# Marcus Smith v. Department of Transportation

> Merit Systems Protection Board · November 3, 2022

URL: https://www.frixlaw.com/law-library/cases/9373252

## Case

- **Court:** Merit Systems Protection Board
- **Decided:** November 3, 2022
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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
v.

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THIS FINAL ORDER IS NONPRECEDENTIAL 1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

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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.
3

¶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.
4

¶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
5

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.

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 th e notice, the
Board cannot advise which option is most appropriate in any matter.
6

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
7

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:
8

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).

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.
9

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 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.
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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9373252. Public record. Not legal advice.