Jennifer Neal v. Department of Veterans Affairs ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JENNIFER NEAL, DOCKET NUMBER
Appellant, AT-0714-20-0742-I-1
v.
DEPARTMENT OF VETERANS DATE: July 21, 2023
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Neil C. Bonney, Esquire, Virginia Beach, Virginia, for the appellant.
Joy Warner, Karla Brown Dolby, and Sophia E. Haynes, Esquire, Decatur,
Georgia, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The agency has filed a petition for review of the initial decision, which
reversed the appellant’s performance-based removal, taken under 38 U.S.C.
§ 714. For the reasons set forth below, we DISMISS t he agency’s petition for
review as moot.
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
¶2 Effective August 10, 2020, the agency relied upon 38 U.S.C. § 714 to
remove the appellant from her GS-11 Field Examiner position for unacceptable
performance. Initial Appeal File (IAF), Tab 6 at 17, 19-22. The appellant
challenged her removal in the instant appeal. IAF, Tab 1. After developing the
record and holding the requested hearing, the administrative judge ruled in favor
of the appellant, reversing her removal. IAF, Tab 55, Initial Decision (ID). In
short, the administrative judge considered a related decision by the Federal Labor
Relations Authority (FLRA) finding that individuals, such as the appellant,
should have been afforded performance improvement periods (PIPs) prior to a
removal based on unacceptable performance, and thus the appellant’s removal
was not in accordance with law. 2 ID at 2-6.
¶3 The agency has filed a petition for review, and the appellant has responded.
Petition for Review (PFR) File, Tabs 1, 9. The agency has filed a reply. PFR
File, Tab 11. Due to intervening events and representations while this appeal was
pending on review, including some about the FLRA decision the administrative
judge considered, the Office of the Clerk of the Board issued multiple orders
seeking information about whether this appeal may have become moot. PFR File,
Tab 16, 19, 23. These orders and the parties’ responses addressed developments
stemming from two different series of arbitration and FLRA decisions pertaining
to 38 U.S.C. § 714 and performance-based actions and the agency’s bargaining
obligations regarding the implementation of the Department of Veterans Affairs
Accountability and Whistleblower Protection Act of 2017. PFR File, Tabs 14,
16-20, 22-28; see U.S. Department of Veterans Affairs Veterans Benefits
2
The administrative judge ordered the agency to provide interim relief if either party
filed a petition for review. ID at 7-8. The parties made various arguments about
interim relief on petition for review. PFR File, Tabs 1, 7, 10. After the administrative
judge issued her initial decision, the Board held that interim relief is precluded in
actions taken under 38 U.S.C. § 714. Schmidt v. Department of Veterans Affairs,
2022 MSPB 40, ¶¶ 9-16; see 38 U.S.C. § 714(d)(7). In light of our disposition of this
appeal, we need not discuss this issue further.
3
Administration v. American Federation of Government Employees National
Veterans Affairs Council #53, 71 F.L.R.A. 1113 (2020), recon. denied
72 F.L.R.A. 407 (2021) (PIP decisions); American Federation of Government
Employees National Veterans Affairs Council #53 v. U.S. Department of Veterans
Affairs, 71 F.L.R.A. 410 (2019), recon. denied 71 F.L.R.A. 741 (2020) (duty to
bargain decisions).
¶4 Even though an action may have been within the Board’s jurisdiction,
subsequent events may render an appeal moot and foreclose the Board’s review.
Price v. U.S. Postal Service, 118 M.S.P.R. 222, ¶ 8 (2012). Mootness can arise at
any stage of litigation, and an appeal will be dismissed as moot when, by virtue of
an intervening event, the Board cannot grant any effectual relief in favor of the
appellant, as when the appellant, by whatever means, obtained all of the relief she
could have obtained had she prevailed before the Board and the reby lost any
legally cognizable interest in the outcome of the appeal. Id. The agency’s
unilateral modification of its personnel action after an appeal has been filed
cannot divest the Board of jurisdiction, unless the appellant consents to such
divestiture or the agency completely rescinds the action being appealed. Id. For
an appeal to be deemed moot, the agency’s rescission must be complete, i.e., the
appellant must be returned to the status quo ante and not left in a worse position
as a result of the cancellation than she would have been in if the matter had been
adjudicated and she had prevailed. Id.¶5 While its petition for review remained pending, the agency determined that
the appellant was entitled to relief pursuant to the FLRA’s PIP decision s,
including retroactive cancellation of her removal. PFR File, Tab 18 at 4-5, 84-85,
Tab 22 at 4, 7-11. Both parties have now indicated that the agency cancelled the
appellant’s removal, returned her to duty, and altogether made her whole. PFR
File, Tab 27 at 4, Tab 28 at 4-5. Both parties have further indicated that the only
issue that remains is attorney fees. PFR File, Tab 27 at 4, Tab 28 at 4. However,
the incurrence of costs and attorney fees will not prevent dismissal of an appeal
4
as moot because an attorney fee award under 5 U.S.C. § 7701(g) is considered to
be separate from relief on the merits. Price, 118 M.S.P.R. 222, ¶ 8 n.2.
¶6 Because the agency has granted the appellant all the relief the Board could
have afforded her in this appeal, the petition for review is dismissed as moot.
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 at torney 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 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 fo llow all
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.
5
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.
Please read carefully each of the three main possible choices 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 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 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.
6
(2) Judicial or EEOC review of cases involving a claim of
discrimination. This option applies to you only if you have claimed that you
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. 420 (2017). If you have a representative in this case,
and your representative receives 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 discrimi nation 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:
7
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 Board’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.
8
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 our we bsite 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.