NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-3270
JERRY W. WILLIAMS,
Petitioner,
v.
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT,
Respondent.
Jerry W. Williams, of Missouri City, Texas, pro se.
Michael N. O’Connell, Trial Attorney, Commercial Litigation Branch, Civil
Division, United States Department of Justice, of Washington, DC, for respondent.
With him on the brief were Jeanne E. Davidson, Director, and Mark A. Melnick,
Assistant Director.
Appealed from: Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-3270
JERRY W. WILLIAMS,
Petitioner,
v.
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT,
Respondent.
Petition for review of the Merit Systems Protection Board in DA0752010446-C-2.
__________________________
DECIDED: February 13, 2008
__________________________
Before NEWMAN, SCHALL, and MOORE, Circuit Judges.
PER CURIAM.
Petitioner Jerry Wernard Williams, pro se, appeals the decision of the Merit Systems
Protection Board, which denied his second petition for enforcement of the Board's order of
June 26, 2002. Williams v. Dep't of Housing & Urban Dev., No. DA-0752-01-0446-C-2
(M.S.P.B. May 4, 2007). Mr. Williams also challenges earlier rulings with respect to his
applications for attorney fees and costs and for consequential and compensatory damages.
We affirm the Board's decision.
BACKGROUND
Mr. Williams was employed by the United States Department of Housing and Urban
Development ("HUD") as a Community Planning and Development Specialist, in Beaumont,
Texas. On April 20, 2000 a federal grand jury indicted him on fourteen counts of making
false travel voucher claims in violation of 18 U.S.C. '1001. Following the indictment, HUD
indefinitely suspended Mr. Williams without pay, effective May 17, 2000, and on January 8,
2001 a jury convicted him on all counts of the indictment. HUD then removed him from
service, effective October 12, 2001.
Mr. Williams has brought a series of petitions related to these events, with varying
success. First, he challenged the indefinite suspension following his indictment. The Board
found that HUD did not terminate the suspension within a reasonable time after his
conviction, and by order dated June 26, 2002 the Board directed HUD to terminate the
indefinite suspension retrospectively as of January 28, 2001, and to reinstate Mr. Williams
as of that date with back pay, interest, and appropriate benefits. Mr. Williams did not
appeal that order. On November 6, 2003, he filed a petition for enforcement, stating that
HUD had not complied with the June 26, 2002 order. The Board found that Mr. Williams
had advised the administrative judge in a January 12, 2004 telephone conference that the
agency had complied with the order, and that the petition was therefore moot; this decision
became final on February 20, 2004 and was not appealed.
On April 19, 2004 Mr. Williams filed a motion at the Board for litigation costs and
expenses and for consequential and compensatory damages relating to the Board's review
2007-3270 2
of his indefinite suspension. The Board treated the motion as one for attorney fees
pursuant to 5 U.S.C. '7701(g), and denied the motion; this court dismissed Mr. Williams'
petition on appeal as untimely filed. Williams v. Merit Systems Protection Bd., 117 Fed.
Appx. 734 (Fed. Cir. 2004). A separate Board decision denied the motion for consequential
and compensatory damages, and this court similarly dismissed a petition on appeal as
untimely filed. Williams v. Merit Systems Protection Bd., 117 Fed. Appx. 109 (Fed. Cir.
2004).
Meanwhile, on January 21, 2004 Mr. Williams had filed an appeal with the Board,
challenging HUD's action of removing him from employment as of October 12, 2001, after
his conviction. The Board dismissed that appeal as untimely, but this court reversed and
remanded, finding that the notice that HUD had provided Mr. Williams was "materially
flawed" because it did not properly inform him of his appeal rights. Williams v. Merit
Systems Protection Bd., 176 Fed. Appx. 136, 137, 140 (Fed. Cir. 2006). On remand, the
Board affirmed HUD's removal of Mr. Williams. On August 23, 2007, Mr. Williams filed a
complaint seeking judicial review of that decision in the District Court for the Southern
District of Texas, Williams v. Jackson, Case No. 4:07-cv-02764, which remains pending.
These issues are not before us.
On August 11, 2006, Mr. Williams filed a second petition for enforcement with the
Board, directed to the Board's June 26, 2002 order. The administrative judge issued an
order to show cause advising Mr. Williams that the second petition would be dismissed
unless he identified an act of noncompliance that occurred after his January 12, 2004
statement that HUD was then in compliance with the June 26, 2002 order. Mr. Williams
responded that HUD had complied through his October 12, 2001 removal date, but that the
2007-3270 3
Federal Circuit's remand of the Board's decision on the removal action called into question
whether his removal constituted further non-compliance. On September 22, 2006, following
a telephonic status conference held on that date, the administrative judge issued a
Summary of Status Conference and Notice of Dismissal stating that during the conference,
she informed Mr. Williams that she intended to dismiss the petition because he had failed to
identify any act of noncompliance that occurred after January 12, 2004. Mr. Williams filed a
written objection on September 27, 2006, after which the administrative judge denied the
petition, and the full Board denied review. Mr. Williams appeals from this decision.
DISCUSSION
A decision of the Board must be affirmed unless it is (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); Cheeseman v. Office of Pers. Mgmt., 791 F.3d
138, 140 (Fed. Cir. 1986).
The only issue before us is the denial of the second petition for enforcement. Mr.
Williams argues that HUD violated the June 26, 2002 order by removing him from his
position rather than reinstating him, resulting in a "continuing non-compliance." He points
out that the removal action is still under judicial review, and he states that he should have
been reinstated after the June 26, 2002 order, pending final decision on his removal.
The June 26, 2002 order related to his indefinite suspension, and the Board granted
relief because the suspension continued too long after HUD knew of his conviction. The
June 26, 2002 order did not prohibit HUD from taking the removal action. Mr. Williams
appealed his removal to the Board, and after a remand the Board affirmed HUD's action.
2007-3270 4
This Board decision was appealed to the Southern District of Texas; it is not properly
brought to us as an act of non-compliance with the June 26, 2002 order.
On January 12, 2004, Mr. Williams told the administrative judge that HUD was in
compliance. Thus the AJ did not err in limiting the inquiry to any asserted non-compliance
after January 12, 2004. Reversible error has not been shown in the Board's decision
denying Mr. Williams' second petition for enforcement, on the Board's finding that Mr.
Williams had "failed to allege that the agency took, or failed to take, any action on or after
January 12, 2004 which resulted in non-compliance with the Board's Order dated June 26,
2002."
Mr. Williams also states that the Board erred in denying his request for fees, costs
and legal expenses, and for damages. To the extent that he may be referring to the earlier
decisions denying his motions for attorney fees and for damages, these decisions have
already been reviewed, see Williams, 117 Fed. Appx. 109; Williams, 117 Fed. Appx. 734,
and their denial is res judicata. As to the Board's May 4, 2007 decision, which concerned
Mr. Williams's second petition for enforcement, he was not a prevailing party and thus does
not meet a threshold requirement for attorney fees. See 5 U.S.C. '7701(g) (providing for
payment of reasonable attorney fees to a prevailing employee when warranted in the
interest of justice).
No costs.
2007-3270 5