Opinion

Jackie Harris v. Office of Personnel Management

Court: Merit Systems Protection Board
Filed: Apr 26, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.9%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JACKIE L. HARRIS, DOCKET NUMBER

Appellant, DA-0845-22-0101-X-1

OFFICE OF PERSONNEL DATE: April 26, 2024

MANAGEMENT,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Jackie L. Harris , DeKalb, Texas, pro se.

Kevin Beach , Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

FINAL ORDER

In an August 18, 2022 compliance initial decision, the administrative judge

found the agency noncompliant with the April 6, 2022 initial decision reversing

the reconsideration decision of the Office of Personnel Management (OPM) and

ordering appropriate relief. Harris v. Office of Personnel Management, MSPB

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

Docket No. DA-0845-22-0101-C-1, Compliance File, Tab 3, Compliance Initial

Decision (CID); Harris v. Office of Personnel Management, MSPB Docket No.

DA-0845-22-0101-I-1, Tab 12, Initial Decision (ID). For the reasons discussed

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

enforcement.

DISCUSSION OF ARGUMENTS AND EVIDENCE ON COMPLIANCE

On April 6, 2022, the administrative judge issued an initial decision

reversing OPM’s reconsideration decision and ordering OPM to halt collection of

the overpayment it had sought from the appellant and to refund to the appellant

any amounts it had deducted from her annuity to satisfy the overpayment. ID

at 3-4. Following the appellant’s petition for enforcement of this order, the

administrative judge issued a compliance initial decision on August 18, 2022,

finding OPM noncompliant because it had failed to respond to the petition for

enforcement. CID at 2. The administrative judge ordered OPM to submit

evidence showing that it had stopped the overpayment and had refunded

appropriate amounts to the appellant’s annuity. CID at 3.

In the compliance initial decision, the administrative judge informed OPM

that, if it decided to take the actions required by the decision, it must submit to

the Office of the Clerk of the Board, within the time limit for filing a petition for

review under 5 C.F.R. § 1201.114(e), a statement that it had taken the actions

identified in the compliance initial decision, along with evidence establishing that

it has taken those actions. CID at 5-6; 5 C.F.R. § 1201.183(a)(6)(i). She also

informed the parties of their option to request Board review of the compliance

initial decision by filing a petition for review by January 24, 2023, the date on

which the findings of noncompliance would become final unless a petition for

review was filed. CID at 3-4; see 5 C.F.R. §§ 1201.114(e), 1201.183(a)(6)(ii),

1201.183(b). Neither party filed a petition for review. Accordingly, pursuant to

5 C.F.R. § 1201.183(b)-(c), the administrative judge’s findings of noncompliance

became final.

On August 31, 2022, OPM filed a statement of compliance asserting that it

had taken the actions ordered and providing a copy of a letter it had sent to the

appellant so informing her. Harris v. Office of Personnel Management, MSPB

Docket No. DA-0845-22-0101-X-1, Compliance Referral File (CRF), Tab 1 at 4.

The Clerk’s Office issued an acknowledgement order notifying the appellant of

her right to respond to OPM’s submission. CRF, Tab 2 at 2. On April 6, 2023,

the appellant filed a statement asserting that OPM had taken the actions ordered

by the administrative judge and that she was satisfied with the outcome. CRF,

Tab 4 at 3.

When the Board finds a personnel action unwarranted or not sustainable, it

orders that the appellant be placed, as nearly as possible, in the situation she

would have been in had the wrongful personnel action not occurred. House v.

Department of the Army, 98 M.S.P.R. 530, ¶ 9 (2005). The agency bears the

burden to prove its compliance with a Board order. Vaughan v. Department of

Agriculture, 116 M.S.P.R. 319, ¶ 5 (2011). An agency’s assertions of compliance

must include a clear explanation of its compliance actions supported by

documentary evidence. Id. The appellant may rebut the agency’s evidence of

compliance by making “specific, nonconclusory, and supported assertions of

continued noncompliance.” Brown v. Office of Personnel Management,

113 M.S.P.R. 325, ¶ 5 (2010).

Here, OPM has submitted a statement of compliance, and the appellant has

affirmatively stated that she is satisfied that OPM has complied. Accordingly, we

find OPM in compliance and dismiss 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)).

NOTICE OF APPEAL RIGHTS 2

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).

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:

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.

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. 3 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