NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-3310
DEONNE R. NEW,
Petitioner,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
Deonne R. New, of Philadelphia, Pennsylvania, pro se.
Scott Slater, Trial Attorney, Commercial Litigation Branch, Civil Division, United
States Department of Justice, of Washington, DC, for respondent. With him on the brief
were Jeffrey S. Bucholtz, Acting Assistant Attorney General, Jeanne E. Davidson,
Director, and Todd M. Hughes, Assistant Director.
Appealed from: Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-3310
DEONNE R. NEW,
Petitioner,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
Petition for review of the Merit Systems Protection Board in PH-0353-95-0695-X-1.
___________________________
DECIDED: September 25, 2008
___________________________
Before RADER, CLEVENGER, and DYK, Circuit Judges.
PER CURIAM.
Deonne R. New (“New”) petitions for review of a final decision of the Merit
Systems Protection Board (“Board”). The Board dismissed her petition for enforcement
of the Board’s July 11, 2005, order, New v. Dep’t of Veterans Affairs, 106 M.S.P.R. 217
(M.S.P.B. 2007). We affirm.
BACKGROUND
New began working as a secretary for the Department of Veterans Affairs (“the
agency”) in 1983 and, after a traumatic back injury, intermittently received Office of
Workers’ Compensation Programs benefits. In February 1988, the agency removed
New for poor overall attendance and subsequently denied her February 15, 1991,
request for restoration. Several years of administrative proceedings and litigation
followed. On July 11, 2005, the Board found that New was entitled to priority
consideration for restoration retroactive to February 15, 1991 (the date she requested
restoration to her former position following her full recovery from her compensable
injury). New v. Dep’t of Veterans Affairs, 99 M.S.P.R. 404 (M.S.P.B. 2005). The Board
also ordered the agency to pay New back pay and benefits as appropriate.
On November 15, 2005, New filed a petition for enforcement with the Board
alleging that she had not received the full back pay and benefits to which she was
entitled, including retroactive promotions that she would have earned and
reimbursement for educational expenses. On June 21, 2006, the Administrative Judge
(“AJ”) issued a decision granting in part and denying in part New’s petition. The AJ
found that the agency had appointed New (retroactive to February 15, 1991) to a newly-
created GS-3 position comparable to her former position, paid her back pay with interest
of $330,940.80, made appropriate deductions for taxes and benefits, and restored her
leave balances. The AJ identified additional steps required for the agency to be in full
compliance with the relief ordered by the Board. However, in three respects the AJ held
that New was not entitled to additional relief: (1) the AJ held that New was not entitled to
certain educational expenses; (2) the AJ held that New was not entitled to promotions
during the period between her 1991 request for restoration and her actual restoration in
2005; and (3) the AJ declined to consider New’s claim that she was not absent without
leave, a predicate for the eventual agency action removing her after her restoration.
The AJ noted that New accepted the newly-created position and began work on
August 15, 2005, but, according to the agency, worked a total of ten hours before
becoming absent without leave on August 17 and was eventually discharged. New
2007-3310 2
challenged that she was absent without leave. The AJ ruled that the matter was beyond
the scope of the enforcement proceeding.
On July 10 and 14, 2006, the agency submitted evidence that it had implemented
each of the requirements of the AJ’s decision. New then petitioned the Board for review
of the AJ’s decision, raising additional contentions concerning her back pay calculation.
Finding that the agency had complied with the Board’s July 11, 2005 order by
correcting the deficiencies noted in the AJ’s decision, on June 28, 2007, the Board
dismissed New’s petition for enforcement. New, 106 M.S.P.R. 217 at ¶11. New timely
petitioned for review.
DISCUSSION
The scope of our review of a Board decision is limited. We must affirm the
Board's decision unless it was “(1) arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law; (2) obtained without procedures required by law,
rule, or regulation having been followed; or (3) unsupported by substantial evidence.” 5
U.S.C. § 7703(c); Lary v. U.S. Postal Serv., 472 F.3d 1363, 1366-67 (Fed. Cir. 2006).
On review, New asserts that the Board erred by declining to consider her
arguments concerning her removal for her alleged absence without leave from the
agency beginning August 17, 2005. New claims that the Board’s order restored her
leave and that she was not absent without leave because she was using that restored
leave, or, alternatively, leave to which she was entitled under the Family and Medical
Leave Act. We see no error in the Board’s determination that New’s claims with respect
to her right to use leave are beyond the scope of this compliance proceeding.
2007-3310 3
In addition, New asserts that in the period between her request for restoration in
1991 and her actual restoration in 2005 she would have been promoted to higher grade
positions. Under governing law, New was only entitled to automatic career ladder
promotions during the period in question and those that she clearly established that she
would have obtained. We find no basis to disturb the Board’s determination that New
has not established any entitlement to additional promotions under this standard in the
1991-2005 period. See Rickels v. Dep’t of Treasury, 42 M.S.P.R. 596, 602 (M.S.P.B.
1989). We also see no error in the Board’s determination that the agency was not
required to further promote New before 1991.
New additionally contends that that the Board erred in rejecting her claim for
personal educational expenses incurred while earning a paralegal certificate and two
degrees after 1991. As the Board noted, New cites no law, rule, or regulation under
which such reimbursement could be ordered by the Board. Although New asserts that
she should have been reimbursed for these expenses under the agency’s employee
training and development program, see 5 C.F.R. §§ 410.101 to 410.405, New’s
contention that she would have been selected for that limited program is entirely
speculative.
Finally, New contends that the full Board erroneously rejected her claim for
additional back pay. We see no error in the Board’s decision. We have considered
New’s additional arguments and conclude that they either were not properly raised
before the Board or are without merit. The decision of the Board is affirmed.
COSTS
2007-3310 4
No costs.
2007-3310 5