UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
HEATHER A. MELTON, DOCKET NUMBER
Appellant, CH-0752-09-0448-M-1
v.
DEPARTMENT OF THE ARMY, DATE: April 21, 2022
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Heather A. Melton, Clarksville, Tennessee, pro se.
Patrick Sweeney and Katherine E. Griffis, Esquire, Fort Campbell,
Kentucky, for the agency.
BEFORE
Raymond A. Limon, Vice Chair
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her petition for enforcement as moot. Generally, we grant petitions
such 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2 In March 2009, the appellant filed an appeal challenging the agency’s
decision to place her on indefinite suspension for failing to maintain a security
clearance. Melton v. Department of the Army, MSPB Docket No. CH-0752-09-
0448-I-1, Initial Appeal File (IAF), Tab 1. The administrative judge twice
dismissed the appeal without prejudice for refiling at a later date. IA F, Tab 5,
Initial Decision; Melton v. Department of the Army, MSPB Docket No. CH-0752-
09-0448-I-2, Appeal File, Tab 8, Initial Decision. Ultimately, the parties reached
a settlement agreement and entered the agreement into the record for
enforcement, and the administrative judge dismissed the appellant’s appeal as
settled. Melton v. Department of the Army, MSPB Docket No. CH-0752-09-0448-
I-3, Appeal File (I-3 AF), Tab 27, Initial Decision. Among other things, the
settlement agreement required that the agency pay a lump sum of $35,000 in
exchange for the appellant’s voluntary resignation, effective no later than
August 7, 2010. I-3 AF, Tab 26 at 4-6.
¶3 In January 2014, the appellant filed a petition for enforcement of the
settlement agreement. Melton v. Department of the Army, MSPB Docket
No. CH-0752-09-0448-C-1, Compliance File (CF), Tab 1. The administrative
judge denied the petition for enforcement, finding that the appellant failed to
3
prove noncompliance. CF, Tab 14, Compliance Initial Decision. The Board
reversed, finding the agency in noncompliance regarding health insurance
premiums and associated wage garnishments. Melton v. Department of the Army,
MSPB Docket No. CH-0752-09-0448-C-1, Order (C-1 Order), ¶¶ 5-10 (June 18,
2015). 2 As a result, the Board ordered the agency to cancel the appellant’s debts
from health insurance premiums and reimburse her any wage garnishments
collected after August 5, 2010. Id., ¶ 16. The agency responded by submitting
evidence that it both cancelled the appellant’s $2,929.29 debt and reimbursed her
wage garnishments of $2,998.71, after which the Board found the agency in
compliance. Melton v. Department of the Army, MSPB Docket No. CH-0752-09-
0448-X-1, Tab 24, Final Order (X-1 Final Order) (Jan. 21, 2016). 3
¶4 The appellant appealed the Board’s decision to the U.S. Court of Appeals
for the Federal Circuit, where our reviewing court affirmed in part, but remanded
for further consideration of one issue. Melton v. Department of the Army, 664 F.
App’x 909 (Fed. Cir. 2016). The court explained that the record included a
post-settlement earnings statement showing that $1,019.89 was deducted for a
pre-settlement debt, and that amount appeared to be owed to the appellant. Id.
at 913-14. Because the Board had not yet addressed that $1,019.89 deduction, the
court did not draw a final conclusion, but did remand for the Board to do so. Id.
at 915. Specifically, the court concluded, “We affirm the Board’s decision with
one exception: We vacate the decision to the extent that it denies a further refund
of $1,019.89, and we remand for consideration of that issue.” 4 Id.
2
Although the appellant presented other allegations, including one concerning her
former representative and another concerning whistleblower reprisal, the Board found
them immaterial or waived as a result of her settlement agreement. C-1 Order,
¶¶ 11-15.
3
The appellant again raised various other matters, but the Board declined to address
them because they were unrelated to the compliance issues in the instant appeal. X -1
Final Order, ¶ 2 n.2.
4
Although the appellant once again raised other issues, such as the validity of the
settlement agreement, the agency’s failure to rehire her, and whistleblower retaliation,
4
¶5 On remand from the court, the agency simply paid the appellant the
$1,019.89 identified, and the administrative judge dismissed the matter as moot.
Melton v. Department of the Army, MSPB Docket No. CH-0752-09-0448-M-1,
Remand File (RF), Tab 19 at 4-5, Tab 26 at 4-5, Tab 27, Remand Initial Decision
(RID). The administrative judge found that, while the appellant presented
allegations of other damages and wrongdoing, those matters were beyond the
scope of the court’s remand. RID at 3. The appellant has filed a petition for
review, along with several supplements. Melton v. Department of the Army,
MSPB Docket No. CH-0752-09-0448-M-1, Remand Petition for Review (RPFR)
File, Tabs 1-9. The agency has filed a response. RPFR File, Tab 11. The
appellant has filed a reply with several additional supplements. 5 RPFR File,
Tabs 13-19.
¶6 In the instant case, there is no dispute that the agency paid the appellant the
$1,019.89 identified by our reviewing court. RF, Tab 19 at 4-5, Tab 26 at 4-5.
Nevertheless, the appellant alleges other damages and improprieties. RPFR File,
Tab 1. For example, she appears to assert that the agency improperly withheld a
separate $1,053.22 from her final paycheck. Id. at 7-8. She also appears to assert
that the agency should have but failed to compensate her for leave balances upon
her separation. Id. at 8-9. In addition, the appellant argues that the agency has
forged documents and engaged in retaliation, defamation, and libel. E.g., id. at 5,
9-10.
¶7 A case is moot when the issues presented are no longer “live” or the parties
lack a legally cognizable interest in the outcome of the case. Hess v. U.S. Postal
the court found them without merit or outside the scope of its proceedings. Melton,
664 F. App’x at 912-15.
5
The appellant also filed a motion to strike the agency’s response as untimely. RPFR
File, Tab 12. That motion is denied because the agency’s response is, in fact, timely.
The Board’s acknowledgement order specifically identifies the agency’s deadline as
September 8, 2017, and the agency filed its response on that date. RPFR File,
Tabs 10-11.
5
Service, 124 M.S.P.R. 40, ¶ 8 (2016). An appeal will be dismissed as moot if, by
virtue of an intervening event, the Board cannot grant any effectual relief in favor
of the appellant. Id. Mootness can arise at any stage of litigation, and a
compliance proceeding will be dismissed as moot when, inter alia, there is no
further relief the Board can grant. See Burke v. Department of Veterans Affairs,
121 M.S.P.R. 299, ¶ 13 (2014) (dismissing an appellant’s petition for
enforcement as moot when an agency ultimately complied with a settlement
agreement provision and there was no further meaningful relief that the Board
could provide); Bables v. Department of the Army, 86 M.S.P.R. 171, ¶¶ 19-20
(2000) (same).
¶8 Because the agency provided the $1,019.89 identified by the court’s remand
as potentially owed to her, we agree with the administrative judge’s determination
that this case is now moot. We will not consider the appellant’s allegations of
other improprieties, some of which previously were raised and rejected, because
they all exceed the scope of the court’s remand order. Melton, 664 F. App’x
at 915; C-1 Order, ¶¶ 11-14; X-1 Final Order, ¶ 2 & n.2; see, e.g., Zelenka v.
Office of Personnel Management, 110 M.S.P.R. 205, ¶ 15 n.3 (2008) (refusing to
address an appellant’s arguments that exceeded the scope of the issues to be
addressed on remand), rev’d on other grounds, 361 F. App’x 138 (Fed. Cir.
2010); Umshler v. Department of the Interior, 55 M.S.P.R. 593, 597 (1992)
(finding that an administrative judge properly limited the scope of remand
proceedings, consistent with the Federal Circuit’s remand order), aff’d, 6 F.3d
788 (Fed. Cir. 1993) (Table).
6
NOTICE OF APPEAL RIGHTS 6
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 b elow 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 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:
6
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.
7
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. ____ , 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
8
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
9
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. 7 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.
7
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdic tion 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. Co urt 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.
10
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.