Opinion

Varnum Rebecca v. Department of the Air Force

Court: Merit Systems Protection Board
Filed: Apr 5, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.8%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

REBECCA E VARNUM, DOCKET NUMBER

Appellant, SF-0752-21-0418-A-1

DEPARTMENT OF THE AIR FORCE, DATE: April 5, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Charles H Allenberg , Esquire, Virginia Beach, Virginia, for the appellant.

Brent W. Peden , Carson City, Nevada, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

FINAL ORDER

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

denied her attorney fee petition relating to her petition for enforcement. For the

reasons discussed below, we GRANT the appellant’s petition for review,

REVERSE the addendum initial decision, and award the requested fees in the

amount of $7,800.

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

BACKGROUND

¶2 The appellant filed a Board appeal challenging a personnel action taken by

the Nevada National Guard. Varnum v. Department of the Air Force, MSPB

Docket No. SF-0752-21-0418-I-1, Initial Appeal File (IAF), Tab 1. The parties

settled the appeal and requested that the Board retain jurisdiction to enforce the

settlement agreement. IAF, Tab 16 at 4-6. The settlement agreement, signed on

September 30, 2021, provided, in pertinent part, that the agency would pay the

appellant $29,952 for lost wages. Id. at 5, ¶ 3.b. The agreement did not contain a

timeline for payment. Id. at 4-6. On October 4, 2021, the administrative judge

issued an initial decision that found that the settlement agreement was lawful on

its face, was freely entered into by the parties, and that the parties understood its

terms. IAF, Tab 17, Initial Decision. He entered the agreement into the record

for enforcement purposes and dismissed the appeal as settled. Id. Neither party

petitioned for review of the initial decision.

¶3 On March 11, 2022, the appellant filed a petition for enforcement, in which

she asserted that the agency had not paid her pursuant to the settlement

agreement. Varnum v. Department of the Air Force, MSPB Docket No. SF-0752-

21-0418-C-1, Compliance File (CF), Tab 1 at 4-6. The appellant received her

back pay during the pendency of the enforcement proceedings, in or around mid -

to late-April 2022. CF, Tab 15, Compliance Initial Decision (CID) at 3-4.

Accordingly, the administrative judge dismissed the appellant’s petition for

enforcement as moot. Id. at 2, 5.

¶4 Thereafter, the appellant filed a motion for attorney fees in connection with

her petition for enforcement. Varnum v. Department of the Air Force, MSPB

Docket No. SF-0752-21-0418-A-1, Attorney Fee File (AFF), Tab 1. After

affording the parties the opportunity to submit evidence and argument concerning

the appellant’s motion and considering their submissions, AFF, Tabs 2-7, the

administrative judge issued an addendum initial decision denying the appellant’s

request for attorney fees. AFF, Tab 8, Addendum Initial Decision (AID). The

appellant has filed a petition for review and the agency has filed a response.

Varnum v. Department of the Air Force, MSPB Docket No. SF-0752-21-0418-A-

1, Petition for Review (A-1 PFR) File, Tabs 1, 3.

DISCUSSION OF ARGUMENTS ON REVIEW

¶5 To prevail on a motion for attorney fees arising out of a petition for

enforcement, an appellant must prove the following: (1) an attorney-client

relationship existed and fees were incurred; (2) she is the prevailing party; (3) an

award of fees is warranted in the interest of justice; and (4) the fees are

reasonable. Shelton v. Environmental Protection Agency, 115 M.S.P.R. 177, ¶ 12

(2010); see 5 U.S.C. § 7701(g)(1). In order to show that she is the prevailing

party in the compliance phase of the proceedings, an appellant must establish that

the agency materially breached the settlement agreement at issue. Shelton. 115

M.S.P.R. 177, ¶ 12. In cases where the agency complies with the settlement

agreement during the pendency of the petition for enforcement, the appellant is

not required to establish that the agency’s eventual compliance was causally

related to her petition for enforcement in order to establish that she is the

prevailing party. Garstkiewicz v. U.S. Postal Service, 981 F.2d 528, 530 (Fed.

Cir. 1992). Although the appellant bears the ultimate burden of proving the

agency’s noncompliance, the agency bears the burden of producing relevant,

material, and credible evidence of its compliance. Shelton. 115 M.S.P.R. 177,

¶ 12. If a settlement agreement sets no time for performance, a reasonable time

under the circumstances will be presumed. Id.

¶6 As discussed in the addendum initial decision, the agency did not dispute

the requested fees or hourly rates, or that the fees were incurred as part of an

attorney-client relationship. AID at 3. We find that the itemized charges and the

hourly rates are reasonable on their face, and we therefore find that the appellant

has proved elements 1 and 4.

The appellant was the prevailing party.

¶7 In this case, the agency came into compliance with the settlement agreement

during the pendency of the enforcement proceedings. CID at 3-4. The

administrative judge found that the appellant was not the prevailing party because

she did not demonstrate a causal link between her petition for enforcement and

the ultimate recovery. AID at 4. However, the Federal Circuit held in

Garstkiewicz, 981 F.2d at 530, that an appellant is not required to establish that

the agency’s eventual compliance was causally related to her petition for

enforcement. See Shelton, 115 M.S.P.R. 177, ¶ 12. Rather, when the settlement

agreement is silent as to the date by which payment must be made, the ultimate

inquiry is whether the agency made payment within a reasonable time under the

circumstances. Id. We find that a 7-month delay in the agency’s compliance with

a significant provision of the agreement is unreasonable under the circumstances.

See, e.g., Del Balzo v. Department of the Interior, 72 M.S.P.R. 55, 60 (1996)

(finding a 3- to 4-month delay in complying with the terms of a settlement

agreement to be unreasonable), overruled on other grounds by Shelton,

115 M.S.P.R. 177, ¶ 8. Although the agency has asserted that any delay was

caused by the Defense Finance and Accounting Service (DFAS) and that it

diligently followed up with DFAS to ensure payment was made, we have

reviewed the record and we find that the agency bears some responsibility for the

delayed payment. The record reflects that the agency delayed until November 23

and November 28, 2021 before submitting the necessary documents for

processing payment to DFAS. CF, Tab 3 at 4-15. In any event, the Board has

held in prior cases that the agency is liable for DFAS’s delay because the agency

chose to use DFAS as its paying agent. 2 AFF, Tab 7; see Tichenor v. Department

of the Army, 84 M.S.P.R. 386, ¶ 8 (1999). We therefore find that the appellant is

the prevailing party.

On review, the appellant asserts that the agency’s response to her fee petition was

untimely and should not be considered. A-1 PFR File, Tab 1 at 7-9. Even considering

the agency’s arguments, we find that the initial decision must be reversed.

An award of attorney fees is warranted in the interest of justice.

¶8 When a settlement agreement implicitly provides that an agency must

perform its obligations within a reasonable period of time, and the agency delays

its compliance beyond a reasonable period of time, an award of attorney fees is

warranted in the interest of justice. Capehart v. U.S. Postal Service, 83 M.S.P.R.

385, ¶ 6 (1999), overruled on other grounds by Shelton, 115 M.S.P.R. 177, ¶ 8;

Del Balzo, 72 M.S.P.R. at 62. Because we find that a delay of 7 months to pay

back pay was unreasonable under the circumstances, we find that the interest of

justice is served by an award of attorney fees. SeeCapehart, 83 M.S.P.R. 385,

¶ 6; Del Balzo, 72 M.S.P.R. at 62.

ORDER

¶9 We ORDER the agency to pay the attorney of record $7,800 in fees. The

agency must complete this action no later than 20 days after the date of this

decision. Title 5 of the United States Code, section 1204(a)(2) (5 U.S.C.

§ 1204(a)(2)).

¶10 We also ORDER the agency to tell the appellant and the attorney promptly

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

actions it took to carry out the Board’s Order. We ORDER the appellant and the

attorney to provide all necessary information that the agency requests to help it

carry out the Board’s Order. The appellant and the attorney, if not notified,

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

¶11 No later than 30 days after the agency tells the appellant or the attorney that

it has fully carried out the Board’s Order, the appellant or the attorney may file a

petition for enforcement with the office that issued the initial decision on this

appeal, if the appellant or attorney believes that the agency did not fully carry out

the Board’s Order. The petition should contain specific reasons why the

appellant or the attorney believes the agency has not fully carried out the Board’s

Order, and should include the dates and results of any communications with the

agency. See 5 C.F.R. § 1201.182(a).

NOTICE OF APPEAL RIGHTS 3

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

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).

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.

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. 4 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