Index

• Insight by Mike Causey: Funny Business
• Air Traffic Controllers Union Presses Congress, FAA
• OPM Demos E-Delivery of Background Investigations
• IG Finds Turf Battles Hinder Terrorism Cases
• New TRICARE Reserve Select Plan Launches Oct. 1
• In Brief: FDA Says Lab Closing Plan Not Canceled
• In Brief: COLA Yields $686 for APWU Craft Workers
• Legal Matters: OSC’s Crucial Role in Handling PPP Complaints
• Informed Investor: Withdrawing Funds from the TSP: Part II
• Rulings Roundup: Defense Employee Loses USERRA Appeal
• You Be The Judge: Should Suspended BOP Employees Be Restored to Duty?

Insight By Mike Causey: Funny Business

The news media, as you well know, loves to beat up on the government. Sometimes it is deserved. But all too often, the criticism is based on faulty or incomplete information. And the “correction,” as they say in the business, never catches up to the original error.

After all, bad news is good news.

But we have our own problems, and we sometimes do things that might be considered silly. Not by me, but...

But first, this word about a funny word.

There are some words in the English language that make us smile: “Pickles” is one of them. Try to say it aloud, “pickles,” without smiling. Try it on your carpool today.

Don’t be ashamed. There is nothing wrong. Most people let down their guard when the talk turns to pickles. Just typing the word “pickles” made me smile, too.

I don’t know what it is, but when you say the word “pickle” or talk about pickles, a lot of people grin. Not sure why, but pickles are just funny. I once met a guy whose specialty was pickles. He knew more about pickles than just about anybody else. Naturally, he worked for the government.

In fact, I got to interview Mr. Pickle (not his real name) after I spotted what I thought would make a nice feature story for my newspaper. It was a section of the daily Federal Register. This one was devoted to pickle standards. That is, the standards that the Department of Agriculture, I think, had set up or modified.

The standards dealt with the length of the pickle, permissible number of bumps, tone, flexibility and of course, size. Pickles, as we all know, are all cucumbers, or cucumber-like things, by a different name. And soaked in vinegar or something to make them sour or sweet.

In the course of covering the government, I also met somebody who was a specialist in moonshine, and another who was an expert on fake Hummel figurines. Two others were scientists whose duties included taking the temperature of sleeping bears. Visualize it, if you can.

The different jobs that different feds have sometimes provide fodder for comics or the media. They provide a way to make fun of the government, and of the kind of people who work for it. Think about it, the media still calls a mass shooting “going postal,” even though most of the cases involve grocery stores, a brokerage house, a computer company, everything but a postal facility. Still, when you say “going postal,” most people know what you mean.

But the next time somebody in the media snickers at what you do for a living, or some government project, tell them this:

A major U.S. newspaper—a frequent critic of government stupidity—has, or had, a perfume critic. He also critiques cologne. Unless you follow the scent (sorry), you might not know this. In fact most of us didn’t until an irreverent rival newspaper busted Mr. Sniffer (not his real name) for hosting a series of scent dinners—at $200 per plate—around the country. According to the rival newspaper’s gossip column, Mr. Sniffer gave out a “goody bag” of perfumes to each guest who showed up hungry for something—at $200—that probably tasted a lot like chicken.

Did I mention that the scent dinners were—maybe still are—being held in luxury hotels around the country? And not at ballpark hot dog stands. Rather, in places you might expect (like New York City) and in Dallas, where I, at least, wouldn’t expect.

The newspaper that employed Mr. Sniffer had a pretty good defense. It said, first off, that he was a freelancer and not a full-time employee (with health insurance, etc.); and secondly, that it had informed him that he couldn’t review any of the perfumes he gave out at the scent dinners. (The critic, to his credit, had said earlier that he wasn’t going to give out any more perfume goody bags.)

So there you have it, a giant of journalism, a publication that has raked the government over the coals at times for being silly. Now the worm has turned, sort of.

The whole thing leaves me wondering about the following:

• What kind of person would pay $200 to go to a scent dinner? Obviously, a very sensitive person with $200 (or $400 if he/she took a date) to spare.
• What do you serve to a very sensitive person who is willing to plunk down $200 for entry to a scent dinner?

All I know is that if pickles are on the menu, and they need to be just right (which for $200, they should be), I know this guy...

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Air Traffic Controllers Union Presses Congress, FAA

The union representing 15,000 certified air traffic controllers and trainees is continuing efforts to press the Federal Aviation Administration (FAA) to enact improved work rules that would hold the government to binding arbitration—and push Congress to provide leadership and greater funding to reduce the pressure on an overworked, and rapidly retiring, controller work force.

“There’s a large pool of controllers waiting around, actually weighing retirement, to see if the FAA’s pay bands will be raised this year, so that there might be an adequate incentive to stay on the job,” Doug Church, the spokesman for the National Air Traffic Controllers Association (NATCA), told FEND. “We fear that if this doesn’t happen, these people will say, ‘That’s it, I’m sick of this,’ and leave.”

“These people need a life preserver, and they want Congress to give them a proper contract—something they don’t have right now,” Church said.

Church said that at least 800 controllers, many of whom had not reached the mandatory retirement age of 56, have left the agency this year—and he said the union thinks as many as 2,000 more between the ages of 50 and 56 are eligible and could leave soon. An exodus of that size could disrupt the nation’s air transportation system.

The president of the union, Patrick Forrey, has said that the FAA has about 1,100 fewer certified controllers since Sept 11, 2001. The reduction—along with a rebound in air traffic—has “overwhelmed” the system, he said.

The House Transportation Committee on June 28 passed a measure that would force FAA back to the negotiating table with NATCA after an impasse was declared last year. Following the impasse, FAA imposed new work rules which the labor union said are inadequate.

The bill (H.R. 2881), the FAA Reauthorization Act of 2007, would help improve the national aviation system as well as resolve the pending labor issue, said Rep. Jerry Costello, D-Ill., chairman of the aviation subcommittee.

In addition to requiring FAA and NATCA to head back to the bargaining table, the bill also would mandate binding arbitration for future labor negotiations between air traffic controllers and FAA, Costello said in a statement.

The bill, which passed by a voice vote in the committee, prompted a negative reaction from Transportation Secretary Mary Peters, who said it would strip from the FAA the flexibility it needs to manage air travel. President Bush has threatened to veto the bill.

NATCA, on the other hand, was pleased. “Chairman Oberstar and Costello have brought back fairness to the FAA in the language of this bill,” Church told FEND. “Up to now we didn’t have that for some time.”

“I wouldn’t want to speculate on where we are headed. But we’re happy about what happened—it was a resounding, bipartisan vote for fairness.”

“We’re reviewing the bill,” FAA spokesperson Diane Spitalieri told FEND. “We feel that is important that the reauthorization is in place by Sept. 30, because that’s when our funding expires.”

Told that the union insisted hiring remained inadequate and training was too little too late, Spitalieri reasserted the agency’s claim that there are enough controllers to safely handle the country’s air traffic. “We disagree with Mr. Church,” Spitalieri said. “We have an aggressive staffing plan, and that plan is designed to be flexible.”

“And we are making terrific progress with the hiring of air traffic controllers,” she added.

Earlier this summer, FAA announced new $20,000 bonuses for certain controller candidates with previous experience to meet a growing staffing shortage. The FAA called the signing bonuses “recruitment incentive.” The new bonuses, advertised on the USAJOBS Web site, indicate how much trouble the FAA is having in finding qualified candidates, Forrey said on June 22.

“It’s a bonus for very specific controller experience—you have to have at least 52 weeks on-the-job experience,” Spitalieri said. “We do that because we have to be competitive—the military is also offering some incentive bonuses.”

“Let me make it clear we are not short of applicants, but in some facilities we would like to accelerate their training,” Spitalieri continued. She added that the agency had hired 1,498 new controllers through early August.

“They should have been hired in 2004,” Church said of the new hires. “Many will quit or not end up being controllers. In any case, they will not be ready until 2009.” Church said the stress and overwork that has resulted from FAA’s refusal to hire and train adequate replacements over the past few years has produced a rash of retirements. “Right now, the massive exodus of controllers is eroding the safety foundation of the system and delaying flights.”

To see more, go to: www.natca.org, www.house.gov/costello/press/2007/jun28-2.htm or www.dot.gov/affairs/dot6107.htm.

Discuss this news topic at www.FederalSoup.com. Click on the "Inside the News" Forum.

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OPM Demos E-Delivery of Background Investigations

The Office of Personnel Management (OPM) has launched a demonstration project in which completed background investigations are electronically transferred to the Army Central Personnel Security Clearance Facility (CCF) for adjudication of clearances.

OPM Director Linda Springer on Aug. 20 said the move was an attempt to speed up and streamline the adjudication of clearances under CCF’s jurisdiction. OPM conducts 95 percent of all background investigations of federal employees seeking security clearances.

The program is expected to dramatically reduce the time necessary to transfer documents to the CCF for adjudication. Currently, completed investigations are normally delivered through the U.S. Mail or other hand-delivery means—which can add seven to 13 days, Springer said. Electronic transfer will reduce delivery time and will provide savings on postage and government personnel, according to OPM.

“OPM has worked diligently over the past two years to increase the speed with which federal employees receive their security clearance,” Springer said. “Through electronic transfer, agencies will have instant access to completed background investigations, ensuring more timely and efficient adjudication of clearance cases.”

The program will enable the Army CCF to process cases electronically and will increase efficiency because it can automatically prioritize cases based on OPM codes. The system helps eliminate staff costs associated with the current paper-based environment, OPM said. Under a 2004 anti-terrorism law, agencies are required to ensure by 2009 that 90 percent of applications get adjudicated within 60 days of the date investigators receive the forms. A recent analysis by the Office of Management and Budget found agencies are making significant progress in streamlining the security clearance process.

If successful, OPM expects to extend electronic transfer to all agencies by Oct. 1.

To see more, go to: www.opm.gov/news/opm-begins-electronic-delivery-of-completed-background-investigations-to-army-ccf,1315.aspx.

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IG Finds Turf Battles Hinder Terrorism Cases

Interagency jurisdictional disputes between the FBI and Immigration and Customs Enforcement (ICE) have sidetracked agents’ efforts to follow up reports of terrorism activity, leading to some cases being dropped, said a new government report.

The report, from the Inspectors General (IG) at the Departments of Homeland Security (DHS) and Justice (DOJ)—compiled at the request of Sen. Chuck Grassley, D-Iowa—examined 10 cases that started at ICE and were taken over by the FBI.

The cases were the product of a 2003 interagency Memorandum of Agreement (MOA) that sought to improve cooperation between the two entities. The MOA requires ICE to submit all “appropriate” money laundering or financial crime leads to the FBI to determine whether they are “related to terrorism or terrorist financing and to ensure effective deconfliction.”

Specifically, the IG report looked at 10 active cases from cities around the country. The report found that seven of the 10 terrorist-financing cases suffered from lack of cooperation between the FBI and ICE until the cases were transferred to FBI-controlled Joint Terrorism Task Forces (JTTF). The new report—a follow-up to an earlier study of a single case—cited FBI delays and refusals on investigative actions that needed court approval.

Major areas of difficulty, according to ICE agents, were FBI delays or refusals regarding investigative actions that required court approvals—such as search warrants—and FBI impediments to information sharing. ICE agents said that the FBI impeded or prevented ICE’s requests for search warrants, pen registers (a device that records phone numbers but not the content of a call), or Title III electronic surveillance warrants in four cases.

In five cases, ICE agents said the FBI would not share or was slow to share information from its investigations of the same or related targets, according to the report. For example, the FBI would not share with ICE agents information first obtained by ICE headquarters and forwarded to the FBI. Instead of releasing the information, the FBI classified it and claimed the ICE agents were excluded from the information loop because they did not have the required “need to know” status.

Security clearances also were a problem. ICE agents from two of the five cases said that the FBI claimed that ICE agents had inadequate clearance levels or lacked the proper “need to know” status. In one case, FBI headquarters was slow to review—and at times required ICE agents to resubmit—security clearance documentation, which delayed the local JTTF from sharing the case for more than a year.

Eventually, ICE agents avoided following up terrorism leads in order to prevent FBI involvement, the report said.

“I hate to think how much our law enforcement agencies could be missing because of petty turf battles,” Grassley said Aug. 13. “That kind of institutional vanity should have been history on Sept, 12, 2001.”

“This is definitely not a story of smooth cooperation between the FBI and ICE,” Grassley said. “The facts established in the OIG report do not instill confidence in the FBI’s ability to lead under the process established by the MOA.”

To see more, go to: http://grassley.senate.gov/index.cfm?FuseAction=PressReleases.
Detail&PressRelease_id=5519&Month=8&Year=2007.

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New TRICARE Reserve Select Plan Launches Oct. 1

Military reservists and National Guard members enrolled in the TRICARE Reserve Select (TRS) health plan can transfer to a new simplified program that will replace it on Oct. 1.

The new plan is designed to streamline the current TRS Select benefit and make it available to more reservists and their families, Army Maj. Gen. Elder Granger, deputy director of the TRICARE Management Activity, said in an Aug. 13 statement.

“We’re extremely excited about the enhancements to TRICARE Reserve Select,” said Granger, “All qualified members of the Selected Reserve who purchase health care coverage under the new TRS will pay the same low monthly premium.”

However, military reservists and National Guard members need to be aware that participation won’t be automatic for those currently enrolled in the TRICARE Reserve Select program. They’ll be taken off the enrollment lists when that program expires Sept. 30 and must sign up for the new plan to maintain coverage. About 11,500 National Guard and reserve component servicemembers are currently enrolled in the TRS program.

But those eligible will be able to purchase the new TRS insurance, which features nearly identical coverage to active-duty TRICARE Standard/Extra insurance and costs less than the current reserve select coverage. One major highlight of the new version is that it offers one premium level instead of the current three-tier system.

Under the new TRS, all enrollees will pay the same monthly premium—$81 for individuals and $253 for family coverage. The premiums will not change through December 2008, but may be adjusted annually thereafter.

The revamped TRS also includes expanded survivor coverage and continuously open enrollment. Gone are service agreements and differing qualifications for each of the three tiers. The new TRS will have only two reservist enrollee qualifications: the member must be a Selected Reserve member of the Ready Reserve; and the member must not be eligible for the Federal Employees Health Benefits (FEHB) program or be currently covered under FEHB.

For those leaving active duty and planning on participating in the military reserve, the TRICARE Web site at www.tricare.mil, offers details and tells how to sign up. Users should go to the “My Benefit” link, then to the Guard and Reserve portal.

To see more, go to: www.tricare.mil/pressroom/news.aspx?fid=307.

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In Brief: FDA Says Lab Closing Plan Not Canceled

A Food and Drug Administration (FDA) official said Aug. 22 that the agency is not abandoning its plan to close about one-half of the agency’s 13 Office of Regulatory Affairs (ORA) labs and trim staff. The latest announcement seems to contradict statements made on Aug. 17 by Margaret Glavin, FDA’s associate commissioner for regulatory affairs, that the agency was walking away from the plan. Glavin’s use of the word “cancellation” referred to the implementation of the plan that is suspended, said FDA spokeswoman Kimberly Rawlings. “FDA is temporarily suspending the plan to reorganize our field operations,” Rawlings said, “including the lab closures, to re-evaluate best way to proceed, in context of looking at priorities, investment needs, business processes to support new food safety strategy, import changes from the President’s Import Working Group, and then figure out what organizational changes are needed to support all this.” FDA had been pressing the plan amid growing opposition. The House had inserted language into the FY 2008 FDA appropriations bill (H.R. 3161) barring use of funds for ORA lab closures. To see more, go to: www.fda.gov.

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In Brief: COLA Yields $686 for APWU Craft Workers

The latest cost-of-living adjustment (COLA) under the American Postal Worker Union’s (APWU) five-year contract will give the union’s craft employees an annual raise of $686, the labor union said this month on its Web site. July was the last month of the second six-month COLA measuring period in the union’s 2006-2010 Collective Bargaining Agreement with the U.S. Postal Service. The COLA, effective Sept. 1, will be reflected in Sept. 21 paychecks, the union said. Last September, APWU-represented employees received an $812 COLA increase. To see more, go to: www.apwu.org/news/webart/2007/webart-0778-colaupdate-070815.htm.

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Legal Matters: OSC’s Crucial Role in Handling PPP Complaints

By Jessica L. Parks and David Weiser

This is our fifth and final article on Prohibited Personnel Practices—also known as PPPs.  As explained in previous articles, federal personnel law forbids consideration of numerous factors unrelated to merit. For example, denial of promotion based on an applicant’s prior testimony in a grievance would amount to a PPP. In this concluding article, we focus on the options available for pursuing a PPP complaint, including a description of the key role played by the Office of Special Counsel (OSC).

PPP as Affirmative Defense at MSPB.  Consider the following scenario: an employee is suspended for 30 days for “insubordination,” but the employee insists that the discipline is retaliation for political affiliation (i.e., a PPP). Lengthy suspensions (more than 14 days) may be appealed to the Merit Systems Protection Board (MSPB), so the PPP complaint in this example may be raised as an “affirmative defense” by the employee seeking to have the punishment reversed. The employee will have an opportunity to show MSPB that the real motivation for the suspension was political bias. If the employee carries this burden of proof, then the employee will prevail and the suspension action will be erased. Thus, when a PPP complaint arises in connection with an otherwise-appealable disciplinary action, the employee may pursue the PPP claim as an affirmative defense at the MSPB.

PPPs at OSC. If a PPP complaint is not connected to an otherwise-appealable disciplinary action, then OSC will play a crucial role. For example, if an employee claims political bias in promotions (as opposed to disciplinary action, as in the scenario above), then there is no direct path for bringing this claim to MSPB. The employee must file a PPP complaint with OSC, and OSC will decide whether to push the complaint forward to litigation at MSPB.

In many cases, if OSC declines to pursue a PPP complaint, then there is no legal enforcement mechanism available to challenge the personnel action in question. OSC thus has a role similar to a criminal prosecutor, who investigates alleged wrongdoing and decides whether or not formal legal action will be pursued. As a practical matter, OSC lacks resources to fully explore every PPP complaint. It is therefore important for PPP complainants to work carefully with OSC’s staff to present a clear and accurate picture of the issues and the evidence, providing the strongest basis for OSC to accept the case for litigation or other resolution.

OSC requires use of its own complaint form to begin the PPP complaint process. This form (Form OSC-11) organizes facts and allegations in a format useful for OSC’s analysis.

OSC’s Complaints Examining Unit handles the initial stage of the evaluation process, collecting information from the complaining employee and the agency in question to obtain an accurate picture of the allegations. Before concluding this “examination” phase, OSC will provide the employee with a chance to submit additional information regarding OSC’s questions or concerns about the complaint. OSC often closes the matter without further action at the end of this initial review stage, having concluded that the complaint does not merit more formal OSC involvement.

If OSC decides to continue forward with a complaint, the matter moves to OSC’s Investigation and Prosecution Division. At this stage, OSC adds specialized resources to its review of PPP complaints, and may conduct interviews with complainants and others in an effort to determine whether formal litigation is appropriate.

OSC also has an Alternative Dispute Resolution (“ADR”) Unit. This office provides an opportunity for the complainant and the agency in question to explore possible settlement options (sometimes through mediation), as an alternative to further investigation and possible litigation. Whether through the ADR Unit or otherwise, OSC frequently resolves PPP complaints without the need for formal MSPB litigation.

If a complaint is not resolved or otherwise closed, OSC may initiate litigation at MSPB against the agency and/or specific management officials. At MSPB, OSC is an aggressive advocate, with a staff of experienced attorneys. OSC has won many cases; even more often, OSC investigations lead to successful resolution of PPP complaints.

No specific formula determines whether OSC will actively pursue a PPP complaint. However, if a PPP complaint is unclear or too speculative, it is unlikely that OSC will pursue it.  Thus, it is important to present PPP complaints in a clear manner, so that OSC can easily discern the validity of a claim.  In addition, you should not submit a large volume of irrelevant or duplicative documents with the initial complaint, because that may distract OSC’s staff from the specific allegations. It is often better to submit only the clearest, most important documentation with the initial submission; you may supplement the complaint later with additional documents if requested by OSC’s Complaints Examining Unit.

Whistleblower retaliation presents a special category of PPP complaint. Even if OSC declines to act, employees may litigate whistleblower retaliation complaints at the MSPB.

Of note, complaints of EEO discrimination technically fall within OSC’s purview, but OSC almost always declines to pursue such complaints because employees are authorized to push such complaints through the EEO complaint process.

In sum, OSC plays a crucial role in evaluating and pursuing PPP complaints. Additional details, as well as appropriate forms, may be accessed through OSC’s Web site at www.osc.gov.

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Informed Investor: Withdrawing Funds from the TSP: Part II

This is the second of five columns discussing a Thrift Savings Plan (TSP) participant’s withdrawal options. This column discusses the one-time partial withdrawal option.

Participants who are separated from federal service can request a one-time partial withdrawal of $1,000 or more from their TSP accounts. The following participants are not eligible for a partial withdrawal: (1) those with a vested TSP balance of less than $1,000; (2) those who previously made a partial withdrawal; (3) those who previously made an “age-based” in-service withdrawal (age-based in-service withdrawals are monthly payments made to employees over the age of 59.5 who also are contributing to the TSP); and (4) those who expect to be rehired after a break in service of less than 31 calendar days. A participant must be separated from federal service for 31 or more days to be eligible for post-employment withdrawals.

There are two ways to request a partial withdrawal:

1. Complete Form TSP-77, available for download at www.tsp.gov, and mail the form to:
   TSP Service Office
   P. O. Box 385021
   Birmingham, AL 35238
   or FAX the completed form to 1-866-817-5023.
2. Use the TSP Web site www.tsp.gov to begin, and in some cases complete, the withdrawal request. If the request cannot be completed online because of the need for signatures or additional information, then the participant may print out the partially completed form at the end of the session. The form should be reviewed and completed for any additional signatures, information or documentation. Any information entered on the Web site should not be changed or erased. Access to the Web site “withdrawal request section” is not available to a participant until the participant’s separation from federal service is reported to the TSP.

The following are specific instructions for completion of Form TSP-77:

1. A participant must provide a current address to be used to update the address that is listed in the TSP participant’s account record. Married participants must provide the Social Security number of their spouse.
2. Civil Service Retirement System (CSRS) participants must provide their spouse’s address in order for the TSP to notify the spouse of a CSRS participant of the request for a partial withdrawal.
3. Married Federal Employees Retirement System (FERS) participants must also have their spouse’s written consent to make a partial withdrawal. The spouse’s signature must also be notarized. A spouse of a FERS participant has the right to a TSP joint and survivor annuity with a 50 percent survivor benefit, level payment and no cash refund. By consenting to the partial withdrawal on Form TSP-77, the spouse indicates their understanding that any amount disbursed now will not be available for the purchase of an annuity.
4. Participants may withdraw a minimum of $1,000 in whole dollar amounts; for example, $1,300 or $10,400. A full withdrawal request using Form TSP-70 should be completed if the participant’s vested balance is less than $1,000.
5. Participants may elect to transfer all or any portion of a partial withdrawal to an eligible employer retirement plan, such as a 401(k) or 403(b) plan, or to a traditional IRA. The financial institution or plan administrator must complete a section on Form TSP-77 giving the type of account—traditional IRA or eligible employer plan—account number, plan name, to whom the check is written out, and the appropriate address for mailing.
6. Participants can request the TSP to directly deposit their partial withdrawal through an electronic funds transfer. The TSP also can transfer funds to an IRA held by financial institutions located inside the United States.

Payments made directly to the participant are subject to a mandatory 20 percent federal income tax withholding. Participants can ask for additional federal income tax withholding by filling out IRS Form W-4P and submitting it along with form TSP-77. The TSP does not withhold state or local income taxes. TSP contributions are made with pre-taxed salary, and earnings grow tax-deferred; hence, all withdrawals from the TSP are fully taxable.

There is no 10 percent penalty tax if a participant under age 59.5 receives the payment after the participant separates from service during or after the calendar year in which the participant reaches age 55. The following two examples illustrate this point.

Example 1. William, age 48, retires from federal service after working 25 years as a law enforcement official. William also contributed to his TSP during his federal career. If William wants to make a partial withdrawal from his TSP account, he will incur a 10 percent penalty. To avoid the 10 percent penalty, he will have to wait until age 59.5 if he wants to make a partial withdrawal.

Example 2. Cynthia, age 54, retires from the federal government on Sept. 1, 2007, with 28 years of service under an “early out” retirement offer by her agency. Cynthia will become 55 on Dec. 1, 2007. She will be able to request a penalty-free partial withdrawal from the TSP any time after retirement. She will owe federal and state income tax on her withdrawal, but no 10 percent penalty.

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Rulings Roundup: Defense Employee Loses USERRA Appeal

George M. Cobb, an employee of the Defense Commissary Service and a member of the National Guard in his state, filed an appeal with the Merit Systems Protection Board (MSPB) charging that the agency debited his military leave account for absences on weekends and other nonworkdays when he exceeded his federally allotted 15 days per year to take required military training courses.

Although the Office of Personnel Management advised agencies to do that in the past, the practice of charging leave accounts for weekends and nonworkdays has been contrary to policy over the past several years, in the wake of a federal appeals court case, Butterbaugh v. Department of Justice (2000).

In Butterbaugh, the U.S. Court of Appeals for the Federal Circuit held that agencies were not permitted to charge military leave accounts for days on which employees would not otherwise have been required to work. The decision was also retroactive, and has resulted in many appeals before administrative panels and courts.

In the current case, as in many similar cases, Cobb alleged that the agency’s action forced him to “use annual, sick, or leave time without pay to perform military duty,” according to official documents in the case. He demanded in his appeal that he regain the leave time, among other compensation.

An administrative judge (AJ) with MSPB ruled for Cobb, finding that the appellant had lost eight days of leave due to the improper debiting of his account. The AJ ruled that, following the Butterbaugh decision and the Uniformed Services Employment and Reemployment Rights Act of 1994, Cobb was entitled to compensation.

The Department of Defense appealed the decision to the full MSPB. The department resubmitted evidence indicating that Cobb had not been charged as many days as he claimed to have been.

The full board found “the appellant has not submitted time and attendance records from his civilian employment to substantiate his claims, and he has not identified specific dates when he would have been forced to use annual or other leave to fulfill his military service obligations.”

Cobb had insisted in his appeal that he “was forced to use annual leave in order to fulfill my military obligations during the time period of 1984-1997.” But the record showed, according to the board, that Cobb’s training stints did not require him to take annual leave or any other leave, since they all came at weekends and holidays.

The full board vacated the AJ’s earlier decision in favor of Cobb, and denied him compensation he sought.

(Cobb v. Dept. of Defense, MSPB, Docket No. AT-3443-06-0744-I-1, 8/16/07)

Former Spouse Lodges Appeal in Survivor’s Benefits Case

Norba Painter, a longtime federal employee, requested in 1996 that his Civil Service Retirement System (CSRS) retirement benefits be reduced in order to provide the maximum survivor’s annuity to his wife, whom he had married that same year. Effective Feb. 1, 1997, the request was put in place and his benefit was reduced.

But in 1998, the couple divorced. Significantly, the court order dissolving the marriage did not award the appellant a former spouse survivor annuity. In 2005, Painter died. The former spouse appealed to reinstitute her annuity in the form of a former spouse survivor’s annuity, as well as a death benefit.

The Office of Personnel Management denied the former spouse’s first request and a subsequent appeal. She appealed her case to the Merit Systems Protection Board (MSPB). But an administrative judge (AJ) with the board affirmed the OPM decision, finding that the 1998 “divorce decree did not expressly award a former spouse survivor annuity to the appellant.”

In her appeal before the AJ, the former spouse also cited a court order that divided the couple’s property and called for a survivor’s annuity to be awarded to her. The AJ judged this court order ineffective because it had been issued after her husband’s death—and because there was inadequate evidence that Mr. Painter had wanted to provide her a survivor’s benefit. The AJ denied her appeal.

The appellant appealed again, to the full board. She argued that OPM did not provide evidence that it issued Painter a letter providing notice that he had the right to award his former wife with a former spouse annuity. The full board noted that when Painter divorced his spouse, his previous decision to elect to provide spousal annuity normally would be automatically rescinded. “Divorce terminates a prior election of spousal survival benefits,” the board wrote. However, OPM may have failed to tell Painter he then had the option of giving his ex-wife an annuity.

“On appeal, OPM has the burden of proving both that it sent the annual notice and that the notice was adequate to inform the annuitant of the specific election requirements,” the board wrote. By law, if OPM fails to prove it sent notice, the former spouse may be eligible for an annuity, if the appellant can show he intended her to receive one. The full board remanded the case to the AJ to determine if that intention existed, and, if so, to award a benefit.

(Painter v. Office of Personnel Management, MSPB, Docket No. DA-0831-06-0440-I-1, 8/16/07)

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You Be the Judge: Should Suspended BOP Employees Be Restored to Duty?

“A prisoner filed charges against me and another correctional officer, alleging we used ‘excessive force’ while walking him back to his cell,” said Dannie Covey,* a senior officer at a Bureau of Prisons (BOP) facility in New York City. “What really happened is that the inmate suddenly tried to break free, and we used only the minimum force necessary to subdue him. Of course, he says we used needless force.”

Covey’s co-worker, Larry Hawkins: “The Bureau of Prisons has suspended Dannie and me for an indefinite period. It’s incredible—an inmate concocts charges, and we get booted—at least for now—while our appeals are under way.”

“Covey and Hawkins say that no violence occurred,” said Tara Sinclair, a lawyer for BOP. “However, we feel confident that the charges in this case will hold up under examination.”

FACTS: Dannie Covey and Larry Hawkins both have been employed by BOP for many years. But, on April 17, 2006, the agency notified the two that they were being transferred from duty at the prison to duty at home—effectively suspending them. On May 4, 2006, BOP made their temporary removal more explicit, issuing letters proposing, according to official documents, their “temporary suspension” pending the results of an Office of Inspector General (OIG) investigation “concerning the appellants’ alleged use of unnecessary force and criminal assault against an inmate.”

Covey and Hawkins, who retained the same law firm at this point in time, responded that they did not use excessive force. Instead, they said, they had been “involved in a physical altercation while helping officers subdue and escort an inmate to another unit.” Furthermore, both men “vigorously denied partaking in any physical assault involving the inmate,” according to official documents in the case.

Apart from these assertions, the men noted in their appeals that the government had “no evidence” beyond the inmate’s complaint, and that the official records in the case made no reference to any physical harm sustained by the inmate. Citing this lack of evidence, the men questioned the fairness of maintaining their suspension without pay—which would have a “disastrous effect on their ability to provide for their families and would also threaten foreclosure on their homes.”

The BOP Warden at the prison was unmoved. On June 16, 2006, the agency suspended the two men without pay for an indefinite period. The charges were so serious that it was too risky to retain them on duty, the warden reasoned, and continuing to pay them “does not meet the efficiency of the service,” he wrote. The pair filed an appeal with the Merit Systems Protection Board (MSPB), employing the same arguments.

Should BOP’s suspension without pay of Covey and Hawkins be lifted—or eased?

DECISION: An MSPB administrative judge (AJ) ruled that their indefinite suspension should be lifted, but only on a technicality. The AJ found that the agency improperly had suspended them with less than 30 days’ notice, a move that under the law requires “reasonable cause” indicating a “federal employee “committed a crime” that might warrant imprisonment. The AJ said that such was not in evidence in the present case. 

But BOP successfully argued to the full board that it did give the two men 30 days’ notice—the period between the May 4 letters and the June 16 suspension. Buttressing the agency’s assertion, a federal appeals court recently ruled that an agency may indefinitely suspend an employee pending any “investigation of possible criminal conduct” (Perez v. Department of Justice, 2007).

Covey and Hawkins nonetheless prevailed. The full board found that the AJ failed to protect their right to due process by not better describing their alleged crimes in the charges. And the government did not meet a second, less demanding test necessary to legally indefinitely suspend a federal employee without pay: the government needed to illustrate that removing the two promoted the efficiency of the service, a step its lawyers failed to take. Short of doing so, the government at its harshest may suspend the accused employees—but it must do so “with pay,” the board wrote. The full board ordered the two restored to duty—with full back pay.

(MSPB, Docket No. NY-0752-06-0267-I-1, 8/10/07)

Discuss the outcome of this case at www.FederalSoup.com. Click on the "You Be The Judge" Forum.

*Names and dialogue are fictitious, but details are based on a real case.

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Linda Young Gsell, Publisher
Phil Piemonte, Managing Editor
Nathan Abse, Staff Writer
Frank Klimko, Staff Writer
Mike Causey, Columnist
Edward Zurndorfer, Columnist

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