Van Prichard v. Department of Defense , 484 F. App'x 489 ( 2012 )

NOTE: This disposition is nonprecedential
United States Court of Appeals
for the Federal Circuit
__________________________
LARRY VAN PRICHARD,
Petitioner,
v.
DEPARTMENT OF DEFENSE,
Respondent.
__________________________
2012-3045
__________________________
Petition for review of the Merit Systems Protection
Board in No. SF0432100852-I-1.
__________________________
Decided: May 15, 2012
__________________________
LARRY VAN PRICHARD, of Glendale, California, pro se.
SARAH M. BIENKOWSKI, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for respondent. With
her on the brief were TONY WEST, Assistant Attorney
General, JEANNE E. DAVIDSON, Director, and STEVEN J.
GILLINGHAM, Assistant Director.
__________________________
2 PRICHARD v. DEFENSE
Before NEWMAN, CLEVENGER, and LINN, Circuit
Judges.
PER CURIAM.
Larry Van Prichard (“Prichard”) appeals from a final
decision of the Merit Systems Protection Board (“Board”)
affirming its refusal, in an initial order, to address Prich-
ard’s affirmative defenses because they were rendered
moot by Prichard’s reinstatement and award of back pay
and benefits. See Prichard v. Dep’t of Defense, 117
M.S.P.R. 88 (2011). Because the Board correctly deter-
mined that Prichard would be entitled to no further relief
if he proved his affirmative defenses, the Board’s decision
is affirmed.
I. BACKGROUND
Prichard is an Industrial Security Specialist for the
Defense Security Service of the Department of Defense
(the “Department”). Prichard was removed for perform-
ance reasons and he appealed his removal to the Board.
Prichard asserted affirmative defenses of (1) harmful
procedural error, (2) violations of 5 U.S.C. § 2302(b)(4)
and (b)(6), and (3) sex discrimination. See 117 M.S.P.R. at
92-93. In its initial decision, the Board determined that
the Department’s performance evaluation criteria were
invalid and that Prichard must be reinstated and
awarded back pay and benefits on that basis. The Board’s
initial decision did not address the procedural error and
personnel practices issues because it determined that its
reinstatement decision already afforded Prichard all the
relief he could have received had he prevailed on those
defenses. Id. at 93. The Board also noted that Prichard
had failed to support his sex discrimination defense with
any evidence, and that even if the facts as alleged were
true, they did not amount to sex discrimination. Id.
The Department petitioned for review and Prichard
cross-petitioned. The Board affirmed the initial decision
PRICHARD v. DEFENSE 3
in all respects and noted that Prichard did not contest the
sex discrimination issue in his cross petition. Id. at 101.
Prichard timely appealed and this court has jurisdiction
pursuant to 28 U.S.C. § 1295(a)(9).
II. ANALYSIS
This court will affirm a final decision of the Board
unless the decision is “(1) arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law; (2)
obtained without procedures required by law, rule, or
regulation having been followed; or (3) unsupported by
substantial evidence.” 5 U.S.C. § 7703(c)(1)-(3).
On appeal, Prichard argues generally that the Board
erred by treating the harmful procedural error and pro-
hibited personnel practices issues as moot because they
could have entitled him to money damages over and above
his reinstatement, back pay, and benefits. Prichard also
claims support for his position specifically in 42 U.S.C.
§ 1981a, which is a part of the Civil Rights Act of 1991,
and which provides for damages in cases of intentional
discrimination in employment.
The Department counters by arguing that Prichard’s
affirmative defenses of harmful error and prohibited
personnel practices are moot because the Board lacks
authority to award additional compensatory or conse-
quential damages on the basis of those defenses. The
Department contends that Prichard’s reinstatement, and
award of back pay and benefits, are the only relief to
which those defenses would have entitled him. Further,
the Department argues that the Board’s initial decision
properly found that Prichard failed to carry his burden of
proof regarding sex discrimination, subsequently failed to
contest the Board’s initial decision, and has provided no
basis upon which to justify the relief he claims.
The Board’s authority to award consequential and
compensatory damages is limited. See Lane v. Pena, 518
4 PRICHARD v. DEFENSE
U.S. 187, 192 (1996) (“To sustain a claim that the Gov-
ernment is liable for awards of monetary damages, the
waiver of sovereign immunity must extend unambigu-
ously to such monetary claims.”). While the Board has
the power to award consequential damages when ordering
corrective action pursuant to a Special Counsel complaint
proceeding under 5 U.S.C. § 1214(g)(2) and 5 C.F.R.
§ 1201.202(b)(2), this power does not avail Prichard for
two reasons. First, Prichard seeks damages to remedy his
non-pecuniary losses. But the consequential damages
provision of § 1214(g)(2) does not authorize damages for
non-pecuniary losses. See Bohac v. Dep’t of Agriculture,
239 F.3d 1334, 1342 (Fed. Cir. 2001) (explaining, in
reaching the same conclusion regarding the corresponding
provision of 5 U.S.C. § 1221, that “section 1214 . . . was
designed to allow only for reimbursement of out-of-pocket
costs” and not non-pecuniary damages). Second, nothing
waives sovereign immunity to grant the Board authority
to award § 1214 damages in a direct appeal as opposed to
a Special Counsel investigation. See Giove v. Office of
Personnel Management, 106 M.S.P.R. 53, 57 (2007) (“The
Board’s authority to award damages is limited to a few
categories of cases, i.e., cases in which the Board orders
corrective action in an individual right of action appeal,
those in which it orders corrective action in response to a
petition filed by the Special Counsel under 5 U.S.C.
§ 1214, and those in which it finds intentional discrimina-
tion of a kind covered under the Civil Rights act of
1991.”); 5 C.F.R. § 1201.201(c) (“An award of consequen-
tial damages is authorized in only two situations: Where
the Board orders corrective action in a whistleblower
appeal . . . and where the Board orders corrective action
in a Special Counsel complaint.”). The Board was, thus,
correct in concluding that Prichard’s claim for considera-
tion of his alleged harmful procedural error and prohib-
ited personnel practices evidence was moot because the
Board, in granting reinstatement, back pay, and benefits,
had granted all the relief he may obtain.
PRICHARD v. DEFENSE 5
As for Prichard’s contention that the Board has au-
thority to award compensatory damages under 42 U.S.C.
§ 1981a and 5 C.F.R. § 1201.202(c), this contention is
misplaced and untenable. Damages under § 1981a relate
to claims for discrimination over which this court has no
jurisdiction and for which Prichard has failed to provide
any proof. 5 U.S.C. § 7703(b)(2). Moreover, Prichard
expressly abandoned any claims of discrimination in his
Federal Circuit Rule 15(c) Statement Concerning Dis-
crimination filed in connection with this appeal. Because
Prichard cannot establish that he is entitled to any fur-
ther relief than the Board has already granted him, this
court affirms the Board’s decision.
AFFIRMED
COSTS
Each party shall bear its own costs.