Legal Briefs: Fishy transfer

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.

James M. Beers, a GS-13 wildlife biologist employed by the Interior Department's Fish and Wildlife Service, was asked to relocate from Arlington, Va. to FWS's regional office in Hadley, Mass. Beers said the transfer was illegal, alleging that his superiors were simply retaliating against him because of a previous disagreement over grant money. He refused to accept the transfer and filed a complaint with the Office of Special Counsel.

In April 1998, FWS proposed to fire Beers for failing to accept the transfer, but agreed to delay his removal at OSC's request. Beers was placed on paid administrative leave while his case was being investigated.

OSC found that Beers' transfer was illegal because only an insignificant portion of his job duties had been transferred to the Hadley office. Consequently, FWS could not legally remove Beers from federal service for refusing to transfer.

OSC and FWS could not reach a settlement, so the case was petitioned to the Merit Systems Protection Board in April. On June 2, MSPB decided in favor of Beers and ordered FWS to issue him a letter of apology, pay him $150,000, restore 168 hours of annual leave, and cover his attorney's fees.

Lesson: Don't use a transfer as a weapon.

Special Counsel ex. Rel. James M. Beers v. Fish and Wildlife Service (CB-1214-99-0048-T-1), June 2, 1999.

In the Interest of Interest

Under the Civil Service Retirement System, federal employees can put money in a "voluntary contributions account" to supplement their regular federal pension. The money in the account earns interest each year, and can be withdrawn in one lump sum or used to buy an extra annuity.

IRS employee David Marrazzo opened a voluntary contributions account in 1990, adding money to it over seven years. In 1997, he tried to withdraw the money, including the interest. The Office of Personnel Management, which administers the accounts, told Marrazzo he could have his contributions back, but not the interest they had earned. The reason: OPM shouldn't have let Marrazzo have an account in the first place. Employees can't have a voluntary contributions account if they owe regular retirement contributions, and Marrazzo had never made required retirement deposits for four months of work at the Postal Service in 1966.

Marrazzo appealed OPM's decision to the Merit Systems Protection Board, arguing that OPM owed him the interest because it had allowed him to have an account for all those years. The board upheld OPM's decision, but last month, the U.S. Court of Appeals for the Federal Circuit overturned the board's ruling.

The court said regulations for the voluntary contributions program state that a worker is entitled to receive a refund of his contributions, plus the interest they earned. Sending the case back to MSPB for reconsideration, the court asked why the employee's 1966 error would prevent a refund of the interest, but not of the contributions themselves. The board "should have explained how the statute or regulation justifies this different treatment of the contributions themselves and the interest they earned," the court said.

Lesson: It's in your interest to make sure old errors don't come back to haunt you.

Marrazzo v. OPM, U.S. Court of Appeals for the Federal Circuit, 99-3079, May 12, 1999.

Whistleblower Watch

Neil Jacobs became a protected whistleblower when he testified before a House committee on possible fraud and abuses at the Immigration and Naturalization Service's Dallas District Office. Jacobs also shared some of his testimony with the media. After the hearing, the INS began an investigation of Jacobs' conduct. In October 1998, he was suspended for 21 days and reassigned to a nonsupervisory position, despite an exemplary service record and accomplishments.

The Office of Special Counsel investigated Jacobs' case and concluded that the INS retaliated against him. In November 1998, OSC arranged for Jacobs' reassignment to be held off until the Merit Systems Protection Board had a chance to investigate the case. OSC also provided the INS commissioner with a report on the retaliation in April, but the agency has taken no action on it. As a result, OSC has asked MSPB to rescind Jacobs' reassignment and order the INS to give him back pay and other relief. The request, sent to MSPB on May 25, is still pending.

Lesson: If you want to take action against a whistleblower, you better have a strong case.

Special Counsel, ex rel. Neil Jacobs, Petitioner, v. Department of Justice, Respondent (CB-1208-99-0005-U-2), January 6, 1999.