ksaldarini@govexec.com
Every Friday on GovExec.com, Legal Briefs reviews several cases that involve, or provide valuable lessons to, federal managers. We report on the decisions of a wide range of review panels, including the Merit Systems Protection Board, the Federal Labor Relations Authority and federal courts.
Several recent Merit Systems Protection Board cases revisited the issue of when, why and how employees can opt out of a buyout after they've already signed their job away.
The cases involve General Services Administration employees who signed buyout agreements with the understanding that they could petition to withdraw their requests-but only in cases of hardship. GSA allows employees to withdraw their requests for buyouts if unforeseen circumstances crop up that make it difficult for them to retire.
In one group of cases (Doyle et al. v. GSA, BNO75297011711), employees gave the following reasons for wanting to opt out of a buyout:
- An employee's terminally ill father died sooner than expected and she felt at the time she took the buyout that she was in a dead-end job.
- An employee expected his field office to be relocated, but it was not.
- An employee believed the future of the agency looked bleak when she signed, but later changed her mind .
MSPB denied each of these requests, saying none was unforeseeable or approached a justifiable level of hardship.
In a second set of cases (Green, Swerda, and Hicklin v. GSA, DE0752970524), employees gave the following reasons:
- One simply listed the agency's mission as his excuse, with no further explanation.
- One said he had remarried and purchased a home, and that he expected his wife would be laid off or reduced in rank.
- One said she had thought her retirement income, along with her grown son's, would suffice. Her son was subsequently shot in the arm and could no longer work. He also was not medically insured, so the employee had to cover substantial medical costs and became his sole source of support.
MSPB denied the first two requests, but allowed the last, saying the appellant had satisfied the extreme hardship standard and that her circumstances were unforeseeable.
Finally, in four additional cases (Fleury v. GSA, BN075297011411, Waite v. GSA (BN075297011611), Griffin v. GSA (DA075297033611), and Piechota v. GSA (CH075297048911)), employees gave the following reasons:
- One said he was suffering from a life-threatening liver disease that, even if he survived, would prevent him from finding a private-sector job, as he originally had planned. In addition, his son was going away to college.
- One said she had expected to move to Georgia to join her husband, who had recently accepted a new job there. They were subsequently divorced, leaving her alone to financially support her mother and disabled daughter.
- One said her husband had not found work since being laid off, the couple's retail business had failed, her father was diagnosed with a life-threatening disease and her son depended on his parents for college tuition and other financial support.
- One cited increased costs of adopting two children, costs associated with her mother-in-law's death, and the unexpected need to replace her husband's car after an accident.
MSPB allowed the first request two requests, but denied the other two. In the second case, MSPB ruled that the events were not unforeseeable because the husband had been unemployed, the son was in his third year of college, the father had been diagnosed two years earlier and because it is not uncommon for a retail business to fail. In the third case, the employee failed to show why the costs of adoption and the mother-in-law's death were unexpected. The employee also did not explain why the car was uninsured. MSPB concluded that cars need to be replaced periodically; therefore, the expense was not unforeseen.
Lesson: Don't accept a buyout with the expectation that you'll be able to get out of it later.
Merit Systems Protection Board, April 26, 1999
Vets' Preference-or Favoritism?
In a case that will affect more than 1,200 recent applicants for administrative law judge positions, the Merit Systems Protection Board ruled on Apr. 22 that the selection process for administrative judges discriminates against people who are not eligible for veterans' preference.
The Office of Personnel Management gives applicants an examination to see if they are qualified to be administrative judges. A 70 is a passing score. OPM then ranks applicants by their scores, adding points for people with veterans' preference. When agencies want to hire administrative law judges, OPM sends the agencies a list of some of the highest-ranking applicants.
Under a new formula OPM developed in 1996, people with veterans' preference who score below a 70 on the administrative law judge examination could be ranked higher on the applicant list than non-veterans who score above 70. "The new formula has the potential to make veterans' points the dominant determinant of high ranking," the board found.
Veterans' preference is meant to help veterans, not allow unqualified people to get civilian jobs, the board said. So, the board ordered OPM to stop using the new formula.
Lesson: There's a fine line between preference and favoritism.
Ann S. Azdell and Donald B. Fishman vs. OPM (PDF Format), MSPB DC-300A-97-0368-I-1; DC-300A-97-0369-I-1, April 22, 1999
Airport Argument
An Interior Department employee who tried to get reimbursed for the cost of a flight out of Dulles Airport outside Washington can only be reimbursed for the cost of a flight out of Reagan National Airport near the city, the General Services Board of Contract Appeals ruled Apr. 26.
The Interior Department authorized employee Lewis T. Moore to attend a conference in San Diego last year. Moore purchased a ticket and flew from Reagan National Airport to Kansas City, Mo., rented a car, and drove to San Diego over the weekend. He attended the conference through the next Thursday, took a personal day on Friday, drove back to Kansas City, and then flew from Kansas City home to Reagan National.
Since he wasn't entitled to full reimbursement because he had chosen a circuitous route to the conference, Moore requested reimbursement for the cost of a round-trip flight from Dulles to San Diego, which was $400. But Interior agreed to reimburse only the cost of a flight from Reagan National to San Diego, because tickets cost $240 less. "Interior's decision to reimburse Mr. Moore as if he had flown between National and San Diego appears to be reasonable," the appeals board found.
Lesson: Employees must suck up the extra costs of traveling when they don't choose the least expensive route.
In the matter of Lewis T. Moore, General Services Board of Contract Appeals, Case No. 14885-TRAV, April 26, 1999