UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LYNIECE M. FULLER, DOCKET NUMBER
Appellant, PH-0432-12-0006-C-5
v.
DEPARTMENT OF VETERANS DATE: August 9, 2022
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Lyniece M. Fuller, Erie, Pennsylvania, pro se.
Marcus S. Graham, Esquire, Pittsburgh, Pennsylvania, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the August 10, 2016
compliance initial decision, which denied her petition for enforcement of the
Board’s 2012 final decision that ordered the agency to cancel her removal and to
pay her back pay, interest, and other benefits. Generally, we grant petitions such
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
as this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that t he petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. For t he reasons discussed
below, we AFFIRM the administrative judge’s finding that the agency complied
with the Board’s 2012 final decision regarding the relocation incentive. We
MODIFY the compliance initial decision and VACATE the administrative judge’s
findings regarding the appellant’s retaliation claims. Except as expressly
modified in this Final Order, the compliance initial decision is the Board’s final
decision.
BACKGROUND
¶2 In September 2011, the appellant filed a Board appeal challenging her
removal from her Contract Specialist position. Fuller v. Department of Veterans
Affairs, MSPB Docket No. PH-0432-12-0006-I-1, Initial Decision (ID) at 1-2
(Aug. 21, 2012). On August 21, 2012, an administrative judge issued an initial
decision ordering the agency to reverse the removal action and to retroactively
restore the appellant to her prior position, effective September 8, 2011, with back
pay, interest, and benefits. ID at 1, 28-29. The initial decision became the
Board’s final decision on September 25, 2012, when neither party filed a petition
for review. ID at 30.
3
¶3 The appellant has since filed multiple petitions for enforcement. In
March 2014, the administrative judge dismissed as settled a petition for
enforcement alleging that the agency retaliated against her for filing a prior Board
appeal. Fuller v. Department of Veterans Affairs, MSPB Docket No. PH-0432-
12-0006-C-4, Initial Decision at 1-2 (Mar. 18, 2014). In August 2014, the Board,
in addressing a different petition for enforcement, found that the agency was in
compliance regarding the payment of back pay, interest, and benefits. Fuller v.
Department of Veterans Affairs, MSPB Docket Nos. PH-0432-12-0006-C-3,
PH-0432-12-0006-X-1, Final Order (C-3 Final Order), ¶¶ 1-4, 14-15 (Aug. 19,
2014).
¶4 The appellant filed the instant petition for enforcement on April 12, 2016,
more than 3½ years after the Board’s 2012 final decision in the merits appeal, and
approximately 20 months after the Board found the agency in compliance in the
C-3 matter. Fuller v. Department of Veterans Affairs, MSPB Docket No.
PH-0432-12-0006-C-5, Compliance File (CF), Tab 1. In this petition for
enforcement, the appellant claimed that the agency failed to pay her a $330.72
relocation incentive. Id. at 7. In addition, she alleged that, from 2013 to 2016,
the agency took numerous other actions against her in retaliation for appealing
her removal to the Board and other protected activity. Id. at 7-13. The appellant
submitted approximately 300 pages of emails and other documentation to support
her allegations of retaliation. Id. at 15-327.
¶5 In response to the appellant’s petition for enforcement, the agency noted
that the Board already had found the agency in full compliance in August 2014 ,
and that the appellant was now raising new allegations of noncompliance more
than 18 months later. CF, Tab 4 at 4. The agency further argued that only one of
the supervisors whom the appellant accused of retaliation had knowledge of her
prior Board appeal and that no reasonable person could con clude that there was a
nexus between the alleged retaliation and the agency’s actions. Id. at 4-5. In
addition, the agency submitted declarations of five of the appellant’s current and
4
previous supervisors. Id. at 20-23, 37-40. The appellant replied and submitted
additional documentation. CF, Tab 8.
¶6 Based on the written record, the administrative judge issued a compliance
initial decision denying the appellant’s petition for enforcement. CF, Tab 9,
Compliance Initial Decision (CID) at 1, 12. Specif ically, he found that the
agency satisfied its obligations to pay the appellant all of the back pay and
benefits as required in the Board’s 2012 final decision. CID at 8 -9. He further
found that the appellant failed to establish her claim that the agency retaliated
against her for filing a Board appeal. CID at 8 -12.
¶7 The appellant has filed a petition for review of the compliance initial
decision. Compliance Petition for Review (CPFR) File, Tab 1. The agency has
filed a response, CPFR File, Tab 3, to which the appellant has replied, CPFR File,
Tab 4.
DISCUSSION OF ARGUMENTS ON REVIEW
We affirm the administrative judge’s finding that the agency is in compliance
with the Board’s 2012 final order regarding the payment of a relocation incentive.
¶8 When the Board finds that an appellant has been subjected to an
unwarranted personnel action, it orders that she be placed, as nearly as possible,
in the situation she would have been in had the personnel action not occurred,
i.e., status quo ante. Kerr v. National Endowment for the Arts, 726 F.2d 730, 733
(Fed. Cir. 1984); Vaughan v. Department of Agriculture, 116 M.S.P.R. 319, ¶ 5
(2011). The agency bears the burden of proving compliance with the Board’s
order by a preponderance of the evidence. Vaughan, 116 M.S.P.R. 319, ¶ 5;
5 C.F.R. § 1201.183(d). The agency’s assertions of compliance must i nclude a
clear explanation of its compliance actions supported by documentary evidence.
Vaughan, 116 M.S.P.R. 319, ¶ 5; Walker v. Department of the Army, 90 M.S.P.R.
136, ¶ 13 (2001). The appellant may rebut the agency’s evidence of compliance
by making specific, nonconclusory, and supported assertions of continued
noncompliance. Vaughan, 116 M.S.P.R. 319, ¶ 5.
5
¶9 As mentioned above, the appellant alleged that the agency failed to pay her
a $330.72 relocation incentive that it had deducted. CF, Tab 1 at 7. The
administrative judge noted that the Board previously found in an August 2014
final order that the agency was in compliance regarding back pay issues,
including the relocation expenses that the appellant was owed. CID at 8; see C-3
Final Order, ¶¶ 1-4, 8, 14-15. The administrative judge found in this matter that
the appellant failed to articulate whether the agency deducted the reloca tion
incentive after the Board issued its 2014 final order in the earlier compliance
matter, which would be a new issue, and she failed to submit any evidence to
support her assertion that such a deduction was taken. CID at 8. Thus, the
administrative judge concluded that the agency had satisfied its obligation to pay
the appellant back pay and benefits. CID at 8-9.
¶10 The appellant has failed to clarify on review whether the alleged deduction
occurred after the Board issued its 2014 final order finding compliance. CPFR
File, Tab 1 at 6, 9. Although she argues that she submitted supporting evidence
below, id. at 9, none of her documentation supports her assertion that the agency
deducted a relocation incentive following the Board’s 2014 final order. We find
that, because the appellant has failed to make specific, nonconclusory, and
supported allegations concerning her claim, she fails to provide a basis to disturb
the administrative judge’s finding of compliance. See Vaughan, 116 M.S.P.R.
319, ¶ 5.
We modify the initial decision and vacate the administrative judge’s analysis of
the appellant’s retaliation claims because they do not relate to status quo ante
relief.
¶11 The appellant also alleged that, following the September 2012 final decision
in the removal appeal, the agency retaliated against her from 2013 to 2016 for
filing her Board appeal and other protected activity. CF, Tab 1 at 6-13. The
administrative judge cited to Kerr, 726 F.2d at 733, and Gaydon v. U.S. Postal
Service, 37 M.S.P.R. 276, 278-79 (1988), for the following proposition: an
6
employee who is being retaliated against for having filed a Board appeal of an
agency action that the Board orders canceled has not been returned to the status
quo ante because she is not where she would have been if the age ncy had not
taken the action. CID at 3; see Williams v. Department of the Navy, 79 M.S.P.R.
364, 367 (1998). Further, he analyzed the appellant’s retaliation claims under the
general reprisal standard described in Rockwell v. Department of Commerce,
39 M.S.P.R. 217, 222 (1988). CID at 3-4; see Warren v. Department of the Army,
804 F.2d 654, 656-58 (Fed. Cir. 1986) (establishing the general reprisal standard
that was described in Rockwell), superseded in part by statute as stated in
Alarid v. Department of the Army, 122 M.S.P.R. 600, ¶ 15 (2015). The
administrative judge concluded that the appellant failed to establish retaliation
under this standard because, among other things, there was no nexus between the
alleged retaliatory actions and her Board appeal. CID at 8 -12.
¶12 Based on our review of Kerr, Gaydon, and the appellant’s description of her
retaliation allegations, we do not believe that it is appropriate to consider these
retaliation allegations in this compliance matter. In Gaydon, 37 M.S.P.R. at 279,
the Board cited to Kerr to support the proposition that it has the authority to
examine an employee’s retaliation claims in a compliance case stemming from a
final Board decision. In Kerr, 726 F.2d at 733, our reviewing court discussed the
Board’s broad enforcement authority, which included a “substantive assessment”
of whether an employee has been given status quo ante relief. As noted by the
administrative judge, the Board in Gaydon explained its rationale for considering
retaliation claims in the context of a compliance matter, that is, an employee who
is being retaliated against for having filed a Board appeal has not been restored to
the status quo ante. Gaydon, 37 M.S.P.R. at 279. Importantly, Gaydon has not
been reversed or overruled. We do not read Gaydon to authorize the Board to
consider any and all retaliation claims raised in a petition for enforcement.
Rather, consistent with our reading of Gaydon and Kerr, in order to address the
7
appellant’s retaliation claims in the context of this compliance matter, those
claims must relate to status quo ante relief.
¶13 We now turn to the appellant’s retaliation claims. The appellant raised
approximately fourteen allegations of whistleblower reprisal, including, among
other things, a hostile work environment, an October 1, 201 4 reassignment, issues
regarding her fiscal year 2015 performance appraisal, a January 26, 2016 Letter
of Counseling, a March 9, 2016 Letter of Reprimand, an April 8, 2016 proposed
7-day suspension, and a denial of various opportunities. CF, Tab 1 at 7 -13,
247-49, 297, 299-301. Based on our close review of these allegations, we
conclude that none of these allegations are related to the Board’s 2012 final order
of status quo ante relief. 2 Accordingly, because the appellant’s retaliation
allegations are not related to status quo ante relief, we do not consider them in the
context of this enforcement matter, and we vacate the administrative judge’s
analysis of these allegations in the compliance initial decision. 3
2
Under the unique circumstances of this case, we have also considered whether any of
the appellant’s retaliation allegations related to the Board’s 2014 determination in the
C-3 matter that the agency complied with the 2012 final decision in the merits appeal
regarding back pay issues, and we likewise conclude that these retaliation allegations
are not related to those findings. Significantly, the Letter of Counseling, Letter of
Reprimand, and proposed suspension were issued more than 3 years after the Board’s
2012 final decision in the merits appeal and more than 17 months after the Board’s
2014 finding of agency compliance regarding back pay issues. Such a lengthy delay
does not support a finding that these allegations are related to status quo ante relief.
Moreover, the Board has held that an agency is not precluded from taking legitimate
personnel actions after the Board reverses an appealable action as long as a valid reason
exists for the later actions. Conaway v. U.S. Postal Service, 93 M.S.P.R. 6, ¶ 13
(2002). Because we do not consider these retaliation claims in this compliance matter,
we need not decide herein if the agency had valid reasons for t aking the later actions.
3
Because the appellant raised an affirmative defense of whistleblower reprisal in the
underlying removal appeal, her claims of retaliation based on her prior Board appeal
fall under 5 U.S.C. § 2302(b)(9)(A)(i). ID at 26-28; see Clay v. Department of the
Army, 123 M.S.P.R. 245, ¶ 10 (2016). The appellant also identified 5 U.S.C.
§ 2302(b)(9)(D) to support some of her other retaliation claims. CF, Tab 1 at 8-11, 13.
Together, these retaliation claims should be analyzed under 5 U.S.C. § 1221(e), rather
than under the general reprisal standard utilized by the administrative judge. CID
at 3-4; see Elder v. Department of the Air Force, 124 M.S.P.R. 12, ¶ 39 (2016) (finding
8
¶14 Our decision not to consider the appellant’s retaliation claims in this
compliance matter does not leave the appellant without a remedy to pursue her
claims of whistleblower reprisal. Rather, the appellant may seek corrective action
regarding her claims of whistleblower reprisal through an indiv idual right of
action (IRA) appeal before the Board. 4 However, before seeking corrective action
from the Board through an IRA appeal, the appellant must first seek corrective
action from the Office of Special Counsel. 5 U.S.C. § 1214(a)(3); see Miller v.
Federal Deposit Insurance Corporation, 122 M.S.P.R. 3, ¶ 6 (2014), aff’d, 626 F.
App’x 261 (Fed. Cir. 2015). We take no position on whether the Board would
have jurisdiction over any subsequent IRA appeal involving the retaliation
allegations raised by the appellant in this petition for enforcement or whether any
of the appellant’s retaliation allegations that predated her earlier enforcement
appeals are barred by res judicata, collateral estoppel, or another legal principle.
NOTICE OF APPEAL RIGHTS 5
The compliance initial decision, as supplemented by this Final Order,
constitutes the Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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
that the Warren standard is inapplicable to claims that allege reprisal for filing a prior
Board appeal under 5 U.S.C. § 2302(b)(9)(A)(i)); Alarid, 122 M.S.P.R. 600, ¶ 12.
4
None of the alleged retaliatory actions raised in the appellant’s petition for
enforcement constitute otherwise appealable actions that are reviewable by the Board
outside of an IRA appeal, such as an adverse action appeal under 5 U.S.C. chapter 75.
CF, Tab 1 at 7-13; see 5 U.S.C. §§ 1214(a)(3), 7512, 7513(d); 5 C.F.R. §§ 1201.3(a),
1209.2(b)(2). However, they may constitute personnel actions upon which an IRA
appeal may be based. See 5 U.S.C. §§ 1221(a), 2302(a)(2)(A); 5 C.F.R.
§§ 1209.2(b)(1), 1209.4(a).
5
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.
9
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 revi ew 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.
10
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. ____ , 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
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
11
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 B oard’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
12
competent jurisdiction. 6 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 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.
6
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 wit h 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.
13
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.