IHS Window Rock v. Department of Health and Human Services ( 2016 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
IHS WINDOW ROCK, DOCKET NUMBER
Appellants, 1 DE-0351-15-0029-X-1
v.
DEPARTMENT OF HEALTH AND DATE: April 7, 2016
HUMAN SERVICES,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 2
Jeff Hemp, Phoenix, Arizona, for the appellants.
Joshua L. Klinger, Esquire, Denver, Colorado, for the appellants.
Gerald W. Jochem, Window Rock, Arizona, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
1 The appellants that are included in this consolidation are set forth in Appendix A.
2 A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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FINAL ORDER
¶1 This compliance proceeding was initiated by the appellants’ November 12,
2015, petition for enforcement of the September 25, 2015 settlement agreement.
On December 18, 2015, the administrative judge issued an initial decision
recommending that the Board find the agency not in compliance with the
settlement agreement, and the agency’s noncompliance was referred to the Board
for consideration. MSPB Docket No. DE-0351-15-0029-C-2, Compliance File
(CF), Tab 4. After fully considering the filings in this appeal, and based on the
following points and authorities, we now find the agency in compliance with the
settlement agreement. Accordingly, we hereby DISMISS the appellants’ petition
for enforcement, based on our finding the agency in compliance. 5 C.F.R. §
1201.114(e), (g).
¶2 In the December 18, 2015 initial decision, the administrative judge found
that the agency was not in compliance because it made no effort to demonstrate
compliance in response to the appellants’ petition for enforcement. CF, Tab 4,
at 2-3. As a result, the administrative judge ordered the agency to pay the
appellants the agreed-upon attorney fees of $15,427 within 5 business days of the
initial decision. Id. at 4.
¶3 On February 12, 2016, the agency submitted its Response to Compliance
Initial Decision to the Board. MSPB Docket No. DE-0351-15-0029-X-1,
Compliance Referral File (CRF), Tab 2. In its submission, the agency asserted
that it paid the agreed-upon attorney fees of $15,427 to appellants’ counsel on
December 23, 2015. CRF, Tab 2, at 4-7. On February 16, 2016, counsel for the
appellants confirmed to a representative of the Board’s Office of the General
Counsel that the agency made the payment.
¶4 Therefore, the Board finds that the agency is in compliance and
DISMISSES the petition for enforcement. This is the final decision of the Merit
Systems Protection Board in this compliance proceeding. Title 5 of the Code of
Federal Regulations, section 1201.183(c) (5 C.F.R. § 1201.183(c)).
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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 out 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
WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You
must file your attorney fees motion with the office that issued the initial decision
on your appeal.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request further review of this final decision.
Discrimination Claims: Administrative Review
You may request review of this final decision on your discrimination
claims by the Equal Employment Opportunity Commission (EEOC). See title 5
of the U.S. Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you submit your
request by regular U.S. mail, the address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit your request 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, NE
Suite 5SW12G
Washington, D.C. 20507
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You should send your request to EEOC no later than 30 calendar days after your
receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.
Discrimination and Other Claims: Judicial Action
If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate U.S. district court.
See 5 U.S.C. § 7703(b)(2). You must file your civil action with the district court
no later than 30 calendar days after your receipt of this order. If you have a
representative in this case, and your representative receives this order before you
do, then you must file with the district court no later than 30 calendar days after
receipt by your representative. If you choose to file, be very careful to file on
time. 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.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.
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APPENDIX A
IHS Window Rock
DE-0351-15-0029-X-1
Doris M. Tsosie DE-0351-15-0024-X-1
Ellaverne Begay DE-0351-15-0028-X-1
Monica Claw DE-0351-15-0027-X-1
Rodney Bauer DE-0351-15-0025-X-1