Brian Zeitz v. Department of Veterans Affairs ( 2022 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BRIAN ZEITZ, DOCKET NUMBER
Appellant, CH-0752-19-0553-X-1
v.
DEPARTMENT OF VETERANS DATE: May 25, 2022
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Brian Zeitz, Hebron, Kentucky, pro se.
Demetrious A. Harris, Esquire and Kimberly Huhta, Esquire, Dayton, Ohio,
for the agency.
BEFORE
Raymond A. Limon, Vice Chair
Tristan L. Leavitt, Member
FINAL ORDER
¶1 In a January 19, 2021 compliance initial decision, the administrative judge
found the agency in partial noncompliance with the Board’s March 5, 2020 final
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
2
decision reversing the appellant’s constructive removal and ordering the agency
to retroactively restore him with back pay, including interest, and benefits. Zeitz
v. Department of Veterans Affairs, MSPB Docket No. CH-0752-19-0553-C-1,
Compliance File, Tab 14, Compliance Initial Decision (CID). For the reasons
discussed below, we find the agency in compliance and DISMISS the appellant’s
petition for enforcement.
DISCUSSION OF ARGUMENTS AND EVIDENCE ON COMPLIANCE
¶2 In the compliance initial decision, the administrative judge found the
agency in partial noncompliance with the Board’s final order to the extent it had
failed to pay the appellant the proper amount of back pay owed, with interes t.
CID at 4. Accordingly, the administrative judge granted the appellant’s petition
for enforcement and ordered the agency to: (1) pay the appellant his back pay,
with interest; and (2) provide the appellant with an explanation of the agency’s
updated back pay calculations. Id.¶3 The administrative judge informed the agency that, if it decided to take the
actions ordered in the compliance initial decision, it must submit to the Clerk of
the Board a narrative statement and evidence establishing compliance. CID
at 4-5. In addition, she informed both parties that they could file a petition for
review of the compliance initial decision if they disagreed with the findings
therein. CID at 5-6. Neither party filed any submission with the Clerk of the
Board within the time limit set forth in 5 C.F.R. § 1201.114. Accordingly,
pursuant to 5 C.F.R. § 1201.183(b)-(c), the administrative judge’s findings of
noncompliance became final, and the appellant’s petition for enforcement was
referred to the Board for a final decision on issues of compliance. Zeitz v.
Department of Veterans Affairs, MSPB Docket No. CH-0752-19-0553-X-1,
Compliance Referral File (CRF), Tab 1.
¶4 On February 24, 2021, the Board issued an acknowledgment order directing
the agency to submit, within 15 calendar days, evidence showing that it had
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complied with all actions identified in the compliance initial decisi on. CRF,
Tab 1 at 3. The acknowledgment order notified the appellant that he may respond
to any submission from the agency by filing written arguments with the Clerk of
the Board within 20 calendar days of the date of service of the agency’s
submission. Id. The agency filed a response on March 8, 2021, stating that it had
provided the Defense Finance and Accounting Service (DFAS) with the required
documentation that DFAS needed in order to take the actions identified in the
compliance initial decision. CRF, Tab 3 at 4-5. However, according to the
agency, DFAS had not yet taken these actions as DFAS needed to review the
appellant’s records to identify any overlap during the backpay period wherein the
appellant had started with his new employer, the Department of the Army. Id.
at 5, 15.
¶5 In a supplemental response filed on September 9, 2021, the agency
informed the Board that, through its coordination with DFAS, it had paid the
appellant $45,792.65 in gross back pay and $3,095.63 in back pay int erest, and
had also restored his leave balances, on or before September 9, 2021. CRF, Tab 4
at 3, 7, 21. As evidence of its compliance, the agency provided copies of the
appellant’s DFAS Pay Audit Report; DFAS Leave Audit Report; and Leave
Restoration Certificate. Id. at 4-23. The appellant did not respond to either the
agency’s March 8 or September 9, 2021 submissions. 2
¶6 On October 25, 2021, the Board issued an order directing the appellant to
submit, within 20 calendar days, a response to the agency’s compliance
submissions if he was still not satisfied with the agency’s compliance in this
matter. CRF, Tab 5 at 2. This order further cautioned the appellant that, if he did
not respond to the agency’s evidence of compliance within those 20 calendar
2
Prior to the agency’s submissions, the appellant responded to the acknowledgment
order on February 26, 2021, to state that the agency had not yet paid him his back pay.
CRF, Tab 2 at 4.
4
days, the Board “may assume that the appellant is satisfied and dismiss the
petition for enforcement.” Id. Again, the appellant did not respond.
ANALYSIS
¶7 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. An agency’s assertions of
compliance must include a clear explanation of its compliance actions supported
by documentary evidence. Vaughan v. Department of Agriculture, 116 M.S.P.R.
319, ¶ 5 (2011). 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).
¶8 Here, the agency has demonstrated that it has paid the appellant $45,792.65
in gross back pay and $3,095.63 in back pay interest, and has also restored his
leave balances. The appellant has not responded to either of the agency’s
compliance submissions, despite twice being notified of his opportunity to do so,
including having been cautioned that the Board may assume he is satisfied and
dismiss his petition for enforcement if he did not respond. CRF, Tab 5.
Accordingly, we assume that the appellant is satisfied with the agency’s
compliance. See Baumgartner v. Department of Housing & Urban Development,
111 M.S.P.R. 86, ¶ 9 (2009).
¶9 In light of the foregoing, we find that the agency is now in compliance and
dismiss the appellant’s 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).
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NOTICE OF APPEAL RIGHTS 3
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 a ppeal 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 thei r
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 appropria te 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:
3
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
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 obta in
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. ____ , 137 S. Ct. 1975 (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
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to waiver of any requirement of prepayment of fees, cos ts, 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
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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
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 particul ar
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.
4
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.
9
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.