Five Years of Back Pay For This Fed

By on August 4, 2005 in Current Events with 0 Comments

The U.S. Court of Appeals for the Federal Circuit has handed the National Credit Union Administration (NCUA) a stinging defeat in a recent employee removal decision. (McCollum v. National Credit Union Administration, C.A. F.C. No. 05-3015)

In reviewing a decision of the Merit System Protection Board, the Court reversed and remanded the Board’s upholding of the removal of a high-level NCUA employee for failure to accept a directed reassignment. NCUA tripped up procedurally. The agency, according to the court, did not actually remove the employee. NCUA had given the employee a direction to move to a regional office or face removal and discontinued service retirement. The employee declined the move and NCUA apparently jumped ahead of itself and processed a discontinued service retirement.

But we, too, have jumped ahead. Here are the pertinent facts as gleaned from a rather involved fact situation with elements of scandal, whistleblowing, an IG investigation, allegations of reprisal, and so forth—

In 2000, coincidentally following a highly visible investigation of allegations of an illegal hiring scheme within NCUA supposedly involving several high-level officials, Mr. McCollum, a whistle-blower in the course of the investigation and an Associate Regional Director for Operations in the NCUA Atlanta office, was given a “Hobson’s choice” by the Executive Director of NCUA (after she got the approval of the NCUA Board)—either accept a directed reassignment to an Associate Regional Director of Programs position in Concord, California or face a removal action for refusal to accept the reassignment.

After some three months of back and forth, McCollum eventually responded that he could not accept the directed reassignment and requested discontinued service retirement. He indicated at the time that he was available to work in either his current position or the one to which they wanted to transfer him until his retirement became effective.

At this point, NCUA submitted a discontinued service retirement application for McCollum and notified him of this fact.

After first pursuing a whistleblower retaliation complaint with the Office of Special Counsel, in 2002, McCollum filed an appeal with the MSPB. He argued the whistleblower retaliation point and argued that the adverse action against him had been improper.

An administrative law judge found his removal was not in retaliation for whistleblowing, and upheld the removal. On appeal to the MSPB, the case ran into the problem of a two-member board. One member agreed with the administrative law judge’s decision and one member did not. So, procedurally, the ALJ decision was sustained.

McCollum went to court. He represented himself and apparently did a fine job of it, because he won.

In its decision, the Court pointed out that only the Board of the NCUA had the authority to remove McCollum, and it never actually made that decision. Instead, when McCollum declined the reassignment, the NCUA issued a notice of proposed removal but then skipped the important step of actually removing him. Instead, NCUA jumped to the filing of a discontinued service retirement application on his behalf with the Office of Personnel Management. The Court had to first consider whether the Board had jurisdiction of the case—to have jurisdiction the employee must have been removed. It concluded he had been. But, then, it concluded that he had not been removed properly since the Board of the NCUA did not approve his removal.

The mere fact that McCollum was granted discontinued service retirement, which is unavailable absent removal, does not change the fact that the agency itself, according to its own authority structure, never removed McCollum. Nor does the fact that NCUA “effected” McCollum’s removal make it in accordance with law.

As a result of this procedural glitch, the Court ordered retroactive reinstatement of McCallum to a comparable position, a “status quo ante” remedy. This means almost five years back pay.

Having ordered the ultimate remedy, the Court found it unnecessary to address McCollum’s whistleblowing retaliation claim.

The Court also agreed with McCollum that the agency was required to reinstate the leave it had required him to take while the discontinued service application was pending since he had made it clear to NCUA that he was available to serve in one of the two jobs until his retirement application had been processed. In short, this guy represented himself quite well—he won it all.

The original MSPB decision is available here.

© 2016 Susan McGuire Smith. All rights reserved. This article may not be reproduced without express written consent from Susan McGuire Smith.


About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.