Opinion

Douglas Horneman v. Department of Veterans Affairs

Court: Merit Systems Protection Board
Filed: Dec 21, 2022
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 22.6%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

DOUGLAS HORNEMAN, DOCKET NUMBER

Appellant, DE-4324-15-0102-X-1

DEPARTMENT OF VETERANS DATE: December 21, 2022

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

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

Alfred Steinmetz, Esquire, Phoenix, Arizona, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

FINAL ORDER

¶1 This case is before the Board on the appellant’s petition to enforce the

parties’ settlement agreement resolving his appeal under the Uniformed Services

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

Employment and Reemployment Rights Act. For the reasons discussed below, we

now find the agency in compliance and DISMISS the petition for enforcement.

We also FORWARD the appellant’s motion for attorney fees and litigation

expenses to the Denver Field Office for adjudication under 5 C.F.R. § 1201.203.

DISCUSSIONS OF ARGUMENTS AND EVIDENCE ON REVIEW

¶2 On April 13, 2018, the Board directed the agency to provide evidence

showing that it properly calculated and compensated the appellant for back pay

and interest on back pay, as well as information regarding the appellant’s

retirement earnings. Horneman v. Department of Veterans Affairs, MSPB Docket

No. DE-4324-15-0102-X-1, Compliance Referral File (CRF), Tab 5. In response,

the agency produced spreadsheets from the Defense Finance and Accounting

Services showing the back pay calculations by pay period, id. at 45-144, as well

as a back pay computation summary report from the Office of Personnel

Management’s Back Pay Calculator, id. at 146-69. In addition, the agency’s

Chief Finance Officer at the Phoenix Veterans Affairs Health Care System

provided a declaration in which he explained the abbreviations and codes on the

spreadsheets and summary report. Id. at 5-11. He specifically addressed the

appellant’s retirement deductions and Thrift Savings Plan withholdings. Id.

at 10-11.

¶3 On July 24, 2018, the appellant submitted a pleading in which he stated that

he was “satisfied that the agency has finally provided information as to how the

amount of pay and interest was calculated and whether the Agency has corrected

[the appellant’s] earning records for purposes of calculation of his retirement

contribution.” CRF, Tab 7 at 7.

¶4 In light of the agency’s response and the appellant’s stated satisfaction with

the agency’s compliance, we find the agency in compliance 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)).

¶5 We further forward the appellant’s motion for attorney fees and litigation

expenses to the Denver Field Office for adjudication. 2

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

and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.

You must file your motion for attorney fees and costs with the office that issued

the initial decision on your appeal.

In the October 17, 2017 compliance initial decision granting the appellant’s petition

for enforcement, the administrative judge informed the appellant that, if no petition for

review was filed, he could request attorney fees by filing a motion with the De nver

Field Office as soon as possible but no later than 60 days after the date the initial

decision became final, i.e., November 24, 2017. Horneman v. Department of Veterans

Affairs, MSPB Docket No. DE-4324-15-0102-C-1, Compliance File, Tab 25,

Compliance Initial Decision at 15, 19. On January 23, 2018, the appellant filed, in this

compliance referral file, MSPB Docket No. DE-4324-15-0102-X-1, a motion for

attorney fees and litigation expenses incurred in the compliance proceeding. CRF,

Tab 4. In addition, on July 24, 2018, he filed, again in the compliance referral file, a

“Renewed Motion” for attorney fees and litigation expenses. CRF, Tab 7. As the

appellant’s request for attorney fees and litigation expenses arise from the compliance

proceeding adjudicated by the administrative judge in the Denver Field Office, the

motion for attorney fees must be filed with the Denver Field Office, not with the Board.

See 5 C.F.R. § 1201.203(c). Accordingly, we forward the appellant’s January 23, 2018

request for attorney fees and litigation expenses and his July 24, 2018 renewed request

to the Denver Field Office for processing under 5 C.F.R. § 1201.203.

NOTICE OF APPEAL RIGHTS 3

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 t ime

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:

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.

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 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. 4 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 Appeal s 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 t he Federal