Opinion

Christopher Elder v. Department of the Air Force

Court
Merit Systems Protection Board
Filed
Nov 18, 2022
Status
Unpublished
Cited by
0 cases
Authority
More cited than 22.6%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

CHRISTOPHER L. ELDER, DOCKET NUMBER

Appellant, DA-0752-15-0171-X-1

v.

DEPARTMENT OF THE AIR FORCE, DATE: November 18, 2022

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Christopher L. Elder, Norman, Oklahoma, pro se.

David W. Vernon, Esquire, Tinker Air Force Base, Oklahoma, for the

agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

FINAL ORDER

¶1 On April 25, 2017, the administrative judge issued a compliance initial

decision finding the agency in partial noncompliance with the Board’s

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

November 22, 2016 Opinion and Order in the appellant’s underlying removal

appeal. Elder v. Department of the Air Force, MSPB Docket No. DA-0752-15-

0171-C-1, Compliance File (CF), Tab 8, Compliance Initial Decision (CID). For

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

the petition for enforcement.

DISCUSSION OF ARGUMENTS AND EVIDENCE ON COMPLIANCE

¶2 On November 22, 2016, the Board issued an Opinion and Order affirming a

December 8, 2015 initial decision that reversed the appellant’s removal, as

modified to apply the correct legal standard for analyzing the appellant’s

affirmative defense that the agency removed him in retaliation for protected

activity. Elder v. Department of the Air Force, 124 M.S.P.R. 12 (2016). The

Board ordered the agency to cancel the appellant’s removal and reinstate him,

effective December 18, 2014, and to provide him with appropriate back pay,

interest, and benefits. Id. at ¶¶ 48-49.

¶3 The appellant filed a petition for enforcement of the Opinion a nd Order, and

on April 25, 2017, the administrative judge issued a compliance initial decision

finding the agency in partial noncompliance with the Opinion and Order because

the agency failed to establish that it provided the appellant with the back pay,

interest, and benefits required by the Opinion and Order. CID at 4 -5; CF, Tab 1.

The administrative judge ordered the agency to submit evidence demonstrating

that it correctly computed and paid the appellant’s back pay, interest, and

benefits, and evidence explaining the agency’s calculations of the back pay,

interest, and benefits due to the appellant. CID at 5.

¶4 On May 31, 2017, the agency submitted a response to the compliance initial

decision, which did not contain all of the evidence required by the compliance

initial decision. Elder v. Department of the Air Force, MSPB Docket

No. DA-0752-15-0171-X-1, Compliance Referral File (CRF), Tab 1. On

September 15, 2017, the Board issued an order directing the agency to submit a

3

detailed narrative explanation and supporting documentation demonstrating that

the agency had correctly computed and paid the appellant’s back pay, interest,

and benefits. CRF, Tab 3 at 2-3. The Board informed the appellant that if he did

not file a response within 21 days of the date of service of the agency’s

submission, the Board might assume he was satisfied and dismiss his petition for

enforcement. Id. at 3-4.

¶5 On September 20, 2017, the agency submitted a response to the Board’s

order, which did not include all of the evidence and information required by the

Board’s September 15, 2017 Order. CRF, Tab 4 at 4-27. The appellant did not

respond to the agency’s submission.

¶6 On January 17, 2018, the Board issued a second order directing the agency

to submit a detailed narrative explanation and supporting documentation

demonstrating that the agency had correctly computed and paid the appellant’s

back pay, interest, and benefits. CRF, Tab 5 at 4-6. Again, the Board informed

the appellant that if he did not file a response within 21 days of the date of

service of the agency’s submission, the Board might assume he was satisfied, and

dismiss his petition for enforcement. Id. at 7.

¶7 After requesting and being granted an extension of time, on February 23,

2018, the agency submitted the declaration of a Branch Chief for Civilian Pay

Operations at the Defense Finance and Accounting Service (DFAS), which

provided a detailed narrative explanation of the DFAS’s calculation of the back

pay, interest, and benefits due to the appellant, reference d supporting

documentation relied on by the DFAS, and identified the total amount of back pay

with interest and benefits provided to the appellant, and the dates on which either

the DFAS or the agency provided the appellant with the back pay, interest, and

benefits. CRF, Tab 10 at 5-13. The appellant did not file a response to this

submission, although the Board’s September 15, 2017 and January 17, 2018

Orders informed him that if he failed to do so, the Board might assume he was

satisfied and dismiss the petition for enforcement. CRF, Tab 3 at 3-4, Tab 5 at 7.

4

¶8 Accordingly, because the agency has filed evidence of compliance and the

appellant has not responded, we assume the appellant is satisfied, 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)).

NOTICE OF APPEAL RIGHTS 2

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

2

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.

5

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

6

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

7

(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. 3 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

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 particula r

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.

3

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.

8

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.

Contact information for the courts of appeals can be found at their

respective websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

FOR THE BOARD: /s/ for

Jennifer Everling

Acting Clerk of the Board

Washington, D.C.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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