The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TRAVIS E. WILKES, DOCKET NUMBER
Appellant, DA-0432-11-0466-I-3
v.
DEPARTMENT OF VETERANS DATE: August 21, 2014
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Daniel J. Gamino, Esquire, Oklahoma City, Oklahoma, for the appellant.
Joan M. Green, Esquire, Oklahoma City, Oklahoma, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
reversed the appellant’s performance-based removal. Generally, we grant
petitions such as this one only when: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the judge’s rulings during either the course of the appeal or
the initial decision were not consistent with required procedures or involved an
abuse of discretion, and the resulting error affected the outcome of the case; or
new and material evidence or legal argument is available that, despite the
petitioner’s due diligence, was not available when the record closed. See Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, and based on the following
points and authorities, we conclude that the petitioner has not established any
basis under section 1201.115 for granting the petition for review. Therefore, we
DENY the petition for review. Except as modified by our analysis of the
appellant’s allegations of adjudicatory error, we AFFIRM the initial decision.
We FORWARD the appellant’s request for attorney fees and costs to the Denver
Field Office for adjudication.
BACKGROUND
¶2 The appellant appealed his performance-based removal to the Board and
waived his right to a hearing. Wilkes v. Department of Veterans Affairs, MSPB
Docket No. DA-0432-11-0466-I-1, Initial Appeal File (IAF), Tab 1; Wilkes v.
Department of Veterans Affairs, MSPB Docket No. DA-0432-11-0466-I-3, Initial
Appeal File-3 (IAF-3), Tabs 1, 11. 2 Based on the written record, the
administrative judge reversed the removal because the agency failed to establish
by substantial evidence that the appellant’s performance was unacceptable and
that he was provided a reasonable opportunity to improve. IAF-3, Tab 34, Initial
Decision (ID) at 2, 18. The administrative judge further found that the appellant
failed to prove his affirmative defense of reprisal by preponderant evidence. ID
2
The appellant’s removal appeal was twice dismissed without prejudice to automatic
refiling. IAF, Tab 25; Wilkes v. Department of Veterans Affairs, MSPB Docket No.
DA-0432-11-0466-I-2, Initial Appeal File-2, Tab 23.
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at 17-18. Because the administrative judge reversed the removal action, he
ordered the agency to cancel the removal and retroactively restore the appellant
with back pay plus interest. ID at 18-19. He did not order interim relief. ID at
19.
¶3 The appellant has filed a timely petition for review alleging that the
administrative judge erred by the following: (1) finding that the appellant failed
to prove his affirmative defense that his removal was taken in retaliation for his
prior union activity; (2) failing to make a finding regarding the appellant’s due
process claim; (3) denying the appellant interim relief; and (4) failing to notify
the appellant of his right to seek consequential and compensatory damages.
Petition for Review (PFR) File, Tab 1. The agency has responded in opposition.
PFR File, Tab 3. The appellant has also filed a request for attorney fees and
costs. PFR File, Tab 5. Neither party has challenged the administrative judge’s
finding regarding the merits of the performance-based action, and we discern no
reason to disturb it.
ANALYSIS
¶4 The appellant challenges the administrative judge’s finding that he failed to
prove his union reprisal claim. PFR File, Tab 1 at 3 of 7. Even if the appellant
had prevailed on the reprisal claim, however, the administrative judge would not
have been able to award damages or corrective action beyond what he had already
ordered. See Jenkins v. Environmental Protection Agency, 118 M.S.P.R. 161,
¶ 14 and n.1 (2012) (finding that a claim of retaliation in violation of 5 U.S.C.
§ 2302(b)(9), other than a claim of retaliation for engaging in protected equal
employment opportunity activity under that section, does not entitle an appellant
to an award of compensatory damages or other corrective action beyond
cancellation of the removal). Because there is no additional relief that the
appellant could obtain through his pursuit of his union reprisal claim, we find the
claim moot. See Washburn v. Department of the Air Force, 119 M.S.P.R. 265,
4
¶ 12 (2013) (for an appeal to be rendered moot, an appellant must have received
all of the relief that he could have received if the matter had been adjudicated and
he had prevailed).
¶5 For similar reasons, we discern no error in the administrative judge’s failure
to make findings regarding the appellant’s due process allegations. Here, the
administrative judge did not make findings on the due process allegations because
he reversed the removal. Because it would not serve any purpose for the Board to
make a finding on these due process allegations where the appellant has prevailed
on the merits, there is no basis to review these allegations or to remand the case
to the regional office for findings on these allegations. See Oulianova v. Pension
Benefit Guaranty Corporation, 120 M.S.P.R. 22, ¶ 7 n.4 (2013); see also Jenkins,
118 M.S.P.R. 161, ¶¶ 12, 14 (a reversal based upon a due process violation
merely entitles an appellant to a new, constitutionally correct removal
proceeding; whereas a reversal on the merits of a removal precludes the agency
from reinstituting the action); see also Wagner v. Environmental Protection
Agency, 51 M.S.P.R. 337, 352 (1991) (there is no requirement for an
administrative judge to cite every possible alternative basis for the disposition of
an appeal when the basis that he does cite suffices as legal support for his
decision), aff’d, 972 F.2d 1355 (Fed. Cir. 1992) (Table).
¶6 We also find unavailing the appellant’s assertion that the administrative
judge erred in not ordering interim relief. The Board’s regulations commit the
granting of interim relief to the administrative judge’s discretion. See Dean v.
Department of the Army, 57 M.S.P.R. 296, 300 (1993); 5 C.F.R. § 1201.111(c).
The appellant has not shown that the administrative judge abused his discretion in
this regard. Even assuming that the administrative judge did abuse his discretion,
the appellant’s arguments regarding this abuse are now moot because interim
relief is in effect only pending the disposition of a petition for review. See
5 U.S.C. § 7701(b)(2)(A); Garcia v. Department of State, 106 M.S.P.R. 583, ¶ 7
(2007).
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¶7 We further find unavailing the appellant’s request, set forth for the first
time on review, for consequential and compensatory damages. An award of
consequential damages is authorized in only two situations: where the Board
orders corrective action in a whistleblower appeal under 5 U.S.C. § 1221, or
where the Board orders corrective action in a Special Counsel complaint under
5 U.S.C. § 1214. Seibel v. Department of the Treasury, 87 M.S.P.R. 260, ¶ 15 n.3
(2000); 5 C.F.R. § 1201.201(c). An appellant may recover compensatory
damages when he prevails in a Board appeal based on a finding of intentional
discrimination under Title VII of the Civil Rights Act of 1964, a finding that the
agency failed to make a reasonable accommodation for a qualified disabled
person, a finding of illegal retaliation for the appellant’s protected equal
employment opportunity (EEO) activity, or where the Board orders corrective
action in a whistleblower appeal under 5 U.S.C. § 1221. See Rhee v. Department
of the Treasury, 117 M.S.P.R. 640, ¶ 19 (2012); Seibel, 87 M.S.P.R. 260, ¶ 15;
5 C.F.R. §§ 1201.201(d), 1201.202(c). Because this is not a corrective action
matter and the appellant did not allege discrimination under Title VII, failure to
accommodate a disability, or retaliation for protected EEO activity, the
administrative judge did not err in failing to notify the appellant of his burden to
request consequential or compensatory damages below and the appellant is not
otherwise entitled to those damages.
¶8 Finally, regarding the appellant’s request for attorney fees, such a request is
to be determined first in a proceeding at the field office level. Saunders v. U.S.
Postal Service, 75 M.S.P.R. 225, 233 (1997); 5 C.F.R. § 1201.203. Accordingly,
we FORWARD the appellant’s request for attorney fees and costs to the Denver
Field Office for adjudication.
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ORDER
¶9 We ORDER the agency to cancel the removal and to retroactively restore
the appellant and to restore the appellant effective April 23, 2014. See Kerr v.
National Endowment for the Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency
must complete this action no later than 20 days after the date of this decision.
¶10 We also ORDER the agency to pay the appellant the correct amount of back
pay, interest on back pay, and other benefits under the Office of Personnel
Management’s regulations, no later than 60 calendar days after the date of this
decision. We ORDER the appellant to cooperate in good faith in the agency’s
efforts to calculate the amount of back pay, interest, and benefits due, and to
provide all necessary information the agency requests to help it carry out the
Board’s Order. If there is a dispute about the amount of back pay, interest due,
and/or other benefits, we ORDER the agency to pay the appellant the undisputed
amount no later than 60 calendar days after the date of this decision.
¶11 We further ORDER the agency to tell the appellant promptly in writing
when it believes it has fully carried out the Board’s Order and of the actions it
took to carry out the Board’s Order. The appellant, if not notified, should ask the
agency about its progress. See 5 C.F.R. § 1201.181(b).
¶12 No later than 30 days after the agency tells the appellant that it has fully
carried out the Board’s Order, the appellant may file a petition for enforcement
with the office that issued the initial decision on this appeal if the appellant
believes that the agency did not fully carry out the Board’s Order. The petition
should contain specific reasons why the appellant believes that the agency has not
fully carried out the Board’s Order, and should include the dates and results of
any communications with the agency. 5 C.F.R. § 1201.182(a).
¶13 For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Board decision
7
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to process payments and adjustments resulting from the
Board’s decision in accordance with the attached lists so that payment can be
made within the 60-day period set forth above.
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 TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
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If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode/htm.
Additional information 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, and 11.
If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.
DFAS CHECKLIST
INFORMATION REQUIRED BY DFAS IN
ORDER TO PROCESS PAYMENTS AGREED
UPON IN SETTLEMENT CASES OR AS
ORDERED BY THE MERIT SYSTEMS
PROTECTION BOARD
AS CHECKLIST: INFORMATION REQUIRED BY IN ORDER TO PROCESS PAYMENTS AGREED UPON IN SETTLEMENT
CASES
CIVILIAN PERSONNEL OFFICE MUST NOTIFY CIVILIAN PAYROLL
OFFICE VIA COMMAND LETTER WITH THE FOLLOWING:
1. Statement if Unemployment Benefits are to be deducted, with dollar amount, address
and POC to send.
2. Statement that employee was counseled concerning Health Benefits and TSP and the
election forms if necessary.
3. Statement concerning entitlement to overtime, night differential, shift premium,
Sunday Premium, etc, with number of hours and dates for each entitlement.
4. If Back Pay Settlement was prior to conversion to DCPS (Defense Civilian Pay
System), a statement certifying any lump sum payment with number of hours and
amount paid and/or any severance pay that was paid with dollar amount.
5. Statement if interest is payable with beginning date of accrual.
6. Corrected Time and Attendance if applicable.
ATTACHMENTS TO THE LETTER SHOULD BE AS FOLLOWS:
1. Copy of Settlement Agreement and/or the MSPB Order.
2. Corrected or cancelled SF 50's.
3. Election forms for Health Benefits and/or TSP if applicable.
4. Statement certified to be accurate by the employee which includes:
a. Outside earnings with copies of W2's or statement from employer.
b. Statement that employee was ready, willing and able to work during the period.
c. Statement of erroneous payments employee received such as; lump sum leave, severance
pay, VERA/VSIP, retirement annuity payments (if applicable) and if employee withdrew
Retirement Funds.
5. If employee was unable to work during any or part of the period involved, certification of the
type of leave to be charged and number of hours.
NATIONAL FINANCE CENTER CHECKLIST FOR BACK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as
ordered by the Merit Systems Protection Board, EEOC, and courts.
1. Initiate and submit AD-343 (Payroll/Action Request) with clear and concise
information describing what to do in accordance with decision.
2. The following information must be included on AD-343 for Restoration:
a. Employee name and social security number.
b. Detailed explanation of request.
c. Valid agency accounting.
d. Authorized signature (Table 63)
e. If interest is to be included.
f. Check mailing address.
g. Indicate if case is prior to conversion. Computations must be attached.
h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to
be collected. (if applicable)
Attachments to AD-343
1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday
Premium, etc. with number of hours and dates for each entitlement. (if applicable)
2. Copies of SF-50's (Personnel Actions) or list of salary adjustments/changes and
amounts.
3. Outside earnings documentation statement from agency.
4. If employee received retirement annuity or unemployment, provide amount and address
to return monies.
5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)
6. If employee was unable to work during any or part of the period involved, certification of
the type of leave to be charged and number of hours.
7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual
Leave to be paid.
NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay
Period and required data in 1-7 above.
The following information must be included on AD-343 for Settlement Cases: (Lump
Sum Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.)
a. Must provide same data as in 2, a-g above.
b. Prior to conversion computation must be provided.
c. Lump Sum amount of Settlement, and if taxable or non-taxable.
If you have any questions or require clarification on the above, please contact NFC’s
Payroll/Personnel Operations at 504-255-4630.