Timothy Butler v. Department of the Army ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TIMOTHY W BUTLER, DOCKET NUMBER
Appellant, DA-1221-19-0077-X-1
v.
DEPARTMENT OF THE ARMY, DATE: July 17, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Timothy W. Butler , San Antonio, Texas, pro se.
G. Houston Parrish , Fort Knox, Kentucky, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
¶1 On July 18, 2023, the administrative judge issued a compliance initial
decision finding the agency noncompliant with the January 20, 2023 Final Order
in the underlying matter, which reversed the appellant’s removal and ordered the
agency to restore him to duty and pay him appropriate back pay, with interest, and
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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benefits. Butler v. Department of the Army, MSPB Docket
No. DA-1221-19-0777-C-1, Compliance File (CF), Compliance Initial Decision
(CID), Tab 14. For the reasons discussed below, we now find the agency in
compliance and DISMISS the petition for enforcement.
DISCUSSION OF ARGUMENTS AND EVIDENCE ON COMPLIANCE
¶2 On January 20, 2023, the Board granted the appellant’s petition for review,
reversed the July 3, 2019 initial decision of the administrative judge that had
sustained the appellant’s removal, and ordered appropriate corrective action,
including restoration of employment with back pay, interest, and benefits. Butler
v. Department of the Army, MSPB Docket No. DA-1221-19-0777-W-1, Final
Order (Jan. 20, 2023). The appellant subsequently filed a petition for
enforcement. CF, Tab 1. The administrative judge issued a compliance initial
decision finding that the agency had properly reinstated the appellant but had not
demonstrated that it provided him appropriate back pay, with interest, and
benefits. CID at 4.
¶3 In the compliance initial decision, the administrative judge informed the
agency that, if it decided to take the compliance actions required by the decision,
it must submit to the Office of the Clerk of the Board, within the time limit for
filing a petition for review under 5 C.F.R. § 1201.114(e), a statement that it had
taken the actions identified in the compliance initial decision, along with
evidence establishing that it had taken those actions. CID at 6-7; 5 C.F.R.
§ 1201.183(a)(6)(i). She also informed the parties of their option to request
Board review of the compliance initial decision by filing a petition for review by
August 22, 2023, the date on which the findings of noncompliance would become
final unless a petition for review was filed. CID at 7; see 5 C.F.R.
§§ 1201.114(e), 1201.183(a)(6)(ii), 1201.183(b). Neither party petitioned for
review. Accordingly, pursuant to 5 C.F.R. § 1201.183(b)-(c), the administrative
judge’s findings of noncompliance became final, and the appellant’s petition for
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enforcement was referred to the Board for a final decision on issues of
compliance. Butler v. Department of the Army, MSPB Docket
No. DA-1221-19-0777-X-1, Compliance Referral File (CRF), Tab 3.
¶4 On August 22, 2023, the agency filed a submission stating that it was
working with its paying agent, the Defense Finance Accounting Service (DFAS),
to calculate the appellant’s back pay but that DFAS required additional
information to complete its calculations. Specifically, the appellant’s
January 2023 submission to DFAS indicated that there were periods of time
during the back pay period that he was unable to work, which would affect the
amount of back pay owed. CRF, Tab 1 at 4-5. The agency stated that it had
attempted to obtain the necessary information from the appellant but that he had
not provided the specific dates during which he was unable to work, and the
agency did not know when his period of incapacity ended (if it did) because he
had been unable to work before the agency took the removal action that the Board
reversed, and he was either unable to work or absent without leave since his
restoration to duty. Id. at 5.
¶5 On August 22, 2023, the appellant filed a response to the agency’s
submission but did not explain which dates during the back pay period he was
unable to work. Much of his response was directed to his separate compensatory
damages appeals. CRF, Tab 2 at 4-5.
¶6 On September 5, 2023, the agency filed an additional pleading confirming
that the agency had paid the amount it owed the appellant in compensatory
damages but had not paid him back pay. CRF, Tab 4 at 4.
¶7 On December 15, 2023, the Board issued an Order instructing the appellant
to file a responsive pleading informing the Board and the agency of the specific
start and end dates between July 27, 2018, and February 7, 2023, that he was
unable to work. The order warned the appellant that if he failed to file such a
pleading, the Board might dismiss his petition for enforcement. CRF, Tab 5 at 2.
4
To date, the appellant has not responded to this order or filed any other
submission.
ANALYSIS
¶8 When the Board finds a personnel action unwarranted or not sustainable, it
orders that the appellant be placed, as nearly as possible, in the situation she
would have been in had the wrongful personnel action not occurred. House v.
Department of the Army, 98 M.S.P.R. 530, ¶ 9 (2005). The agency bears the
burden to prove its compliance with a Board order. Vaughan v. Department of
Agriculture, 116 M.S.P.R. 319, ¶ 5 (2011). An agency’s assertions of compliance
must include a clear explanation of its compliance actions supported by
documentary evidence. Id. The appellant may rebut the agency’s evidence of
compliance by making “specific, nonconclusory, and supported assertions of
continued noncompliance.” Brown v. Office of Personnel Management,
113 M.S.P.R. 325, ¶ 5 (2010).
¶9 As the agency correctly noted, the agency does not owe the appellant back
pay for time periods that he was not ready, able, and willing to work. E.g.,
Hodges v. Department of Justice, 121 M.S.P.R. 337, ¶ 23 (2014). The appellant
informed the agency that he was unable to work due to a surgery in February 2018
– several months before the back pay period commenced in July 2018. See CFR,
Tab 1 at 5. Despite multiple requests from the agency and DFAS, as well as the
Board’s December 2023 Order, the appellant has never informed the agency or
the Board when his period of incapacity ended (if it ever did) and which dates
during the back pay period he was and was not able to work.
¶10 In light of the appellant’s failure to cooperate with the agency’s attempt to
calculate his back pay, and his failure to respond to the Board’s order instructing
him to provide the necessary information, we find the agency in compliance and
dismiss the petition for enforcement. This is the final decision of the Merit
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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 2
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).
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:
2
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.
6
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
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
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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
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
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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. 3 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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
3
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.
9
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.