Opinion

Randy Stephens v. Department of the Army

Court: Merit Systems Protection Board
Filed: May 16, 2023
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 23.3%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

RANDY STEPHENS, DOCKET NUMBER

Appellant, DC-1221-20-0855-X-1

DEPARTMENT OF THE ARMY, DATE: May 16, 2023

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Shaun Yancey, Esquire, Atlanta, Georgia, for the appellant.

Anette H. Veldhuyzen, Esquire and Elwood Lee Waters, III, Fort Lee,

Virginia, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member 2

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

Member Leavitt’s name is included in decisions on which the three -member Board

completed the voting process prior to his March 1, 2023 departure.

FINAL ORDER

¶1 On August 25, 2021, the administrative judge issued a compliance initial

decision finding the agency in noncompliance with a settlement agreement filed

with the Board for enforcement purposes at the request of the parties, grant ed the

appellant’s petition for enforcement, and ordered the agency to “pay the appellant

twenty five thousand dollars ($25,000.00) in compensatory damages, and twenty

two thousand dollars ($22,000.00) for attorneys’ fees” within 30 days. Stephens

v. Department of the Army, MSPB Docket No. DC-1221-20-0855-C-1,

Compliance File (CF), Tab 4, Compliance Initial Decision (CID) at 3–4; Stephens

v. Department of the Army, MSPB Docket No. DC-1221-20-0855-W-1, Initial

Appeal File (IAF), Tab 28, Initial Decision (ID). For the reasons discussed

below, we find the agency in compliance and DISMISS the petition for

enforcement.

DISCUSSION OF ARGUMENTS AND EVIDENCE ON COMPLIANCE

¶2 On September 10, 2020, the appellant filed an individual right of action

appeal alleging whistleblower retaliation. CID at 2. On or about November 16,

2020, the appellant and the agency executed a Settlement Agreement (Agreement)

resolving the IRA appeal. Id. Pursuant to the Agreement, the agency promised,

in pertinent part, to pay the appellant $25,000 in compensatory damages and

$22,000 in attorney’s fees as a lump sum payment by check payable to the

appellant’s counsel’s law firm, Melville Johnson, P.C. Id.; IAF, Tab 26, at 7-8.

The agency further agreed to initiate paperwork to the Defense Finance

Accounting Service (DFAS) for payment of the sum within sixty days of the

termination of the seven-day revocation period provided in the agreement, which

meant the request to DFAS was due on or about January 22, 2021. CID at 2; IAF,

Tab 26, at 7-8.

¶3 At the parties’ request, the administrative judge issued an initial decision

dated November 30, 2020, dismissing the appeal as settled and accepting the

Agreement into the record for enforcement purposes pursuant to 5 C.F.R.

§ 1201.182. ID at 1-2. The November 30, 2020 initial decision became the final

decision of the Board on January 4, 2021, as neither party petitioned the full

Board for review. ID at 2.

¶4 On July 22, 2021, the appellant filed a petition for enforcement of the

Settlement Agreement. CF, Tab 1. The appellant alleged that in fact, the agency

did not submit the paperwork to DFAS required to process the appellant’s

payment within the agreed-upon timeframe. CF, Tab 1 at 6–8; see CID at 2. The

administrative judge issued an Acknowledgement Order and a Second Order to

Respond directing the agency to respond to the allegations in the appellant’s

petition for enforcement. See CID at 2-3. The agency failed to respond to either

order. Id.

¶5 On August 25, 2021, the administrative judge determined the agency was

not in compliance with the Agreement. CID at 3-4. The administrative judge

found specifically that “[t]he undisputed facts show that the agency failed to

provide the proper documentation to DFAS to effectuate the appellant’s payment,

and failed to pay the appellant in a timely manner.” CID at 3. The administrative

judge further found that the agency’s breach of the Agreement was material due

to the amount of the outstanding payment. 3 CID at 4. Finally, the administrative

judge ruled that the appellant filed the petition for enforcement within a

reasonable time after the appellant became aware of the breach. CID at 3 -4.

¶6 Neither party filed a petition for review of the compliance initial decision.

Thus, the appellant’s petition for enforcement has been referred to the Board for a

final decision on issues of compliance pursuant to 5 C.F.R. § 1201.183(b)-(c).

The initial decision did not address whether the app ellant wished to enforce the

agreement or rescind it. See Kitt v. Department of the Navy, 116 M.S.P.R. 680, ¶ 12

(2011). The appellant stated that he wished to enforce it, however. CF, Tab 1 at 9.

Stephens v. Department of the Army, MSPB Docket No. DC-1221-20-0855-X-1,

Compliance Referral File (CRF), Tab 1.

¶7 On September 8, 2021, the agency filed a Motion to Submit Evidence of

Payment, in which it appears to assert that DFAS issued a check in the amount of

$47,000 to the appellant on or about August 25, 2021. See CRF, Tab 1 at 6-7.

On September 9, 2021, the Clerk of the Board issued an Acknowledgement Order

to the appellant notifying him of his right to respond to the agency’s submission

and advising him that if he did not respond to the submission within 20 days of

service, then the Board may assume that he is satisfied and dismiss the petition

for enforcement. CRF, Tab 2 at 2. The appellant has not responded to the

Acknowledgement Order or the agency’s Motion to Submit Evidence of Payment.

¶8 On September 24, 2021, the agency filed a Motion to Dismiss for

Substantial Compliance in which it asserts, inter alia, that “[o]n September 2,

2021, DFAS payment was posted,” and “[o]n September 10, 2021, payment of

$47,000 to Melville Johnson cleared.” CRF, Tab 4 at 3. To support its

assertions, the agency has attached email correspondence and printouts from

DFAS’s computer system showing that DFAS issued a check in the amount of

$47,000 to Melville Johnson, P.C., and that on September 10, 2021, the check

cleared. CRF, Tab 4 at 18-20. The appellant has not responded to the agency’s

Motion to Dismiss for Substantial Compliance. 4

¶9 “The Board will enforce a settlement agreement that has been entered into

the record in the same manner as a final Board decision or order.” Burke v.

On October 12, 2021, the appellant filed a motion for attorney fees in the compliance

case. CF, Tab 6. The motion did not address the agency’s evidence of compliance. In

any event, the motion is premature, as it was filed before this final decision iss ued. See

5 C.F.R. § 1201.203(d) (“A motion for attorney fees must be filed as soon as possible

after a final decision of the Board but no later than 60 days after the date on which a

decision becomes final.”); Belmont v. U.S. Postal Service, 109 M.S.P.R. 505, ¶ 8 (2008)

(denying motion for attorney fees filed before issuance of final decision as premature).

If the appellant wishes his attorney fee petition to be considered, he must file it as a

separate case, pursuant to 5 C.F.R. § 1201.203(b).

Department of Veterans Affairs, 121 M.S.P.R. 299, ¶ 8 (2014). When the

appellant alleges the agency has breached a settlement agreement, the agency

must respond by producing relevant, material evidence of its compliance or

showing good cause for noncompliance. Id. However, the appellant ultimately

bears the burden of proving the agency’s breach by a preponderance of the

evidence. 5 Id.

¶10 In its September 24, 2021 statement of compliance, the agency asserts that

it caused DFAS to tender payment of $47,000 by check payable to Melville

Johnson, P.C., as required under the Agreement, and has attached supporting

documentation from DFAS’s computer system showing that a $47,000 check to

Melville Johnson, P.C., cleared on September 10, 2021. CRF, Tab 4 at 3. The

Board determines that the agency’s submission shows that it is now in compliance

with the requirement that it pay the appellant $47,000 in tot al for compensatory

damages and attorney’s fees. Since the appellant has not responded to the

agency’s assertions and evidence of compliance, the Board assumes he is

satisfied. See Baumgartner v. Department of Housing and Urban Development,

111 M.S.P.R. 86, ¶ 9 (2009).

¶11 Based upon the foregoing, the Board finds the agency in compliance and

dismisses 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)).

A preponderance of the evidence is “[t]he degree of relevant evidenc e that a

reasonable person, considering the record as a whole, would accept as sufficient to find

that a contested fact is more likely to be true than untrue.” 5 C.F.R. § 1201.4(q).

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

WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You

must file your attorney fees motion with the office that issued the initial decision

on your appeal.

NOTICE OF APPEAL RIGHTS 6

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

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

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.

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. 420 (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 describe d 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. 7 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).

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:

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.