Albert Schultz v. United States Postal Service

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ALBERT P. SCHULTZ, DOCKET NUMBER

Appellant, PH-0752-94-0233-C-7

v.

UNITED STATES POSTAL SERVICE, DATE: July 19, 2023

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Alexander Schultz, Esquire, Lake Worth, Florida, for the appellant.

Mark Manta, Esquire, Philadelphia, Pennsylvania, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

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

denied his petition for enforcement. 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

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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interpretation of statute or regulation or the erroneous 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 error 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 conclude 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 and AFFIRM the initial

decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).

BACKGROUND

¶2 This case has a lengthy and complex procedural history that is largely

irrelevant to the current proceeding, and we recount only the pertinent history

here. 2 In a December 16, 2016 Final Order, the Board awarded the appellant

$100,733.89 in attorney fees and costs and ordered the agency to pay the

appellant the amount awarded within 20 days of the date of the Order. Schultz v.

U.S. Postal Service, MSPB Docket No. PH-0752-94-0233-M-1, Final Order, ¶ 56

(Dec. 16, 2016). On January 31, 2017, the appellant filed a petition for

enforcement of the Final Order. Schultz v. U.S. Postal Service, MSPB Docket

No. PH-0752-94-0233-C-7, Compliance File (C-7 CF), Tab 1. He alleged that,

although the agency had paid him the amount owed by check, the agency had

declined his request to stipulate that his deposit of the check did not waive his

right to pursue a further appeal of the fee award, thus he returned the check.

C-7 CF, Tab 1 at 4-7. He also noted that, although he returned the check, he still

2

For a summary of the underlying proceedings, see Schultz v. U.S. Postal Service,

MSPB Docket No. PH-0752-94-0233-M-1, Final Order, ¶¶ 2-7 (Dec. 16, 2016).

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received an Internal Revenue Service Form 1099-MISC reflecting the payment.

Id. at 7. He requested that the Board “determine the parties’ rights and

obligations” regarding the check and direct the agency to correct the 1099-MISC

to reflect the returned payment. Id. The agency opposed the petition on the

grounds that it was untimely and that the agency had fully complied with the

Board’s Final Order. 3 C-7 CF, Tab 3 at 4-6.

¶3 The administrative judge issued a compliance initial decision finding that

the agency had fully complied with the Board’s Final Order by issuing the check

for the full amount of the fee award to the appellant. C-7 CF, Tab 8, Compliance

Initial Decision (CID) at 3. He also noted that the appellant was not contesting

the amount of fees awarded in the underlying appeal and had filed an appeal of

the fee award with the Equal Employment Opportunity Commission (EEOC),

which subsequently concurred in the Board’s December 16, 2016 Final Order.

Id.; C-7 CF, Tab 7 at 5-8. Accordingly, he denied the petition for enforcement.

CID at 3.

¶4 The appellant has filed a petition for review of the compliance initial

decision in which he argues that the administrative judge erred in finding that he

did not contest the amount of attorney fees awarded to him in the underlying

appeal and renews his request for an order directing the age ncy to pay the

appellant without any restriction on his right to appeal the fee award. Schultz v.

U.S. Postal Service, MSPB Docket No. PH-0752-94-0233-C-7, Petition for

Review (C-7 PFR) File, Tab 1 at 4-7. The agency has not responded to the

petition.

3

The administrative judge did not make findings as to the timeliness of the petition, but

we do not reach this issue because we agree with the administrative judge that the

petition must be denied on the merits.

4

DISCUSSION OF ARGUMENTS ON REVIEW

¶5 The EEOC’s decision concurring with the Board’s December 16, 2016 Final

Order concluded the administrative process available to the appellant to contest

the Board’s fee award, and there is no indication that the appellant appealed the

decision to the applicable Federal district court. See 5 C.F.R. § 1201.161(f).

Enforcement proceedings are not to be used to revisit the merits of an underlying

appeal, thus we decline to consider any challenge to the attorney fee award in the

underlying appeal. Henry v. Department of Veterans Affairs, 108 M.S.P.R. 458,

¶ 24 (2008).

¶6 In addition, the administrative judge properly concluded that the agency had

complied with the Board’s Final Order. The appellant does not dispute that he

received the agency’s check for the awarded fee amount, and he cites no authority

under which the Board is obligated to order the agency to stipulate that the

appellant may deposit the check for attorney fees without risking waiver of any

right to appeal the fee award. C-7 PFR File, Tab 1 at 6. Although the opinions

the appellant has cited in support of his position indicate that he may risk waiver

of his right to appeal the fee award in Federal district court by depositing the

check, they do not mandate such an outcome, nor do they impose an obligat ion

upon the Board to prevent this outcome. 4 Id. at 6-7; compare St. John v. Potter,

299 F. Supp. 2d 125, 129 (E.D.N.Y. 2004) (finding that the plaintiff’s accepting a

check representing the entire EEOC award satisfied her claims against the

defendant), with Massingill v. Nicholson, 496 F.3d 382, 386 (5th Cir. 2007)

(finding that 42 U.S.C. § 2000e-16(c) does not preclude suit if an award has been

partially or completely rendered). The appellant’s acceptance of the fee award

and subsequent appeal of it are at his own peril.

4

Moreover, the opinions of the Eastern District of New York and the Eastern Distri ct of

Virginia constitute persuasive authority that is not binding on the Board. See Lindsley

v. Office of Personnel Management, 96 M.S.P.R. 259, ¶ 17 (2004), aff’d, 126 F. App’x

959 (Fed. Cir. 2005).

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¶7 The compliance initial decision is affirmed.

NOTICE OF APPEAL RIGHTS 5

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 shou ld

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).

5

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

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

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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

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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 Circuit or any court of appeals of

competent jurisdiction. 6 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 website at

http://www.mspb.gov/probono for information regarding pro bono representation

6

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.

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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.

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.