Index

• Insight by Mike Causey: Not Everybody
• TSA to Ease Some Performance Pay Mandates
• GAO: Case Study Highlights DoD Reliance on Contractors
• Measure Aims to Boost CBP Staffing by 6,000
• In Brief: NNSA Launches Pay-For-Performance Project
• In Brief: NTEU, HHS Agree on Awards; Talks Continue
• Informed Investor: IRAs and Taxes, Part II: Roth IRAs
• Rulings Roundup: Investigator Wins Appeal Due to AJ’s ‘Misinformation’
• You Be The Judge: Was Commissary Director Unfairly Fired?

Insight By Mike Causey: Not Everybody

Last week a guest talking head on NBC (I can see why he isn’t a regular) said something like this: Everybody in America wants the Democratic presidential race to end now. He said we are all sick of it and that we want a decision and a candidate now. He says we can’t and won’t wait until the convention in August. (What are we going to do if they won’t stop?)

Now, “everybody” is a lot of people. Everybody isn’t many or most, or even a whole bunch. Everybody is, well, everybody. You me, your idiot cousin (I have two)—e-v-e-r-y-b-o-d-y!

At least, I assume he only meant everybody in America. Even he probably wouldn’t presume to speak for the citizens of Portugal or Chad.

I have two problems with the gentleman. I would say three, but he can’t help the way he looks or sounds. But the two problems are:

First, the guy didn’t ask me if I wanted the Democratic nominee to have been picked by now. He just assumed—but didn’t ask if—I, you, we are really sick of the campaign. He didn’t ask me anything. I’ve never met him. We’ve never talked.

Same for you, right? He didn’t even bother to call or send a note, correct? Yet he’s our spokesman.

Secondly, I for one am not sick of the battle between the two Democratic candidates. Heck, I wish McCain and somebody were still out there swinging. It might end, or prevent, the recession.

If the Republicans had to spend as much money as the Democrats are coughing up, we wouldn’t need the economic stimulus package. We could write “return to sender” to those weird tax rebates the Treasury will be sending most of us.

All that campaign money—much of it from Hollywood millionaires who can afford it—is going to consultants, PR companies, TV advertising departments, campaign make-up artists and clothes consultants. And it is bound to trickle down to the likes of us. Some day. Maybe preventing a future recession. If it goes on long enough, maybe they could abolish the income tax.

Thirdly (I know I said two things, but this just is another reason), I think it is neat that younger people are seeing how political races used to be—and not that long ago. The old brokered convention system that so many people knock, that was “reformed” out of business, had its moments. It let the political party—not a whacky Iowa caucus or a weird New Hampshire vote—decide on the candidate. The backroom boys made sure they vetted the candidates (although a couple of rascals slipped through) BEFORE they got the nomination.

The convention system gave us both Roosevelts, JFK, Ike, Adlai Stevenson, Alf Landon, Alfred E. Smith, Woodrow Wilson, Lincoln, Reagan, Tom Dewey, etc. You can look ‘em up.

Back when conventions were really conventions, the party faithful picked who they considered the best candidate. Not the most charming one, but the person they thought could win and should win. The image of fat cats in smoke-filled rooms is interesting, but not entirely accurate. Conventions were very public events on radio, and on television. And you could turn them off.

The Brits don’t have primaries like we do. And their system cranked out Margaret Thatcher, Anthony Eden, John Major, Tony Blair and now Gordon Brown. And Winston Churchill. Not bad. Especially considering what we were offering voters at the same time.

Our current choice is between one of three senators, all of whom are running, to some degree, against Washington, which is where they live. And work. When they are here. And when they are working. Washington is where their real jobs are and where—hateful and crazy as they say it is—they want to be sent yet again for a four- to eight-year term.

In what other country would the people pay a politician NOT to do his/her job, not to represent us, but instead to spend all that time, money and energy running for an even better-paying job? No wonder everybody (well, OK, nearly everybody) wants to come to the U.S.A.

What other group of voters gets to choose between someone who was born in sticky Panama but now represents arid Arizona? Or somebody born in Hawaii, who lived in Indonesia, who now represents Illinois? Or someone born in Illinois, who—being a Yankee fan from birth—now represents New York? If nothing else, it tells the world we are a mobile and flexible society.

While the super-delegates issue is a bigger deal than usual this year, and while the status of Michigan and Florida has yet to be settled, the convention is shaping up to be interesting indeed. And, pundits notwithstanding, it could make the Democratic winner even wiser and tougher than before.

An old friend, the former TV critic for a major newspaper, once said that one theory related to television (this was before cable was king) was that most people watch the least objectionable program. It might not be your favorite. You might not like it much. But you disliked it less than you did the other four or five offerings at that time slot.

Much the same could be said about presidential races. Some argue that the primary process sometimes produces the worst or weakest candidate—maybe somebody who wowed ‘em in Vermont, but can't carry many (or any) other states.

At any rate, for my money, everybody in the U.S. of A. is enjoying the heck out of this race. Republicans, because they see the Democrats forming a firing squad in the shape of a circle. Democrats, because they think the last one standing will turn the GOP candidate into toast.

Everybody feels the same way. And when I say everybody, I mean some people.

I hope the race goes on until the convention has to decide. And as in the olden days, it might take dozens of ballots over a period of days, if not weeks.

I also hope the “off” button knows what it’s there for.

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TSA to Ease Some Performance Pay Mandates

The Transportation Security Administration (TSA) announced in a recent email that the agency is in the process of easing off some requirements that Transportation Security Officers (TSOs) have been subject to under the agency’s Performance and Accountability Standards System (PASS)—TSA’s version of the pay-for-performance systems being attempted in other agencies.

In a March 25 email to TSA employees—detailed in a release from the American Federation of Government Employees (AFGE)—TSA Administrator Kip Hawley stated that several changes to the pay system would become effective April 1. The changes mentioned include fewer competency and proficiency requirements, an end to standard operating procedures tests in 2008, improved “image tests” and no more sign-in for fitness for duty. AFGE applauded the direction indicated by the email.

“These changes confirm AFGE’s unease with PASS as an inherently flawed and subjective system that lacks fairness and credibility,” AFGE General Counsel Mark Roth said within a day of Hawley’s circulation of the email.

The union has since given the email further study—and is viewing it in a context of skepticism among TSA employees for the PASS system and the agency’s future intentions.

“There are a lot of issues raised by the email—and by the PASS program,” Charity Wilson, legislative representative for AFGE, told FEND.

Wilson said PASS still lacks numerous features recommended for pay-for-performance systems by both the Government Accountability Office and the Merit Systems Protection Board.

“The program doesn’t come with any guaranteed, ongoing funding, unlike most pay-for-performance systems in the federal government—as a matter of fact, in 2007 TSA took a portion of its annual pay raise money to fund PASS raises and bonuses,” Wilson said. “That’s not the way it is supposed to work.”

“Also, managers are very badly trained in writing up PASS evaluations,” she said. “There is no standard training for TSOs—training and testing continues to vary from airport to airport.” Wilson said managers continue to arbitrarily give TSOs negative reviews—and to punish TSOs by placing them on leave restriction—often for nothing more than going on approved vacations.

“The real reason for this problem, ultimately, is that the agency is understaffed,” she said, “TSA can’t afford for people to be sick, their kids to be sick—basically, for life to happen.”

AFGE represents over 6,000 TSOs at the agency—but because the law that created TSA exempted the agency from most federal labor law, the government doesn’t recognize that representation. That has allowed the agency to create what the union sees as an especially dysfunctional pay-for-performance system—what Wilson calls a “jack-leg version of it,” with “employment rights ‘lite.’”

“The PASS bonuses are not figured into an employee’s base pay for the purpose of calculating future increases in pay, either,” she continued. “This can set people up to be tens of thousands of dollars down, later, from where they should be.”

Wilson explained that the problem of handing out bonuses, rather than offering genuine pay increases, is made dire for TSOs because their base pay averages around $30,000 per year—“drastically lower” than other federal law enforcement and security personnel salaries, equivalent to “two GS levels lower” on average, than similar jobs elsewhere in the government, according to union estimates.

In addition, TSOs do not have the right to appeal to an outside objective party, such as the Merit Systems Protection Board—unlike most other federal employees. Their appeal rights, in the wake of numerous board and federal court decisions, remain “limited to complaining to whomever gave them a raw deal or bad evaluation—and then to their supervisor,” Wilson explained.

“On the one hand, the TSA’s recent email was a win, in that they are paying attention to issues we have raised,” Wilson said. “But on the other hand, we’re not at all sure they’re doing what they should be doing in response—it’s not clear at all from this email.”

“It raises more questions than answers,” she said.

To see more, go to: www.afge.org/Index.cfm?Page=PressReleases&PressReleaseID=835.

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GAO: Case Study Highlights DoD Reliance on Contractors

Almost half of the contract specialists at the Army’s Contracting Center for Excellence (ACCE) are contractors themselves—and some have been assigned to assist with procurements that their companies planned to bid on, said a Government Accountability Office (GAO) report.

The report, entitled Defense Contracting: Army Case Study Delineates Concerns with Use of Contractors as Contract Specialists was released March 26 and looked at ACCE. The center drew the interest of government auditors because it responsible for awarding $1.8 billion in contracts in Fiscal Year 2007.

From a broader perspective, over the past 10 years, DoD spending on services has increased 76 percent—to $158.3 billion in Fiscal year 2007—and now outpaces spending on supplies and equipment, including major weapon systems, GAO said. This escalation has placed greater demands on a shrinking acquisition work force, which has come to increasingly depend on a growing number of private contractors, the report said.

Despite this increased reliance, GAO said that DoD has no requirement that contractors be free of conflicts of interest, but instead depends on individual employees to identify potential conflicts.

At ACCE, “the line separating contractor from government employee is blurry, and we found situations in which contractor employees were not clearly identified,” the report said, “and cases where they were listed as the government’s point of contact on contract documents. In situations such as these, contractor employees may appear to be speaking for the government.”

Also, the report found that ACCE, for example, is at times paying quite a bit more for its contractor-provided contract specialists than for similarly-graded federal government employees. GAO found that—on average and taking into account benefits and overhead rates—the cost of a GS-12 contract specialist is $59.21 per hour, compared to the private contractors’ average loaded hourly labor rate of $74.99 (17 percent more). The average cost of a GS-13 specialist is $72.15 per hour, while the center is paying a comparable contractor specialist $84.38 per hour (27 percent more), the report said.

The audit noted that the private contractors had less experience than their federal counterparts in the case files GAO looked at. Also, of the six contract employees’ resumes reviewed by GAO, all had previously worked for, and were trained by, the federal government before being hired by the contractor.

GAO recommended that DoD issue a guidance regarding personal services contracts, and that the Army develop a ratio for government workers and private contractors. Lawmakers registered their reaction to the report. “Given the government’s increased reliance on outside contractors, we need an immediate overhaul of federal ethics policies to ensure that conflicts of interests don’t impair the impartiality of contractors or their employees,” said Homeland Security and Governmental Affairs Committee Chairman Joe Lieberman, I-Conn.

To see more, go to: www.gao.gov/cgi-bin/getrpt?GAO-08-360.

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Measure Aims to Boost CBP Staffing by 6,000

In an effort to shore up the nation’s international ports of entry, Rep. Silvestre Reyes, D-Texas, introduced a bill that proposes to boost Customs and Border Protection (CBP) staffing by 6,000 over the next five years.

The measure, H.R. 5662, introduced March 31, would authorize the addition of 5,000 CBP officers and make other improvements to the ports that Reyes said have been largely ignored by President Bush’s broad border security initiatives.

Although Bush initiatives have added thousands of Border Patrol agents, little has been done to support the border ports which also have an important role in the nation’s security and economy, Reyes said. Reyes, chairman of the House Intelligence Committee, is a former Border Patrol agent whose district includes El Paso, Texas, and four international ports of entry.

“Inadequate staffing and outdated infrastructure at our land ports of entry are detrimental to our national security and have led to long and frustrating delays for those who use them,” said Reyes. “While the Bush administration has focused much of its resources on the border, it has done so at the expense of our ports.” Bush’s $38 billion Department of Homeland Security budget request for FY 2009, for example, includes nearly $500 million for 2,200 new Border Patrol agents.

H.R. 5662 would:

• Authorize an additional 5,000 CBP officers, increasing the total number of officers by approximately 30 percent over five years.
• Provide for 350 additional support personnel and 1,200 agriculture specialists at CBP, which will help ensure officers are not pulled away from inspection duties to perform specialized or administrative work.
• Set aside $5 billion over five years for the General Services Administration (GSA) to address infrastructure deficiencies at the land ports of entry. GSA and CBP would be required to work together to prioritize repair work.

Colleen Kelley, president of the National Treasury Employees Union (NTEU), applauded the bill. “NTEU has long advocated substantial increases in CBP staffing,” Kelley said.

Kathleen Campbell Walker, National President of the American Immigration Lawyers Association, offered her endorsement of the bill during testimony at January hearing before a House panel. “Our ports of entry are severely understaffed, provided with insufficient infrastructure, and yet officers are continually asked to do more with less,” Walker said. “We are beyond the breaking point at our ports of entry along our land borders.” To see more, go to: www.nteu.org/PressKits/PressRelease/PressRelease.aspx?ID=1242.

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In Brief: NNSA Launches Pay-For-Performance Project

The Energy Department’s National Nuclear Security Administration (NNSA) last month launched a five-year demonstration project that will replace the GS schedule with a pay-for-performance system that puts more pay-raise authority into the hands of NNSA managers. About 2,000 of NNSA's 2,500 federal workers are involved in the project, the agency said in a statement, noting that, if successful, pay-for-performance will become a permanent alternative to the traditional system. The project collapses the traditional 15 GS pay grades into broad pay bands. The new structure features career paths covering professional, technical, administrative and support occupations, NNSA said. Under the new personnel administration plan, the agency said, NNSA’s managers will have greater flexibility to set higher pay for employees through appointments, promotions and performance evaluations. To see more, go to: www.nnsa.doe.gov/docs/newsreleases/2008/PR_2008-03-26_NA-08-17.htm.

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In Brief: NTEU, HHS Agree on Awards; Talks Continue

The National Treasury Employees Union (NTEU) on March 28 said it reached an agreement with the Department of Health and Human Services (HHS) on distribution of employee performance awards. The awards, which were in limbo while the parties negotiated a labor agreement, were to be finalized by March 31 and distributed to all employees based on a timetable set by each HHS operating division. Talks about the overarching labor contract continue, but NTEU leaders said they were hopeful the HHS decision to release the awards paves the way for a final agreement. To see more, go to: www.nteu.org/PressKits/PressRelease/PressRelease.aspx?ID=1241.

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Informed Investor: IRAs and Taxes, Part II: Roth IRAs

Last week’s “Informed Investor” discussed traditional IRAs—deductible and nondeductible—and why they are important for saving for one’s retirement years. This week’s column discusses the other type of IRA—the Roth IRA—and why it is appropriate for many federal employees.

Roth IRA contributions for 2007 may be made until April 15, 2008. This is true even if an individual has filed his or her 2007 income tax return or if an extension to file has been requested. The maximum contribution to a Roth IRA for 2007 is $4,000; $5,000 if the IRA owner was at least age 50 as of Dec. 31, 2007. The contribution is reduced if one’s compensation (wages or self-employment income) is less than $4,000 or contributions were made to a traditional IRA. The most important differences between a Roth IRA and a traditional IRA are:

• The eligibility to contribute to a Roth IRA is subject to special modified AGI limits and is never affected by participation in a retirement plan.
• Contributions to Roth IRAs are never deductible.
• Qualified distributions from Roth IRAs are not includable in income.
• Contributions to Roth IRAs may be made after the owner has attained age 70.5, assuming that the IRA owner or spouse has compensation.

Roth IRA contributions are subject to a modified adjusted gross income (MAGI) limitation. MAGI is defined as the AGI before deducting any IRA deductions, plus foreign earned income exclusion, foreign housing exclusion, excluded saving bond interest, excluded adoption assistance benefits, student loan interest deductions and tuition and fee deductions.

The following table summarizes the Roth IRA phase-out limits for 2007 contributions:

The IRS has a worksheet in IRS Publication 590 (downloadable from www.irs.gov) that can be used to calculate the allowable contribution when MAGI is within the phase-out range.

The same rules that apply to traditional IRAs also apply to Roth IRAs with respect to:

• Qualifying compensation. Roth IRA contributions may be made only if the Roth IRA owner or spouse has wages/salaries, bonuses, self-employment income, partnership income, certain taxable alimony or nontaxable combat pay.
• Non-participatory spouse. A spouse with little or no qualifying compensation can make a Roth IRA contribution (same limits) if the other spouse has qualifying compensation.
• Contributions. These must be made in cash; however, the trustee can invest the cash in investment property such as stocks, bonds, mutual funds, or certain coins and bullion, provided a qualified IRA trustee or custodian holds the property.

The earnings portion of a “qualified” distribution from a Roth IRA is tax-free. A distribution is “qualified” if it is made after a five-year holding period and one of the following applies: (1) the IRA owner is at least age 59.5; (2) the distribution is due to death or disability; or (3) the distribution is made to a qualified first-time homebuyer.

The five-year holding period begins on the first day of the first year for which a Roth IRA contribution was made; the first Roth IRA contribution starts the five-year holding period. For example, if a calendar year taxpayer makes his or her first Roth IRA contribution any time between Jan. 1, 2007, and April 15, 2008, for tax year 2007, that taxpayer’s five-year holding period began on Jan. 1, 2007. Subsequent contributions will not start a new holding period.

Roth IRA contributions and qualified distributions are not reported on any IRS form when an individual files his or her taxes. Nonqualified Roth IRA distributions are reported on IRS Form 8606.

In considering a Roth IRA versus a traditional IRA, individuals should consider the advantages of each as summarized below:

Roth IRA advantages:

• Tax-free growth;
• Income phase-out limits higher compared to a deductible traditional IRA; and
• Transferable to beneficiaries tax-free.

Traditional IRA advantages:

• Deductible traditional IRA generally is a better choice for individuals expecting to be in a significantly lower marginal tax bracket when funds are withdrawn.
• Better choice for individuals near retirement age and who will make withdrawals in a few years.

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Rulings Roundup: Investigator Wins Appeal Due to AJ’s ‘Misinformation’

Jaime Nazario, a Diversion Investigator with the Drug Enforcement Administration (DEA), won a recent appeal for a hearing to request his restoration to service at his post. He had been removed from duty under an indefinite suspension without pay order, pending a still unresolved, and separate, decision to restore his security clearance.

Nazario at first had appealed the agency’s personnel action to the Merit Systems Protection Board (MSPB). But, at a later date, he had submitted—according to official documents in the case—a letter to the administrative judge (AJ) “confirming his decision to withdraw” his appeal of the case. The AJ accordingly dismissed Nazario’s appeal.

Nazario then argued, in an appeal filed Nov. 20, 2007, that he decided “to rescind or seek board review of the indefinite suspension issued by the agency,” after he had “found various due process violations” which he said entitled him to a hearing.

Specifically, Nazario alleged that the AJ had erroneously recommended to him that he drop his case because “continuing with the case would result in a certain loss” for the appellant—and would place his name on MSPB’s Internet database, a move the AJ alleged would be “considered a derogatory issue and would make it harder to find employment” in the future.

Nazario at first accepted and followed the AJ’s advice. But he later judged it to be misleading—hence his request to reinstate his appeal.

In a rare move, the full MSPB supported Nazario’s late request to reinstate his appeal. “An appellant’s withdrawal of an appeal is an act of finality and in the absence of unusual circumstances such as misinformation of new and material evidence, the board will not reinstate an appeal once it has been withdrawn,” the board warned, citing the precedent case, Scarboro v. Department of the Navy (1992). Yet, because the AJ allegedly misinformed the appellant—an allegation made under penalty of perjury (an adequate standard of evidence), the board found that “the circumstances presented here are sufficiently unusual” to warrant reinstatement of the complaint. The board vacated the original decision, and remanded the case to the AJ for reconsideration.

(Nazario v. Department of Justice, MSPB Docket No. DC-0752-08-0002-I-1, 3/31/08)

VA Nurse Loses Appeal over Allergic Disability

Hattie A. Dickerson, a staff nurse at a Department of Veterans Affairs (VA) facility in Georgia, last month lost an appeal in a disability discrimination complaint she filed last year against the agency. VA had removed her from service upon determining it could not reasonably accommodate a disability she had developed in recent years.

The agency found that, due to the disability, Dickerson could no longer “perform the essential functions” of her post—a determination Dickerson appealed, arguing the agency could accommodate her.

VA hired Dickerson in 1997. Over the past several years, the appellant developed crippling allergies to chemicals found in her work environment. On July 24, 2004, she “suffered a severe allergic reaction for which she was hospitalized,” according to documents in the case.

Dickerson told managers that “floor stripping and waxing chemicals” regularly used on the bare floors of the hospital had caused the allergic crisis. She requested that the agency accommodate the disability, and she was transferred to other, carpeted wards. Yet Dickerson frequently suffered reactions because she was “unable to completely avoid exposure to the cleaning agents used throughout the medical center.”

VA next reassigned her to the nursing education office, some distance from where the offending chemicals were deployed. She continued to be impeded by frequent allergic reactions, however, and on Nov. 2, 2005, she did not report to work—never returning after this date.

In an Oct. 23, 2006, letter to the agency, her physician confirmed the allergies and recommended Dickerson stay clear of the chemicals. In response, VA determined it could not accommodate the appellant’s allergies—and a deciding official issued her removal notice, effective March 2, 2007.

Dickerson appealed the action to the Merit Systems Protection Board (MSPB). She argued the agency had imposed improper constructive suspension, prohibited disability discrimination, disability harassment, and whistleblower reprisal for an earlier equal employment opportunity claim she had filed over her allergy.

An administrative judge (AJ) with the board noted that she had voluntarily ceased working at the facility in November 2005, and therefore dismissed the constructive suspension claim. The AJ rejected all of her other countercharges, finding the agency had “no alternative but to remove Dickerson” and that, due to her severe and unremitting allergies in the VA facility, her removal was “reasonable.”

Dickerson appealed again, to the full board. The board found her petition unconvincing. She appealed yet again, to the U.S. Court of Appeals for the Federal Circuit, but the court—citing a recent precedent reinforcing a high legal threshold for challenging the board’s “credibility determinations” of witnesses and findings of fact (Chambers v. Department of Interior, 2008)—upheld the MSPB finding. Dickerson’s removal stands.

(Dickerson v. VA, U.S. Court of Appeals for the Federal Circuit, Docket No. 2007-3317, 3/05/08)

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You Be the Judge: Was Commissary Director Unfairly Fired?

“I’ve run the commissary at the base for many years,” said Dahi Samai,* the manager of a large federal shopping facility in Guam. “I always did the best I could, and strictly adhered to the rules—this is a great position, and I’d never do anything to endanger it.” 

“Then, a couple years back, some DoD honcho says I’ve supposedly been overcharging servicemembers and even profiting from discount payments from vendors!” he said. “But I’ll tell you now—as I told investigators then—the computer software that squares up the vendor discounts is defective, leading to inflated prices for our customers and missing money from our receipts.”

“Mr. Samai holds a job of great importance to the morale and health of our forces in the Pacific,” responded Arnold Jaffee, a DoD attorney. “Our investigation shows that the discounts mandated and paid for by vendors did not get passed on to our military consumers—and the evidence indicates instead they went to Samai.”

“Obviously, this serious violation means Samai must forfeit his job, at least,” Jaffee added.

FACTS: Dahi Samai worked for several years as the store director of the U.S. military’s commissary on Guam.

Under federal law (10 U.S.C. Sec. 2484), strict rules were established to create regularly reduced prices on goods sold to U.S. military personnel and their dependents at military commissaries. A fixed formula permits the stores to add no more than a 1 percent “surcharge” on all items to cover “shrinkage, spoilage, and pilferage.” A further 5 percent charge over the wholesale cost of goods is added to the retail price to cover building maintenance. Even when combined, the low supplemental charges ensure that—as official documents in the present case put it—“the commissaries provide service personnel with the opportunity to buy goods at, or as close as possible to, cost.”

In addition to these routine price reductions for commissary shoppers, prices on some items are slashed further still at the request of vendors seeking to clear out inventory or promote specific products. Such special discounts often do not originate in outright cuts in wholesale prices, but in the form of “vendor credits”—the vendor issues a document, called a “Vendor Credit Memorandum” (VCM), to commissary managers promising that, at a later date, it will compensate the government shop for selling an item below cost.

The Zone Manager in charge of the Guam commissary recommended removing Samai, specifically charging that the appellant mishandled seven of these VCMs. On June 12, 2006, a deciding official with DoD found Samai failed to properly handle four of the seven VCMs, as charged. These VCMs had been issued to cover discounts on various brand-name canned and boxed beverages.

Samai appealed his removal to the Merit Systems Protection Board (MSPB), arguing that he “did not generate the inaccurate prices” that customers continued to be charged for the items in question—and that he intended no wrongdoing. He insisted that the prices were inflated by a “computer system that tracks purchases (POS-TR system).” He also produced “several witnesses” who backed his contention—specifically testifying that there had been “some problems with the POS-TR system in the past.”

Furthermore, Samai filed a Whistleblower Protection Act (WPA) claim, stating that he had been removed not over mistaken or purposeful inflation of prices on some products, but because he had sent photos of wasteful practices to higher-ranking officials, and instead of fixing the problem, officials had retaliated against him with the personnel action.

Did Samai cheat the government—or did the computer system fail as he claims?

DECISION: An administrative judge (AJ) with MSPB considered the appellant’s appeal. DoD argued that its evidence showed Samai, without authority, had “inaccurately” charged higher prices on multiple items. But Samai claimed that the agency offered only weak and misleading evidence. Indeed the appellant—backed by witnesses—said that the cost problem derived entirely from computer error. But the AJ ruled for DoD, noting that DoD Directive 70-6 requires Samai to charge the correct amount in commissary transactions and provide an accurate accounting of them—yet his work offered “inaccuracies in the required accounting.” The judge did not see fit to consider the possible computer error as the cause. The AJ also rejected Samai’s whistleblower counterclaim.

Samai appealed his case again, to the full board, but the panel rejected it. He then took the matter to the U.S. Court of Appeals for the Federal Circuit. The appeals court also found no error in the board’s decision to affirm the AJ’s finding that Samai had acted negligently, at the least. The appeals court—noting that by precedent, penalty is “committed primarily to the discretion of the employing agency” (Connolly v. Department of Justice, 1985)—also agreed with the full board that the penalty of removal was not unreasonable.

(U.S. Court of Appeals for the Federal Circuit, Docket No. 2007-3282 3/21/08)

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

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Jeri Thorne, General Manager
Phil Piemonte, Managing Editor
Nathan Abse, Staff Writer
Frank Klimko, Contributing Writer
Mike Causey, Columnist
Edward Zurndorfer, Columnist

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