John C Parkinson v. Department of Justice

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JOHN C. PARKINSON, DOCKET NUMBER

Appellant, SF-0752-13-0032-X-1

v.

DEPARTMENT OF JUSTICE, DATE: September 5, 2024

Agency.

THIS ORDER IS NONPRECEDENTIAL 1

Jesselyn Radack and Kathleen McClellan , Washington, D.C., for the

appellant.

Celeste Wasielewski , Esquire, and Drew Ambrose , Washington, D.C., for

the agency.

Deja C. Nave , Esquire, San Francisco, California, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member

ORDER TO SHOW CAUSE

This petition for enforcement is before the Board to obtain compliance with

the Board’s October 10, 2018 final decision in the underlying case, which, after a

remand from the U.S. Court of Appeals for the Federal Circuit, mitigated the

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

appellant’s removal to a 15-day suspension. See Parkinson v. Department of

Justice, MSPB Docket No. SF-0752-13-0032-M-2, Initial Decision (Oct. 10,

2018). The appellant filed a petition for enforcement of that decision, which the

administrative judge granted in part in a January 15, 2020 compliance initial

decision. Parkinson v. Department of Justice, MSPB Docket No. SF-0752-13-

0032-C-1, Compliance Initial Decision (Jan. 15, 2020). Both parties petitioned

for review of the compliance initial decision. On May 20, 2024, the Board issued

an order denying the petitions for review; affirming in part, modifying in part,

and vacating in part the analysis in the compliance initial decision; and referring

the petition for enforcement to the Board’s Office of General Counsel for

additional processing in furtherance of the Board issuing a final decision once the

agency had demonstrated compliance with the obligations imposed by the October

10, 2018 Order, as interpreted through its May 20, 2024 Order. Parkinson v.

Department of Justice, MSPB Docket No. SF-0752-13-0032-C-1, Order (May 20,

2024) (May 20, 2024 Order); Parkinson v. Department of Justice, MSPB Docket

No. SF-0752-13-0032-C-1, Compliance Petition for Review File, Tab 8.

On June 26, 2024, the Board issued an Order and Summary of Telephone

Conference summarizing the parties’ June 17, 2024 conference with the Board’s

Office of General Counsel, and noting the status of issues outstanding from its

May 20, 2024 Order. Parkinson v. Department of Justice, MSPB Docket No. SF-

0752-13-0032-X-1, Compliance Referral File (CRF), Tab 9. On July 3, 2024, the

Board issued an order clarifying and superseding the June 26, 2024 Order to the

extent the second order contradicted the first. CRF, Tab 11. Specifically, as

relevant to the instant Order, the two orders together noted the agency’s

obligation to pay the appellant back pay, with interest, and benefits, and less any

interim earnings, for the time period July 14, 2016, through December 17, 2018;

and to return the appellant to the status quo ante for the time period December 18-

30, 2018. CRF, Tabs 9 and 11. Finally, the July 3, 2024 Order instructed the

agency to file detailed evidence of compliance by August 20, 2024, and instructed

3

the appellant to file a response to the agency’s submission by September 20,

2024. CRF, Tab 11 at 2.

On August 20, 2024, the agency indeed filed a response to the July 3, 2024

Order, but made no attempt to comply with the substance of the Board’s

instructions. Rather than submitting evidence that it paid the appellant as

required for July 14, 2016, through December 17, 2018, and restored him to the

status quo ante for December 18-30, 2018, the agency flatly refused to comply

with the Board’s Order on the basis that it believed the Board’s findings in its

May 20, 2024 Order were “erroneous as a matter of law and will have a

substantial, adverse impact on the administration of the civil service and matters

of national security.” CRF, Tab 14 at 4. The agency provided no explanation or

evidence for this extraordinary statement.

We note, first, that it is not obvious how routine payment of back pay could

“have a substantial, adverse impact on the administration of the civil service,” as

the agency claims. We reject this contention as absurd on its face. Moreover, the

Office of Personnel Management (OPM), not the agency, oversees the

administration of the civil service. E.g., 5 U.S.C. §§ 1103(a)(5), 7701(d),

7703(d). The agency has no authority to arrogate to itself the determination of

what constitutes impact on the administration of the civil service.

Regarding the agency’s unelucidated claim of potential impact on matters

of national security, as explained in the May 20, 2024 Order, the Board does not

interfere in security clearance determinations. But this is not a security clearance

determination. This is a determination that the agency improperly failed to pay

appropriate back pay and restore the appellant to duty during periods when—

according to the Board’s factual determinations based on the administrative

record—the appellant possessed a valid clearance. May 20, 2024 Order at 15, 17.

The agency already submitted these arguments in its petition for review in the

underlying petition for enforcement matter, and we already rejected them on both

factual and legal grounds. May 20, 2024 Order at 11-17. The agency has not

4

even attempted to explain why we should entertain these arguments again, and we

decline to do so.

The agency asserted that, in lieu of complying with the May 20, 2024

Order, it is “exploring an avenue to challenge those findings.” CRF, Tab 14 at 4.

The agency provided no legal authority for its claim that it can challenge the

Board’s Order, and we are aware of none. The Board’s statutory authority under

5 U.S.C. § 1204(a)(2) to enforce its orders is well established. Moreover, the

U.S. Court of Appeals for the Federal Circuit has long held that agencies have no

judicial right to appeal the Board’s orders. The sole exception is the unusual

circumstance where the Director of OPM, having already participated in the case

before the Board, petitions the court for review of a decision that the Director

believes erred in interpreting a civil service law, rule, or regulation affecting

personnel management, and which will have a substantial impact on a civil

service law, rule, regulation, or policy directive. 5 U.S.C. § 7703(d); e.g., Horner

v. Schuck, 843 F.2d 1368, 1373 (Fed. Cir. 1988) (OPM Director “has sole

authority to seek judicial review of a board decision that is unfavorable to an

agency”); Department of Health and Human Services v. Bercier , 261 F. App’x

284, at *1 (Fed. Cir. 2008) (dismissing appeal signed by agency representative

because “[o]nly the Office of Personnel Management can petition this court for

review of a Board decision on behalf of an agency”). The OPM Director has not

participated here. And as explained above, the agency has no authority to assert

claims that are reserved to the OPM Director.

Moreover, even if the agency had a judicial right of appeal, it would not

attach to the May 20, 2024 decision, which is not final and appealable. E.g.,

Weed v. Social Security Administration, 571 F.3d 1359, 1362 (Fed. Cir. 2009)

(Board order forwarding appeal for further adjudication was not final and

appealable under section 1295(a)(9)). 2 The agency is well aware of these points,

2

It would also be far too late to attach to the Board’s October 10, 2018 decision—

which, we remind the agency, followed a partial reversal by the Federal Circuit of the

Board’s original decision affirming the agency’s removal action.

5

as the Board’s Office of General Counsel noted them during the June 17, 2024

conference and in subsequent email correspondence with the agency on June 28,

2024.

If the agency is attempting to pursue some non-judicial avenue to overturn

our decision, we likewise are aware of none, and the agency has not enlightened

us. Nor has the agency explained why it would purportedly take more than

3 months to explore such options—the judicial appeal deadline, even if it applied

to the decision at issue and could be exercised by the agency, is a mere 60 days,

5 U.S.C. § 7703(b)(1)(A)—or why it has no time frame for concluding its

explorations. Thus, it is difficult to escape the conclusion that the agency’s

purported exploration of appeal options is not bona fide, and that in fact it has no

intention of ever complying with the Board’s orders.

Finally, we reject as well the agency’s specious claim that while it mulls

over the dubious “avenues” discussed above, it cannot pay the appellant because

“he would have to set that money aside until the Government exhausts its appeal

rights” and that defying the Board’s orders is the “prudent” course to save the

appellant from potentially having to repay a debt. CRF, Tab 14 at 4-5. As

explained above, the agency has no appeal rights. Even if it did, it has no

authority to refuse to comply with the Board’s Order pending the outcome of any

such appeals. If compliance with the Board’s Order resulted in adverse debt or

tax consequence to the appellant, that would be unfortunate, but has no bearing

on the agency’s obligations. Agencies not infrequently issue payments that may

alter or increase an appellant’s tax burden, or that may later require accounts to

be squared and create debts to be repaid. This is a natural product of restoring an

appellant to the status quo ante (which may include back pay), especially if

significant time elapses between the original adverse action and the Board’s

reversal of the action. Here, the agency’s sudden solicitude for the appellant’s

financial circumstances notwithstanding, the agency must timely comply with the

6

Board’s Orders. The agency is entitled to disagree internally with the Board’s

determinations, but it is not entitled to disobey them.

As noted above, the Board has statutory authority to enforce its orders,

5 U.S.C. § 1204(a)(2). It also has statutory and regulatory authority to impose

sanctions against the agency official responsible for noncompliance with a Board

order. 5 U.S.C. § 1204(e)(2)(A); 5 C.F.R. § 1201.183(c). Such sanctions may

include a ruling adverse to the agency and certification to the Comptroller

General of the United States that no payment is to be made to certain agency

employees found to be in noncompliance with the Board’s order. 5 C.F.R. §

1201.183(e).

As authorized by these provisions, the Board hereby ORDERS as follows:

(a) Within 3 days of the date of this Order, the agency shall file a submission

identifying the current responsible agency official—specifically, that

individual’s name, title, grade, and address. See 5 C.F.R. §§ 1201.183(a)(2),

1201.183(a)(7). If the agency fails to submit this information, the Board will

assume that the responsible agency official is Bradley Brooker, General

Counsel. 3

(b) Within 7 days of the date of this Order, the agency and the responsible

agency official are DIRECTED TO SHOW CAUSE why sanctions should not

be imposed for the agency’s failure to comply in full with the Board’s May

20, 2024 Order. Both the agency’s and the responsible agency official’s

responses shall address the specific actions the agency will take to come into

compliance with the May 20, 2024 Order, and by what date. Such date shall

be no later than 14 days from the date of this Order. Additionally, the

responsible agency official’s response shall include a sworn declaration that

the agency representatives in this case have fully apprised him or her of the

3

The agency originally informed the Board that this official was Dana Boente, General

Counsel, but Mr. Boente appears to have left the agency in approximately 2020.

7

issues, the agency’s obligations, the Board’s orders and the agency’s failure

to comply with them, and the Board’s sanction authority.

(c) Within 7 days of the date of this Order, the agency representatives,

Ms. Deja Nave and Mr. Drew Ambrose, are both ORDERED to submit

separate sworn declarations attesting that they each informed the responsible

agency official of the above information and provided him or her a copy of

this Order. Ms. Nave and Mr. Ambrose must also attest that they each

provided their immediate supervisors a copy of this Order. Finally, if the

responsible agency official is an individual other than Mr. Brooker, Ms. Nave

and Mr. Ambrose must attest that they each provided Mr. Brooker a copy of

this Order as well.

If complete, substantive responses and declarations are not received within

the time frames specified above, the Board will issue an order requiring the

agency and the responsible agency official to appear in person for a show cause

hearing before the Board at the Headquarters of the Merit Systems Protection

Board in Washington, D.C. See 5 C.F.R. § 1201.183(c). The Board reminds the

agency that the Board has statutory and regulatory authority to compel

attendance, including by subpoena. 5 U.S.C. § 1204(b)-(d); 5 C.F.R. §§ 5.4,

1201.81-.85, 1201.183(c)(1).

8

The appellant may file a response to the forthcoming agency submissions,

if he desires, within 7 days of the date of those submissions.

FOR THE BOARD: ______________________________

Gina K. Grippando

Clerk of the Board

Washington, D.C.