Opinion

John Scott v. Department of Veterans Affairs

Court: Merit Systems Protection Board
Filed: Oct 20, 2022
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 22.6%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JOHN A. SCOTT, JR., DOCKET NUMBER

Appellant, AT-0752-13-3395-X-1

DEPARTMENT OF VETERANS DATE: October 20, 2022

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Elijah J. Williams, Lithonia, Georgia, for the appellant.

Amee Patel, Decatur, Georgia, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

FINAL ORDER

¶1 On July 19, 2017, the administrative judge issued a compliance initial

decision finding the agency in noncompliance with the Board’s final decision,

which ordered the agency to cancel the appellant’s constructive suspension and

A nonprecedential order is one that the Board has determined does not add

significantly to the body of MSPB case law. Parties may cite nonpreceden tial 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).

retroactively restore him to duty. Scott v. Department of Veterans Affairs, MSPB

Docket No. AT-0752-13-3395-C-1, Compliance File, Tab 8, Compliance Initial

Decision (CID). Accordingly, the administrative judge granted the appellant’s

petition for enforcement and ordered the agency to pay the appellant back pay for

the period of June 17 through September 8, 2013, to restore his leave for any time

during the period he was not in paid leave status, and to provide him with an

explanation of its back pay calculations and of any leave res tored. CID at 5. 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 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 suppor ted

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).

¶3 In its initial compliance submission, the agency stated that it had provided

the appellant the back pay and restoration of leave to which he was entitled, with

supporting documentation. Scott v. Department of Veterans Affairs, MSPB

Docket No. AT-0752-13-3395-X-1, Compliance Referral File (CRF), Tab 1. The

agency also submitted an e-mail from the appellant acknowledging that he had

received the back pay and restored leave. Id. at 5. However, the supporting

documentation for the agency’s actions was not provided to the Board at that

time. Subsequently, in response to Board orders, the agency has submitted

evidence that on its face shows the calculation of the amount of the appellant’s

back pay, including the within-grade step increase that was due the appellant

during the back pay period. CRF, Tab 5 at 6-7, Tab 8. An agency submission

also shows the agency’s appropriate calculation of the interest due on his back

pay. CRF, Tab 10 at 6.

¶4 The Board notified the appellant in its March 27, 2018 Order that he could

submit a reply to the agency’s evidence within 20 days after the date of service of

the agency’s submission. CRF, Tab 9 at 2. The Board’s order also informed the

appellant that, in the absence of a timely reply, the Board may assume that he is

satisfied with the agency’s actions and dismiss the petition for enforcement. Id.

The agency’s submission was served on the appellant on April 16, 2018. CRF,

Tab 10. The appellant has not responded to the agency’s submission.

¶5 In light of the foregoing, 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)).

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

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.

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

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 Cir cuit or any court

of appeals of competent jurisdiction. 3 The court of appeals must receive your

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.

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