Opinion

Keerti Varmaa v. Department of the Treasury

Court: Merit Systems Protection Board
Filed: May 2, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.9%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

KEERTI VARMAA, DOCKET NUMBER

Appellant, DC-0752-14-0732-I-4

DEPARTMENT OF THE TREASURY, DATE: May 2, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Keerti Varmaa , Washington, D.C., pro se.

Julie A. Barry , Esquire, Daniel C. Carr , Esquire, and Byron D. Smalley ,

Esquire, Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

FINAL ORDER

The agency has filed a petition for review of the initial decision, which

mitigated the agency’s removal action to a 30-day suspension. For the reasons

discussed below, we GRANT the agency’s petition for review, DENY the

appellant’s cross-petition for review, VACATE the initial decision, and DISMISS

the appeal for lack of jurisdiction.

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

BACKGROUND

Effective April 28, 2014, the agency removed the appellant from her

position as a Financial Administrator and Program Specialist based on charges of

(1) discourtesy or unprofessional behavior and (2) failure to follow management

directives or instructions. Varmaa v. Department of the Treasury, MSPB Docket

No. DC-0752-14-0732-I-1, Initial Appeal File (IAF), Tab 5 at 15-21, 36-39.

She timely appealed her removal to the Board and requested a hearing.

IAF, Tab 1. Following a hearing, the administrative judge issued an initial

decision mitigating the agency’s penalty to a 30-day suspension. Varmaa v.

Department of the Treasury, MSPB Docket No. DC-0752-14-0732-I-4, Appeal

File, Tab 17, Initial Decision (I-4 ID). The administrative judge found that the

agency proved two of the three specifications of the charge of discourtesy or

unprofessional behavior and sustained the charge. I-4 ID at 2-12. The

administrative judge also found that the agency proved each of the

five specifications of failure to follow management directives or instructions and

sustained the charge. I-4 ID at 12-20. According to the administrative judge, the

appellant failed to prove her affirmative defenses of discrimination on the bases

of race, color, sex, or national origin; retaliation for prior protected equal

employment opportunity activity; or retaliation for filing grievances. I -4 ID

at 20-38. The administrative judge further found that the appellant proved that

the agency had committed procedural error but had failed to show that the error

was harmful, and she did not prove her allegations that the agency violated her

due process rights. I-4 ID at 38-54. Next, the administrative judge found that

there was a nexus between the charged misconduct and the efficiency of the

service. I-4 ID at 54-55. Finally, the administrative judge found that the

deciding official had failed to properly weigh the relevant factors in imposing the

penalty of removal, and she found that a 30-day suspension was the maximum

reasonable penalty for the sustained misconduct; accordingly, she mitigated the

agency’s penalty to a 30-day suspension. I-4 ID at 56-63.

The agency filed a petition for review of the initial decision in which it

argued that it had discovered that the appellant was a reemployed annuitant at the

time of her removal and was not entitled to appeal her removal to the Board; thus,

the Board should dismiss the appeal for lack of jurisdiction. Petition for Review

(PFR) File, Tab 1 at 7-8. Alternatively, the agency argued that the administrative

judge erred in mitigating the penalty. Id. at 8-28. The appellant filed an

opposition to the agency’s petition for review and a cross-petition for review in

which she argued, collectively, that the Board should retain jurisdiction over the

appeal in the interests of judicial efficiency, that mitigation of the penalty was

proper, and that the administrative judge erred in finding that the appellant did

not prove her affirmative defense of retaliation for filing grievances. PFR File,

Tab 7. The agency responded to the appellant’s opposition and cross -petition. 2

PFR File, Tabs 8, 11.

The Acting Clerk of the Board issued an order directing the appellant to

show cause why her appeal should not be dismissed for lack of jurisdiction.

PFR File, Tab 16. In her response to the order, the appellant has conceded that

she was a reemployed annuitant at the time of her removal but renews her

argument that the Board should retain jurisdiction over the appeal in the interests

of judicial efficiency. 3 PFR File, Tab 17 at 4. The agency opposes the

appellant’s request for the Board to retain jurisdiction over this matter. PFR File,

Tab 19 at 5-7.

The appellant also filed a request for leave to file a reply to the agency’s response to

the appellant’s cross-petition for review. PFR File, Tab 14. The appellant requested

leave to respond to the agency’s argument that if the deciding official sustained a

charge without knowing it to be true, the fact does not per se indicate retaliatory

motive. Id. at 4. Because we find that the Board lacks jurisdiction over the appeal and

dismiss it, the appellant’s motion is denied.

The appellant also filed a motion to dismiss the agency’s petition for review on the

basis that the agency had failed to fully comply with the interim relief order. PFR File,

Tab 18. The agency has responded in opposition to the motion. PFR File, Tab 20.

Again, because the Board lacks jurisdiction to adjudicate this appeal, the appellant’s

motion is denied.

DISCUSSION OF ARGUMENTS ON REVIEW

Generally, the Board will not consider evidence or argument submitted for

the first time on review absent a showing that it was unavailable before the record

closed despite the party’s due diligence, but the issue of the Board’s jurisdiction

is always before the Board and may be raised by either party, or sua sponte by the

Board, at any time during a Board proceeding. Simnitt v. Department of Veterans

Affairs, 113 M.S.P.R. 313, ¶ 5 (2010); 5 C.F.R. § 1201.115.

The Board’s jurisdiction is not plenary; it 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). Under 5 U.S.C.

§ 3323(b)(1), an annuitant, as defined by section 8331 or 8401 of Title 5, is not

barred by reason of her retired status from employment in an appointive position

for which she is qualified. An annuitant so reemployed, however, serves at the

will of the appointing authority. 5 U.S.C. § 3323(b)(1); see Vesser v. Office of

Personnel Management, 29 F.3d 600, 604 (Fed. Cir. 1994); Garza v. Department

of the Navy, 119 M.S.P.R. 91, ¶ 7 (2012). Generally, such an employee has no

right to appeal an adverse action to the Board. Garza, 119 M.S.P.R. 91, ¶ 7.

On review, the agency submitted three Standard Form 50s (SF-50s)

reflecting the appellant’s status as a reemployed annuitant. PFR File, Tab 1

at 54-56. In particular, the appellant’s July 2007 SF-50 reflects that the agency

provided the appellant with career reinstatement to the position of Financial

Administrator and Program Specialist and designated her as a reemployed

annuitant. Id. at 54. The appellant’s April 2014 SF-50 effecting her removal also

reflected that she was a reemployed annuitant. Id. at 56; IAF, Tab 5 at 15. The

agency also provided verification from the Office of Personnel Management that

the appellant began receiving an annuity in June 2007 and continued to receive it

through December 2017. PFR File, Tab 6 at 9. The appellant has conceded that

she is a reemployed annuitant and does not have the right to appeal an adverse

action to the Board. PFR File, Tab 17 at 4. Accordingly, we conclude that the

appellant is a reemployed annuitant and that the Board lacks jurisdiction over the

instant appeal.

The appellant nevertheless argues that the Board should retain jurisdiction

over her appeal in the interests of judicial efficiency. PFR File, Tab 7 at 4-6,

Tab 17 at 4. She contends that she will refile her claims before the Equal

Employment Opportunity Commission, which will require the relitigation of her

claims before the Board. PFR File, Tab 7 at 5. The case the appellant cites in

support of her argument, Johnson v. Department of Defense, 95 M.S.P.R. 192

(2003), does not support her contention that the Board may retain jurisdiction

over the instant matter. PFR File, Tab 7 at 5-6. In Johnson, the Board concluded

that the appellant had failed to make a nonfrivolous allegation that her alleged

disclosures were a contributing factor in her termination and dismissed her

individual right of action appeal for lack of jurisdiction. Johnson, 95 M.S.P.R.

192, ¶¶ 10-12. Additionally, the Board in Johnson concluded that the posture of

the appeal presented unique circumstances such that the Board made alternative

findings in order to inform its reviewing court “of what we would find on the

merits if we had jurisdiction over this appeal in the event the appellant seeks

court review and the court disagrees with our jurisdictional findings.” Id.,

¶¶ 12-13. We do not find that such unique circumstances are present here and, in

dismissing this matter for lack of jurisdiction, decline to make alternative

findings on the merits of the appeal.

NOTICE OF APPEAL RIGHTS 4

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

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.

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.

(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. 5 The court of appeals must receive your petition for

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,

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