DeOcampo v. Department of the Army , 551 F. App'x 1000 ( 2014 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
RICHARD E. DEOCAMPO,
Petitioner,
v.
DEPARTMENT OF THE ARMY,
Respondent.
______________________
2013-3090
______________________
Petition for review of the Merit Systems Protection
Board in No. SF0752110534-C-1.
______________________
Decided: January 7, 2014
______________________
DAVID P. CLISHAM, Clisham & Sortor, of San Francis-
co, California, for petitioner. With him on the brief was
JUSTINE L. CLISHAM.
JANE C. DEMPSEY, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent. On the brief
were STUART F. DELERY, Assistant Attorney General,
JEANNE E. DAVIDSON, Director, and DEBORAH A. BYNUM,
Assistant Director. Of counsel was ELIZABETH A. SPECK,
Trial Attorney.
2 DEOCAMPO v. ARMY
______________________
Before RADER, Chief Judge, MOORE, and REYNA, Circuit
Judges.
PER CURIAM.
The Merit Systems Protection Board (Board) affirmed
the denial of Mr. Richard DeOcampo’s petition for en-
forcement against the Department of the Army (Army).
Because Mr. DeOcampo improperly raises new arguments
on appeal and because the Board’s decision contains no
reversible error of fact or law, this court affirms.
I.
In March 2011, Mr. DeOcampo lost his position as a
federal police officer for breaching safety procedures,
which resulted in the negligent discharge of his firearm
and an injury to his lower leg. Mr. DeOcampo appealed
his removal to the Board, which dismissed the appeal
after Mr. DeOcampo entered into a settlement agreement
with the Army. Under the terms of the agreement, the
Army agreed to rescind Mr. DeOcampo’s removal and
reinstate him effective March 27, 2011. For his part, Mr.
DeOcampo agreed to “resign for medical reasons” effective
September 16, 2011. Finally, the agreement specified
that the Army would pay Mr. DeOcampo back pay within
60 days under the Back Pay Act, 5 U.S.C. § 5596. J.A.
193–96. The agreement was fully executed on October 4,
2011.
On December 21, 2011, more than 60 days after the
settlement agreement went into effect, Mr. DeOcampo
filed a petition for enforcement, contending that the Army
had not paid him back pay compensation. In response,
the Army provided details concerning its effort to process
Mr. DeOcampo’s back pay and included copies of numer-
ous e-mail exchanges, time cards, Defense Finance and
Accounting Service (DFAS) spreadsheets, and an affidavit
DEOCAMPO v. ARMY 3
from the technician specialist responsible for processing
Mr. DeOcampo’s back pay. J.A. 59–81.
Mr. DeOcampo received his back pay check on Janu-
ary 13, 2012, around 40 days after it was due. However,
Mr. DeOcampo contended that his regular pay was short
18 hours, that his Sunday premium pay was short 12
hours, that his night shift deferential was short one hour,
that his annual leave was short one hour, and that his
accrued sick leave, holiday pay, and annual uniform
allowance were not included. Finally he contended that
24 hours of leave without pay was erroneously deducted.
J.A. 85–90. The Army processed these objections and
informed the Board that it agreed with certain errors
identified by Mr. DeOcampo, but explained that others
were without foundation. Following a teleconference with
the Administrative Judge, Mr. DeOcampo identified only
“three outstanding issues: (1) uniform allowance payment
of $800; (2) payment for accrued and unused sick leave;
and (3) attorneys fees.” J.A. 163–64. The Army granted
Mr. DeOcampo’s request for a uniform allowance payment
of $800, but denied the two remaining issues.
II.
On April 19, 2012, the Administrative Judge issued
an initial decision denying Mr. DeOcampo’s petition for
enforcement. The Administrative Judge found that
although the Army’s payment to Mr. DeOcampo was late,
the Army exercised reasonable diligence and made pay-
ment, with interest, in January 2012. J.A. 6. The Admin-
istrative Judge also agreed with the Army that Mr.
DeOcampo was not entitled to unused sick leave under
the Back Pay Act and its implementing regulations. The
Administrative Judge instructed Mr. DeOcampo to renew
his attorney fees motion following the Board’s final deci-
sion. J.A. 8.
On May 24, 2012, Mr. DeOcampo petitioned for re-
view, contending that the Army did not provide him a
4 DEOCAMPO v. ARMY
copy of the “Command Letter” from the Civilian Personnel
Office to the Civilian Payroll Office, which lists an em-
ployee’s back pay entitlements, and that the Army did not
implement 5 C.F.R. § 550.805(d), which Mr. DeOcampo
believes mandates payment of unused sick leave. J.A.
264–73. The Board affirmed the Administrative Judge’s
initial decision, holding that the settlement agreement
did not require the production of the “Command Letter”
and that Mr. DeOcampo did not show that the Army’s
detailed accounting was insufficient. J.A. 16. The Board
further held that Mr. DeOcampo was not entitled to a
lump-sum payment for unused sick leave “because there
is nothing in the language of the Back Pay Act itself that
authorizes lump-sum payments for sick leave.” J.A. 16–
17. Mr. DeOcampo appeals the Board’s decision.
III.
This court “must affirm unless the Board’s decision is
arbitrary, capricious, an abuse of discretion or otherwise
not in accordance with law, obtained without procedures
required by rule, law, or regulation, or unsupported by
substantial evidence.” Addison v. Dep’t of Health &
Human Servs., 945 F.2d 1184, 1186 (Fed. Cir. 1991); see
also 5 U.S.C. § 7703(c). This court has defined “substan-
tial evidence” as “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.”
McEntee v. Merit Sys. Prot. Bd., 404 F.3d 1320, 1325 (Fed.
Cir. 2005).
Mr. DeOcampo argues that the Army is in breach of
the settlement agreement, and therefore, the agreement
should be rescinded. Specifically, Mr. DeOcampo argues
that the Army did not provide him a copy of his Official
Personnel File and any other file used for personnel
purposes under 5 U.S.C. § 552(b) and 5 C.F.R. § 293.102.
Mr. DeOcampo further charges that the Army did not
produce evidence that it paid Mr. DeOcampo back pay
DEOCAMPO v. ARMY 5
within 60 days of the settlement agreement and did not
provide Mr. DeOcampo payment for unused sick leave.
Mr. DeOcampo has waived his first argument. He did
not argue to the Board that he is entitled to documents
under 5 U.S.C. § 552(b) and 5 C.F.R. § 293.102. See
Sargent v. Dep’t of Health & Human Servs., 229 F.3d
1088, 1091 (Fed. Cir. 2000) (“Our precedent clearly estab-
lishes the impropriety of seeking a reversal of the
[B]oard’s decision on the basis of assertions never pre-
sented to the presiding official or to the [B]oard.”). To the
extent Mr. DeOcampo alleges that he did not receive
evidence of the Army’s compliance with the settlement
agreement, this assertion is contrary to substantial evi-
dence contained in the record. For example, the record
contains “detailed spreadsheets supported by affidavits
that explained the back pay calculation pay period by pay
period.” J.A. 16. Accordingly, the Board’s finding that
the Army’s accounting was sufficient to establish compli-
ance with the settlement agreement is supported by
substantial evidence.
Mr. DeOcampo’s contention that the Army did not pay
him back pay within 60 days is not disputed. The Army
concedes that it paid Mr. DeOcampo around 40 days late.
However, the record shows that Mr. DeOcampo was
continuously advised of the Army’s efforts and that he
received interest on the late payment to compensate for
the delay. J.A. 4. The Board correctly determined that
the Army’s minor delay in processing Mr. DeOcampo’s
payment does not constitute a material breach of the
settlement agreement that warrants rescission. See Lutz
v. U.S. Postal Serv., 485 F.3d 1377, 1381 (Fed. Cir. 2007)
(“A breach is material when it relates to a matter of vital
importance, or goes to the essence of the contract.”).
Mr. DeOcampo’s argument about unused sick leave is
likewise unavailing. Mr. DeOcampo relies on 5 C.F.R. §
550.805(d), which states:
6 DEOCAMPO v. ARMY
In computing the amount of back pay under sec-
tion 5596 of title 5, United States Code, and this
subpart, an agency shall grant, upon request of an
employee, any sick or annual leave available to
the employee for a period of incapacitation if the
employee can establish that the period of incapaci-
tation was the result of illness or injury.
5. C.F.R. § 550.805(d) (emphasis added). The language
requiring an employee to “establish that the period of
incapacitation was the result of illness or injury” clearly
indicates that this provision is unrelated to the lump-sum
payment of unused sick leave. Rather, as the Board
stated, this provision means that “the employee can
choose to use available annual or sick leave during a back
pay period . . . instead of being placed in a regular pay
status during the back pay period if he determined that to
be advantageous. It does not authorize a pay-out of sick
leave.” J.A. 17–18.
Furthermore, the Board’s reliance on the Back Pay
Act and its implementing regulation is reasonable. The
Back Pay Act entitles Mr. DeOcampo to “pay, allowances,
or differentials.” 5 U.S.C. § 5596(b). The Back Pay Act’s
implementing regulation defines the terms “pay, allow-
ances, and differentials,” and specifically excludes mone-
tary benefits “payable to separated or retired employees
based upon a separation from service, such as retirement
benefits, severance payments, and lump-sum payments
for annual leave.” 5 C.F.R. § 550.803. Mr. DeOcampo’s
argument that he is not a “separated” employee ignores
the fact that Mr. DeOcampo, under the terms of the
stipulation, agreed to resign.
IV.
Mr. DeOcampo’s remaining arguments have been
carefully considered and found unpersuasive. This court
holds that the Board’s decision is in accordance with law
DEOCAMPO v. ARMY 7
and supported by substantial evidence. The decision of
the Board is affirmed.
AFFIRMED