Neena Murphy-Martin v. Department of Veterans Affairs

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
NEENA ROCHELLE MURPHY- DOCKET NUMBER
MARTIN, DC-1221-16-0259-X-1
Appellant,
v.
DATE: March 9, 2023
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Cheri L. Cannon, Esquire, Washington, D.C., for the appellant.
Diane Duhig, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member 2
FINAL ORDER
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
Member Leavitt’s name is included in decisions on which the three -member Board
completed the voting process prior to his March 1, 2023 departure.
2
¶1 On August 11, 2017, the administrative judge issued a compliance initial
decision granting the appellant’s petition for enforcement and finding the agency
in partial noncompliance with the Board’s final decision, which granted the
appellant’s request for corrective action in her individual right of action (IR A)
appeal. Murphy-Martin v. Department of Veterans Affairs, MSPB Docket
No. DC-1221-16-0259-C-1, Compliance File (CF), Tab 16, Compliance Initial
Decision (CID); Murphy-Martin v. Department of Veterans Affairs, MSPB Docket
No. DC-1221-16-0259-W-1, Initial Appeal File, Tab 32, Initial Decision (ID).
For the reasons discussed below, we find the agency in compliance and DISMISS
the petition for enforcement.
DISCUSSION OF ARGUMENTS AND EVIDENCE ON COMPLIANCE
¶2 In a November 18, 2016 initial decision granting the appellant’s request for
corrective action in her IRA appeal, the administrative judge ordered the agency
to rescind the appellant’s removal; reinstate her effective December 2, 2015; and
pay her 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. ID at 13-14. The initial decision
became the final decision of the Board on December 23, 2016, after neither party
filed a petition for administrative review.
¶3 On June 19, 2017, the appellant filed a petition for enforcement of the
November 18, 2016 decision, asserting that the agency had not paid her the full
amount of back pay owed or provided an accounting of its calculatio ns. CF,
Tab 1. In the August 11, 2017 compliance initial decision, the administrative
judge granted the appellant’s petition for enforcement and ordered the agency to
take the following actions: (1) pay the appellant the appropriate amount of back
pay with interest and to adjust benefits with appropriate credits and deductions in
accordance with the OPM regulations; (2) restore the appellant’s leave balances,
Thrift Savings Plan (TSP) contributions, and other benefits to reflect the status
3
quo ante; (3) inform the appellant in writing of all actions taken to comply with
the Board’s order and the date on which it believed it has fully complied; and
(4) identify the agency official charged with complying with the Board’s order
and inform such official in writing of the potential sanction for noncompliance.
CID at 3-4. Neither party filed any submission with the Clerk of the Board within
the time limit set forth in 5 C.F.R. § 1201.114, and the appellant’s petition for
enforcement was referred to the Board for a final decision on issues of
compliance pursuant to 5 C.F.R. § 1201.183(b)-(c). Murphy-Martin v.
Department of Veterans Affairs, MSPB Docket No. DC-1221-16-0259-X-1,
Compliance Referral File (CRF), Tab 1.
¶4 In a September 19, 2017 acknowledgement order, the Clerk of the Board
ordered the agency to submit evidence showing that it complied with all of the
actions identified in the compliance initial decision. Id. at 3. In addition, the
Clerk informed the appellant that she could respond to the agency’s evidence of
compliance within 20 days of the date of service of the agency’s submission and
that, if she did not respond, the Board may assume she was satisfied and dismiss
her petition for enforcement. Id.¶5 On March 13, 2018, the agency submitted a compliance status report
stating, among other things, that “unofficially, the undersigned [agency counsel]
can aver” that an unspecified amount of back pay had been paid to the appellant
and that the compliance matter should be dismissed. 3 CRF, Tab 2. On April 23,
2018, the agency resubmitted its March 13, 2018 status report with additional
exhibits reflecting (without explanation) its calculations of the appellant’s back
3
In its compliance status report, the agency stated that it had paid the appellant
compensatory damages in accordance with the October 27, 2017 initial decision in
MSPB Docket No. DC-1221-16-0259-P-1, and attorney fees in accordance with the
November 8, 2017 initial decision in MSPB Docket No. DC -1221-16-0259-A-1. CRF,
Tab 2 at 5. However, the agency’s payment of compensatory damages and attorney fees
are not at issue in this compliance matter. CF, Tab 1; CID. Accordingly, neither is sue
will be addressed herein.
4
pay award and interest on the back pay, retroactive TSP contributions, and benefit
and leave adjustments. CRF, Tab 3 at 8-43. The appellant did not respond to the
agency’s compliance submissions.
ANALYSIS
¶6 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 oc curred. 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); 5 C.F.R. § 1201.183(d). An agency’s
assertions of compliance must include a clear explanation of its compliance
actions supported by documentary evidence. Vaughan, 116 M.S.P.R. 319, ¶ 5.
The appellant may rebut the agency’s evidence of compliance by making
“specific, nonconclusory, and supported assertions of continu ed noncompliance.”
Brown v. Office of Personnel Management, 113 M.S.P.R. 325, ¶ 5 (2010).
¶7 As discussed above, the agency stated that it has paid the appellant the back
pay owed and provided evidence reflecting its calculations . CRF, Tabs 2-3.
Although the agency’s submissions do not provide a clear explanation of its
compliance actions, the appellant, who is represented by counse l, has not
responded to them, despite being informed of her opportunity to do so and the
consequences of not responding. Accordingly, the Board assumes she is satisfied
with the agency’s compliance. See Baumgartner v. Department of Housing and
Urban Development, 111 M.S.P.R. 86, ¶ 9 (2009).
¶8 In light of the foregoing, we find the agency in compliance and DISMISS
the petition for enforcement. 4 This is the final decision of the Merit Systems
4
The agency has not demonstrated compliance with the administrative judge’s order to
identify the agency official charged with complying with the Board’s order and to
inform such official in writing of the potential sanction for noncompliance. CID at 4.
Nonetheless, given the appellant’s apparent satisfaction with the agency’s compliance,
5
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 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
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 5
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 case s 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
we do not find that the agency’s failure to comply with this requirement precludes
dismissal of the appellant’s petition for enforcement.
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.
6
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.
7
(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. ____ , 137 S. Ct. 1975 (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, cos ts, 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:
8
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. 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).
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.
9
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.
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.