Opinion

Clifton Rodgers v. Department of the Army

Court: Merit Systems Protection Board
Filed: Sep 10, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.6%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

CLIFTON S. RODGERS, DOCKET NUMBER

Appellant, CH-0752-19-0204-X-1

DEPARTMENT OF THE ARMY, DATE: September 10, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Chris S. Searcy , Danville, Kentucky, for the appellant.

Pamela G. Cox and Margaret Walton , Frankfort, Kentucky, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member

FINAL ORDER

¶1 This proceeding is before the Board based on the administrative judge’s

November 16, 2023 compliance initial decision granting the appellant’s petition

for enforcement and finding that the agency was not in full compliance with the

Board’s June 27, 2023 final decision. For the reasons discussed below, we find

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

that the agency is now in compliance with the Board’s June 27, 2023 final

decision and DISMISS the appellant’s petition for enforcement.

BACKGROUND

The appellant’s removal appeal.

¶2 The appellant was employed as a GS-11 Supply Management Specialist and

held that position as a dual status National Guard technician with the Kentucky

National Guard pursuant to 32 U.S.C. § 709. Rodgers v. Department of the Army,

MSPB Docket No. CH-0752-19-0204-I-1, Initial Appeal File (IAF), Tab 1 at 1;

Rodgers v. Department of the Army, MSPB Docket No. CH-0752-19-0204-C-1,

Compliance File (CF), Tab 1 at 11-12. The agency removed the appellant from

his position, effective February 13, 2019. IAF, Tab 12 at 4; CF, Tab 3 at 11. On

March 26, 2019, the appellant was discharged from the Kentucky National Guard

and assigned to the Retired Reserve. CF, Tab 3 at 12.

¶3 The appellant appealed his removal to the Board, and the administrative

judge issued an October 1, 2019 initial decision reversing his removal. IAF,

Tab 64, Initial Decision (ID) at 3-6. The administrative judge ordered the agency

(1) to cancel the appellant’s removal and retroactively restore the appellant,

effective February 13, 2019; and (2) to pay the appellant the correct amount of

back pay, interest, and benefits. ID at 6-7.

¶4 Following the agency’s petition for review, the Board issued a

June 27, 2023 Final Order affirming the initial decision. Rodgers v. Department

of the Army, MSPB Docket No. CH-0752-19-0204-I-1, Final Order

(June 27, 2023). The Board ordered the agency (1) to cancel the appellant’s

removal and retroactively restore the appellant, effective February 13, 2019; and

(2) to pay the appellant the correct amount of back pay, interest, and benefits.

Id., ¶¶ 2-3.

The appellant’s petition for enforcement.

¶5 On July 25, 2023, the appellant filed a petition for enforcement with the

Board, alleging that the agency had not taken any steps to cancel his removal or

process his back pay. CF, Tab 1 at 1. The administrative judge issued a

November 16, 2023 compliance initial decision, finding that the agency was not

in full compliance with the Board’s June 27, 2023 Final Order. CF, Tab 5,

Compliance Initial Decision (CID) at 1-10. She considered the agency’s

argument that it was unable to reinstate the appellant to his dual status position

because he was ineligible for that position based on his failure to maintain

membership in the Kentucky National Guard, but she explained that, in order to

restore the appellant to status quo ante, the agency was still required to cancel the

appellant’s February 13, 2019 removal and place him in a pay status until the

agency undertook a second removal action. CID at 7. She further found that the

appellant was owed back pay, interest, and other benefits from February 13, 2019,

through the date the agency cancelled his removal and placed him back into a pay

status, although the agency was relieved from its obligation to pay the appellant

back pay for the period he was incarcerated in 2019. CID at 9-10.

¶6 On December 21, 2023, the appellant filed a petition for review of the

compliance initial decision. Rodgers v. Department of the Army, MSPB Docket

No. CH-0752-19-0204-C-1, Compliance Petition for Review (CPFR) File, Tab 1.

The agency responded in opposition to the petition for review. CPFR File, Tab 3.

The compliance referral matter.

¶7 On December 20, 2023, the agency filed a statement of compliance,

asserting that it had cancelled the appellant’s original removal, effective

February 13, 2019, and issued a new notice of removal pursuant to 32 U.S.C.

§ 709(f)(1)(A) for loss of military membership, effective March 26, 2019.

Rodgers v. Department of the Army, MSPB Docket No. CH-0752-19-0204-X-1,

Compliance Referral File (CRF), Tab 1 at 5. The agency also asserts that it was

unable to complete the back pay requirement because the appellant failed to

provide additional information required by the Defense Financial Accounting

Service (DFAS). Id. at 5-6. In support of its assertions, the agency provides

copies of the appellant’s Standard Form 50s (SF-50s) showing the cancellation of

the original removal and the effectuation of the new removal, its December 6,

2023 notice of removal, its December 6, 2023 email to the appellant requesting

the additional information required by DFAS, including the appellant’s statement

that he was “ready, willing, and able to work” for the period of February 13,

2019, to March 26, 2019, and evidence of any outside earnings, erroneous

payments, retirement withdrawals, and unemployment benefits he received during

that period. Id. at 31-34.

¶8 On December 29, 2023, the appellant submitted a declaration stating that,

for the period of February 13, 2019, to March 26, 2019, he had no outside

earnings, he was unable to work, and he did not receive any erroneous payments

or unemployment benefits. CRF, Tab 3 at 4. On January 8, 2024, the appellant

submitted additional documentation for the period of 2020 to 2023. Id. at 7-11.

DISCUSSION OF ARGUMENTS AND EVIDENCE

¶9 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 of proving 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).

¶10 The agency’s outstanding compliance obligations were to: (1) cancel the

February 13, 2019 removal and place the appellant in a pay status until it effected

a second removal; and (2) pay the appellant the correct amount of back pay,

interest, and other benefits until it effected a second removal. CID at 7, 9. The

agency has submitted evidence of its attempts to reach full compliance. The

appellant has raised objections to the agency’s efforts to reach compliance with

each requirement, which will be addressed in turn below.

Cancellation of the original removal.

¶11 With its statement of compliance, the agency provided evidence of the

actions it had taken on December 6, 2023 to comply with the Board’s decision.

CRF, Tab 1 at 31-34. The agency provided SF-50s cancelling the original

removal, effective February 13, 2019, and effectuating a new removal, effective

March 26, 2019. Id. at 31, 33. The agency also provided a December 6, 2023

notice informing the appellant that it was removing him from his Title 32 dual

status military technician position due to loss of military membership, effective

March 26, 2019. Id. at 32. We find that the agency is now in compliance with

the requirement to cancel the original removal.

Back pay.

¶12 The agency bears the initial burden of proving that it has provided an

appellant with the appropriate amount of back pay. King v. Department of the

Navy, 100 M.S.P.R. 116, ¶ 13 (2005), aff’d, 167 F. App’x 191 (Fed. Cir. 2006).

When, however, the agency produces concrete and positive evidence that the

appellant was not ready, willing, and able to work during all or part of the period

during which back pay is claimed, the burden of proof shifts to the appellant to

show his entitlement to back pay. Id. An individual is not entitled to back pay

for any period of time during which he was not ready, willing, and able to report

for duty for reasons unrelated to, or not caused by, the unjustified or unwarranted

personnel action. Id.; 5 C.F.R. § 550.805(c)(2).

¶13 Here, the agency indicated that it was aware that the appellant was arrested

on January 19, 2019, booked on January 24, 2019, rebooked on August 17, 2019,

and released on September 13, 2019. CF, Tab 3 at 39, 53. The Detailed Release

Report states that the appellant served 86 days, 9 hours, and 38 minutes, but the

exact dates are unknown. Id. at 53. On December 6, 2023, the agency requested

that the appellant provide information required by DFAS to process back pay,

including whether he was ready, willing, and able to work for the period between

the effective dates of his first and second removals (February 13, 2019 to

March 26, 2019). CRF, Tab 1 at 34. The appellant responded with a

December 29, 2023 statement that he was not able to work during that period.

CRF, Tab 3 at 4. He did not, however, specify the reason he was unable to work.

In the absence of evidence to the contrary, we find it reasonable to conclude that

the appellant was not ready, willing, and able to report for duty due to his

incarceration, which was unrelated to the removal action. See Winslow v.

Department of the Navy, 46 M.S.P.R. 246, 250 (1990), aff’d, 935 F.2d 280 (Fed.

Cir. 1991) (Table), overruled on other grounds by Abbott v. U.S. Postal Service ,

121 M.S.P.R. 294 (2014); Marshall v. Government Printing Office, 37 M.S.P.R.

349, 351 (1988). Thus, the agency was not required to provide the appellant back

pay for the period of February 13, 2019, through March 26, 2019.

¶14 Accordingly, 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)).

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.

(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).

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.

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. 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