Charles Harrington v. Department of Veterans Affairs ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CHARLES W. HARRINGTON, JR., DOCKET NUMBER
Appellant, AT-0714-18-0615-X-1
v.
DEPARTMENT OF VETERANS DATE: July 17, 2024
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Christopher J. Keeven , Esquire, and Conor D. Dirks , Esquire, Washington,
D.C., for the appellant.
Dana C. Heck , Esquire, St. Petersburg, Florida, 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
On December 30, 2021, the administrative judge issued a compliance initial
decision that found the agency in noncompliance with the March 31, 2021 remand
initial decision, which reversed the appellant’s removal and ordered the agency to
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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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restore him to duty and to pay him appropriate back pay and benefits. Harrington
v. Department of Veterans Affairs, MSPB Docket No. AT-0714-18-0615-C-1,
Compliance File (CF), Tab 14, Compliance Initial Decision (CID); Harrington v.
Department of Veterans Affairs, MSPB Docket No. AT-0714-18-0615-M-1,
Remand File (RF), Tab 18, Remand Initial Decision (RID). 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
On March 31, 2021, following remand of the case from the Federal Circuit
for further adjudication, the administrative judge issued a remand initial decision
reversing the appellant’s removal and ordering the agency to restore him to duty
and to pay him applicable back pay, with interest, and benefits. RID at 1, 7-8.
The remand initial decision became the Board’s final decision on May 5, 2021,
after neither party filed a petition for review.
On July 9, 2021, the appellant filed a petition for enforcement of the initial
decision. CF, Tab 1. The administrative judge granted the petition for
enforcement and again ordered the agency to take appropriate steps to pay the
appellant and submit proof of compliance to the Board. CID at 5. After neither
party petitioned for review, the matter was referred to the Board to obtain
compliance. See 5 C.F.R. §§ 1201.183(b)-(c).
On February 8, 2022, the Board issued an acknowledgment order directing
the agency to submit evidence showing that it had complied with all the actions
identified in the compliance initial decision. Harrington v. Department of
Veterans Affairs, MSPB Docket No. AT-0714-18-0615-X-1, Compliance Referral
File (CRF), Tab 1. The agency responded on February 23, and February 28,
2022, that it had paid the appellant all the back pay owed with interest by two,
separate payments, which were issued to the appellant by the Defense Finance
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and Accounting Service (DFAS) on September 3, 2021, and February 18, 2022.
CRF, Tabs 2, 3.
On March 15, 2022, the appellant responded that the agency had not fully
complied with these actions because it failed to explain why the agency did not
include any overtime and/or night and weekend differentials in its back pay
calculations. CRF, Tab 4. He also alleged that the agency’s calculations did not
appear to account for overtime and/or night and weekend differentials. Id. The
agency responded that the appellant had not provided evidence for any
entitlement not already included in the back pay calculation. CRF, Tab 5.
On April 20, 2022, the Board issued an order requiring the agency to
specifically address, via affidavit and documentary evidence, how its backpay
calculations complied with various requirements. CRF, Tab 6. Thereafter, the
parties exchanged responses, and the agency filed several declarations detailing
its various payments to the appellant. CRF, Tabs 7-9, 12-13, 15-18. The
appellant eventually filed a compliance status report acknowledging that he has
now received all appropriate back pay. CRF, Tab 19.
ANALYSIS
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 he 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. An agency’s assertions of
compliance must include a clear explanation of its compliance actions supported
by documentary evidence. Vaughan v. Department of Agriculture, 116 M.S.P.R.
319, ¶ 5 (2011). 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).
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The agency has filed multiple submissions explaining its compliance
efforts, and the appellant has confirmed that he has received all pay and benefits
to due him. CRF, Tab 19. Accordingly, we find that the agency has complied
with its obligations.
The appellant noted that he did not receive his entire back pay award until
June 2023, because of delays by the agency. CRF, Tab 19. He argued that these
delays of almost two years were unjustified and required him to accrue significant
attorney fees, and he requested the opportunity to seek additional attorney fees
for the period from May 15, 2022, to June 30, 2023. Id. The Board’s regulations
provide that attorney fee petitions cannot be filed until after the relevant case has
concluded. 5 C.F.R. § 1201.203(d). The issuance of this Final Order concludes
this compliance action. Accordingly, the appellant may file his attorney fee
petition in accordance with the regulations at 5 C.F.R. § 1201.203.
For the reasons stated above, the Board finds the agency in compliance and
DISMISSES the petition for enforcement. This is the final decision of the Merit
Systems Protection Board in these compliance proceedings. Title 5 of the Code
of Federal Regulations, section 1201.183(c)(1) (5 C.F.R. § 1201.183(c)(1)).
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.
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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.
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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.
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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.