The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARK J. TARTAGLIA, DOCKET NUMBERS
Appellant, DC-0752-14-1108-C-2
DC-0752-14-1108-C-1
v.
DEPARTMENT OF VETERANS
AFFAIRS, DATE: July 8, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Neil C. Bonney , Esquire, Virginia Beach, Virginia, for the appellant.
Timothy M. O’Boyle , Esquire, Hampton, Virginia, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The appellant has filed a petition for review of the compliance initial
decision that denied his petition for enforcement of the Board’s final order.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). We
FORWARD the appellant’s petition for review to the regional office for
docketing as a new constructive removal appeal.
BACKGROUND
The agency removed the appellant for misconduct on September 19, 2014,
and the appellant appealed his removal to the Board. Tartaglia v. Department of
Veterans Affairs, MSPB Docket No. DC-0752-14-1108-I-1, Initial Appeal File,
Tab 1. After extensive litigation, including a remand from the U.S. Court of
Appeals for the Federal Circuit, the administrative judge issued an initial decision
mitigating the appellant’s removal to a 30-day suspension. Tartaglia v.
Department of Veterans Affairs, MSPB Docket No. DC-0752-14-1108-M-1,
Remand File, Tab 9, Remand Initial Decision (RID) (Mar. 28, 2019); Tartaglia v.
Department of Veterans Affairs, 858 F.3d 1405 (Fed. Cir. 2017). Neither party
petitioned for review, and the remand initial decision became final. See 5 C.F.R.
§ 1201.113. The administrative judge ordered the agency to, among other things,
mitigate the removal to a 30-day suspension and pay the appellant the appropriate
amount of back pay. RID at 4.
On June 6, 2019, the appellant filed a petition for enforcement, claiming
that the agency failed to provide him a return-to-duty date. Tartaglia v.
Department of Veterans Affairs, MSPB Docket No. DC-0752-14-1108-C-1,
Compliance File (C-1 CF), Tab 1. The agency responded that it replaced the
removal with a 30-day suspension and purged the appellant’s Official Personnel
File of references to the removal, but it was unable to return the appellant to duty
or pay him any back pay because he applied for and received a disability
retirement retroactive to the date of his removal. C-1 CF, Tab 6 at 4, 9-10,
Tab 10 at 6-10. The appellant argued that his disability retirement did not affect
his entitlement to back pay or reinstatement because he had not had a chance to
seek reasonable accommodation, which he could only do after being restored to
duty. C-1 CF, Tab 7, Tab 11 at 4-7. During the pendency of the petition for
enforcement, the appellant filed a second petition for enforcement raising
substantially the same issues. Tartaglia v. Department of Veterans Affairs ,
MSPB Docket No. DC-0752-14-1108-C-2, Compliance File, Tab 1. The
administrative judge joined the petitions for processing. C-1 CF, Tab 9.
After the close of the record, the administrative judge issued an initial
decision denying the petitions for enforcement. C-1 CF, Tab 12, Compliance
Initial Decision (CID). He found that the appellant failed to provide sufficient
legal authority to support his argument and that the agency had complied with the
Board’s final order. CID at 7-8.
The appellant has filed a petition for review, disputing the administrative
judge’s analysis. Petition for Review (PFR) File, Tab 1. The agency has filed a
response to the petition for review, and the appellant has filed a reply to the
agency’s response. PFR File, Tabs 3-4.
ANALYSIS
In proceedings on petition for enforcement of a Board order, the agency
bears the burden of proving that it has complied with the final order. Lua v.
Office of Personnel Management, 100 M.S.P.R. 431, ¶ 8 (2005). As part of its
burden of proving compliance, the agency must establish that it returned the
appellant as nearly as possible to the status quo ante. Williams v. Department of
the Navy, 79 M.S.P.R. 364, 367 (1998).
In this case, it is undisputed that, on February 23, 2015, the Office of
Personnel Management (OPM) granted the appellant’s application for disability
retirement retroactive to September 19, 2014, the date of his removal. CID at 4;
C-1 CF, Tab 6 at 7-8. It is the agency’s position that the disability retirement
extinguished the appellant’s right to back pay and reinstatement to his former
position. PFR File, Tab 3 at 7-77. The appellant, however, argues that he was
able to obtain disability retirement only because the agency prevented him from
seeking reasonable accommodation due to its improper removal action. PFR File,
Tab 1 at 5-6. He argues that a proper status quo ante remedy would be to return
him to his position of record, thereby allowing him to seek reasonable
accommodation. Id. at 5-7.
We have considered the precedent that the appellant has cited in support of
his argument, but we agree with the administrative judge that it does not control
the outcome of this case. CID at 7. The appellant cites a compliance initial
decision in Abbott v. U. S. Postal Service, MSPB Docket No. DC-0752-12-0366-
C-2, for the proposition that back pay is not offset by the receipt of disability
retirement benefits. C-1 CF, Tab 7 at 5. However, it is well settled that initial
decisions have no precedential value. Social Security Administration v. Abell,
47 M.S.P.R. 98, 101 (1991). Moreover, we find that the initial decision in Abbott
has no persuasive value in this case. In reaching her decision, the administrative
judge relied on two Equal Employment Opportunity Commission decisions,
Burnett v. U.S. Postal Service, EEOC Appeal No. 01981618, 2005 WL 3369045
(Nov. 23, 2005), and Savage v. U.S. Postal Service, EEOC Appeal No. 01960183,
2000 WL 361776 (Mar. 28, 2000). Abbott, MSPB Docket No. DC-0752-12-0366-
C-2, Tab 10, Compliance Initial Decision at 6 (Apr. 27, 2018). We are not
convinced that her reliance on these decisions was correct because the appellant
in Abbott was a preference eligible and therefore subject to the Back Pay Act, but
there is no indication that the petitioners in Burnett and Savage were preference
eligible, and therefore they were presumably subject instead to the Postal
Service’s back pay regulations, found in the U.S. Postal Service Employee and
Labor Relations Manual, part 436. Abbott v. U.S. Postal Service, MSPB Docket
No. DC-0752-12-0366-I-1, Initial Appeal File, Tab 1 at 1; see House v. U.S.
Postal Service, 85 M.S.P.R. 260, 262 (2000). We have reviewed the Postal
Service’s back pay regulations and found no provision in them for offsetting back
pay due to a disability retirement award, whereas OPM’s regulations
implementing the Back Pay Act explicitly provide for offset of “erroneous
payments received from the Government as a result of the unjustified or
unwarranted personnel action.” 5 C.F.R. § 550.805(e)(2). In any event, the
language that the appellant cites in Abbott pertains to the offset of back pay; it
does not pertain to his right to receive back pay in the first place. C -1 CF, Tab 7
at 5.
The appellant also cites to Smith v. Department of the Army, 458 F.3d 1359
(Fed. Cir. 2006), and Payne v. Department of Veterans Affairs, EEOC Appeal No.
01A42405, 2004 WL 1959632 (Aug. 24, 2004), for the proposition that back pay
covers the entire period for which the challenged personnel action was in effect.
C-1 CF, Tab 11 at 6-7. Although this proposition is true, we agree with the
administrative judge that the outcomes of Smith and Payne were grounded in facts
that are absent in the instant appeal. CID at 7. The court in Smith found that the
appellant’s entitlement to back pay for his constructive suspension was not
extinguished by his subsequent removal for physical inability to perform because
that removal was the result of the agency’s failure to accommodate the
appellant’s disability. 458 F.3d at 1365-66. Importantly, the court found that
“the action for which Smith seeks relief, the illegal discrimination, was clearly
adjudicated on its merits.” Likewise, in Payne, the Equal Employment
Opportunity Commission (EEOC) found that the appellant’s disability retirement
did not extinguish her right to back pay because she was forced to take disability
retirement as a result of the agency’s failure to accommodate her medical
conditions. EEOC Appeal No. 01A42405, 2004 WL 1959632, at *4-*6. By
contrast, there has been no finding in the instant appeal that the appellant’s
disability retirement was the product of discrimination or was otherwise invalid.
Next, the appellant cites Bonggat v. Department of the Navy, 56 M.S.P.R.
402 (1993), for the proposition that status quo ante relief requires that an
appellant be returned to his former position regardless of whether he is physically
able to perform in that position. C-1 CF, Tab 11 at 5. However, the relief
ordered in Bonggat was based on a removal for physical inability to perform that
the Board found was the product of whistleblower reprisal, and there was no
subsequent disability retirement involved. 56 M.S.P.R. at 407-13. We agree with
the administrative judge that the Board’s decision in Bonggat is not instructive
under the facts of the instant appeal. CID at 7. The appellant cites Spencer v.
Department of the Navy, 82 M.S.P.R. 149 (1999), for a similar proposition,
arguing that once the Board in that case reversed the appellant’s removal for
physical inability to perform, the agency restored him to his former position
despite the fact he had filed for disability retirement. C-1 CF, Tab 7 at 5-6,
Tab 11 at 6. However, we agree with the administrative judge that Spencer is not
controlling because, in that case, OPM had rescinded its approval of the
appellant’s disability retirement application. 82 M.S.P.R. 149, ¶ 17.
Having considered the authorities that the appellant cited in support of his
petition, we find that this case is instead controlled by Cooper v. Department of
the Navy, 108 F.3d 324 (Fed. Cir. 1997). In Cooper, the agency removed the
petitioner for physical inability to perform, and during the pendency of his Board
appeal, in which he did not allege discrimination, the petitioner’s application for
disability retirement was approved retroactive to a date prior to his removal. 2
108 F.3d at 325. The agency then expunged the appellant’s removal and amended
its records to reflect a separation by disability retirement. Id. The court found
that the appeal was moot because the agency’s cancellation of the removal action
and the expungement of all references to that action from the petitioner’s official
personnel file eliminated all the consequences of the action. Id. at 326. An
appeal is moot when the petitioner has received all of the relief that he could have
received if the matter had been adjudicated and he had prevailed. Hernandez v.
Department of the Air Force, 498 F.3d 1328, 1333 (Fed. Cir. 2007); Harris v.
Department of Transportation, 96 M.S.P.R. 487, ¶ 8 (2004). The necessary
implication for the instant appeal is that the appellant is entitled to no further
relief beyond the cancellation of the removal in favor of a separation by disability
retirement and a correction of the agency’s records. Like the appellant in the
instant appeal, the petitioner in Cooper argued that he was entitled to restoration
and back pay notwithstanding his disability retirement. 108 F.3d at 326.
However, the court found that in order to be entitled to such further relief, the
petitioner would need to show that his disability retirement amounted to a
constructive removal. Id. Neither the petitioner in Cooper nor the appellant in
the instant appeal made any such showing.
In sum, the cases on which the appellant relies either did not involve an
intervening event that could have limited status quo ante relief, or they involved
intervening events that were subsequently invalidated. By contrast, Cooper
involved an intervening event (the petitioner’s disability retirement) that
remained valid and in force. Because the appellant in this case has not shown his
disability retirement to be invalid, we find that Cooper controls. Because the
appellant’s disability retirement was effective the date of his removal, the agency
was not required to reinstate the appellant or provide him back pay in order to
2
The petitioner filed his discrimination claim in district court, but the Federal Circuit
lacked jurisdiction over that claim, which remained undecided at the time the Federal
Circuit issued its decision affirming the Board’s order. Cooper, 108 F.3d at 325-27.
return him to the status quo ante. Unless and until the disability retirement is
shown to be a constructive removal, the Board cannot find otherwise.
As explained above, the appellant argues that he is entitled to reinstatement
and back pay because his disability retirement was a consequence of the agency’s
failure to accommodate his condition. This is a constructive removal claim, see,
e.g., Lorenz v. U.S. Postal Service, 84 M.S.P.R. 670 (2000), and these compliance
proceedings are not the proper avenue for litigating such a claim. Nevertheless, if
the appellant is able to show that his disability amounted to a constructive
removal, he may be able to obtain the relief he is seeking. We therefore forward
the petition for review to the regional office for docketing as a timely
constructive removal appeal.
NOTICE OF APPEAL RIGHTS 3
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
3
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.
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.
(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
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
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. 4 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
4
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.
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: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.