Heather Daujotas v. Department of Defense

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

HEATHER LYNN DAUJOTAS, DOCKET NUMBER

Appellant, CH-0752-19-0455-I-1

v.

DEPARTMENT OF DEFENSE, DATE: February 23, 2023

Agency.

THIS ORDER IS NONPRECEDENTIAL 1

Ericka Owens, Great Lakes, Illinois, for the appellant.

Lauren Leathers, Falls Church, Virginia, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

REMAND ORDER

¶1 The appellant has filed a petition for review of the initial decision, which

dismissed her indefinite suspension appeal as moot. For the reasons discussed

below, we GRANT the appellant’s petition for review, VACATE the initial

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

decision, and REMAND the case to the Central Regional Office for further

adjudication in accordance with this Remand Order.

BACKGROUND

¶2 The appellant was appointed to the position of Physical Science Technician

at the Initial Testing Department, Directorate of Operations, with the Navy Drug

Screening Laboratory in October 2016. Initial Appeal File (IAF), Tab 10 at 198.

The record reflects that, as of July 24, 2017, the agency design ated her position as

“non-critical sensitive.” Id. at 394-95. On May 2, 2019, the Department of

Defense Consolidated Adjudications Facility (DODCAF) revoked the appellant’s

“eligibility for access to classified information and/or assignment to duties tha t

were designated national security sensitive.” Id. at 35. The notice informed the

appellant that she could appeal the decision to the Personnel Security Appeals

Board (PSAB). Id.

¶3 On May 8, 2019, the Deputy of Operations with the Initial Testing

Department, Navy Drug Screening Laboratory, proposed to indefinitely suspend

the appellant from duty and pay status based on the “revocation [of her] secret

eligibility determination” pending the final adjudication of her security clearance.

Id. at 32. The agency placed the appellant in an unpaid non-duty status beginning

the following day. Id. at 33-34. She was advised of her right to respond to the

proposal notice. Id. at 33.

¶4 On May 13, 2019, the agency issued the appellant a revised proposal to

indefinitely suspend her. Id. at 28. Contrary to the original proposal, however,

the revised proposal informed the appellant that she would be given 30 days of

advance notice, during which she would remain in a non -duty paid status, or

administrative leave, throughout this notice period. Id. at 23, 29-30.

¶5 On May 14, 2019, the appellant elected to appeal the DODCAF decision to

the PSAB. Id. at 26. On May 28, 2019, the agency issued its decision affirming

3

the proposed indefinite suspension. 2 Id. at 22-23. The decision informed the

appellant that she would be indefinitely suspended effective June 8, 2019,

pending the final adjudication of her security clearance by DODCAF. Id. at 23.

¶6 The appellant subsequently appealed her indefinite suspension to the Board.

IAF, Tab 1. She alleged that her security revocation and subsequent indefinite

suspension were the product of disability discrimination and harmful procedural

errors. IAF, Tab 9 at 4-7. During a telephonic status conference, the agency

represented that it planned to rescind the appellant’s indefinite suspension and

was in the process of completing the requisite paperwork to do so. IAF, Tab 11

at 1. The administrative judge informed the parties that this action might render

the appeal moot, provided the agency returned the appellant to status quo ante.

Id. at 1-2. The administrative judge ordered the agency to file a notice of its

rescission and informed the appellant that she could object to the rescission if she

did not believe she was returned to status quo ante. Id. at 3.

¶7 The agency responded, asserting that on August 12, 2019, it unilaterally

cancelled the appellant’s indefinite suspension effective June 8, 2019 , and

submitted documentation that it retroactively placed the appellant in an

administrative leave status from June 8 through August 3, 2019. IAF, Tab 12

at 4-15, Tab 15 at 5-6. The agency subsequently provided documentation that it

awarded the appellant a bonus that she would have been aw arded had she not

been in a non-pay status during that period. IAF, Tab 15 at 6, 8. The appellant

argued that she had not been returned to status quo ante and thus the appeal was

not moot. IAF, Tabs 13, 17. According to the appellant, in order to be returned

to status quo ante, the agency needed to reinstate her to her same shift, strike the

disciplinary action from her personnel record, and award her lost overtime

compensation and attorney fees and costs. IAF, Tab 13 at 4-6.

2

The agency’s decision identifies the notice of proposed indefinite suspension as

“dated May 8, 2019 and revised on May 13, 2019.” IAF, Tab 10 at 22.

4

¶8 The administrative judge subsequently issued an initial decision dismissing

the appeal as moot. IAF, Tab 18, Initial Decision (ID) at 1. According to the

administrative judge, the agency’s cancellation of the indefinite suspension and

retroactive placement of the appellant on administrative leave, effective June 8,

2019, and continuing, restored her to the same status she held prior to the

issuance of the indefinite suspension decision. ID at 6. The administrative judge

found that the agency provided the appellant with the requisite back pay and the

applicable bonus. Id. She further found that, because the appellant was placed on

administrative leave, she was not eligible for overtime pay. Id. Finally, the

administrative judge found that the Board does not adjudicate attorney fee

requests until a final decision has been issued. ID at 7. However, she suggested

that, under the circumstances here, the appellant was not a “prevailing party”

entitled to attorney fees and costs. Id.

¶9 The appellant has filed a petition for review of the initial decision. Pe tition

for Review (PFR) File, Tab 1. She argues that her appeal is not moot because she

has not been returned to status quo ante. Id. at 9-12. She also argues that she is

entitled to attorney fees because she was the prevailing party. Id. at 12-19. She

attaches new documents on review, including correspondence between her and

her attorney, an April 2019 performance review, and documents relating to her

payment of attorney fees. 3 PFR File, Tab 2 at 4-18. The agency has responded to

her petition for review, and the appellant has replied to its response. PFR File,

Tabs 6, 7.

3

The appellant additionally asserts that, beyond the evidence submitted for the first

time on review, there is new and material evidence or legal argument that was not

available when the record closed despite her due diligence. PFR File, Tab 1 at 11,

Tab 7 at 4-5. We need not address the new arguments or evidence on review because,

as set forth below, we remand this appeal for further adjudication.

5

DISCUSSION OF ARGUMENTS ON REVIEW

The appellant has sufficiently alleged that she has not been returned to status quo

ante, and thus, her appeal is not moot.

¶10 The appellant argues on review that she has not been returned to status quo

ante, and thus her appeal is not moot because the disciplinary actions must be

purged from her record, she should be returned to active duty in “her 6 AM shift,”

and she is entitled to overtime compensation and attorney fees and costs. PFR

File, Tab 1 at 9. The administrative judge held that, because the agency rescinded

the indefinite suspension, returned the appellant to administrative leave, paid her

back pay, and paid her a bonus, the agency returned the appellant to status quo

ante. 4 ID at 7. For the reasons set forth below, we disagree.

¶11 The Board’s jurisdiction is determined by the nature of an agency’s action

at the time an appeal is filed with the Board. Sredzinski v. U.S. Postal Service,

105 M.S.P.R. 571, ¶ 4 (2007). An indefinite suspension lasting more than

14 days is an adverse action appealable to the Board under 5 U.S.C. § 7513(d).

5 U.S.C. § 7512(2); Palafox v. Department of the Navy, 124 M.S.P.R. 54, ¶ 8

(2016). An agency’s unilateral modification of its adverse action after an appeal

has been filed cannot divest the Board of jurisdiction unless the appellant

consents to such divesture or unless the agency completely rescinds the action

being appealed. 5 Sredzinski, 105 M.S.P.R. 571, ¶ 4. Thus, the Board may dismiss

an appeal as moot if the appealable action is cancelled or rescinded by the

agency. Id. For an appeal to be rendered moot, an appellant must receive all of

4

The agency did not process the appellant’s lost wages and benefits as back pay, as

suggested by the administrative judge. Instead, it retroactively pla ced her in an

administrative leave status from June 8 to August 3, 2019. IAF, Tab 15 at 5 -6.

5

The administrative judge suggested below that the appellant consented to such

divesture by agreeing at the status conference that, if the agency rescinded the

indefinite suspension and reinstated the appellant with full back pay and benefits, the

rescission would be complete. ID at 7. We disagree. The appellant’s repeated

assertions that she had not been returned to status quo ante demonstrates that she did

not consent to such divesture. IAF, Tabs 13, 17.

6

the relief that she could have received if the matter had been adjudicated and she

had prevailed. Murphy v. Department of Justice, 107 M.S.P.R. 154, ¶ 6 (2007).

That is, the employee must be returned to the status quo ante and not left in a

worse position because of the cancellation than she would have been in if th e

matter had been adjudicated. Gillespie v. Department of Defense, 90 M.S.P.R.

327, ¶ 7 (2001). If an appeal is not truly moot despite cancellation of the action

under appeal, the proper remedy is for the Board to retain jurisdiction and to

adjudicate the appeal on the merits. Fernandez v. Department of Justice,

105 M.S.P.R. 443, ¶ 5 (2007). The record does not support the finding that the

appellant has been returned to status quo ante for several reasons.

The record is devoid of any evidence that the agency has purged the

indefinite suspension from the appellant’s personnel file.

¶12 The appellant argued, both below and on review, that the agency has not

purged the indefinite suspension from her personnel file. IAF, Tab 13 at 4; PFR

File, Tab 1 at 9. In response to her request that the disciplinary action be struck

from her record, the agency stated that “[o]n August 12, 2019, the Agency

cancelled the Indefinite Suspension.” IAF, Tab 15 at 5. To cancel an appealable

action either when ordered by the Board or to render an appeal moot, an agency

must remove all references to that action from the employee’s personnel record.

Price v. U.S. Postal Service, 118 M.S.P.R. 222, ¶ 13 (2012). The agency has the

burden of proving mootness. See Friends of the Earth, Inc. v. Landlaw

Environmental Services (TOC), Inc., 528 U.S. 167, 189 (2000) (reflecting that the

burden of proving mootness is on the moving party); Price, 118 M.S.P.R. 222,

¶ 10 (finding that an administrative judge did not, as an appellant claimed, allow

an agency to avoid its burden of proving mootness). The agency here neither

alleged nor offered evidence indicating that it purged the proposal s to indefinitely

suspend or the indefinite suspension decision from the appellant’ s record. On

remand, the administrative judge should resolve whether the agency can meet its

burden of proving it did so. In supporting its assertions, the agency should be

7

mindful that the statements of a party’s representative in a pleading do not

constitute evidence. Hendricks v. Department of the Navy, 69 M.S.P.R. 163, 168

(1995). This rule applies equally to the appellant.

On remand, the administrative judge should determine whether the agency

provided the appellant with status quo ante relief when it placed her in an

administrative leave status going forward.

¶13 The administrative judge found that the appellant was returned to the same

status she held prior to the issuance of the indefinite suspension, which was

placement on administrative leave pending adjudication of her security clearance.

ID at 6; IAF, Tab 15 at 5. The appellant continues to argue, as she did below,

that status quo ante is a return to active duty, rather t han administrative leave.

PFR File, Tab 1 at 21; IAF, Tab 13 at 4-6. We are unable to resolve this issue on

the record before us.

¶14 The Board generally has held that placing an appellant on administrative

leave following the cancellation of an adverse action does not constitute a

complete rescission of the agency action and thus a return to the status quo ante.

Sredzinski, 105 M.S.P.R. 571, ¶ 8. The appellant was in a duty status as of

May 8, 2019. IAF, Tab 1 at 6, Tab 10 at 32-34. On that date, the agency issued

the proposed indefinite suspension that also placed her in an unpaid, non -duty

status pending a decision on her proposed suspension. IAF, Tab 10 at 32 -34. It

subsequently corrected that status to administrative leave. IAF, Tab 1 at 6,

Tab 10 at 28-30. In the absence of the proposed indefinite suspension here, there

was no mechanism that placed the appellant on administrative leave. IAF, Tab 10

at 29. Moreover, the placement on administrative leave and the indefinite

suspension both arose out of the May 2, 2019 DODCAF revocation decision. Id.

at 28, 35. Accordingly, absent an exception, placement of the appellant on

administrative leave is not status quo ante relief, as she should have been returned

to active duty, the status she occupied prior to the rescin ded action.

8

¶15 Such an exception exists if an agency’s refusal to return the appellant to

duty status is supported by a “strong overriding interest.” Sredzinski,

105 M.S.P.R. 571, ¶ 8. The agency contended below that it could not return the

appellant back to work because her access to sensitive information had been

removed and her security clearance was being adjudicated. IAF, T ab 15 at 5. It

is unclear from the record below whether this sufficiently demonstrates a strong

overriding interest. For example, while the agency asserted in its proposed

indefinite suspension that the appellant’s position required a secret clearance, t he

record reflects that her position was designated as non-critical sensitive. IAF,

Tab 10 at 28, 394; see Gamboa v. Department of the Air Force, 120 M.S.P.R.

594, ¶ 7 (2014) (explaining that, although adjudicated under the same standard,

occupying a non-critical sensitive position is distinct from needing a security

clearance). If the agency fails to make such a showing on remand, the appellant’s

placement on administrative leave cannot be said to be status quo ante.

Sredzinski, 105 M.S.P.R. 571, ¶ 8.

On remand, the administrative judge should adjudicate the appellant’s

entitlement to overtime pay from June 8, 2019, forward.

¶16 Regarding the issue of overtime pay, the appellant contends that she was not

returned to status quo ante because she was not compensated for missed overtime

beginning with the period of her proposed indefinite suspension on May 8, 2019.

IAF, Tab 13 at 5; PFR File, Tab 1 at 9-10. The administrative judge did not

address the appellant’s entitlement to overtime pay during the 30 -day notice

period preceding the effective date of the action. ID at 6 -7. Nonetheless, her

failure to do so was not harmful because the appellant is not en titled to overtime

for this period, which spanned May 8 to June 7, 2019. IAF, Tab 10 at 23, 29 -30;

see Karapinka v. Department of Energy, 6 M.S.P.R. 124, 127 (1981) (explaining

that an administrative judge’s procedural error is of no legal consequence unless

it is shown to have adversely affected a party’s substantive rights). The Board

lacks jurisdiction to award back pay for pay enhancements such as overtime pay

9

lost during periods of administrative leave preceding an appealable action.

Rittgers v. Department of the Army, 123 M.S.P.R. 31, ¶ 12 (2015).

¶17 Here, documents submitted by the agency reflect that the appellant was in

an administrative leave status during the notice period. IAF, Tab 10 at 23, 29-30.

The appellant essentially conceded the point below by requesting overtime, but

not back pay, for this period. IAF, Tab 13 at 5. To the extent that her demand for

overtime pay on review includes this period, we are without authority to gra nt it.

¶18 The administrative judge held that the appellant was not eligible for

overtime pay beginning June 8, 2019, the effective date of her suspension,

because she was on administrative leave. ID at 6. As to the period of June 8,

2019, the effective date of the suspension, to August 12, 2019, the cancellation of

that suspension, we disagree. 6 As discussed above, the status the appellant

occupied prior to the rescinded action was active duty, not administrative leave.

¶19 Overtime back pay may be computed based on either the appellant’s own

overtime history or the average overtime hours worked by similarly situated

employees during the relevant time period. Rittgers, 123 M.S.P.R. 31, ¶ 13.

Before this appeal can be dismissed as moot, the agency must calculate and pay

the appellant’s overtime back pay for the period from June 8, 2019, forward,

using a method most likely to restore her to status quo ante. 7 IAF, Tab 10

at 32-34, Tab 12 at 6; see Rittgers, 123 M.S.P.R. 31, ¶ 13.

6

In light of the agency’s cancellation of the suspension on August 12, 2019, we

presume the appellant was placed in an administrative leave status at the beginning of

the pay period that included that date, i.e., as of August 4, 2019. On remand, the

administrative judge should clarify with the parties that the appellant received pay for

the period from August 4 through 11, 2019. IAF, Tab 12 at 8 -15.

7

This is so regardless of whether the agency demonstrates that it has a strong

overriding interest in placing the appellant on administrative leave as opposed to

returning her to active duty. If the agency fails to demonstrate a strong overriding

interest, then the appellant’s overtime calculation should encompass the entire time that

she was not in an active duty status. However, if the agency successfully demonstrates

a strong overriding interest in placing the appellant on admin istrative leave following

its cancellation of the indefinite suspension, the overtime calculation would end on the

10

¶20 According to the appellant, she worked 29 hours of overtime per week.

PFR File, Tab 1 at 10; IAF, Tab 13 at 5. The agency declined to provide any

overtime. IAF, Tab 15 at 6. The record does not contain any records to confirm

that the appellant routinely worked overtime, and if so, how much. Therefore, we

must remand this issue to the administrative judge to further develop the record

and make a determination as to whether the agency has provided status quo ante

relief. 8

The appellant’s claim of attorney fees does not bar the dismissal of the appeal as

moot.

¶21 The appellant asserts on review that, because the agency rescinded the

indefinite suspension, she is the “prevailing party,” and thus is entitled to

reimbursement of attorney fees. PFR File, Tab 1 at 12-22. Because she has not

been paid said attorney fees, argues the appellant, she has not been returned to

status quo ante and the appeal is not moot. Id. at 20-22. The administrative

judge held that, when an agency unilaterally rescinds an adverse action, the

appellant generally is not considered the prevailing party. ID at 7. She further

held that, in any event, the Board does not adjudicate attorney fee requests until a

final decision has been issued. Id. We agree with the administrative judge that,

if the agency on remand sufficiently returns the appellant to status quo ante as set

forth in this order, the Board is not barred from dismissing the appeal as moot,

regardless of the appellant’s claim of attorney fees.

¶22 For an appeal to be rendered moot, an appellant must receive all of the

relief that she could have received if the matter had been adjudicated and she had

date the agency cancelled the appellant’s suspension, August 12, 2019. IAF, Tab 12

at 6; see Rittgers, 123 M.S.P.R. 31, ¶ 12 (finding an appellant generally is not entitled

to overtime pay during a period of administrative leave).

8

The appellant has filed a motion for leave to file an additional pleading in which she

alleges that she was not returned to the status quo ante because of a time -off award that

she was not permitted to use and which expired while she was on admin istrative leave.

PFR File, Tab 9. On remand, the administrative judge shall permit the app ellant to

submit evidence and argument relating to this issue.

11

prevailed. Murphy, 107 M.S.P.R. 154, ¶ 6. However, the Board has held that the

potential recovery of attorney fees under 5 U.S.C. § 7701(g)(1) does not prevent

the dismissal of an appeal as moot. Murphy, 107 M.S.P.R. 154, ¶ 6. Rather, the

award of attorney fees to a prevailing party is considered to be separate from

relief on the merits. See id. Thus, the appellant here may file for such award in

accordance with the requirements of the Board’s regulations, and the potential

dismissal of this appeal as moot will have no prejudicial effect on the outcome of

that separate proceeding. Alleman v. Department of the Army, 79 M.S.P.R. 233,

239-40 (1998); 5 C.F.R. § 1201.203. Because the issue of the appellant’s

entitlement to attorney fees is not properly before us, we decline to consider the

appellant’s arguments that such fees are warra nted in the interest of justice. PFR

File, Tab 1 at 12-17. Similarly, we decline to address the appellant’s argument

that her attorney failed to convey the appellant’s arguments regarding attorney

fees to the administrative judge. Id. at 11, 17.

¶23 On remand, even if the administrative judge determines that the agency has

returned the appellant to status quo ante and dismisses the appeal as moot, the

appellant may seek attorney fees in a separate proceeding. Alternatively, if the

agency fails to return the appellant to status quo ante, the administrative judge

will adjudicate the appeal on the merits. See Fernandez, 105 M.S.P.R. 443, ¶ 5

(finding that, if an appeal is not truly moot despite cancellation of the action

under appeal, the proper remedy is for the Board to retain jurisdiction and to

adjudicate the appeal on the merits). In that scenario, the appellant may similarly

file for such attorney fees if she is the prevailing party.

The appellant’s discrimination claim does not prevent a mootness finding.

¶24 The appellant claims, both below and on review, that the DODCAF’s

decision to revoke her security clearance was the result of disability

discrimination. IAF, Tab 9 at 4-5, Tab 10 at 35, 49; PFR File, Tab 1 at 16-17.

The administrative judge found that the Board lacks the authority to review the

substance of the underlying security determination, including the authority to

12

consider the appellant’s assertion of disability discrimination. ID at 3 n.1. We

agree.

¶25 Ordinarily, if an appellant raises a claim of compensatory damages over an

appealable action, the agency’s complete rescission of the action appealed does

not afford her all of the relief available before the Board and the appeal is not

moot. Hess v. U.S. Postal Service, 124 M.S.P.R. 40, ¶ 8 (2016). Lack of

mootness in such circumstances is premised on the Board’s ability to award

compensatory damages. Id., ¶¶ 8, 19. The Board lacks authority to review

allegations of prohibited discrimination or reprisal related to the revocation or

suspension of a security clearance. Putnam v. Department of Homeland Security,

121 M.S.P.R. 532, ¶ 19 (2014). Because the Board cannot consider such

allegations, it cannot make a finding that the agency violated the appellant’s

rights under the Rehabilitation Act. Such a finding is a prerequisite to awarding

compensatory damages for disability discrimination in Federal employment.

42 U.S.C. § 1981a(a)(2). Thus, the fact that the appellant raised a disability

discrimination claim does not prevent a mootness finding here.

Should the agency fail to return the appellant to status quo ante, the

administrative judge should address the appellant’s claim of harmful procedural

error.

¶26 The appellant on review repeats her argument from below that the

DODCAF’s decision to revoke her security clearance, and the ensuing indefinite

suspension, suffered from harmful procedural errors. IAF, Tab 9 at 5 -7; PFR

File, Tab 1 at 12-15, 17. The administrative judge did not address these

arguments. We also do not address them because such alleged procedural errors

involve the merits of the appellant’s indefinite suspension and thus are only

before the Board if her appeal is not moot.

¶27 As discussed above, the Board lacks the authority to review the merits of

the decision to suspend access to classified information, including whether that

decision was based on impermissible discrimination . Palafox, 124 M.S.P.R. 54,

13

¶ 8; Putnam, 121 M.S.P.R. 532, ¶ 19. However, the Board retains the authority to

review whether: (1) the appellant’s position required access to classified

information; (2) the appellant’s access to classified information was suspended;

and (3) the appellant was provided with the due process and the procedural

protections specified in 5 U.S.C. § 7513 and under the agency’s own regulations.

Palafox, 124 M.S.P.R. 54, ¶ 8.

¶28 We observe that the record is unclear as to whether the appellant’s position

required access to classified information or a Secret Clearance, as charged. IAF,

Tab 10 at 22, 28, 394-95; see Gamboa, 120 M.S.P.R. 594, ¶ 8-11 (finding that an

agency failed to prove its charge based on an appellant’s clearance revocation

because it failed to prove the appellant was required to maintain a security

clearance). Furthermore, Department of Defense regulations preclude the agency

from indefinitely suspending an employee based on a personnel security

determination when the employee has filed an appeal with the PSAB and is

awaiting a written decision on that appeal. See Schnedar v. Department of the Air

Force, 120 M.S.P.R. 516, ¶¶ 9-10 (2014).

¶29 On remand, should the administrative judge find that the agency fails to

return the appellant to status quo ante, she must adjudicate this appeal on the

merits and address these procedural issues as they pertain to the revocation of the

appellant’s security clearance and the subsequent indefinite suspension.

ORDER

¶30 Accordingly, we REMAND this appeal to the Central Regional Office for a

determination as to whether, after the parties have an opportunity to respond, the

agency has returned the appellant to status quo ante. This includes the purging of

both proposed indefinite suspensions and the suspension decision from the

appellant’s personnel file, the calculation of overtime pay, and whether the

agency has a strong overriding interest in refusing to return the appellant to active

duty. If the agency has done so, the administrative judge shall dismiss the appeal

14

as moot. If the agency has not done so, the administrative judge shall adjudicate

the appeal on its merits, including whether the indefinite suspension suffered

from harmful procedural errors.

FOR THE BOARD: /s/ for

Jennifer Everling

Acting Clerk of the Board

Washington, D.C.