Opinion

Dana Johnson v. Department of Justice

Court: Merit Systems Protection Board
Filed: Dec 3, 2025
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 37.3%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

DANA R. JOHNSON, DOCKET NUMBER

Appellant, PH-0752-23-0093-X-1

DEPARTMENT OF JUSTICE, DATE: December 3, 2025

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Mathew Tully , Latham, New York, for the appellant.

Kealin Culbreath , Atlanta, Georgia, for the agency.

Timothy Maughan , Grand Prairie, Texas, for the agency.

BEFORE

Henry J. Kerner, Vice Chairman

James J. Woodruff II, Member

FINAL ORDER

The administrative judge issued a compliance initial decision finding the

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

granting the appellant’s petition for enforcement. Johnson v. Department of

Justice, MSPB Docket No. PH-0752-23-0093-C-1, Compliance File, Tab 7,

A nonprecedential order is one that the Board has determined does not add significantly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 Parties may cite nonprecedential orders, but such orders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

Compliance Initial Decision (CID); see Johnson v. Department of Justice, MSPB

Docket No. PH-0752-23-0093-I-1, Initial Appeal File, Tab 15, Initial Decision.

For the reasons discussed below, we now find the agency in compliance and

DISMISS the appellant’s petition for enforcement.

DISCUSSION OF ARGUMENTS AND EVIDENCE OF COMPLIANCE

On July 14, 2023, the administrative judge issued a compliance initial

decision finding the agency partly noncompliant with the Board’s Final Order in

the underlying appeal. CID. The administrative judge held that the agency had

failed to pay the appellant the back pay, interest, and benefits to which she was

entitled by virtue of the decision in the underlying appeal, and ordered the agency

to submit evidence that it had done so, including a narrative explanation of the

calculation of back pay with interest and other benefits, with supporting

documents. CID at 4-5.

As neither party filed any submission with the Clerk of the Board within the

time limit set forth in 5 C.F.R. § 1201.114, the administrative judge’s findings of

noncompliance have become final, and the appellant’s petition for enforcement has

been referred to the Board for a final decision on compliance pursuant to 5 C.F.R.

§ 1201.183(c). 2 Johnson v. Department of Justice, MSPB Docket No. PH-0752-23-

0093-X-1, Compliance Referral File (CRF), Tab 1.

On August 23, 2023, the Clerk of the Board issued an acknowledgment order

ordering the agency to submit evidence of compliance within 15 calendar days. Id.

On September 7, 2023, the agency informed the Board that it had taken the actions

As noted in the compliance initial decision, the Board’s regulations provide that, upon 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/or (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) (2023).

identified in the compliance initial decision. CRF, Tab 2 . After a motion for an

extension of time, the appellant filed a response contending that the agency had

failed to provide a narrative statement or any supporting documents of probative

value explaining how the payment was calculated and moved for sanctions. CRF,

Tab 5.

On December 13, 2024, the Board issued an order directing the parties to

provide their updated positions on whether compliance had been reached, and

whether they wished to enter mediation with the Board’s Mediation Appeals

Program, as well as any other relevant information. CRF, Tab 6. The appellant

submitted a response on January 3, 2025, requesting a remand to the administrative

judge for further factual development and stating, in part, that she did not wish to

enter mediation and that the agency had made payments to her but had not

submitted a detailed narrative of the calculation of the back pay, including interest

and overtime pay. CRF, Tab 7. The agency did not respond.

On February 19, 2025, the Board issued an Order to Show Cause directing

the agency to address the reasons why it had failed to respond to the Board’s

December 13, 2024 Order. CRF, Tab 8. The agency filed a response on

February 26, 2025, providing a declaration from two attorneys with the Department

of Justice averring that the agency’s failure to respond was the result of a

miscommunication during a personnel transition, which caused the agency

supervisor to believe that this matter was closed. CRF, Tab 9 at 11-12, 34-35, 37.

The agency also provided a declaration from the Human Resources Manager for the

agency at the Federal Detention Center in Philadelphia. Id. at 16-20. The Human

Resources Manager stated that he had provided a spreadsheet regarding the

appellant’s types of pay and hours for the back pay period to the National Finance

Center (NFC), which had determined that the appellant was due a net amount of

$283,937.89 in back pay and interest, without overtime pay. Id. at 17. The Human

Resources Manager further explained how he had calculated that the appellant was

due 183.84 hours of overtime over the back pay period. Id. at 18-20. The Human

Resources Manager also stated that the NFC would calculate the amount the

appellant was due for overtime.

On March 5, 2025, the appellant submitted a response to the agency’s

submission, challenging the agency’s calculations of appellant’s overtime pay

during the backpay period. CRF, Tab 10 at 6-10. On May 29, 2025, the appellant

submitted a supplemental statement stating that she had not received the overtime

pay portion of her backpay. CRF, Tab 11.

On May 30, 2025, the Clerk of the Board issued an order directing the agency

to:

(1) clearly set forth the gross amount due the appellant and describe

how that amount was calculated, including any within-grade increases,

step increases, and overtime pay; (2) clearly set forth the amount of

interest due the appellant and how that amount was calculated;

(3) clearly set forth the amount and reason for all deductions,

reductions, and offsets from the gross amount due the appellant; and

(4) clearly set forth the source and amount of all checks or electronic

payments already received by the appellant and provide evidence that

such checks or electronic payments were received. The agency must

also clearly set forth its calculations relating to the appellant’s sick

and annual leave balances, Thrift Savings Plan contributions, and any

other benefits of employment the appellant should have received but

for the unwarranted personnel action.

CRF, Tab 12 at 3.

On June 20, 2025, the agency responded to the May 30, 2025 Order. CRF,

Tab 13. The agency calculated that the gross amount of back pay was $349,815.08

and that the amount was calculated at the Grade 9, Step 10 level, as appellant “was

already in the full performance grade level of her position and since she was

already at the highest step in her current position.” CRF, Tab 13 at 1-2. The

agency provided tables with the back pay payment and overtime payment

calculated separately, as well as a breakdown of the appellant’s payments by pay

period, and a Back Pay Computation Summary Report detailing the calculation of

interest on the back pay. Id. at 16, 21-32. The agency also submitted evidence of

deductions from the back pay which included withholdings for health care

premiums and the Thrift Savings Plan, and an accounting of the appellant’s leave.

Id. at 38-52. Finally, the agency provided evidence that the back pay payment had

been disbursed to the appellant. Id. at 34-36.

The appellant did not respond to the agency’s June 20, 2025 submission

despite the Board’s order warning her that failure to do so might cause the Board to

assume she was satisfied and no longer disputed compliance.

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.

Here, as explained above, the agency has submitted evidence that it has

complied with the final order in the underlying appeal and paid the appellant the

full amount of back pay, interest on the back pay, and adjusted her benefits

accordingly. CRF, Tab 13. The agency provided a detailed explanation of these

actions. Id. The appellant did not respond to the agency’s submissions, despite

having been apprised that the Board might construe lack of response as satisfaction

with the agency’s response. CRF, Tab 12 at 3-4.

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).

Accordingly, in light of the foregoing, we find that agency is in compliance

with its outstanding compliance obligations, deny the appellant’s request for

remand, and dismiss the appellant’s 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)).

Finally, regarding the appellant’s request for sanctions, we deny the request.

The Board’s sanction authority is limited to the sanctions necessary to obtain

compliance with a Board order. Mercado v. Office of Personnel Management,

115 M.S.P.R. 65, ¶ 8 (2010) (stating that the Board’s ability to award sanctions is a

means to enforce compliance, and once compliance has been demonstrated, it

would be inappropriate to impose sanctions). Because the agency has complied

with the Board’s orders, we are without authority to impose sanctions in this

matter.

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

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

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.

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: