The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LINDA W. WEISS, DOCKET NUMBER
Appellant, NY-0707-16-0149-C-1
v.
DEPARTMENT OF VETERANS DATE: June 15, 2022
AFFAIRS,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Conor D. Dirks, Debra L. Roth, Esquire, and James Garay Heelan, Esquire,
Washington, D.C., for the appellant.
Kimberly Negley, Esquire, St. Louis, Missouri, for the agency.
Stephen F. Butera, Esquire, Clarksburg, West Virginia, for the agency.
Xan DeMarinis, Esquire, 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
ORDER
¶1 The agency has filed a petition for review of the compliance initial
decision, which granted the appellant’s petition for enforcement and found the
agency in noncompliance with: (1) a February 5, 2016 decision reversing the
appellant’s removal under the Veterans Access, Choice, and Accountability Act
of 2014 (the Choice Act), Pub. L. No. 113-146, § 707, 128 Stat. 1754, 1798; and
(2) an order in a February 16, 2016 supplemental decision directing the agency to
cancel the appellant’s removal, reinstate her to her former position, and provide
her with back pay, interest on back pay, and benefits. Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
erroneous interpretation of statute or regulation or the e rroneous application of
the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting e rror affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we c onclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review. Except as
expressly MODIFIED to eliminate consideration during compliance proceedings
of the agency’s arguments regarding the decisions on the merits of the underlying
case, we AFFIRM the compliance initial decision.
BACKGROUND
¶2 Effective January 12, 2016, the agency removed the appellant from her
Senior Executive Service position as Director of the Albany, New York Veterans
Administration Medical Center pursuant to the Choice Act, based on a charge that
3
she failed to take timely action regarding information indicating that a Nursing
Assistant should not be involved in direct patient care. See Weiss v. Department
of Veterans Affairs, MSPB Docket No. NY-0707-16-0149-J-1, Appeal File (AF),
Tab 48 at 5-6, 8-10, 23-25. On January 16, 2016, the appellant filed a timely
Board appeal challenging her removal. 2 AF, Tab 1.
¶3 The Choice Act, as codified at 38 U.S.C. § 713(e) 3, provided for expedited
and limited review by the Board of the agency’s action. Specifically, 38 U.S.C.
§ 713(e)(1) provided that, in an appeal of a transfer or removal of a member of
the Senior Executive Service, an administrative judge “shall issue a decision not
later than 21 days after the date of the appeal.” The Choice Act further provide d
that an administrative judge’s decision was final and was not subject to further
appeal, and that if an administrative judge failed to issue a decision within
21 days, the agency’s transfer or removal decision would be final. 38 U.S.C.
§ 713(e); see 5 C.F.R. § 1210.20(b).
¶4 On February 5, 2016, 20 days after the appellant filed her Board appeal, the
Chief Administrative Judge for the Board’s New York Field Office issued a brief
decision, which reversed the appellant’s removal. AF, Tab 71, Decision. The
decision stated that the reasons for the reversal would be e xplained in a
subsequent separate formal decision. 4 Decision at 2. On February 16, 2016,
31 days after the appellant filed her Board appeal, the Chief Administrative Judge
issued a supplemental decision, in which he concluded that the agency proved the
charge, finding that, although the appellant devoted efforts to reassigning the
2
Subsequently, the appellant waived her right to a hearing. AF, Tab 52 at 1.
3
In this order, we rely on the version of 38 U.S.C. § 713 in effect in 2016, at the time
of the appellant’s removal and when the underlying removal appeal was adjudicated.
4
The subsequently issued supplemental decision explained that the Chief
Administrative Judge did not set forth the reasons for reversing the appellant’s removal
in the February 5, 2016 decision due to “a major technical problem associated with the
preparation of this decision and an exhaustive review of the voluminous appeal f ile.”
AF, Tab 73, Supplemental Decision at 1 n.1.
4
Nursing Assistant to a position that did not involve direct patient care, she failed
to exercise proper oversight and monitoring to ensure that the Nursing Assistant
was either removed from direct patient care or was subject to close supervision
while the reassignment was pending. AF, Tab 73, Supplemental Decision
at 10-15. The Chief Administrative Judge found that the appellant failed to prove
any of her affirmative defenses. Id. at 15-20. However, he determined that the
penalty of removal was unreasonable under the circumstances, considering,
among other things, the appellant’s 42 years of service, lack of prior discipline,
the nature of the Nursing Assistant’s conduct at issue, and the appellant’s
mistaken belief that the Nursing Assistant was under constant supervision during
the time period at issue in the charge. Id. at 20-27. The Chief Administrative
Judge further noted that, days after the Deputy Secretary of the agen cy proposed
the appellant’s removal, he issued her a letter congratulating her on the
“remarkable achievement” of the Albany New York Veterans Administration
Medical Center being recognized as “one of the Highest Performing Hospitals in
Healthcare Quality for 2015.” Id. at 22; AF, Tab 10 at 18. Accordingly, the
Chief Administrative Judge reversed the appellant’s removal, ordered the agency
to cancel the removal, reinstate her to her former position, and provide her with
back pay, interest on back pay, and other benefits. Supplemental Decision.
¶5 On March 4, 2016, the appellant filed a petition for enforcement, in which
she alleged that the agency failed to restore her to duty or otherwise comply with
the decision. Weiss v. Department of Veterans Affairs, MSPB Docket
No. NY-0707-16-0149-C-1, Compliance File (CF), Tab 1. 5 In response, the
agency argued that it was not required to comply because the February 5, 2016
decision was not a valid decision under the Choice Act, and the February 16,
5
With her petition for enforcement, the appellant submitted evidence that, in reliance
on the February 5, 2016 decision reversing her removal, she had withdrawn the
retirement application she submitted to the agency effective January 12, 2016. CF,
Tab 1 at 14, 25. Pursuant to 5 U.S.C. § 7701(j), the appellant’s retirement status is not
taken into account in determining whether she had the right to appeal her removal.
5
2016 supplemental decision, which the agency agreed would otherwise constitute
a valid decision, was issued after the 21-day deadline set forth in 38 U.S.C.
§ 713(e)(1). CF, Tab 5 at 5-11, Tab 10. Therefore, the agency contended that,
because the Chief Administrative Judge did not issue a valid final decision within
21 days, the agency’s removal action was final pursuant to 38 U.S.C. § 713(e)(3).
CF, Tab 5 at 11, Tab 10 at 4, 12.
¶6 On May 26, 2016, the Chief Administrative Judge issued a compliance
initial decision granting the appellant’s petition for enforcement. 6 CF, Tab 11,
Compliance Initial Decision (CID). He found that the February 5, 2016 decision
reversing the appellant’s removal was a valid decision under the Choice Act, and
that the agency was obligated to comply with the order in the February 16, 2016
supplemental decision. CID at 5-14. He further found that the agency was in
noncompliance with the February 5, 2016 decision and the order in the
February 16, 2016 supplemental decision. CID at 15.
¶7 The agency has filed a timely petition for review of the compliance initial
decision, and the appellant has responded in opposition to the petition for review.
Petition for Review (PFR) File, Tabs 1, 3.
DISCUSSION OF ARGUMENTS ON REVIEW
Portions of 5 U.S.C. § 713 have been ruled unconstitutional.
¶8 While this compliance matter was pending on review, the agency requested
that the Board stay further proceedings until the U.S. Court of Appeals for the
Federal Circuit (Federal Circuit) issued a decision in Helman v. Department of
Veterans Affairs, 856 F.3d 920, 926 (Fed. Cir. 2017), an appeal in which the
Department of Justice (DOJ) argued that 38 U.S.C. § 713(e)(2), the provision of
the Choice Act prohibiting further review of an administrative judge’s decision,
6
On May 27, 2016, and on June 7, 2016, the Chief Administrative Judge issued two
erratum orders correcting typographical errors in the compliance initial decision. CF,
Tabs 13, 15.
6
was unconstitutional. 7 PFR File, Tab 1 at 7-8, 19-20. The Board granted the
agency’s request in a December 1, 2016 Order. PFR File, Tab 4.
¶9 On May 9, 2017, the Federal Circuit issued its decision finding
unconstitutional the provisions of the Choice Act vesting the authority to make
final decisions with the Board’s administrative judges. Helman, 856 F.3d
at 929-30. The court reasoned that the significant authority to make final
administrative decisions in appeals under the Choice Act could only be made by
officers of the United States—individuals appointed by the President with the
advice and consent of the Senate—and not by “a lesser functionary who is
subordinate to officers of the United States,” such as the Board’s administrative
judge. Id. at 927-30. Although it found the portions of the Choice Act
precluding Board review of decisions by administrative judges unconstitutional,
the court did not invalidate other portions of the Act, including those requiring
expedited processing. Id. at 936. In sum, the court concluded that parties could
file petitions for review of administrative judges’ decisions made in cases brought
under the Choice Act, seeking review by the Presidentially appointed and Senate
confirmed Board members.
The Board has authority to consider the agency’s petition for review of the
compliance initial decision.
¶10 As noted above, as enacted, an administrative judge’s decision regarding
the merits of a removal action under the Choice Act could not be challenged
before the Board through the petition for review process. That restrict ion was,
however, struck down by the Federal Circuit. Helman, 856 F.3d at 927-30. Thus,
we discern no basis for limiting the agency’s ability to file a petition for review
7
DOJ further argued that, due to the alleged unconstitutionality of section 713(e)(2),
the Federal Circuit should also sever and declare invalid section 713(e)(3), which
provides that a removal or transfer under the Choice Act is final in any case in which an
administrative judge fails to issue a decision within the 21 -day deadline. The court
invalidated the portion of this provision that made the agency’s decision final in the
event an administrative judge was unable to render a decision in 21 days. See Helman,
856 F.3d at 927, 929-31 & n.4.
7
of the Chief Administrative Judge’s compliance initial decision. Furthermore,
even absent the Helman decision, the Board’s regulations applicable to the Choice
Act provide that the ordinary procedures for enforcement of final decision s and
orders set forth in 5 C.F.R. part 1201 apply to petitions for enforcement of
decisions under the Choice Act. 5 C.F.R. § 1210.20(d)(1). Those procedures
include the right of a party to file a petition for review of a compliance initial
decision. 5 C.F.R. § 1201.183(a)(6)(ii).
The agency cannot reargue during the compliance proceedings the validity of the
Chief Administrative Judge’s decisions reversing the removal action.
¶11 In response to the appellant’s petition for enforcement, the agency argued
that, although the February 5, 2016 decision was issued within the 21-day limit
set by 38 U.S.C. § 713(e), the decision did not constitute a proper decision. CF,
Tab 5 at 5-11, Tab 10 at 4-12. The agency also argued that the February 16, 2016
supplemental decision was invalid, as it was issued more than 21 days after the
appeal was filed. CF, Tab 5 at 6. In his May 26, 2016 compliance initial
decision, the Chief Administrative Judge considered the agency’s arguments and
found that his February 5, 2016 decision was a valid decision under the Choice
Act. CID at 3-14. The Chief Administrative Judge also found that the
February 16, 2016 supplemental decision was legally enforceable and that the
agency was required to comply with the decision. CID at 14. On petition for
review of the compliance initial decision, the agency essentially repeats its
arguments. PFR File, Tab 1 at 8-17.
¶12 If the agency disagreed with the Chief Administrative Judge’s February 5,
2016 decision or February 16, 2016 supplemental decision, it could have filed a
petition for review of those decisions after the Federal Circu it issued Helman on
May 9, 2017, ruling that the Choice Act’s provisions precluding that option were
unconstitutional. See Helman, 856 F.3d at 927-30. Despite the court’s ruling, the
agency elected not to contest the Chief Administrative Judge’s merits d ecisions
8
through the petition for review process. The agency has offered no explanation
for its failure to do so.
¶13 Having opted not to file a petition for review of the merits decisions, the
agency cannot use the compliance proceeding to challenge the Chi ef
Administrative Judge’s findings on the merits of the action. The Board has long
held that it will not reconsider the merits of a case in a compliance proceeding.
E.g., Henry v. Department of Veterans Affairs, 108 M.S.P.R. 458, ¶ 24 (2008)
(stating that the purpose of an enforcement proceeding is to obtain compliance
with the Board’s final order and not to revisit the merits of the case); Coffey v.
U.S. Postal Service, 86 M.S.P.R. 632, ¶ 2 (2000) (finding that the Board will not
reconsider the merits of a case in the context of a compliance action), aff’d,
10 F. App’x 912 (Fed. Cir. 2001); Ben Espinoza v. Department of the Navy,
69 M.S.P.R. 679, 683 (1996) (determining that because a compliance matter is an
addendum to the decision on the merits, and not a reconsideration of the evidence
in a new light, it is not appropriate to reconsider the merits issues in a compliance
proceeding); Hocker v. Department of Transportation, 63 M.S.P.R. 497, 505
(1994) (holding that the Board will not reconsider the merits of an ap peal in an
enforcement proceeding), aff’d, 64 F.3d 676 (Fed. Cir. 1995) (Table). To the
extent that the Chief Administrative Judge considered the agency’s arguments
concerning the merits of the appeal during the compliance proceedings, he should
not have done so. 8
8
Even if we were to consider the agency’s arguments on review concerning the merits
decisions, they essentially constitute mere disagreement with the Chief Admi nistrative
Judge’s well-reasoned findings, and do not provide a basis to disturb the compliance
initial decision. See Yang v. U.S. Postal Service, 115 M.S.P.R. 112, ¶ 12 (2010)
(finding that mere disagreement with the administrative judge’s findings is insufficient
to disturb the initial decision); Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 106
(1997) (finding no reason to disturb an administrative judge’s findings when she
considered the evidence as a whole, drew appropriate inferences, and made reasoned
conclusions); Broughton v. Department of Health & Human Services, 33 M.S.P.R. 357,
359 (1987) (same).
9
The Chief Administrative Judge properly found the agency in noncompliance
with the February 5, 2016 decision and the order in the February 16, 2016
supplemental decision.
¶14 On review, the agency does not dispute that it failed to comply with the
February 5, 2016 decision or the order in the February 16, 2016 supplemental
decision. PFR File, Tab 1. Because we find that the agency was obligated to do
so, we affirm the Chief Administrative Judge’s finding that the agency is in
noncompliance. Accordingly, we affirm, as modified above, the compliance
initial decision granting the appellant’s petition for enforcement.
¶15 Because we have found the agency in noncompliance, the agency is being
directed to file evidence of compliance with the Clerk of the Board and the
appellant will be afforded the opportunity to respond to that evidence. The
appellant’s petition for enforcement will be referred to the MSPB’s Office of
General Counsel, and, depending on the nature of the submissions, an attorney
with the Office of General Counsel may contact the parties to further discuss the
compliance process. The parties are required to cooperate with that individual in
good faith. Because the purpose of the proceeding is to obtain compliance, when
appropriate, an Office of General Counsel attorney or paralegal may engage in ex
parte communications to, among other things, better understand the evidence of
compliance and/or any objections to that evidence. Thereafter, the Board will
issue a final decision fully addressing the agency’s petition for review of the
compliance initial decision 9 and setting forth the appellant’s further appeal rights
and the right to attorney fees, if applicable.
ORDER
¶16 We ORDER the agency to submit to the Clerk of the Board, within 20 days
of the date of this Order, satisfactory evidence of compliance with this decision.
9
The subsequent decision may incorporate the analysis and findings set forth in this
Order.
10
This evidence shall adhere to the requirements set forth in 5 C.F.R.
§ 1201.183(a)(6)(i), including submission of evidence and a detailed narrative
explaining how the appellant’s back pay was calculated with an explanation of all
codes and abbreviations used. The agency’s submission shall demonstrate that it
properly returned the appellant to the status quo ante.
¶17 The Board will assign a new docket number to this matter, NY-0707-16-
0149-X-1. All subsequent filings should refer to the new docket number set forth
above and should be faxed to (202) 653-7130 or mailed to the following address:
Clerk of the Board
U.S. Merit Systems Protection Board
1615 M Street, N.W.
Washington, D.C. 20419
Submissions may also be made by electronic filing at the MSPB’s e -Appeal site
(https://e-appeal.mspb.gov) in accordance with the Board’s regulation at 5 C.F.R.
§ 1201.14.
¶18 The appellant may respond to the agency’s evidence of compliance within
20 days of the date of service of the agency’s submission. 5 C.F.R.
§ 1201.183(a)(8). If the appellant does not respond to the agency’s evidence of
compliance, the Board may assume that the appellant is satisfied with the
agency’s actions and dismiss the petition for enforcement.
¶19 The agency is reminded that, if it fails to provide adequate evidence of
compliance, the responsible agency official and the agency’s representative may
be required to appear before the General Counsel of the Merit Systems Protection
Board to show cause why the Board should not impose sanctions for the agency’s
noncompliance in this case. 5 C.F.R. § 1201.183(c). The Board’s authority to
impose sanctions includes the authority to order that the responsible agency
official “shall not be entitled to receive payment for service as an employee
during any period that the order has not been complied with.” 5 U.S.C.
§ 1204(e)(2)(A).
11
¶20 This Order does not constitute a final order and is therefore not subject to
judicial review under 5 U.S.C. § 7703(a)(1). Upon the Board’s final resolution of
the remaining issues in this petition for enforcement, a final order shall be issued
which shall be subject to judicial review.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.