Opinion

Shiju Philip v. Department of Homeland Security

Court: Merit Systems Protection Board
Filed: Apr 29, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.9%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

SHIJU PHILIP, DOCKET NUMBER

Appellant, NY-0752-21-0095-X-1

DEPARTMENT OF HOMELAND DATE: April 29, 2024

SECURITY,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Paul Bartels , Esquire, Garden City, New York, for the appellant.

Arthur K. Purcell , Esquire, and Keturah Carr , Esquire, New York, New

York, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

FINAL ORDER

In a March 16, 2023 compliance initial decision, the administrative judge

found the agency in partial noncompliance with the final decision in the

underlying appeal. Philip v. Department of Homeland Security, MSPB Docket

No. NY-0752-21-0095-C-1, Compliance File (CF), Tab 9, Compliance Initial

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

Decision (CID) at 3. For the reasons discussed below, we find the agency in

compliance and DISMISS the petition for enforcement.

DISCUSSION OF ARGUMENTS AND EVIDENCE ON COMPLIANCE

In an initial decision issued on February 25, 2022, the administrative judge

directed the agency to mitigate the appellant’s removal to a five-day suspension

without pay; provide the appellant with the appropriate amount of back pay and

interest on the back pay; and adjust the appellant’s benefits with appropriate

credits and deductions. Philip v. Department of Homeland Security , MSPB

Docket No. NY-0752-21-0095-I-1, Initial Appeal File, Tab 47, Initial Decision

at 8. 2

On June 22, 2022, the appellant filed a petition for enforcement,

contending that the agency had not provided him with back pay. CF, Tab 1 at 3.

On July 7, 2022, the agency provided evidence that it had deposited the back pay

into appellant’s bank account. CF, Tab 3 at 5. The appellant then argued, in part,

that the agency had not calculated his back pay correctly, because the appellant

should have been paid at the GS-12, Step 8 salary level after July 2021; and that

the agency had not restored all his sick leave. CF, Tab 5 at 3. In the compliance

initial decision, dated March 16, 2023, the administrative judge ordered the

agency to (1) review the appellant’s sick leave record and restore any sick leave

he lost as a result of the removal action and to which he remained entitled; and

(2) determine whether the appellant would have been granted a salary step

increase to GS-12, Step 8 in July 2021, and if so, provide him with the additional

funds he would have received if not for the removal action. CID at 3. 3

Neither party filed a petition for review of the initial decision, and it became the

Board’s final decision on March 31, 2022.

The compliance initial decision informed the agency that, if it decided to take the

actions required by the decision, it must submit to 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 has taken the actions identified in the compliance initial decision, along with

evidence establishing that it has taken those actions. CID at 10-11; see 5 C.F.R.

§ 1201.183(a)(6)(i). The compliance initial decision also informed the parties that they

On April 13, 2023, the agency filed a statement of compliance asserting it

had restored 1,304 total hours of sick leave to the appellant on July 18 and

October 20, 2022; and paid the appellant additional funds in the gross amount of

$2,812.56 for backpay, plus interest of $93.08, for his step increase to GS-12,

Step 8 on August 15, 2021. Philip v. Department of Homeland Security,

NY-0752-21-0095-X-1, Compliance Referral File (CRF), Tab 1 at 1-7. The

agency also submitted emails between the parties, dated March 16 and 17, 2023,

confirming that the appellant had received his back pay and restored sick leave.

Id. at 8.

On April 13, 2023, the Board issued an Acknowledgement Order noting the

agency’s filing and informing the appellant that he must file any response within

20 calendar days. CRF, Tab 2 at 2. The order specifically informed the appellant

that if he failed to file a response, the Board might assume he was satisfied and

dismiss the petition for enforcement. Id.

The appellant has not filed any response to the agency’s compliance

submission.

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 he 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).

could file a petition for review if they disagreed with the compliance initial decision.

CID at 11; see 5 C.F.R. §§ 1201.114(e), 1201.183(a)(6)(ii). Neither party petitioned for

review of the compliance initial decision.

Here, the agency filed evidence of compliance to which the appellant did

not respond, despite being apprised that the Board might construe lack of

response as satisfaction with the agency’s response. Accordingly, in light of the

appellant’s failure to respond, we find that the agency is now in full compliance

with the February 25, 2022 decision, 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 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 out 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

WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You

must file your attorney fees motion with the office that issued the initial decision

on your appeal.

NOTICE OF APPEAL RIGHTS 4

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

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.

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:

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. 5 The court of appeals must receive your petition for

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.

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