Joshua Wible v. Department of Veterans Affairs ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOSHUA D. THORNBURY, DOCKET NUMBER
Appellant, DE-0752-14-0490-X-1
v.
DEPARTMENT OF VETERANS DATE: January 18, 2024
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Michael A. Shaw , Esquire, Cottonwood, Arizona, for the appellant.
Maxine N. Romero , Esquire, Phoenix, Arizona, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
On February 13, 2018, the administrative judge issued a compliance initial
decision finding the agency noncompliant with the November 17, 2016 initial
decision 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 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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. Thornbury v. Department of Veterans Affairs, MSPB Docket No. DE-
0752-14-0490-C-2, Compliance File, Tab 8, Compliance Initial Decision (CID);
Thornbury v. Department of Veterans Affairs, MSPB Docket No. DE-0752-14-
0490-I-2, Tab 18, Initial Decision (ID). The initial decision became the Board’s
final decision on December 22, 2016, after neither party filed a petition for
review. In the compliance initial decision, the administrative judge ordered the
agency to submit evidence of full compliance. CID at 5. For the reasons
discussed below, we find the agency in compliance and DISMISS the petition for
enforcement.
DISCUSSION OF ARGUMENTS AND EVIDENCE ON COMPLIANCE
In the compliance initial decision, the administrative judge informed the
agency that, if it decided to take the 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 has taken those actions. CID at 5-6; see 5 C.F.R.
§ 1201.183(a)(6)(i). He also informed the parties of their option to request Board
review of the compliance initial decision by filing a petition for review by
March 20, 2018, the date on which the findings of noncompliance would become
final unless a petition for review was filed. CID at 6; see 5 C.F.R.
§§ 1201.114(e), 1201.183(a)(6)(ii), 1201.183(b). Neither party filed any
submission with the Clerk’s Office within the time limit set forth in 5 C.F.R.
§ 1201.114. 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 enforcement was referred to the Board for a final decision
on issues of compliance. See Thornbury v. Department of Veterans Affairs ,
MSPB Docket No. DE-0752-14-0490-X-1, Compliance Referral File (CRF),
Tab 1.
3
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. 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).
After the Board issued an Acknowledgement Order regarding the referral of
compliance issues, CRF, Tab 1, the parties submitted a series of pleadings, the
most recent of which were filed April 4, 2023, and August 18, 2023, and were
styled “joint response[s]” addressing outstanding compliance matters. CRF,
Tabs 35-36. In the April 4, 2023 submission, the parties indicated that the agency
had “fully complied with the monies owed Appellant with the exception” of
$458.19, which the parties stated was “still in a pending status with DFAS.”
CRF, Tab 35 at 4-5. In the August 18, 2023 submission, the parties “jointly
assert[ed] the [] [petition for enforcement] concerning DE-0752-14-0490-X-1 has
been fully resolved.” CRF, Tab 36 at 3.
In view of the parties’ stipulation that the case has been fully resolved, we
find the agency in compliance and 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)).
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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 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.
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.
5
(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.
(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
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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
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:
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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. 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
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.
8
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.
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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.