Opinion

Tammika Richardson v. Department of Veterans Affairs

Court: Merit Systems Protection Board
Filed: Mar 26, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.7%

“There are strong reasons that [38 U.S.C. §] 714 should not be interpreted [as the agency suggests] to endorse the use of substantial evidence as a burden of proof.”

How later courts described this case

“There are strong reasons that [38 U.S.C. §] 714 should not be interpreted [as the agency suggests] to endorse the use of substantial evidence as a burden of proof.”

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

TAMMIKA S. RICHARDSON, DOCKET NUMBER

Appellant, AT-0714-21-0109-I-1

DEPARTMENT OF VETERANS DATE: March 26, 2024

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Jacqueline Turk-Jerido , Tuskegee, Alabama, for the appellant.

Teri Walker , Esquire, and Sophia Haynes , Decatur, Georgia, for the

agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

FINAL ORDER

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

reversed the agency’s removal action taken pursuant to 38 U.S.C. § 714.

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

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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. Except as expressly MODIFIED to VACATE the administrative

judge’s order for interim relief, we AFFIRM the initial decision. We also DENY

the appellant’s petition for enforcement.

BACKGROUND

¶2 The agency removed the appellant from her Nursing Assistant position,

effective November 20, 2020, pursuant to 38 U.S.C. § 714 (the VA

Accountability Act), and she filed a Board appeal. Initial Appeal File (IAF),

Tab 4 at 13, 15-18. After a hearing, the administrative judge issued an Order

Certifying Interlocutory Appeal regarding his finding that the agency cannot rely

on the provisions of 38 U.S.C. § 714 to remove the appellant, a hybrid employee

as defined in 38 U.S.C. § 7401(3). IAF, Tabs 17, 20, 23. In a January 4, 2023

Opinion and Order, the Board agreed and held that the agency cannot rely on the

provisions of 38 U.S.C. § 714 to remove the appellant. Richardson v. Department

of Veterans Affairs, 2023 MSPB 1, ¶¶ 10-28. The Board informed the agency

that, if it wanted to proceed with an adverse action against the appellant, it must

do so in accordance with the procedures described in 5 U.S.C. chapter 75, as

required by 38 U.S.C. § 7403(f)(3). Richardson, 2023 MSPB 1, ¶¶ 29-32. The

Board remanded the appeal for further adjudication. Id., ¶ 33.

¶3 On remand, the administrative judge issued an initial decision, which found

that the agency’s action was not in accordance with law and reversed the removal.

IAF, Tab 36, Initial Decision (ID) at 2. The administrative judge ordered the

agency to cancel the removal and retroactively restore the appellant. 2 Id. The

administrative judge also ordered interim relief if either party filed a petition for

review. ID at 3-4.

¶4 The agency has filed a petition for review. Petition for Review (PFR) File,

Tab 1. The appellant did not file a response. The appellant has filed a petition

for enforcement. PFR File, Tab 3. The agency did not respond to this petition.

DISCUSSION OF ARGUMENTS ON REVIEW

The agency’s petition for review does not persuade us that the Board erred in its

prior Opinion and Order.

¶5 The agency’s petition for review challenges almost the entirety of the

Board’s substantive analysis in its prior Opinion and Order. PFR File, Tab 1

at 7-26. We have considered the agency’s substantive arguments regarding plain

language, statutory interpretation, legislative history, and agency deference, but

they do not persuade us that the Board committed any error that warrants a

different outcome. 3

The agency’s plain language and statutory interpretation arguments

on petition for review do not warrant a different outcome.

¶6 Most of the agency’s arguments on review relating to plain language and

statutory interpretation constitute disagreement with the Board’s findings and

conclusions in its prior Opinion and Order. E.g., PFR File, Tab 1 at 6-13, 16-25;

see Richardson, 2023 MSPB 1, ¶¶ 17-25. We have considered these arguments,

The date identified by the administrative judge for retroactive restoration,

November 11, 2020, appears to be in error; the date should have been November 20,

2020. IAF, Tab 4 at 13, 15. This typographical error does not prejudice the appellant

and does not warrant a different outcome. Panter v. Department of the Air Force,

22 M.S.P.R. 281, 282 (1984).

We address the agency’s arguments regarding interim relief below.

but we conclude that a different outcome is not warranted. However, we wish to

briefly discuss three of the agency’s arguments.

¶7 First, the agency asserts that the “[n]otwithstanding” language in 38 U.S.C.

§ 7403(f)(3) will control when there is a conflict between that provision and

38 U.S.C. § 714; in the absence of any such conflict, the “[n]otwithstanding”

provision is not triggered and cannot justify disregarding the plain language of

38 U.S.C. § 714. PFR File, Tab 1 at 11-13. We have considered the agency’s

citations to various decisions to support its contention in this regard, but none of

the cited decisions involved 38 U.S.C. § 7403(f)(3). Accordingly, this argument

does not warrant a different outcome.

¶8 Second, the agency suggests that 38 U.S.C. § 714 and 38 U.S.C. § 7403(f)

(3) can coexist “by simply reassessing § 7403(f)(3) in light of the newer statute.”

PFR File, Tab 1 at 17. In this regard, the agency asserts that, because 38 U.S.C.

§ 714 preserves Board appeal rights and judicial review, it satisfies the

requirement in 38 U.S.C. § 7403(f)(3) to resolve actions “under the provisions of

title 5.” Id. at 17-20. We are not persuaded by this argument. There are

significant differences between the procedures in 38 U.S.C. § 714 and the adverse

action procedures of Title 5 that prevent us from concluding that 38 U.S.C. § 714

satisfies the requirements of 38 U.S.C. § 7403(f)(3). Importantly, the Board

identified in its Opinion and Order due process concerns raised by the record in

this matter. See Richardson, 2023 MSPB 1, ¶ 32.

¶9 Third, we have considered the agency’s argument that, even if 38 U.S.C.

§ 714 and 38 U.S.C. § 7403(f)(3) conflicted, 38 U.S.C. § 714 “sufficiently

repeals” by implication the conflicting provisions of 38 U.S.C. § 7403(f)(3). PFR

File, Tab 1 at 24-25. In arguing that 38 U.S.C. § 714 “fully substitutes for”

5 U.S.C. chapter 75 when elected 4 and is more precise than 38 U.S.C. § 7403(f)

(3), the agency relies on Schmitt v. Department of Veterans Affairs, 2022 MSPB

We need not take a position on whether, as the agency asserts, 38 U.S.C. § 714 “fully

substitutes” for actions taken pursuant to 5 U.S.C. chapter 43 because that issue is not

before us in this matter.

40, ¶¶ 14, 16, in which the Board held that the VA Accountability Act contained

more specific language regarding interim relief and overcame the general interim

relief language in 5 U.S.C. § 7701(b)(2). PFR File, Tab 1 at 24-25. However, the

Board’s finding in Schmitt in the narrow context of the interim relief provision

does not mean that 38 U.S.C. § 714 is the more precisely drawn statute in the

context before us. Therefore, this argument is not persuasive.

The agency’s arguments on review regarding the legislative history

of 38 U.S.C. § 714 do not warrant a different outcome.

¶10 The Board, in its prior Opinion and Order, noted that the agency did not

identify any legislative history from the VA Accountability Act on the inclusion

of hybrid employees. Richardson, 2023 MSPB 1, ¶ 27. For the first time in its

petition for review, the agency cites to legislative history from the VA

Accountability Act, which it argues “explicitly stat[es] Congress’s intent to cover

title 38 hybrids.” PFR File, Tab 1 at 14-16. The agency also contends that the

Board, in its prior Opinion and Order, incorrectly dismissed the statements from

the Honorable David P. Roe regarding an unenacted House bill because the

statements were made in a committee report, which is an authoritative source.

PFR File, Tab 1 at 14 (citing Garcia v. United States, 469 U.S. 70, 76 (1984)).

Moreover, the agency asserts that the relevant language and Congressional intent

“remained consistent between the bills” and that legislative history related to

prior bills is valid evidence of Congressional intent if the language and

Congressional intent is consistent. Id.

¶11 The general rule is that Congressional committee reports may be highly

persuasive. Hanson v. Office of Personnel Management, 33 M.S.P.R. 581,

589-90, aff’d, 833 F.2d 1568 (Fed. Cir. 1987). Moreover, the unenacted House

bill stated that the “term ‘individual’ means an individual occupying a position at

the Department but does not include . . . an individual appointed pursuant to

section 7306, 7401(1), or 7405 of this title.” H.R. Rep. 115-34(I), at *28

(Mar. 10, 2017). Because the definition of the term “individual” in the unenacted

House bill is similar to the definition of “covered individual” in 38 U.S.C.

§ 714(h), the statements of Representative Roe, as discussed in Richardson,

2023 MSPB 1, ¶ 26, may be relevant. However, the U.S. Supreme Court and the

U.S. Court of Appeals for the Federal Circuit have advised that a tribunal should

be cautious in relying on the statements of a single legislator. See, e.g., Chrysler

Corp. v. Brown, 441 U.S. 281, 311 (1979) (“The remarks of a single legislator,

even the sponsor, are not controlling in analyzing the legislative history.”);

Groff v. United States, 493 F.3d 1343, 1354 (Fed. Cir. 2007) (same). Moreover,

taken as a whole, the portions of the legislative history of the VA Accountability

Act cited by the agency do not evince a clear and manifest congressional intent to

repeal 38 U.S.C. § 7403(f)(3). Richardson, 2023 MSPB 1, ¶¶ 26-27. Therefore, a

different outcome is not warranted.

The agency’s remaining arguments on review do not warrant a different

outcome.

¶12 We have considered the agency’s argument that its own interpretation of

38 U.S.C. § 714 is entitled to deference to the extent that it has the power to

persuade. PFR File, Tab 1 at 25-26. This argument is not persuasive. Indeed,

numerous decisions from the Federal Circuit have rejected the agency’s

interpretation of 38 U.S.C. § 714. See, e.g., Connor v. Department of Veterans

Affairs, 8 F.4th 1319, 1323-27 (Fed. Cir. 2021) (rejecting the agency’s argument

that 38 U.S.C. § 714 eliminated the requirement to review the factors under

Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981), in assessing

a proper penalty); Rodriguez v. Department of Veterans Affairs, 8 F.4th 1290,

1300 (Fed. Cir. 2021) (“There are strong reasons that [38 U.S.C. §] 714 should

not be interpreted [as the agency suggests] to endorse the use of substantial

evidence as a burden of proof.”); Sayers v. Department of Veterans Affairs,

954 F.3d 1370, 1377 (Fed. Cir. 2020) (“The government’s reading—allowing the

agency to remove an employee for the tiniest incident of misconduct so long as

the agency could present substantial evidence that the trifling misconduct

occurred—could ‘gut due process protections’ in a way Congress did not

intend.”). Accordingly, we conclude that the agency’s interpretation of 38 U.S.C.

§ 714 is not persuasive and is not entitled to deference. We have considered the

agency’s remaining arguments on review, but none persuade us that the Board

erred in its analysis or conclusion in the prior Opinion and Order.

We vacate the interim relief order, and we deny the appellant’s petition for

enforcement.

¶13 In its certification of compliance with the interim relief order, an agency

Lead Human Resources Specialist states in a declaration made under penalty of

perjury that the appellant was reappointed to the position of GS-05 Nursing

Assistant, effective March 8, 2023, and the agency provided all documentation to

the Defense Finance and Accounting Service (DFAS) to process her pay and

benefits. PFR File, Tab 1 at 29-30. The appellant’s petition for enforcement

acknowledges that she was returned to her Nursing Assistant position, but she

argues that no other relief, including “mak[e] . . . whole” relief, was provided to

her. PFR File, Tab 3 at 5.

¶14 In this matter, the administrative judge erred when he ordered interim relief

because such relief is precluded in actions taken under 38 U.S.C. § 714 until the

Federal Circuit issues a final decision. Schmitt, 2022 MSPB 40, ¶¶ 9-16

(discussing 38 U.S.C. § 714(d)(7)). We therefore vacate the initial decision in

this regard. However, an adjudicatory error that is not prejudicial to the

appellant’s substantive rights provides no basis for reversal of the initial decision .

Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984). Here, the

appellant is receiving a final Board order on the merits in her favor, and any issue

involving the agency’s compliance with an interim relief order is moot. Elder v.

Department of the Air Force, 124 M.S.P.R. 12, ¶ 20 (2016); Cowart v. U.S.

Postal Service, 117 M.S.P.R. 572, ¶ 6 n.* (2012). Accordingly, we deny the

appellant’s petition for enforcement.

ORDER

¶15 We ORDER the agency to cancel the removal action and retroactively

restore the appellant to her GS-05 Nursing Assistant position, effective

November 20, 2020. See Kerr v. National Endowment for the Arts, 726 F.2d 730

(Fed. Cir. 1984). The agency must complete this action no later than 20 days

after the date of this decision.

¶16 We also ORDER the agency to pay the appellant the correct amount of back

pay, interest on back pay, and other benefits under the Office of Personnel

Management’s regulations, no later than 60 calendar days after the date of this

decision. We ORDER the appellant to cooperate in good faith in the agency’s

efforts to calculate the amount of back pay, interest, and benefits due, and to

provide all necessary information the agency requests to help it carry out the

Board’s Order. If there is a dispute about the amount of back pay, interest due,

and/or other benefits, we ORDER the agency to pay the appellant the undisputed

amount no later than 60 calendar days after the date of this decision.

¶17 We further ORDER the agency to tell the appellant promptly in writing

when it believes it has fully carried out the Board’s Order and of the actions it has

taken to carry out the Board’s Order. The appellant, if not notified, should ask

the agency about its progress. See 5 C.F.R. § 1201.181(b).

¶18 No later than 30 days after the agency tells the appellant that it has fully

carried out the Board’s Order, the appellant may file a petition for enforcement

with the office that issued the initial decision on this appeal if the appellant

believes that the agency did not fully carry out the Board’s Order. The petition

should contain specific reasons why the appellant believes that the agency has not

fully carried out the Board’s Order and should include the dates and results of any

communications with the agency. 5 C.F.R. § 1201.182(a).

¶19 For agencies whose payroll is administered by either the National Finance

Center of the Department of Agriculture (NFC) or DFAS, two lists of the

information and documentation necessary to process payments and adjustments

resulting from a Board decision are attached. The agency is ORDERED to timely

provide DFAS or NFC with all documentation necessary to process payments and

adjustments resulting from the Board’s decision in accordance with the attached

lists so that payment can be made within the 60-day period set forth above.

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 forth 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

and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.

You must file your motion for attorney fees and costs with the office that issued

the initial decision on your appeal.

NOTICE OF APPEAL RIGHTS 5

The initial decision, as supplemented by this Final Order, constitutes the

Boards final decision in this matter. 5 C.F.R. § 1201.113. 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

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.

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:

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 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).

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.

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