The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KAMILIA S. ELTAHER, DOCKET NUMBER
Appellant, NY-0752-17-0012-X-1
v.
DEPARTMENT OF VETERANS DATE: May 25, 2023
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Kamilia S. Eltaher, Edison, New Jersey, pro se.
Jane Yoon, Brooklyn, New York, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member 2
FINAL ORDER
¶1 This case is before the Board on the appellant’s petition for enforcement of
the administrative judge’s January 18, 2018 decision in her appeal, which
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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.
2
reversed her removal and ordered the agency to cancel the action and
retroactively reinstate her effective September 6, 2016. Eltaher v. Department of
Veterans Affairs, MSPB Docket No. NY-0752-17-0012-I-1, Initial Appeal File,
Tab 63, Initial Decision. For the reasons discussed below, we find the agency is
in compliance and DISMISS the petition for enforcement.
DISCUSSION OF ARGUMENTS AND EVIDENCE ON COMPLIANCE
¶2 In a compliance initial decision issued July 11, 2018, the administrative
judge found that, although the agency had restored the appellant to her position
and made a lump sum payment of back pay, it had provided no explanation of its
computations nor any information relating to the interest on back pay and the
benefits to which the appellant was entitled. Eltaher v. Department of Veterans
Affairs, MSPB Docket No. NY-0752-17-0012-C-1, Compliance File, Tab 23,
Compliance Initial Decision (CID) at 4. She also noted that the agency had
provided no information relating to the payments due the appellant for two pay
periods following her reinstatement which the appellant stated she had not
received. 3 Accordingly, the administrative judge ordered the agency to submit
explanations of its back pay award and the interest on the back pay, the status of
the appellant’s pay for Pay Periods 3 and 4 of 2018, and whether the appellant
had been credited with the leave to which she was entitled for the period of her
removal. CID at 5. The order directed the agency to submit to the Clerk of the
Board within 35 days any statement of compliance with supporting evidence and
a narrative explaining in detail why its evidence satisfied the requirements set
forth in the order. Id.
3
The appellant also sought compensation for the tax consequences of her lump sum
back pay award and for medical expenses she incurred during the back pay period, but
the administrative judge correctly found that the Board lacks authority for such
remedies. See Holtgrewe v. Federal Deposit Insurance Corporation, 65 M.S.P.R. 137,
140 (1994); Kennedy v. United States Postal Service, 42 M.S.P.R. 429, 432 (1989).
3
¶3 On August 15, 2018, the agency submitted its statement of compliance and
supporting evidence to comply with the administrative judge’s order. Eltaher v.
Department of Veterans Affairs, MSPB Docket No. NY-0752-17-0012-X-1,
Compliance Referral File (CRF), Tab 1. On the same day, the Clerk of the Board
issued an Acknowledgment Order that notified the appellant that she could
respond to the agency’s submission by filing written arguments with the Clerk
within 20 calendar days of service of the agency’s submission. CRF, Tab 2. The
Acknowledgement Order also stated that, if the appellant did not respond to the
agency’s evidence of compliance within 20 days, the Board may as sume that
appellant is satisfied and may dismiss the petition for enforcement. Id.
¶4 In its submission, the agency provided evidence that it had paid the
appellant back pay and interest due for the back pay period (September 6, 2016,
through February 5, 2018). CRF, Tab 1. The agency explained the basis for the
two payments that were issued to the appellant. The first calculation included
most of the back pay due as well as the pay owed for 2018 Pay Period 3, less the
appellant’s interim earnings, in the gross amount of $177,283.25. The second
calculation included the remaining back pay and the interest on all the back pay
due, $7,351.48, as well at the pay owed for 2018 Pay Period 4, in the gross
amount of $21,864.383. Id. at 4. The agency’s evidence showed the deductions
made from these amounts with the resulting adjusted amounts paid to the
appellant, $75,226.14 and $19,439.88. Id. at 4. The agency also submitted the
calculations that it used to determine the amount of interest that was paid the
appellant. 4 Id. at 14-19, 28-30. Finally, the agency presented tables of the
appellant’s post-reinstatement accumulation of annual and sick leave that show
the initial leave amounts used. Id. at 33. In response to an order to submit the
basis for these numbers, the agency submitted on November 11, 2018, additional
evidence explaining the calculations on which they were based. CRF, Tab 4 at 4,
4
The agency’s interest determination is based on the online interest calculator approved
by the Office of Personnel Management.
4
9-11. On June 11, 2020, the agency also submitted evidence that it had awarded
additional back pay due for the appellant’s Step 9 pay increase that occurred
during the back pay period. CRF, Tab 24.
¶5 The appellant has challenged the agency’s back pay and restored leave
calculations, but does not identif y specific errors in these calculations, which on
their face show compliance with the Board’s order. CRF, Tab 30. The appellant
has objected to the agency’s delay in restoring her leave, which she states resulted
in some absences being treated as absence without pay. Id. at 5. The agency’s
alleged error concerns her service after the close of the back pay period and is
thus outside the scope of this case. The same reason excludes the appellant’s
claim that she should be paid for transit benefits she un fairly lost after her return
to work because her application for their restoration was found incomplete. 5 Id.
at 4. The appellant’s claim that the agency did not properly calculate her
retirement contributions in December 2018, id. at 4-5, either reiterates her back
pay claims rejected above or is based on later actions outside the back pay period.
Her claim that the agency wrongly denied her compensation benefits for an injury
at work that occurred in January 2020, id. at 6, is also one that does not pertain to
whether the agency retroactively restored her to duty. The appellant has not
otherwise shown that the agency has failed to properly restore her.
¶6 Accordingly, we find that the agency is in compliance and dismiss the
appellant’s 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 Regulation, section 1201.183(c)(1) (5 C.F.R. § 1201.183(c)1).
5
The agency notes that when she submitted a complete application , the benefits were
restored. CRF, Tab 22 at 4-5.
5
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 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.
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:
6
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.
6
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
7
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
8
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. 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:
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 w ebsite at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
7
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 wit h 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
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.