Opinion

Joseph E Harding v. Department of Veterans Affairs

Court: Merit Systems Protection Board
Filed: Nov 21, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 33.1%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JOSEPH ERNEST HARDING, DOCKET NUMBER

Appellant, AT-0714-20-0161-I-1

DEPARTMENT OF VETERANS DATE: November 21, 2024

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Joseph Ernest Harding , Birmingham, Alabama, pro se.

Kimberly Kaye Ward , Esquire, and Glynneisha Bellamy , Esquire, Decatur,

Georgia, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which

dismissed his removal appeal for lack of jurisdiction. Generally, we grant

petitions such as this one only in the following circumstances: the initial decision

contains erroneous findings of material fact; the initial decision is based on an

A nonprecedential order is one that the Board has determined does not add

significantly to the body of MSPB case law. Parties may cite nonprecedential orders,

but such orders have no precedential value; the Board and administrative judges are not

required to follow or distinguish them in any future decisions. In contrast, a

precedential decision issued as an Opinion and Order has been identified by the Board

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).

erroneous interpretation of statute or regulation or the erroneous application of

the law to the facts of the case; the administrative judge’s rulings during either

the course of the appeal or the initial decision were not consistent with required

procedures or involved an abuse of discretion, and the resulting error affected the

outcome of the case; or new and material evidence or legal argument is available

that, despite the petitioner’s due diligence, was not available when the record

closed. Title 5 of the Code of Federal Regulations, section 1201.115

(5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we

conclude that the petitioner has not established any basis under section 1201.115

for granting the petition for review. Therefore, we DENY the petition for review

and AFFIRM the initial decision, which is now the Board’s final decision.

5 C.F.R. § 1201.113(b).

BACKGROUND

¶2 The appellant was a Federal employee until he retired under the Federal

Employees’ Retirement System (FERS) in March 2017. Initial Appeal File (IAF),

Tab 6 at 6. Following his retirement, he received a competitive service

appointment with the agency as a reemployed annuitant. Id. at 7. His salary in

that position was offset for his FERS annuity payments. IAF, Tab 13. Effective

November 22, 2019, the agency removed the appellant from his position and

advised him that he could seek review of the action by appealing to the Board.

IAF, Tab 3 at 1-4. The appellant did so. IAF, Tab 1 at 3.

¶3 The administrative judge held a status conference, during which the

appellant stated that he was a reemployed annuitant. IAF, Tab 8 at 1. Based on

the appellant’s representation, the administrative judge advised the parties that

this raised a jurisdictional issue. Id. The administrative judge issued an order to

show cause notifying the appellant that the Board may not have jurisdiction to

adjudicate his appeal if he was a reemployed annuitant receiving an annuity at the

time of his removal. IAF, Tab 10. The appellant filed a response to the show

cause order. IAF, Tab 12. The agency filed a motion to dismiss for lack of

jurisdiction. IAF, Tab 6. The administrative judge subsequently issued an initial

decision dismissing the appeal for lack of jurisdiction without holding the

appellant’s requested hearing based on his finding that the appellant was a

reemployed annuitant when he was removed and, therefore, had no right to appeal

that action to the Board. IAF, Tab 1 at 2, Tab 15, Initial Decision (ID).

¶4 The appellant filed a petition for review, and the agency filed a response in

opposition. Petition for Review (PFR) File, Tabs 1, 3.

DISCUSSION OF ARGUMENTS ON REVIEW

¶5 The Board’s jurisdiction is limited to those matters over which it has been

given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems

Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). In an adverse action appeal,

an appellant is entitled to a hearing on jurisdiction if he makes a nonfrivolous

claim of Board jurisdiction, at which he must prove jurisdiction by preponderant

evidence. SanSoucie v. Department of Agriculture, 116 M.S.P.R. 149, ¶ 16

(2011); 5 C.F.R. § 1201.56(b)(2)(i)(A). Nonfrivolous allegations are allegations

of fact that, if proven, could establish that the Board has jurisdiction over the

matter at issue. Walker v. Department of the Army, 119 M.S.P.R. 391, ¶ 6 n.2

(2013); 5 C.F.R. § 1201.4(s).

The appellant failed to nonfrivolously allege that he was an employee with Board

appeal rights.

¶6 It is undisputed that the appellant received annuity payments while he was

employed with the agency. IAF, Tab 13. Thus, the administrative judge correctly

determined that the appellant was a reemployed annuitant and served at the will

of the appointing authority. ID at 3-4; see 5 U.S.C. § 3323(b)(1); Garza

v. Department of the Navy, 119 M.S.P.R. 91, ¶ 9 (2012). As such, we agree with

the administrative judge that the appellant had no right to appeal his separation to

the Board. Garza, 119 M.S.P.R. 91, ¶ 9.

¶7 On review, the appellant does not dispute that he was receiving an annuity

while employed by the agency. PFR File, Tab 1. He argues that, under

5 C.F.R. § 553.201(f), the agency was required to ask the Office of Personnel

Management (OPM) to waive the annuity offset of his pay. Id. at 5-6. He also

states that he did not decide to waive or decline annuitant pay. Id. The appellant

also reasserts that he was not a probationary employee at the time he was

removed. Id. He provides documentation showing that he had prior service in the

same agency and references documents that the agency submitted with its agency

file, specifically personnel actions taken against him in his prior position, as

evidence of the agency’s intent to obscure the fact that he completed his probation

period. Id. at 5, 7-8. As explained below, none of these arguments provide a

basis to disturb the initial decision.

¶8 The appellant’s argument regarding any obligation on the part of the agency

to request that OPM waive the offset is unavailing. Absent a waiver,

an Executive agency is required to reduce the pay of a reemployed annuitant by

the amount of his annuity. 5 U.S.C. § 8468(a), (f). To the extent that the

appellant argues that it was the agency’s responsibility to waive or decline

annuity payments on his behalf, he has not identified a law, rule, or regulation

that imposes such an obligation on an employing agency. He appears to conflate

5 C.F.R. § 553.201 and 5 C.F.R. § 841.803. Under section 553.201, on a case-by-

case basis, and in limited circumstances, an agency may request that OPM

approve reemployment of a retired employee without reducing his pay for his

annuity. The agency, and not the retired employee, must make the request to

waive reduction. 5 C.F.R. § 553.201. On the other hand, under

section 841.803(a), “[a]n annuitant may decline to accept all or any part of the

amount of his . . . annuity by a waiver signed and filed with OPM.” 5 C.F.R. §

841.803(a). The retired employee, and not the agency, may make the request to

waive payment of the annuity under this provision. See id. Unless a reemployed

annuitant does so, he is considered an at-will employee with no right to appeal to

the Board. Terrill v. Merit Systems Protection Board, 610 F. App’x 982, 984

(Fed. Cir. 2015) (citing Vesserv. Office of Personnel Management, 29 F.3d at 604,

605-06 (Fed. Cir. 1994) (recognizing that an individual can waive his annuity

under the Civil Service Retirement System)); see also 5 U.S.C. § 8465(a)

(reflecting that a FERS annuitant can waive all or part of his annuity). 2

¶9 Additionally, although the appellant asserts that the agency sought

to conceal his status as a tenured Federal employee, the evidence does not support

his claim. The agency issued a notice of proposed removal and removal

decision reflecting that it believed he had the right to appeal to the Board under

38 U.S.C. § 714. IAF, Tab 14 at 15-18, 26-28. Further, as to the two documents

the appellant submits on review reflecting that he completed his

probationary period, the agency provided one of these same documents below.

PFR File, Tab 1 at 7; IAF, Tab 14 at 129. It states that the appellant’s “initial

probationary period [was] completed.” IAF, Tab 14 at 129. Thus, we discern no

deception by the agency.

¶10 In any event, the appellant’s argument and documents showing that he was

not a probationary employee do not change the outcome in this case.

Tenured employees of the Department of Veterans Affairs, like the appellant,

generally may appeal their removals to the Board under Department of Veterans

Affairs Accountability and Whistleblower Protection Act of 2017, Pub. L.

No. 115-41, 131 Stat. 862 (2017) (VA Accountability Act), codified at

38 U.S.C. § 714. However, as discussed above, this right does not extend to

reemployed annuitants. 5 U.S.C. § 3323(b)(1). Thus, the appellant’s

probationary status at the time of his employment with the agency is not relevant,

as he was an at-will employee. Although this case arises under the VA

Accountability Act, and not chapter 75, the administrative judge found

section 3323(b)(1) nonetheless applied to the appellant’s separation. ID at 3-4.

The Board may rely on unpublished decisions of the U.S. Court of Appeals for the

Federal Circuit if it finds the court’s reasoning persuasive, as we do here.

Special Counsel v. Coffman, 124 M.S.P.R. 130, ¶ 56 n.10 (2017).

We agree. The stated intention of the VA Accountability Act was “to improve

accountability of employees of the [agency].” Pub. L. No. 115-41, 131 Stat. 862

(2017). This is inconsistent with interpreting the act to provide greater rights to

the appellant than to employees of other Federal agencies, who may be entitled to

adjudicate an adverse action under chapter 75. See Garza, 119 M.S.P.R. 91, ¶ 9

(applying section 3323(b)(1) to the separation of an appointee at an agency other

than DVA prior to the enactment of the VA Accountability Act).

¶11 Accordingly, we affirm the initial decision that dismissed the petition for

review for lack of jurisdiction.

NOTICE OF APPEAL RIGHTS 3

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By

statute, the nature of your claims determines the time limit for seeking such

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).

Although we offer the following summary of available appeal rights, the Merit

Systems Protection Board does not provide legal advice on which option is most

appropriate for your situation and the rights described below do not represent a

statement of how courts will rule regarding which cases fall within their

jurisdiction. If you wish to seek review of this final decision, you should

immediately review the law applicable to your claims and carefully follow all

filing time limits and requirements. Failure to file within the applicable time

limit may result in the dismissal of your case by your chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

(1) Judicial review in general . As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision.

5 U.S.C. § 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the following

address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination . This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims —by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on

race, color, religion, sex, national origin, or a disabling condition, you may be

entitled to representation by a court-appointed lawyer and to waiver of any

requirement of prepayment of fees, costs, or other security. See

42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012 . This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in

section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)

(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either

with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of

competent jurisdiction. 4 The court of appeals must receive your petition for

review within 60 days of the date of issuance of this decision.

5 U.S.C. § 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the following

address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expired on

December 27, 2017. The All Circuit Review Act, signed into law by the President on

July 7, 2018, permanently allows appellants to file petitions for judicial review of

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,

132 Stat. 1510.