Robert H. Cohn v. Department of Defense

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ROBERT H. COHN, DOCKET NUMBER

Appellant, DC-0752-14-0966-I-1

v.

DEPARTMENT OF DEFENSE, DATE: June 25, 2015

Agency.

THIS ORDER IS NO NPRECEDENTIAL 1

Robert H. Cohn, Springfield, Virginia, pro se.

Steven J. Weiss, Esquire, Washington, D.C., for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

REMAND ORDER

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

dismissed his appeal for lack of jurisdiction without a hearing. For the reasons

discussed below, we GRANT the appellant’s petition for review and REMAND

the case to the regional office for further adjudication in accordance with this

Order.

1

A nonprecedential order is one that the Board has determined does not add

sign ificantly 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 Parties may cite nonprecedential orders,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).

2

DISCUSSION OF ARGUMENTS ON REVIEW

¶2 The appellant was a Chief Scientist for the agency, covered under the

Federal Employees’ Retirement System (FERS). Initial Appeal File (IAF), Tab 1

at 1, Tab 8 at 12. Beginning in early 2014, the appellant’s office underwent an

organizational adjustment. 2 IAF, Tab 7 at 4-5. It appears that the adjustment

affected the Chief Scientist position. Id. On August 7, 2014, the appellant filed a

Board appeal and requested a hearing, alleging that the agency committed

prohibited personnel practices and improperly denied him participation in a

Voluntary Early Retirement Authority (VERA) and a Voluntary Separation

Incentive Plan (VSIP). IAF, Tab 1 at 2, 5, 7-9. He further alleged that he

intended to resign from employment to avoid retaliation for reporting a prohibited

personnel practice to the Board and to the Office of Special Counsel. Id. at 5.

The appellant resigned effective August 22, 2014. IAF, Tab 5 at 4.

¶3 In the meantime, on August 15, 2014, the administrative judge issued an

acknowledgment order, notifying the appellant of how to establish jurisdiction

over a constructive removal appeal and ordering him to file evidence and

argument on the issue. IAF, Tab 2 at 2-3. After receiving evidence and argument

from the parties, the administrative judge, without holding a hearing, issued an

initial decision dismissing the appeal for lack of jurisdiction. IAF, Tab 11, Initial

Decision (ID) at 1, 5. She determined that the appellant asserted that he was not

attempting to appeal a constructive removal, and she found that the Board lacks

jurisdiction over a claim of prohibited personnel practices per se. ID at 3-4.

¶4 The appellant has filed a petition for review. Petition for Review (PFR)

File, Tab 1. This pro se appellant’s arguments are somewhat unclear. In view of

the appellant’s pro se status, however, we have interpreted his arguments in the

light most favorable to him. See Patterson v. U.S. Postal Service, 71 M.S.P.R.

2

We use the term “organizational adjustment” generically. We make no finding as to

whether the adjustments constituted a “major organizational adjustment” within the

meaning of 5 U.S.C. § 8414(d)(6).

3

332, 335 (1996), aff’d, 106 F.3d 425 (Fed. Cir. 1997) (Table). The appellant

argues that the administrative judge should not have issued her acknowledgment

order before he resigned and that her doing so prevented the Board from having

jurisdiction over the appeal. PFR File, Tab 1 at 4-5. He also argues that the

Board has jurisdiction over prohibited personnel practice claims, and he explains

that several prohibited personnel practices are at issue here, including the

violation of numerous merit system principles. Id. at 5-9. The appellant further

argues that the agency subjected him to an adverse action when it effectively

eliminated his position and that the agency’s VERA and VSIP denial s were

improper. Id. at 8-9. The agency has filed a response in opposition to the

petition for review, PFR File, Tab 3, and the appellant has filed a reply to the

agency’s response, PFR File, Tab 4. In his reply, the appellant argues among

other things that the Board has jurisdiction over this matter as a retirement

appeal. 3 Id. at 4-5.

¶5 We agree with the administrative judge’s decision not to adjudicate the

instant appeal as a constructive removal claim. ID at 3. The appellant stated in

his last filing below that his appeal “was not, nor could it have been, related to a

resignation or retirement” because he had not yet separated from service at the

time he filed his appeal. IAF, Tab 10 at 4. Administrative judges have broad

authority to govern the proceedings before them, 5 C.F.R. § 1201.41(b), and, in

light of the appellant’s assertion that his appeal did not pertain to a resignation or

3

The appellant also filed a motion for leave to submit new information. PFR File,

Tab 7. He asserts that he recently obtained legal advice that his separation from service

was fraudulent and therefore constitutes a “wrongful term ination.” Id. at 4. He asserts

that this information is based on his counsel’s knowledge of the law and that he could

not reasonably have ascertained it when he was acting pro se. I d. We find that the

appellant’s belatedly seeking the advice of an attorney does not constitute a sufficient

reason to allow him to submit additional evidence and argument at this stage of the

proceeding. While pro se appellants are not expected to proceed with the precision of

an attorney in a judicial proceeding, they may not escape the consequences of

inadequate representation. Morrison v. Department of the Army, 77 M.S.P.R. 655, 659

n.4 (1998). The appellant’s motion is DENIED.

4

retirement, we find that the administrative judge did not abuse her discretion in

declining to decide whether the appellant had been subjected to a constructive

adverse action.

¶6 The appellant argues on review that the administrative judge should have

waited until after the effective date of his resignation to issue her

acknowledgment order. PFR File, Tab 1 at 4-5. However, administrative judges

are charged with expeditiously adjudicating the cases before them, 5 U.S.C.

§ 7701(i)(4); 5 C.F.R. § 1201.41(b), and we find that the administrative judge did

not abuse her discretion in issuing the acknowledgment order with customary

promptness after the appellant filed his appeal. The appellant’s claim was not yet

ripe when he filed his appeal prior to the date of his resignation. This ripeness

problem was due to the appellant’s prematurely filing his appeal and was not

caused by the timing of the administrative judge’s orders. Furthermore, rather

than wait for the constructive removal claim to become ripe, the appellant elected

not to pursue it. IAF, Tab 10 at 4. If the appellant still wishes to pursue a

constructive removal claim, he may file a new appeal of that action with the

regional office. The appellant, though, will be responsible for establishing

jurisdiction over any such appeal and for showing either that the appeal is timely

filed or that there is good cause for any delay. See generally Bean v. U.S. Postal

Service, 120 M.S.P.R. 397, ¶¶ 7-11 (2013) (jurisdictional standard for a

constructive adverse action appeal); Brown v. U.S. Postal Service, 115 M.S.P.R.

609, ¶ 5 (standard for establishing good cause for a filing delay in a constructive

removal appeal), aff’d, 469 F. App’x 852 (Fed. Cir. 2011); 5 C.F.R.

§ 1201.22(b)-(c) (regulatory timeliness requirements for Board appeals).

¶7 We also agree with the administrative judge that the Board lacks

jurisdiction over the appellant’s claims of prohibited personnel practices in the

absence of an otherwise appealable action. ID at 3-4; see Davis v. Department of

Defense, 105 M.S.P.R. 604, ¶ 16 (2007); Wren v. Department of the Army,

2 M.S.P.R. 1, 2 (1980) (prohibited personnel practices under 5 U.S.C. § 2302(b)

5

are not an independent source of Board jurisdiction), aff’d, 681 F.2d 867, 871-73

(D.C. Cir. 1982). Arguing that the administrative judge is unaware of the Board’s

jurisdictional authority, the appellant cites the following language from the

Board’s website:

The Merit Systems Protection Board (MSPB) is empowered to hear

and decide complaints for corrective or disciplinary action when an

agency is alleged to have committed a prohibited personnel practice.

5 U.S.C. §§ 1214, 1215. It is a prohibited personnel practice to

(among other things) take an action in violation of the Merit System

Principles. 5 U.S.C. § 2302(b)(12).

http://www.mspb.gov/meritsystemsprinciples.htm. Although the Board is

empowered to hear and decide complaints for corrective or disciplinary action

when an agency is alleged to have taken a prohibited personnel practice, this

authority generally is limited to allegations of reprisal in the context of an

individual right of action appeal, 5 U.S.C. § 1221(a), and allegations of

prohibited personnel practices coupled with independently appealable agency

actions or decisions, Brodt v. Merit Systems Protection Board, 11 F.3d 1060,

1061 (Fed. Cir. 1993).

¶8 We further find that, in the absence of a constructive removal, as discussed

above, the appellant has not been subjected to an appealable adverse action.

“Adverse action” is a legal term with a specific meaning. It refers only to the

five personnel actions enumerated in 5 U.S.C. § 7512: (1) a removal; (2) a

suspension for more than 14 days; (3) a reduction in grade; (4) a reduction in pay;

and (5) a furlough of 30 days or less. The appellant’s allegations and arguments

on review do not suggest that he was subjected to any such action. PFR File, Tab

1 at 8-9.

¶9 To the extent that the appellant is challenging a VSIP denial, we find that

this is not appealable to the Board under any law, rule, or regulation. See

Maddox v. Merit Systems Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985) (the

Board’s jurisdiction is limited to those matters over which it has been given

6

jurisdiction by law, rule, or regulation). In particular, we find that the denial of a

VSIP is not an appealable agency action or order affecting an individual’s rights

under FERS. Cf. 5 U.S.C. § 8461(e)(1) (an administrative action or order

affecting the rights or interests of an individual or of the United States under

FERS administered by the Office of Personnel Management (OPM) may be

appealed to the Board). As applicable here, VSIPs are governed by 5 U.S.C.

chapter 35, subchapter II and 5 U.S.C. § 9902(f), not 5 U.S.C. chapter 84.

Furthermore, if VSIPs were retirement benefits under 5 U.S.C. chapters 83 or 84,

they would be paid from the Civil Service Retirement and Disability Fund, which

they are not. See 5 U.S.C. §§ 3523(b)(7) (reflecting that VSIPs are paid from

“appropriations or funds available for . . . basic pay”), 8348(a)(1)(A) (reflecting

that FERS benefits come from the Fund); Department of Defense (DOD)

Instruction No. 1400.25, Vol. 1702, Enclosure (Encl.) 3, § 2.g. (June 13, 2008)

(discussing possible funding sources for a DOD VSIP), http://www.dtic.mil/

whs/directives/corres/html/CPM_table2.html. Nor are VSIPs to be a basis for

payment or included in the calculation of any other type of benefit. See 5 U.S.C.

§§ 3523(b)(5), 9902(f)(5)(B). Accordingly, we lack jurisdiction over the

appellant’s claim that the agency improperly denied him a VSIP. 4

¶10 However, we agree with the appellant that, to the extent that his appeal

concerns a voluntary early retirement denial, it may be appealable to the Board as

4

In Devingo v. General Services Administration, 82 M.S.P.R. 138 (1999), aff’d sub

nom. Walker v. General Services Administration, 250 F.3d 763 (Fed. Cir. 2000) (Table),

Griffin v. General Services Administration, 82 M.S.P.R. 130 (1999), Green v. General

Services Administration, 82 M.S.P.R. 45 (1999), aff’d, 220 F.3d 1313 (Fed. Cir. 2000),

and Perrine v. General Services Administration, 81 M.S.P.R. 155 (1999), the Board

dismissed the appellants’ constructive removal appeals for lack of jurisdiction with the

exception of one appellant who established extreme hardship, finding that the agency

generally had valid reasons for denying requests to withdraw VSIP buyout

commitments. These cases are not germane to the instant appeal. The appellant in th is

case did not retire pursuant to a VSIP buyout agreement. Nor is there any indication

that he attempted to withdraw his retirement application prior to its effective date.

Moreover, as explained above, this is not a constructive removal appeal. Supra ¶¶ 5-6.

7

a retirement claim, i.e., an administrative action or order affecting his rights or

interests under FERS. PFR File, Tab 1 at 9, Tab 4 at 4-5; see 5 U.S.C.

§ 8461(e)(1); Adams v. Department of Defense, 688 F.3d 1330, 1335-36 (Fed. Cir.

2012); see also Dawson v. Department of Agriculture, 121 M.S.P.R. 495, ¶ 16

(2014) (the appellant’s voluntary early retirement claim was appealable as an

administrative action or order affecting his rights under the Civil Service

Retirement System).

¶11 VERAs under FERS are generally governed by 5 U.S.C. § 8414 and

5 C.F.R. § 842.213. Under those provisions, an agency must request a VERA

from OPM and provide specific information in support of its request. 5 C.F.R.

§ 842.213(a)-(g). Once OPM approves the VERA, those employees who fall

within the scope of the VERA’s coverage and who meet the age, service, and

other requirements prescribed by statute and OPM regulation are entitled to an

immediate annuity. 5 U.S.C. § 8414(b); 5 C.F.R. § 842.213(k).

¶12 In addition to the ability to seek VERAs from OPM, the Secretary of

Defense has separate statutory authority to establish a voluntary early retirement

program to be administered according to regulations established by the Secretary.

5 U.S.C. § 9902(f)(1), (7); DOD Instruction No. 1400.25-Vol. 1702, Encl. 3, § 4.

The age and service requirements for early retirement under § 9902(f) as

implemented by the Secretary are the same as those for early retirement under

§ 8414(b) as implemented by OPM. Compare 5 U.S.C. § 8414(b), with 5 U.S.C.

§ 9902(f)(4), and DOD Instruction No. 1400.25-V1702, Encl. 3, § 4.b. The main

difference between VERAs under 5 U.S.C. § 8414(b) and VERAs under 5 U.S.C.

§ 9902(f) is that, under the former, the agency must obtain authority from OPM,

whereas under the latter, the agency itself has the power to grant the VERA to

any number of its components.

¶13 The VERA at issue in this appeal was established under 5 U.S.C. § 9902(f).

IAF, Tab 1 at 8. However, the record is not sufficiently developed for us to

determine whether the appellant was entitled to early retirement under that

8

section. Specifically, the record does not reflect the scope of the VERA, DOD

Instruction No. 1400.25-V1702, Encl. 3, § 4.a.(3), or whether the appellant met

the eligibility requirements, id. § 4.b. The burden of proving entitlement to

retirement benefits is on the applicant for benefits. Cheeseman v. Office of

Personnel Management, 791 F.2d 138, 140-41 (Fed. Cir. 1986); Davis v. Office of

Personnel Management, 104 M.S.P.R. 70, ¶ 7 (2006). On remand, the appellant

will bear the burden of proving his entitlement to retirement benefits under the

VERA, i.e., that he was within the scope of the VERA’s coverage and met the

age, service, and other requirements prescribed by statute and agency regulation.

ORDER

For the reasons discussed above, we REMAND this case to the regional

office for adjudication of the appellant’s VERA claim.

FOR THE BOARD: ______________________________

William D. Spencer

Clerk of the Board

Washington, D.C.