. 5, 2014). The underlying decision is Voeller v. Dep’t of the Army, Docket No. AT-0752-12-0447-I-1 (Oct. 17, 2012).
  • AJ Anthony W. Cummings awarded appellant $58,322 in attorney fees “incurred in connection with his successful appeal of the agency’s action constructively suspending him from the position he held as Assistant Inspector General-Management, GS-15, in the agency’s headquarters office.” Mr. Shrewsberry was represented by Adam A. Carter of The Employment Law Group. Shrewsberry v. FCC, Docket No. DC-3443-12-0288-A-1 (Feb. 5, 2014). The underlying decision is Shrewsberry v. FCC, Docket No. DC-3443-12-0288-I-1 (Apr. 24, 2013).
  • Regional Directory Jeremiah Cassidy awarded appellant $188,044 in attorney fees “in connection with . . . arbitration proceedings and her request for review with the Board.” Ms. Hollingsworth was represented by Stephanie M. Herrera, Esq., and Gary M. Gilbert, Esq., of Silver Spring, Maryland. Hollingsworth v. Dep’t of Commerce, Docket No. CB-7121-10-0016-A-1 (Feb. 28, 2014). A prior ruling which recounts this case’s litigation history is available at Hollingsworth v. Dep’t of Commerce, 117 M.S.P.R. 327 (2012).

Reports, Studies, and Newsletters

Personnel Changes

  • N/A

Other Items of Note

  • OSC announced it settled a number of Hatch Act cases based on prohibited partisan activity. (Feb. 3, 2014)
  • Citing to an incident whereby a federal employee “posted dozens of tweets about partisan elections and candidates while on duty,” OSC reminded the federal workforce not to engage in political activity while on duty. (Feb. 3, 2014)
  • MSPB filed a brief in the U.S. Court of Appeals for the Federal Circuit (partly in response to this author’s amicus curiae brief) defending its decision in O’Donnell v. USDA, 2013 MSPB 69 (Sept. 10, 2013), which resurrected a pre-WPEA Federal Circuit ruling that disclosures made in the adjudicative context are not protected.
  • MSPB transferred preparation of its weekly Case Reports to its Office of General Counsel. (Feb. 28, 2014)