Carl Floyd v. United States Postal Service ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CARL STEVEN FLOYD, DOCKET NUMBER
Appellant, DC-0752-17-0662-C-1
v.
UNITED STATES POSTAL SERVICE, DATE: February 21, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Carl Steven Floyd , Forestville, Maryland, pro se.
LaDonna L. Griffith-Lesesne , Esquire, Landover, Maryland, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The agency has filed a petition for review of the compliance initial
decision, which granted in part the appellant’s petition for enforcement. For the
reasons discussed below, we GRANT the agency’s petition for review. We
AFFIRM the compliance initial decision AS MODIFIED to find that the agency is
in full compliance. We also DISMISS the petition for enforcement.
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
BACKGROUND
In a prior appeal, a Board administrative judge ordered the agency to
restore the appellant to his Customer Service Supervisor position, effective
December 31, 2015, to pay him the appropriate amount of back pay, with interest,
and to adjust benefits with appropriate credits and deductions in accordance with
the Office of Personnel Management (OPM) regulations. Floyd v. U.S. Postal
Service, MSPB Docket No. DC-0752-17-0662-I-1, Initial Decision at 2, 18-19
(June 20, 2018). The initial decision became final on July 25, 2018, when neither
party petitioned for review. Id. at 20.
The appellant filed a petition for enforcement, which the
administrative judge granted in part. Floyd v. U.S. Postal Service, MSPB Docket
No. DC-0752-17-0662-C-1, Compliance File, Tabs 1, 24, Initial Decision (ID)
at 4-10. The administrative judge found, among other things, that the agency was
in compliance with respect to its calculations of overtime back pay and its
decision to reduce the back pay award by the amount the appellant previously
received for terminal leave and health insurance premiums withholdings. 2
ID at 4-9. The administrative judge noted that the appellant did not challenge the
deduction for basic life insurance premiums; however, she found that the
appellant’s back pay award should be adjusted to account for “Post Retirement
Reduction” life insurance premiums and ordered the agency to reimburse him in
the amount of $144.84 per month, with interest, for the period of January 1, 2016,
to August 30, 2018. ID at 9-10.
The agency filed a petition for review, to which the appellant did not
respond. Petition for Review (PFR) File, Tab 1.
DISCUSSION OF ARGUMENTS ON REVIEW
On review, the agency asserts, among other things, that if it took the action
ordered in the compliance initial decision, the appellant would receive a windfall
2
Neither party challenges the administrative judge’s findings in this regard, and we
affirm them herein.
3
in the form of a double reimbursement. PFR File, Tab 1 at 5. The agency
explains that it was the responsibility of OPM to issue the appellant a refund of
his “Post Retirement No Reduction” life insurance premiums in the amount of
$4,634.88, and it was awaiting OPM’s action to bring it into compliance with the
Board’s order. Id. In support of its assertion, the agency submits, among other
things, a September 4, 2019 letter from OPM, which stated that the appellant will
receive a refund of his “Post Retirement No Reduction” life insurance premiums 3
in the amount of $4,634.88—the equivalent of monthly premiums of $144.84 for
the period of January 1, 2016, to August 30, 2018—and that interest is not
payable on the refund. 4 Id. at 9.
Because there existed a question as to whether the appellant had received
the refund of his post-retirement life insurance premiums, the Clerk of the Board
issued a Show Cause Order, which directed the appellant to indicate whether he
received $4,634.88 for the life insurance premiums at issue and whether his claim
for these benefits and/or interest remained outstanding. PFR File, Tab 5.
The appellant filed a response, to which the agency replied. PFR File, Tabs 9-10.
In his response, the appellant states that he received $4,634.88 from OPM on
September 12, 2019. PFR File, Tab 9 at 3. He did not indicate that he was still
pursuing this claim or seeking interest on this claim. The agency provided
documentation from OPM verifying the appellant’s receipt of this amount.
PFR File, Tab 10 at 7.
Based on the evidence submitted by the parties on review, and the absence
of any indication that the appellant is pursuing a claim of interest on the
post-retirement life insurance premiums, we find the agency in compliance and
3
Because the administrative judge and OPM utilized the same $144.84 monthly
premium amount and same total amount of $4,364.88, we need not resolve the
discrepancy between the different characterizations of these premiums.
4
The Board will consider evidence that constitutes a further explanation of the agency’s
efforts to comply with its orders. McDonough v. U.S. Postal Service, 60 M.S.P.R. 122,
125-26 (1993).
4
DISMISS 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)(1) (5 C.F.R. § 1201.183(c)(1)).
NOTICE OF APPEAL RIGHTS 5
The compliance initial decision, as supplemented by this Final Order,
constitutes the Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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.
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).
5
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
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.
(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 discrimination based on
6
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:
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
7
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. 6 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).
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 website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
6
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
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: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.