Opinion

Matthew Litton v. Department of Justice

Court: Merit Systems Protection Board
Filed: Feb 19, 2025
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 34.0%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

MATTHEW C. LITTON, DOCKET NUMBER

Appellant, DC-0752-14-0353-X-1

DC-0752-14-0353-C-1

DEPARTMENT OF JUSTICE,

Agency. DATE: February 19, 2025

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Christine Kumar , Esquire, and Kristin Alden , Esquire, Washington, D.C.,

for the appellant.

Drew Ambrose , Esquire, Monica Hansen , Esquire, Marisa C. Ridi , Esquire,

and Chad Y. Tang , Esquire, Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Chairman

Henry J. Kerner, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

The administrative judge issued a compliance initial decision finding the

agency in noncompliance with the decision in the underlying appeal and granting

the appellant’s petition for enforcement. Litton v. Department of Justice, MSPB

A nonprecedential order is one that the Board has determined does not add significantly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 Parties may cite nonprecedential orders, but such orders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

Docket No. DC-0752-14-0353-C-1, Compliance File, Tab 15, Compliance Initial

Decision (CID). Following the appellant’s petition for review, the Board affirmed

the compliance initial decision. Litton v. Department of Justice, MSPB Docket No.

DC-0752-14-0353-C-1, Order (Sept. 30, 2024) (Order). For the reasons discussed

below, we now find the agency in compliance and DISMISS the appellant’s petition

for enforcement and associated petition for review.

DISCUSSION OF ARGUMENTS AND EVIDENCE OF COMPLIANCE

On March 30, 2023, the administrative judge issued a compliance initial

decision finding the agency partly noncompliant with the Board’s final order in the

underlying matter. Specifically, the administrative judge found the agency

noncompliant with its obligation to pay the appellant back pay, with interest, and

benefits, for the time period January 24-31, 2012. CID at 11-12.

The appellant filed a petition for review of the compliance initial decision 2

and the compliance initial decision in a separate enforcement matter, Litton v.

Department of Justice, MSPB Docket No. DC-0752-14-1110-C-1 (0111-C-1). The

Board joined these matters and, on September 30, 2024, issued a single order

affirming both compliance initial decisions. Order at 13. The Board stated that its

order finally resolved the 0111-C-1 matter but referred Litton v. Department of

Justice, MSPB Docket No. DC-0752-14-0353-C-1 (0353-C-1), for continued

enforcement proceedings in the already-docketed compliance referral matter,

Litton v. Department of Justice, MSPB Docket No. DC-0752-14-0353-X-1

(0353-X-1). Id.; Compliance Referral File (CRF), Tab 2.

As noted in the compliance initial decision, the Board’s regulations provide that, on a

finding of noncompliance, the party found to be in noncompliance must do the following:

(i) to the extent that the party decides to take the actions required by the initial decision,

the party must submit to the Clerk of the Board, within the time limit for filing a petition

for review under 5 C.F.R. § 1201.114(e), a statement that the party has taken the actions

identified in the initial decision, along with evidence establishing that the party has taken

those actions; and (ii) to the extent that the party decides not to take all of the actions

required by the initial decision, the party must file a petition for review under the

provisions of 5 C.F.R. §§ 1201.114-1201.115. 5 C.F.R. § 1201.183(a)(6).

On May 2, 2023, prior to the issuance of the Order that resolved the

0111-C-1 matter and affirmed the compliance initial decision in the 0353-C-1

matter, the agency filed a notice of compliance in the 0353-X-1 matter. Therein,

the agency stated that it had calculated and paid back pay, with interest, and

benefits, for the time period ordered by the compliance initial decision (January

24-31, 2012). CRF, Tab 1 at 4. Because the appellant had not responded to this

submission, the Board ordered a response. CRF, Tab 4.

On December 5, 2024, the appellant filed his response, affirming that the

agency had paid the required amount of back pay and that the appellant no longer

challenged the agency’s compliance in this matter. CRF, Tab 5 at 3.

ANALYSIS

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

place the appellant, as nearly as possible, in the situation he 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. 3 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 of

compliance by making specific, nonconclusory, and supported assertions of

continued noncompliance. Id.

As explained above, the agency has submitted evidence that it has complied

with its single outstanding back pay obligation, and the appellant states that he no

longer challenges the agency’s compliance. CRF, Tabs 1, 5.

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).

In light of the foregoing, we find that the agency is in compliance with its

outstanding compliance obligations and dismiss the appellant’s petition for

enforcement and associated petition for review. 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 4

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

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.

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:

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. 5 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

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.