Opinion

Debbie Dowell v. Department of the Interior

Court: Merit Systems Protection Board
Filed: Jan 25, 2023
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 22.6%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

DEBBIE DOWELL, DOCKET NUMBER

Appellant, AT-0432-20-0015-X-1

DEPARTMENT OF THE INTERIOR, DATE: January 25, 2023

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Debbie Dowell, Goodlettsville, Tennessee, pro se.

Jessica L. Kersey, Esquire, Knoxville, Tennessee, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

Member Limon recused himself and

did not participate in the adjudication of this appeal.

FINAL ORDER

¶1 In a September 18, 2020 compliance initial decision, the administrative

judge found the agency in partial noncompliance with the Board’s April 23, 2020

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

final decision reversing the appellant’s removal and ordering the agency to

retroactively restore her with back pay and benefits. Dowell v. Department of

Interior, MSPB Docket No. AT-0432-20-0015-I-1, Initial Appeal File, Tab 25,

Initial Decision; Dowell v. Department of Interior, MSPB Docket No. AT-0432-

20-0015-C-1, Compliance File, Tab 4, Compliance Initial Decision (CID). For

the reasons that follow, we now find the agency in compliance and DISMISS the

appellant’s petition for enforcement.

DISCUSSION OF ARGUMENTS AND EVIDENCE ON COMPLIANCE

¶2 In the compliance initial decision, administrative judge found the agency in

partial noncompliance with the Board’s final order to the extent it failed to grant

the appellant a within-grade-increase (WIGI) effective November 30, 2019, and

to include the WIGI in its back pay calculations. CID at 4. Accordingly, the

administrative judge granted the appellant’s petition for enforcement and ordered

the agency to provide her a WIGI as of November 30, 2019, and to recompute her

back pay award to include the WIGI. CID at 8. 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. 5 C.F.R. § 1201.183(b)-(c); Dowell v.

Department of Interior, MSPB Docket No. AT-0432-20-0015-X-1, Compliance

Referral File (CRF), Tab 1.

¶3 In a September 2, 2021 submission, the agency informed the Board that it

had complied with the Board’s final order by granting the appellant a WIGI

effective November 30, 2019, and recomputing her back pay award to include the

WIGI. CRF, Tab 3. As evidence of its compliance, the agency provided a

December 4, 2020 Standard Form 50 reflecting that the appellant received a WIGI

from step 5 to step 6, with an effective date of November 24, 2019. Id. at 8. The

agency also provided pay audit worksheets reflecting that , as a result of the

WIGI, the appellant was entitled to an additional $95.20 per pay period for 3 pay

periods (November 24, 2019, through January 4, 2020) and an additional $98.40

for 23 per pay periods (January 5 through December 5, 2020). Id. at 9-17.

Finally, the agency provided a leave and earnings statement for the pay period

ending December 5, 2020 reflecting that the appellant received a pay adjustment

of $2,582.51. Id. at 18. The agency explained that this adjustment included the

additional back pay owed to the appellant for the retroactive WIGI plus interest.

Id. at 7. Although the appellant responded to the agency’s compliance

submission, she did not dispute the agency’s assertions of compliance. 2 CRF,

Tab 4.

¶4 When the Board finds a personnel action unwarranted, the aim is to place

the appellant, as nearly as possible, in the situation she 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.

In response to the agency’s submission, the appellant requests a protective order or

that the Board allow her access to the documents filed by the agency so that she can

redact or delete the documents that contain her birthdate, address, and social security

number. CRF, Tab 4. The appellant’s request is denied. First, the Board does not

allow one party to alter or delete the submissions of another party. Second, with the

exception of the Board’s decision in this matter, which is available on the Board’s

website, the case file from this appeal is protected by the Privacy Act of 1974 and is not

available to the public through e-Appeal Online or the Board’s website. While MSPB’s

adjudication records may be requested under the Freedom of Information Act (FOIA),

all records are reviewed in accordance with the FOIA and may be withheld from release

if warranted by a FOIA exemption.

A preponderance of the evidence is the degree of relevant ev idence 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).

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.

¶5 As noted above, the administrative judge found that, to be in compliance

with the Board’s final order, the agency must provide the appellant a WIGI

effective November 30, 2019, and recalculate her back pay award to account for

the WIGI. CID at 4. The agency’s submissions show that it has now reached full

compliance with this obligation. CRF, Tab 3. In particular, as set forth above,

the agency provided evidence reflecting that it granted the appellant a WIGI from

step 5 to step 6 with an effective date of November 24, 2019, and recomputed her

back pay award to account for the retroactive WIGI. Id. In addition, the agency

provided evidence reflecting that it paid her an additional $2,582.51 in back pay

to account for the WIGI plus interest. Id. As the appellant has not responded to

the agency’s assertions and evidence of compliance, the Board assumes that she is

satisfied. See Baumgartner v. Department of Housing & Urban Development,

111 M.S.P.R. 86, ¶ 9 (2009).

¶6 In light of the foregoing, we find the agency in compliance with its

outstanding compliance obligations 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 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).

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.

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 cho ices 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. ____ , 137 S. Ct. 1975 (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 describe d 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. 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