Opinion

Marcus Smith v. Department of Transportation

Court: Merit Systems Protection Board
Filed: Nov 3, 2022
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 22.6%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

MARCUS D. SMITH, DOCKET NUMBERS

Appellant, AT-0752-05-0901-X-3

AT-0752-05-0901-X-4

DEPARTMENT OF

TRANSPORTATION, DATE: November 3, 2022

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Elaine L. Fitch, Esquire, Washington, D.C., for the appellant.

Brian A. Price, Des Plaines, Illinois, for the agency.

Jennifer D. Ambrose, Esquire and Russell B. Christensen, Washington,

D.C., for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

¶1 The administrative judge issued two compliance initial decisions in these

now joined cases, finding the agency in noncompliance with two separate Board

orders instructing the agency to pay the appellant compens atory damages and

attorney fees. For the reasons discussed below, we find the agency in compliance

with both decisions and DISMISS the petitions for enforcement.

DISCUSSION OF ARGUMENTS AND EVIDENCE ON COMPLIANCE

¶2 On April 25, 2012, the Board issued a final order adopting the finding of

the Equal Employment Opportunity Commission that the agency retaliated against

the appellant for his protected equal employment opportunity activity. Smith v.

Department of Transportation, MSPB Docket No. AT-0752-05-0901-E-1, Final

Order (Apr. 25, 2012). The Board ordered the agency to cancel the appellant’s

30-day suspension, restore him to duty effective August 1, 2005, and provide him

appropriate back pay, with interest, and benefits. Id. The Board also forwarded

the appellant’s compensatory damages claim to the appropriate Board regional

office for adjudication. Id.

¶3 Following multiple spin-off cases and extensive litigation, the

administrative judge issued two orders that form the basis for the instant

compliance enforcement actions. First, in the appellant’s second compensatory

damages case, the administrative judge issued a June 13, 2017 decision ordering

the agency to pay the appellant $14,653.50 in compensatory damages. Smith v.

Department of Transportation, MSPB Docket No. AT-0752-05-0901-P-2,

Compensatory Damages File, Tab 12, Initial Decision. Second, in the appellant’s

third attorney fee case, the administrative judge issued a June 13, 2017 decision

ordering the agency to pay the appellant $43,682.79 in attorney fees. Smith v.

Department of Transportation, MSPB Docket No. AT-0752-05-0901-A-3,

Attorney Fees File, Tab 6, Initial Decision.

¶4 After the agency failed to pay either amount within the time prescribed, the

appellant filed petitions for enforcement in the compensatory damages and

attorney fees cases. Smith v. Department of Transportation, MSPB Docket

No. AT-0752-05-0901-C-3, Compliance File (C-3 CF), Tab 1; Smith v.

Department of Transportation, MSPB Docket No. AT-0752-05-0901-C-4,

Compliance File (C-4 CF), Tab 1. On September 22, 2017, the administrative

judge issued a compliance initial decision in the compensatory damages case,

finding the agency noncompliant with the requirement that it pay $14,653.50 in

compensatory damages. C-3 CF, Tab 7, Compliance Initial Decision. On

October 5, 2017, the administrative judge issued a compliance initial decision in

the attorney fees case, finding the agency noncompliant with the requirement that

it pay $43,682.79 in attorney fees. C-4 CF, Tab 6, Compliance Initial Decision.

¶5 Pursuant to 5 C.F.R. § 1201.183(a)(6)(i), governing submission of

statements of compliance to the full Board, the agency filed separate statements

regarding each compliance initial decision. On October 27, 2017, the agency

submitted a narrative statement and evidence that it paid the appellant $14,653.50

by electronic transfer that same day, as required by the compliance initial

decision in the compensatory damages case. Smith v. Department of

Transportation, MSPB Docket No. AT-0752-05-0901-X-3, Compliance Referral

File (X-3 CRF), Tab 1 at 4-5. On October 30, 2017, the agency submitted a

narrative statement and evidence that on September 28, 2017, it paid the

appellant’s law firm $43,682.79, as required by the compliance initial decision in

the attorney fees case. Smith v. Department of Transportation, MSPB Docket

No. AT-0752-05-0901-X-4, Compliance Referral File (X-4 CRF), Tab 1 at 4-5.

The Board docketed these submissions as compliance referral matters, joined

them, and issued a single acknowledgement order informing the appellant that he

could file any response to the agency’s evidence of compliance within

20 calendar days. X-3 CRF, Tab 2 at 2; X-4 CRF, Tab 2 at 2.

¶6 On November 17, 2017, the appellant filed his response. The appellant

acknowledged receipt of the compensatory damages and attorney fee payments

and did not contest that the agency was in full compliance regardin g the latter.

X-3 CRF, Tab 3 at 4; X-4 CRF, Tab 3 at 4. However, the appellant contended

that the agency was not fully in compliance concerning the compensatory

damages payment because the same-day wire transfer caused the appellant’s bank

to charge him a $10 fee. According to the appellant, the agency thus effectively

paid him $14,643.50, rather than $14,653.50, and the $10 difference caused the

agency to remain noncompliant. X-3 CRF, Tab 3 at 4; X-4 CRF, Tab 3 at 4.

¶7 On June 1, 2018, the agency filed evidence that it reimbursed the appellant

$10 for the fee charged by the bank. X-3 CRF, Tab 4 at 4-5; X-4 CRF, Tab 4

at 4-5. The appellant did not file a response.

ANALYSIS

¶8 When the Board finds a personnel action unwarranted or not sustainable, it

orders that the appellant be placed, as nearly as possible, in the situation he would

have been in had the wrongful personnel action not occurred. House v.

Department of the Army, 98 M.S.P.R. 530, ¶ 9 (2005). The agency bears the

burden to prove its compliance with a Board order. An agency’s assertions of

compliance must include a clear explanation of its compliance actions supported

by documentary evidence. Vaughan v. Department of Agriculture, 116 M.S.P.R.

319, ¶ 5 (2011). The appellant may rebut the agency’s evidence of compliance by

making “specific, nonconclusory, and supported assertions of continued

noncompliance.” Brown v. Office of Personnel Management, 113 M.S.P.R. 325,

¶ 5 (2010).

¶9 As explained above, the agency has now provided evidence that it paid the

appellant the compensatory damages and attorney fees ordered by the Board, plus

$10 to compensate the appellant for a fee charged by his bank to accept the

same-day wire transfer of the compensatory damages payment. The appellant has

not challenged this evidence. Accordingly, we find the agency in complian ce and

dismiss the petitions for enforcement. This is the final decision of the Merit

Systems Protection Board in these compliance proceedings. Title 5 of the Code

of Federal Regulations, section 1201.183(c)(1) (5 C.F.R. § 1201.183(c)(1)).

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.

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 case s 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.

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 th e notice, the

Board cannot advise which option is most appropriate in any matter.

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

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. 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).

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.

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