Karen Moore v. Department of Veterans Affairs ( 2022 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KAREN MOORE, DOCKET NUMBER
Appellant, DA-1221-13-0213-B-1
v.
DEPARTMENT OF VETERANS DATE: April 12, 2022
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Rosemary Dettling, Esquire, Washington, D.C., for the appellant.
Brandi M. Powell, New Orleans, Louisiana, for the agency.
BEFORE
Raymond A. Limon, Vice Chair
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the remand initial decision,
which directed the agency to provide her with appropriate relief in this individual
right of action (IRA) appeal. Generally, we grant petitions such as this one only
in the following circumstances: the initial decision contains erroneous findings
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
of material fact; the initial decision is based on an erroneous interpretation of
statute or regulation or the erroneous application of the law to the facts of the
case; the administrative judge’s rulings during either the course of the appeal or
the initial decision were not consistent with required procedures or involved an
abuse of discretion, and the resulting error affected the outcome of the case; or
new and material evidence or legal argument is available that, despite the
petitioner’s due diligence, was not available when the record closed. Title 5 of
the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115). After
fully considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the remand initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 The appellant was a Medical Support Assistant with the Primary
Care‑Compensation and Pension Unit (PCCPU) of the agency’s Medical Center
in Shreveport, Louisiana. Moore v. Department of Veterans Affairs,
MSPB Docket No. DA-1221-13-0213-W-1, Initial Appeal File (IAF), Tab 4,
Subtabs 4a, 4e. In April 2012, she sent an email to the agency’s Employee
Relations office alleging harassment by her supervisor. IAF, Tab 7 at 12-14. In
April 2012, she also sent a letter to the agency’s Office of the Inspector General
alleging the same and claiming that management had not taken remedial action.
Id. at 6-11. Effective June 2012, the agency reassigned her from the PCCPU to
the Primary Care-Red Team within her Shreveport duty station without a change
in job title, pay or benefits. IAF, Tab 4, Subtab 4e.
¶3 Subsequently, the appellant applied and was selected for the Office
Automation Assistant position with the agency’s Medical Center in Dallas, Texas,
and relocated there. IAF, Tab 4, Subtab 4g. Shortly thereafter, she filed the
instant appeal alleging that her reassignment within the Shreveport duty station
3
was in retaliation for whistleblowing activity. IAF, Tab 1 at 4 -6, 11-12. The
administrative judge denied corrective action. IAF, Tab 21 at 1, 6 -8. On review,
the Board reversed, awarded corrective action, and remanded the case for further
development as to the appropriate scope of relief. Moore v. Department of
Veterans Affairs, MSPB Docket No. DA-1221-13-0213-W-1, Remand Order,
¶¶ 13-14 (Mar. 10, 2015); Petition for Review File, Tab 14, ¶¶ 13-14.
¶4 On remand, the administrative judge directed the appellant to clarify the
relief she was seeking. Moore v. Department of Veterans Affairs,
MSPB Docket No. DA-1221-13-0213-B-1, Remand File (RF), Tab 10 at 1. In
response, the appellant stated that she sought: (1) attorney fees; (2) “back pay for
the promotion, bonuses, and step increases she would have received if she was
not unlawfully transferred”; (3) reinstatement to her PCCPU position “with step
increases, bonuses, and promotions received by her co-workers”; (4)
“consequential and/or compensatory damages in the amount of $150,000.00”; (5)
costs of her relocation from Shreveport to Dallas; (6) unspecified medical costs;
and (7) interest on all of the above. RF, Tab 11 at 4-5. The administrative judge
then issued the remand initial decision, directing the agency to provide the
appellant with such relief that would place her as nearly as possible in the same
situation as she would have been in had the agency not retaliated against her, pay
her back pay, with interest, and adjust her benefits with appropriate credits and
deductions. RF, Tab 13, Remand Initial Decision (RID) at 3. The administrative
judge also advised the appellant that she could seek attorney fees and
consequential damages in addendum proceedings. RID at 3 n.*, 8 -11.
¶5 The appellant has timely petitioned for review. Re mand Petition for
Review File, Tab 1. While the appellant does not challenge the administrative
judge’s determination as to the merits of her appeal or his guidance that her
request for attorney fees should be adjudicated in an addendum proceeding, the
appellant asserts that the administrative judge erred in not addressing her request
4
for damages in the remand initial decision issued in the proceeding on the merits.
Id. at 7-8. We disagree.
¶6 Under 5 C.F.R. § 1201.202(e)(1), “[a] proceeding on the merits is a
proceeding to decide an appeal of an agency action ,” that is, to determine whether
the appellant should be restored to the status quo ante. Gilbert v. Department of
the Interior, 101 M.S.P.R. 238, ¶ 5 (2006). Status quo ante relief requires, in
most instances, restoring the appellant to the position she occupied prior to the
removal action or placing her in a position that is substantially equivalent. Gorny
v. Department of the Interior, 115 M.S.P.R. 520, ¶ 6 (2011); see Gilbert,
101 M.S.P.R. 238, ¶ 5 (explaining that an appellant who prevails in an IRA
appeal is entitled to cancellation of the retaliatory personnel action , reinstatement
to his former position or a substantially equivalent position, back pay, interest on
back pay, and other employment benefits he would have received had the action
not occurred).
¶7 In addition, an appellant who prevails on an allegation of reprisal for
whistleblowing is entitled to relief that exceeds status quo ante relief, including
consequential damages. Samble v. Department of Defense, 98 M.S.P.R. 502, ¶ 15
(2005). Consequential damages are medical costs, travel expenses and analogous
reasonable and foreseeable out-of-pocket expenses or monetary losses that are
causally connected to the whistleblowing reprisal at issue. Bohac v. Department
of Agriculture, 239 F.3d 1334, 1341-42 (Fed. Cir. 2001); King v. Department of
the Air Force, 119 M.S.P.R. 663, ¶ 28 (2013). While a “request for consequential
. . . damages must be made during the proceeding on the merits,” 5 C.F.R.
§ 1201.204(a)(1), a distinct and separate addendum proceeding is commenced to
adjudicate such a request upon a prevailing appellant’s filing of a motion to that
5
effect, Chambers v. Department of the Interior, 116 M.S.P.R. 17, 58 (2011);
5 C.F.R. § 1201.204(d)(1)-(e)(1). 2
¶8 Such a motion, however, cannot be filed, and no addendum proceeding may
commence, until the issuance of the final decision in a proceeding on the merits.
5 C.F.R. §§ 1201.202(e)(2), 1201.204(e)(1). Generally, the final decision in the
proceeding on the merits may be an initial decision issued by an administrative
judge that becomes final when the Board denies all petitions for review or
because of a mere passage of time if no party petitions for review or requests to
vacate the initial decision to accept a settlement. 5 C.F.R. § 1201.113(a)-(b).
¶9 Here, the administrative judge (1) directed the agency to restore the
appellant to the status quo ante in the remand initial decision issued in the
proceeding on the merits, and (2) advised the appellant that she could seek
attorney fees and consequential damages by commencing addendum proceedings.
RID at 3 n.*, 8-11. Had the appellant not filed her petition for review, the
remand initial decision would have become the Board’s final decision upon the
passage of 35 days after its issuance, given that the agency elected not to seek
review. 5 C.F.R. § 1201.113(a). However, because the appellant filed a petition
for review, the remand initial decision cannot become final until the petition for
review is adjudicated. 5 C.F.R. § 1201.113(a)-(b). Thus, any addendum
proceeding as to the appellant’s request for damages is premature. 5 C.F.R.
§ 1201.202(e)(2).
¶10 In light of prematurity of any addendum proceeding, the administrative
judge properly declined to adjudicate the appellant’s request for consequential
damages until the proceeding on the merits became final. Accordingly, we
2
Consistent with section 1201.204(d)(1), it has been the Board’s practice to bifurcate
prevailing appellants’ requests for consequential damages for adjudication in addendum
proceedings. See, e.g., Johnston v. Department of the Treasury, 100 M.S.P.R. 78, ¶¶ 1,
12 (2005); Pastor v. Department of Veterans Affairs, 94 M.S.P.R. 353, ¶ 2 (2003);
Carson v. Department of Energy, 92 M.S.P.R. 440, ¶¶ 1, 14-15 (2002), aff’d,
64 F. App’x 234 (Fed. Cir. 2003).
6
discern no basis to disturb the remand initial decision and deny the petition for
review.
ORDER
¶11 We ORDER the agency to provide the appellant with relief such that she is
placed as nearly as possible in the same situation as she would have been in had
the agency not reassigned her in retaliation for whistleblowing. See Kerr v.
National Endowment for the Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency
must complete this action no later than 20 days after the date of this decision.
¶12 We also ORDER the agency to pay the appellant the correct amount of back
pay, interest on back pay, and other benefits under the Office of Personnel
Management’s regulations, no later than 60 calendar days after the date of this
decision. We ORDER the appellant to cooperate in good faith in the agency’s
efforts to calculate the amount of back pay, interest, and benefits due, and to
provide all necessary information the agency requests to help it carry out the
Board’s Order. If there is a dispute about the amount of back pay, interest due,
and/or other benefits, we ORDER the agency to pay the appellant the un disputed
amount no later than 60 calendar days after the date of this decision.
¶13 We further ORDER the agency to tell the appellant promptly in writing
when it believes it has fully carried out the Board’s Order and of the actions it has
taken to carry out the Board’s Order. The appellant, if not notified, should ask
the agency about its progress. See 5 C.F.R. § 1201.181(b).
¶14 No later than 30 days after the agency tells the appellant that it has fully
carried out the Board’s Order, the appellant may file a petition for enforcement
with the office that issued the initial decision on this appeal if the appellant
believes that the agency did not fully carry out the Board’s Order. The petition
should contain specific reasons why the appellant believes that the agency has not
fully carried out the Board’s Order, and should include the dates and results of
any communications with the agency. 5 C.F.R. § 1201.182(a).
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¶15 For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and docum entation
necessary to process payments and adjustments resulting from a Board decision
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to process payments and adjustments resulting from the
Board’s decision in accordance with the attached lists so that payment can be
made within the 60‑day period set forth above.
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set forth at title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
NOTICE TO THE APPELLANT
REGARDING YOUR RIGHT TO REQUEST
CONSEQUENTIAL DAMAGES
You may be entitled to be paid by the agency for your consequential
damages, including medical costs incurred, travel expenses, and any other
reasonable and foreseeable consequential damages. To be paid, you must meet
the requirements set out at 5 U.S.C. §§ 1214(g) or 1221(g). The regulations may
be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.204. If you believe you
meet these requirements, you must file a motion for consequential damages
WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You
8
must file your motion with the office that issued the initial decision on your
appeal.
NOTICE TO THE PARTIES
A copy of the decision will be referred to the Special Counsel “to
investigate and take appropriate action under [5 U.S.C.] section 1215,” based on
the determination that “there is reason to believe that a current employee may
have committed a prohibited personnel practice” under 5 U.S.C. § 2302(b)(8) or
section 2302(b)(9)(A)(i), (B), (C), or (D). 5 U.S.C. § 1221(f)(3). Please note that
while any Special Counsel investigation related to this decision is pending, “no
disciplinary action shall be taken against any employee for any alleged prohibited
activity under investigation or for any related activity without the approval of the
Special Counsel.” 5 U.S.C. § 1214(f).
NOTICE OF APPEAL RIGHTS 3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
3
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
9
Please read carefully each of the three main possible choic es of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of partic ular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination. This option applies to you only if you have claimed that you
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were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims—by filing a civil action with an appropriate U.S. district court (not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative re ceives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court ‑appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
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Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Boar d’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction. 4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
4
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
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If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit ou r website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.
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DEFENSE FINANCE AND ACCOUNTING SERVICE
Civilian Pay Operations
DFAS BACK PAY CHECKLIST
The following documentation is required by DFAS Civilian Pay to compute and pay back pay
pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following
checklist to ensure a request for payment of back pay is complete. Missing documentation may
substantially delay the processing of a back pay award. More information may be found at:
https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx.
NOTE: Attorneys’ fees or other non-wage payments (such as damages) are paid by
vendor pay, not DFAS Civilian Pay.
☐ 1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the
specific dates of the back pay period within the ticket comments.
Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket
comments as to why the documentation is not applicable:
☐ 2) Settlement agreement, administrative determination, arbitrator award, or order.
☐ 3) Signed and completed “Employee Statement Relative to Back Pay”.
☐ 4) All required SF50s (new, corrected, or canceled). ***Do not process online SF50s
until notified to do so by DFAS Civilian Pay.***
☐ 5) Certified timecards/corrected timecards. ***Do not process online timecards until
notified to do so by DFAS Civilian Pay.***
☐ 6) All relevant benefit election forms (e.g. TSP, FEHB, etc.).
☐ 7) Outside earnings documentation. Include record of all amounts earned by the employee
in a job undertaken during the back pay period to replace federal employment.
Documentation includes W-2 or 1099 statements, payroll documents/records, etc. Also,
include record of any unemployment earning statements, workers’ compensation,
CSRS/FERS retirement annuity payments, refunds of CSRS/FERS employee premiums,
or severance pay received by the employee upon separation.
Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority
under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment
they may have received. The payroll office must collect the debt from the back pay award. The
annual leave will be restored to the employee. Annual leave that exceeds the annual leave
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).
NATIONAL FINANCE CENTER CHECKLIST FOR BACK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by
the Merit Systems Protection Board, EEOC, and courts.
1. Initiate and submit AD-343 (Payroll/Action Request) with clear and concise information
describing what to do in accordance with decision.
2. The following information must be included on AD-343 for Restoration:
a. Employee name and social security number.
b. Detailed explanation of request.
c. Valid agency accounting.
d. Authorized signature (Table 63).
e. If interest is to be included.
f. Check mailing address.
g. Indicate if case is prior to conversion. Computations must be attached.
h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to be
collected (if applicable).
Attachments to AD-343
1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday
Premium, etc. with number of hours and dates for each entitlement (if applicable).
2. Copies of SF-50s (Personnel Actions) or list of salary adjustments/changes and amounts.
3. Outside earnings documentation statement from agency.
4. If employee received retirement annuity or unemployment, provide amount and address to
return monies.
5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)
6. If employee was unable to work during any or part of the period involved, certification of the
type of leave to be charged and number of hours.
7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual Leave
to be paid.
NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay Period and
required data in 1‑7 above.
The following information must be included on AD-343 for Settlement Cases: (Lump Sum
Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.)
a. Must provide same data as in 2, a-g above.
b. Prior to conversion computation must be provided.
c. Lump Sum amount of Settlement, and if taxable or non-taxable.
If you have any questions or require clarification on the above, please contact NFC’s
Payroll/Personnel Operations at 504-255-4630.