# Sheila Mott v. Department of Veterans Affairs

> Merit Systems Protection Board · September 20, 2024

URL: https://www.frixlaw.com/law-library/cases/10590642

## Case

- **Court:** Merit Systems Protection Board
- **Decided:** September 20, 2024
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

SHEILA MOTT, DOCKET NUMBER
Appellant, AT-0752-14-0451-X-1

v.

DEPARTMENT OF VETERANS DATE: September 20, 2024
AFFAIRS,
Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Michael W. Macomber , Esquire, Albany, New York, for the appellant.

Kristin A. Langwell , Esquire, Tampa, Florida, for the agency.

BEFORE

Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member

FINAL ORDER

This compliance proceeding was initiated by the appellant’s petition for
enforcement of the Board’s November 16, 2018 Order in Mott v. Department of
Veterans Affairs, MSPB Docket No. AT-0752-14-0451-M-1, in which the
administrative judge mitigated the appellant’s removal to a demotion to a
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

nonsupervisory GS-07 position. Mott v. Department of Veterans Affairs, MSPB
Docket No. AT-0752-14-0451-M-1, Remand File (RF), Tab 29, Remand Initial
Decision (RID). On March 16, 2021, the administrative judge issued a
compliance initial decision finding the agency not in compliance with the Board’s
November 16, 2018 Order. Mott v. Department of Veterans Affairs, MSPB
Docket No. AT-0752-14-0451-C-1, Compliance File (CF), Tab 4, Compliance
Initial Decision (CID). For the reasons discussed below, we find the agency in
compliance and DISMISS the petition for enforcement.

DISCUSSION OF ARGUMENTS AND EVIDENCE ON COMPLIANCE
On February 10, 2014, the appellant appealed her removal from the
position of GS-09 Supervisory Program Specialist. Mott v. Department of
Veterans Affairs, MSPB Docket No. AT-0752-14-0451-I-1, Initial Appeal File
(IAF), Tab 1. On April 15, 2016, the administrative judge issued an initial
decision mitigating the appellant’s removal to a demotion to a nonsupervisory
GS-05 position. IAF, Tab 45, Initial Decision. On May 20, 2016, the appellant
filed a petition for administrative review of the initial decision with the Board,
and on September 16, 2016, the Board issued a final order denying the petition
for review and affirming the initial decision. Mott v. Department of Veterans
Affairs, MSPB Docket No. AT-0752-14-0451-I-1, Final Order (Sept. 16, 2016);
Petition for Review File, Tabs 1-4, 10.
On November 16, 2016, the appellant filed a petition for review of the
Board’s September 16, 2016 Final Order with the U.S. Court of Appeals for the
Federal Circuit, and on January 26, 2018, the court issued a decision affirming
the Board’s decision in part and reversing it in part. Mott v. Department of
Veterans Affairs, 723 F. App’x 979, 984-85 (Fed. Cir. 2018). The court found
that the Board abused its discretion in sustaining one of the agency’s charges and
thus remanded the matter so the Board could consider whether a new penalty
should apply in the absence of that charge. Id. at 983-85.
3

On remand, the administrative judge issued a November 16, 2018 remand
initial decision finding that, in light of the Federal Circuit’s reversal of one of the
charges, the new maximum reasonable penalty was mitigation to a nonsupervisory
GS-07 position. RID at 5-6. The administrative judge ordered the agency to
cancel the appellant’s removal and substitute in its place a demotion to a position
at the grade of GS-07 or higher within the appellant’s commuting area. RID
at 6-7. The administrative judge further ordered the agency to provide the
appellant the appropriate amount of back pay with interest and benefits. Id. The
remand initial decision became the final decision of the Board on December 1,
2018, after neither party petitioned the full Board for review. RID at 8-9.
On February 17, 2021, the appellant filed a petition for enforcement of the
Board’s November 16, 2018 Order, alleging that the agency had not yet paid her
appropriate back pay or sent her any proof of compliance. CF, Tab 1 at 4-12. On
March 5, 2021, the agency responded to the petition for enforcement, stating that
it had not yet been able to obtain complete information from the Defense Finance
and Accounting Service (DFAS) regarding any payments made to the appellant.
CF, Tab 3 at 4-5. The agency included in its response evidence that the appellant
had been paid on two separate occasions in the sums of $33,820.52 and $5,757.84
but could not explain whether these sums represented all of the back pay,
benefits, and interest owed to the appellant. Id.
On March 16, 2021, the administrative judge issued a compliance initial
decision granting the petition for enforcement. CID. The administrative judge
found that the agency was not in compliance because it had not yet demonstrated
that it had paid the appellant the required back pay, benefits, or interest. CID
at 4-5. The administrative judge therefore ordered the agency to pay the
appellant all back pay, benefits, and interest owed. CID at 5-6. Neither party
filed any submission with the Clerk of the Board within the time limit set forth in
5 C.F.R. § 1201.114. As such, pursuant to 5 C.F.R. § 1201.183(b)-(c), the
administrative judge’s findings of noncompliance became final, and the
4

appellant’s petition for enforcement was referred to the Board for a final decision
on issues of compliance. Mott v. Department of Veterans Affairs, MSPB Docket
No. AT-0752-14-0451-X-1, Compliance Referral File (CRF), Tab 1.
On May 5, 2021, the agency filed a new submission on compliance with the
Board. CRF, Tab 2. The agency stated in the pleading that it had paid the
appellant what it believed was the correct amount of back pay and interest, but it
was still discussing the matter further with the appellant to determine whether
compliance had been reached. Id. at 4-5. The agency included with its
submission evidence that the back pay funds had been paid to the appellant. Id.
at 8-14.
On May 12, 2021, the agency filed an additional submission on
compliance. CRF, Tab 3. In the second submission, the agency averred that the
parties were in agreement that the agency had paid the appellant the correct
amount of back pay and interest and included with this submission calculations of
the payments made to the appellant. Id. at 4, 7-16. The agency also stated,
however, that the parties were still working to restore all leave owed to the
appellant. Id. at 4.
On September 2, 2021, the agency submitted its final declaration on
compliance. CRF, Tab 4. In the final submission, the agency included evidence
demonstrating that the agency had finally restored all leave owed to the appellant.
Id. at 18-21. The agency also included statements from the appellant’s
representative indicating that the appellant agreed that the agency had reached
full compliance. Id. at 21.

ANALYSIS
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 occurred. House v.
Department of the Army, 98 M.S.P.R. 530, ¶ 9 (2005). The agency bears the
5

burden to prove its compliance with a Board order. An agency’s assertions of
compliance must include a clear explanation of its compliance actions supported
by documentary evidence. Vaughan v. Department of Agriculture, 116 M.S.P.R.
319, ¶ 5 (2011). 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).
As a threshold matter, we note that, while the appellant did not file her
petition for enforcement until more than 2 years after the November 2018 Order,
we find the petition for enforcement to be timely filed. The Board’s 30 -day
deadline to file a petition for enforcement does not begin to run until after the
agency has provided the appellant written notice of compliance. Shamblen v.
U.S. Postal Service, 54 M.S.P.R. 55, 57-58 (1992). Because there was no dispute
that, as of the time of the filing of the petition for enforcement, the agency had
not yet provided the appellant with the requisite written notice of compliance, the
appellant’s petition for enforcement was timely. CID at 3.
The agency’s outstanding compliance issue was its obligation to pay the
appellant all back pay, benefits, and interest owed to her. The agency’s combined
submissions show that the agency has now reached full compliance. The agency
has demonstrated that it paid all back pay and interest owed to the appellant, and
provided detailed calculations of the payments. CRF, Tab 2 at 8-14, Tab 3
at 7-16. The agency has further shown that it also restored all leave owed to the
appellant. CRF, Tab 4 at 18-21. Finally, the agency’s submission reveals that the
appellant agrees that the agency has reached full compliance. Id. at 21.
Accordingly, in light of the agency’s evidence of compliance and the
appellant’s statements of satisfaction, the Board finds the agency in compliance
and dismisses 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)).
6

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.
2
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.
7

(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
8

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
9

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 address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
3
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.
10

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10590642. Public record. Not legal advice.