Opinion

Linda Weiss v. Department of Veterans Affairs

Court: Merit Systems Protection Board
Filed: Sep 9, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.6%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

LINDA W. WEISS, DOCKET NUMBER

Appellant, NY-0707-16-0149-X-1

NY-0707-16-0149-C-1

DEPARTMENT OF VETERANS

AFFAIRS, DATE: September 9, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

James Garay Heelan , Esquire, Debra Roth , Esquire, and Conor D. Dirks ,

Esquire, Washington, D.C., for the appellant.

Alfred E. Steinmetz , Esquire, and Xan DeMarinis , Esquire, Washington,

D.C., for the agency.

Stephen F. Butera , Esquire, Clarksburg, West Virginia, for the agency.

Kimberly Negley , Esquire, St. Louis, Missouri, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member

FINAL ORDER

¶1 In a June 15, 2022 Order, the Board denied the agency’s petition for review

and affirmed the May 26, 2016 compliance initial decision to the extent it found

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 agency in noncompliance with the final decision in the underlying appeal,

which ordered the agency to cancel the appellant’s removal from her Senior

Executive Service (SES) position, reinstate her, and provide her with back pay,

interest on the back pay, and other benefits. Weiss v. Department of Veterans

Affairs, MSPB Docket No. NY-0707-16-0149-C-1, Order (June 15, 2022);

Weiss v. Department of Veterans Affairs, MSPB Docket No. NY-0707-16-0149-

C-1, Compliance File, Tab 11, Compliance Initial Decision, Tabs 13, 15. The

Board directed the agency to file evidence of compliance and referred the

appellant’s petition for enforcement to the MSPB’s Office of General Counsel to

obtain compliance. Order, ¶ 15. We now JOIN the compliance referral

proceeding, MSPB Docket No. NY-0707-16-0149-X-1, and the compliance

proceeding, MSPB Docket No. NY-0707-16-0149-C-1, for processing. 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

¶2 When, as here, the Board finds a personnel action unwarranted, the aim is to

place the appellant, as nearly as possible, in the situation she would have been in

had the wrongful personnel action not occurred. Vaughan v. Department of

Agriculture, 116 M.S.P.R. 319, ¶ 5 (2011); King v. Department of the Navy,

100 M.S.P.R. 116, ¶ 12 (2005), aff’d per curiam, 167 F. App’x 191 (Fed. Cir.

2006). The agency bears the burden to prove compliance with the Board’s order

by a preponderance of the evidence. 2 Vaughan, 116 M.S.P.R. 319, ¶ 5; 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

A preponderance of the evidence is the degree of relevant evidence that a reasonable

person, considering the record as a whole, would accept as sufficient to find that a

contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).

of compliance by making specific, nonconclusory, and supported assertions of

continued noncompliance. Id.

¶3 The agency has provided narrative statements and evidence showing it has

canceled the appellant’s removal, removed references to the removal from her

official personnel file, reinstated her to an equivalent SES position retroactive to

the date of her removal, and provided her with back pay, interest on back pay, and

other appropriate benefits. Weiss v. Department of Veterans Affairs, MSPB

Docket No. NY-0707-16-0149-X-1, Compliance Referral File (CRF), Tabs 3, 5, 7,

15, 19-21, 24. In its final submission, the agency asserted that it was in full

compliance with the Board’s orders. CRF, Tab 24 at 8. In an August 14, 2024

compliance status report, the appellant indicated that she “agrees that the Agency

has now fully complied with the Board’s June 15, 2022 Order.” CRF, Tab 25.

¶4 In light of the foregoing, we find that the agency is now in compliance and

dismiss the appellant’s 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.

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

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:

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.

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