Filed: Feb. 25, 2015
Latest Update: Mar. 02, 2020
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD VALDO K. VAHER, DOCKET NUMBERS Appellant, NY-0752-12-0174-C-1 NY-1221-12-0191-C-1 v. DEPARTMENT OF VETERANS AFFAIRS, Agency. DATE: February 25, 2015 THIS FINAL ORDER IS NO NPRECEDENTIAL 1 Alan E. Wolin, Esquire, Jericho, New York, for the appellant. Jack P. DiTeodoro, Esquire, Brooklyn, New York, for the agency. BEFORE Susan Tsui Grundmann, Chairman Anne M. Wagner, Vice Chairman Mark A. Robbins, Member FINAL ORDER ¶1 The appellant has filed
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD VALDO K. VAHER, DOCKET NUMBERS Appellant, NY-0752-12-0174-C-1 NY-1221-12-0191-C-1 v. DEPARTMENT OF VETERANS AFFAIRS, Agency. DATE: February 25, 2015 THIS FINAL ORDER IS NO NPRECEDENTIAL 1 Alan E. Wolin, Esquire, Jericho, New York, for the appellant. Jack P. DiTeodoro, Esquire, Brooklyn, New York, for the agency. BEFORE Susan Tsui Grundmann, Chairman Anne M. Wagner, Vice Chairman Mark A. Robbins, Member FINAL ORDER ¶1 The appellant has filed ..
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UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
VALDO K. VAHER, DOCKET NUMBERS
Appellant, NY-0752-12-0174-C-1
NY-1221-12-0191-C-1
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency. DATE: February 25, 2015
THIS FINAL ORDER IS NO NPRECEDENTIAL 1
Alan E. Wolin, Esquire, Jericho, New York, for the appellant.
Jack P. DiTeodoro, Esquire, Brooklyn, New York, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed petitions for review of the compliance initial
decisions in MSPB Docket No. NY-1221-12-0191-C-1 and MSPB Docket No.
NY-0752-12-0174-C-1, which denied his petitions for enforcement of the
settlement agreement resolving both appeals. We JOIN these appeals for
1
A nonprecedential order is one that the Board has determined does not add
sign ificantly 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 Parties may cite nonprecedential orders,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
adjudication pursuant to 5 C.F.R. § 1201.36. 2 For the reasons that follow, we
GRANT the petitions for review, REVERSE the compliance initial decisions as to
the restoration of the appellant’s annual leave, AFFIRM the compliance initial
decisions AS MODIFIED as to the replacement of the appellant’s badge,
credentials, and cap device, and REFER the matter to the Office of General
Counsel to obtain agency compliance.
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 To resolve the appellant’s prior individual right of action and removal
appeals, the parties entered into a settlement agreement, wherein, among other
things, the agency agreed to restore the appellant to status quo ante and to provide
the appellant his “previous shield and credentials to the extent that they can be
located.” MSPB Docket No. NY-1221-12-0191-C-1 (0191-C-1), Compliance File
(CF), Tab 1 at 5-8; MSPB Docket No. NY-0752-12-0174-C-1 (0174-C-1), CF,
Tab 1 at 6-9. The administrative judge entered the agreement into the record for
enforcement purposes and dismissed the appeals as settled. MSPB Docket No.
NY-1221-12-0191-W-1 (0191-W-1), IAF, Tab 37, Initial Decision; MSPB Docket
No. NY-0752-12-0174-I-1 (0174-I-1), IAF, Tab 47, Initial Decision.
¶3 The appellant subsequently filed petitions for enforcement in both appeals,
alleging that the agency was in noncompliance with paragraph 2(b) of the
settlement agreement, which required the agency to “restore the appellant to
status quo ante with no break in service.” 0191-C-1, CF, Tab 1; 0174-C-1, CF,
Tab 1. Specifically, the appellant argued that the agency had failed to:
(1) restore 139.25 hours of annual leave that he had accrued in excess of 240
hours at the end of fiscal year 2012; and (2) return or provide replacements of his
2
The joinder of two or more appeals filed by the same appellant is appropriate where
doing so would expedite processing of the cases and will not adversely affect the
interests of the parties. Tarr v. Department of Veterans Affairs, 115 M.S.P.R. 216, ¶ 9
(2010); 5 C.F.R. § 1201.36(a)(2), (b).
3
badge, credentials, and cap device. 3 0191-C-1, CF, Tab 1 at 2-3; 0174-C-1, CF,
Tab 1 at 3-4. The agency responded that it had complied with the terms and
intent of the settlement agreement. 0191-C-1, CF, Tab 3 at 3; 0174-C-1, CF, Tab
3 at 3. The administrative judge denied the petitions for enforcement, finding
that the agency was in compliance with the settlement agreement because there
was nothing in the record to suggest either that the agency agreed to reimburse
the appellant in excess of the allowable 240 hours of annual leave or to reproduce
his badge or credentials if the originals could not be found. 0191-C-1, CF, Tab 5,
Compliance Initial Decision (CID) at 6; 0174-C-1, CF, Tab 5, CID at 6. The
appellant has filed petitions for review of the compliance initial decisions,
reasserting the arguments raised below. 0191-C-1, Petition for Review (PFR)
File, Tab 1 at 4-5; 0174-C-1, PFR File, Tab 1 at 4-5. The agency has not
responded.
¶4 A settlement agreement is a contract, and the Board will adjudicate an
enforcement proceeding relevant to a settlement agreement in accordance with
contract law. Rivera v. U.S. Postal Service, 107 M.S.P.R. 542, ¶ 4 (2007).
Where a term of art is used in a settlement agreement, the Board will apply the
ordinary meaning of that term found in case law, statute, or regulation, unless it is
shown that the parties intended otherwise. Sweet v. U.S. Postal
Service, 89 M.S.P.R. 28, ¶ 11 (2001); see Bergquist v. Department of the
Interior, 99 M.S.P.R. 516, ¶ 9 (2005). In the instant case, the parties agreed to
restore the appellant to status quo ante without defining the term. 0191-C-1, CF,
Tab 1 at 6; 0174-C-1, CF, Tab 1 at 7. We find that status quo ante is a term of
art, and, accordingly, we will apply its ordinary meaning unless there is some
indication that the parties intended otherwise. See Bergquist, 99 M.S.P.R. 516, ¶
8 (“back pay” is a term of art).
3
We note that the parties appear to use the words “badge” and “shield”
interchangeably. We further note that it is unclear, and the parties have not explained,
what the term “cap device” entails.
4
¶5 The Board typically construes “status quo ante” in accordance with the
Back Pay Act, 5 U.S.C. § 5596. See id.; see also Forrest v. Department of
Agriculture, 74 M.S.P.R. 213, 219-21 (1997). In the instant case, we discern no
indication that the parties intended to accord this term any other meaning. 4 We
further find that the Back Pay Act applies to the appellant, as he was an employee
of the agency. See 5 C.F.R. § 550.803; see also 0174-I-1, IAF, Tab 32 at 14
(Standard Form 50). Thus, because the appellant is an employee to whom the
Back Pay Act applies and the agreement reveals no contrary intent, we find that
the Back Pay Act governs the appellant’s entitlement to be returned to status quo
ante. 5 See Bergquist, 99 M.S.P.R. 516, ¶ 8; see also Kellihan v. Department of
the Navy, 72 M.S.P.R. 47, 50 (1996).
¶6 As discussed above, the appellant alleges that the agency is in
noncompliance with paragraph 2(b) of the settlement agreement because it has not
restored 139.25 hours of his accrued annual leave. 0191-C-1, PFR File, Tab 1 at
4-5; 0174-C-1, PFR File, Tab 1 at 4-5. The agency does not dispute that the
4
Our finding that the agreement does not indicate any contrary intent is further
supported by the language of the settlement agreement, which closely parallels the
applicab le provisions of the Back Pay Act. Specifically, both the settlement agreement
and the Back Pay Act articulate intent to return the reinstated employee to the position
he would have been in but for the personnel action at issue. The settlement agreement
provides that the appellant was “entitled to all benefits and privileges of employment
that he would have received had he not been removed[.]” See 0191-C-1, CF, Tab 1 at 6;
0174-C-1, CF, Tab 1 at 7. Likewise, the Back Pay Act provides that, when an adverse
action is corrected, the employee is entitled the pay, allowances, or differentials he
“would have earned or received during the period if the personnel action had not
occurred.” 5 U.S.C. § 5596(b)(1).
5
Although the Back Pay Act requ ires a finding that the personnel action was
unwarranted or unjustified, such a finding is not necessary under the circumstances
here. See Bergquist, 99 M.S.P.R. 516, ¶ 9. The basis for the appellant’s entitlement to
back pay is the settlement agreement and not the statute. Id. Where there is no
indication that the parties intended otherwise, the Board has interpreted provisions for
back pay in a settlement agreement to mean payment consistent with the Back Pay Act
without requiring a finding that the personnel action was unwarranted or unjustified.
See id.; see also Carter v. U.S. Postal Service, 89 M.S.P.R. 45, ¶ 20 (2001).
5
appellant had 379.25 hours of accrued annual leave at the end of fiscal year 2012,
but states that he could only carry over a maximum of 240 hours to the next fiscal
year. 0191-C-1, CF, Tab 3 at 3; 0174-C-1, CF, Tab 3 at 3. Under the Back Pay
Act, however, status quo ante relief requires restoration of annual leave in excess
of the maximum leave accumulation permitted by law. 5 U.S.C.
§ 5596(b)(1)(B)(i); see 5 C.F.R. § 550.805(g); see also Hawkins v. U.S. Postal
Service, 56 M.S.P.R. 633, 638-39 (1993). Pursuant to the Office of Personnel
Management’s implementing regulations, the agency must credit any annual leave
in excess of the maximum leave accumulation authorized by law to a separate
leave account for use by the appellant within 2 years after the date on which the
annual leave is credited to the separate account. 5 C.F.R. § 550.805(g)(1).
Because the agency’s obligation under the settlement agreement to return the
appellant to status quo ante requires the return of all annual leave in excess of the
maximum leave accumulation, we find that the agency is not in compliance with
paragraph 2(b) of the settlement agreement.
¶7 The appellant also alleges that the agency is in noncompliance with
paragraph 2(b) because it has failed to return or replace his pre-dismissal badge,
credentials, and cap device. 0191-C-1, PFR File, Tab 1 at 4-5; 0174-C-1, PFR
File, Tab 1 at 4-5. Below, the agency responded that it had complied with
paragraph 2(n) of the settlement agreement by attempting to locate the appellant’s
badge and credentials because the settlement agreement only required the agency
to provide his badge and credentials “to the extent that they can be located.”
0191-C-1, CF, Tab 3 at 3; 0174-C-1, CF, Tab 3 at 3. We agree with the
administrative judge that paragraph 2(n) of the settlement agreement does not
impose an obligation on the agency to provide the appellant with his prior badge
and credentials if they cannot be located, nor does it impose an obligation on the
agency to duplicate them. 0191-C-1, CID at 5-6; 0174-C-1, CID at 5-6. We note,
however, that the administrative judge did not consider the appellant’s argument
that the agency’s failure to return his badge and credentials violated paragraph
6
2(b), i.e., constituted a failure to restore him to status quo ante. See id. This was
error. See Spithaler v. Office of Personnel Management, 1 M.S.P.R. 587, 589
(1980) (an initial decision must identify all material issues of fact and law,
summarize the evidence, resolve issues of credibility, and include the
administrative judge’s conclusions of law and legal reasoning, as well as the
authorities on which that reasoning rests). We therefore will consider it now.
¶8 Placing the appellant in status quo ante means restoring him, as nearly as
possible, to the situation he would have been in had the wrongful personnel action
not occurred. Tubesing v. Department of Health & Human Services, 112
M.S.P.R. 393, ¶ 5 (2009). While the Board does not require perfect consistency
with all aspects of an appellant’s pre- and post-removal positions, a return to
status quo ante requires that the agency place the appellant in a position with all
the essential privileges of his previous position. Black v. Department of
Justice, 85 M.S.P.R. 650, ¶ 6 (2000). In Black, the Board held that a criminal
investigator’s law enforcement badge and credentials must be returned as part of
the agency’s obligation to return her to status quo ante because they were a
privilege of the position, even though the agency contended they were not needed
for her new assignment. Id. In the instant case, however, the appellant does not
argue that the agency has failed to issue him a badge, credentials, and/or cap
device carrying the same privileges that he had before the removal; rather, he
argues that the agency has failed to return or provide replacements of his specific
badge number, credentials, and cap device. See 0191-C-1, PFR File, Tab 1 at 4-5;
0174-C-1, PFR File, Tab 1 at 4-5. Absent any allegation that the appellant has
been deprived of some privilege of his pre-removal position, he has failed to
show noncompliance insofar as the agency has not returned or made exact copies
of his pre-dismissal badge, credentials, and cap device.
7
ORDER
¶9 We ORDER the agency to submit to the Clerk of the Board within 20 days
of the date of this decision satisfactory evidence of compliance with this
decision. The agency’s submission must include proof that it credited the
appellant with all annual leave he would have accrued but for the removal action
to his annual leave account, or to a separate leave account, if necessary, as
provided in 5 C.F.R. § 550.805(g). The agency must serve all parties with copies
of its submission. If the agency has not fully complied, it must show cause why
sanctions, pursuant to 5 U.S.C. § 1204(a)(2) and (e)(2)(A) and 5 C.F.R.
§ 1201.183, should not be imposed.
NOTICE TO THE APPELLANT
You may respond to the agency’s evidence of compliance within 15 days of
the date of service of that evidence. If you do not respond, the Board will assume
you are satisfied and will dismiss the petition for enforcement as moot.
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set out at Title 5 of
the United States Code (U.S.C.), sections 7701(g), 1221(g), 1214(g) or 3330c(b);
or 38 U.S.C. § 4324(c)(4). The regulations may be found at 5 C.F.R.
§§ 1201.201, 1201.202, and 1201.203. If you believe you meet these
requirements, you must file a motion for attorney fees WITHIN 60 CALENDAR
DAYS OF THE DATE OF THIS DECISION. You must file your attorney fees
motion with the Clerk of the Board.
8
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS IN
MSPB DOCKET NO. NY-0752-12-0174-C-1
This is the Board’s final decision as to the appellant’s allegation of agency
noncompliance in failing to fully credit his annual leave. The initial decision, as
supplemented by this Final Order, constitutes the Board’s final decision as to the
appellant’s allegation of agency noncompliance in failing to return or provide
exact replicas of his pre-dismissal badge, credentials, and cap device. 5 C.F.R.
§ 1201.113. You have the right to request further review of this final decision.
Discrimination Claims: Administrative Review
You may request review of this final decision on your discrimination
claims by the Equal Employment Opportunity Commission (EEOC). See Title 5
of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you
submit your request 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 your request 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, NE
Suite 5SW12G
Washington, D.C. 20507
You should send your request to EEOC no later than 30 calendar days after
your receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.
9
Discrimination and Other Claims: Judicial Action
If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate United States
district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with
the district court no later than 30 calendar days after your receipt of this order. If
you have a representative in this case, and your representative receives this order
before you do, then you must file with the district court no later than 30 calendar
days after receipt by your representative. If you choose to file, be very careful to
file on time. 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.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS IN
MSPB DOCKET NO. NY-1221-12-0191-C-1
This is the Board’s final decision as to the appellant’s allegation of agency
noncompliance in failing to fully credit his annual leave. The initial decision, as
supplemented by this Final Order, constitutes the Board’s final decision as to the
appellant’s allegation of agency noncompliance in failing to return or provide
exact replicas of his pre-dismissal badge, credentials, and cap device. 5 C.F.R.
§ 1201.113. You have the right to request the United States Court of Appeals for
the Federal Circuit to review this final decision. You must submit your request to
the court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
10
The court must receive your request for review no later than 60 calendar days
after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27,
2012). If you choose to file, be very careful to file on time. The court has held
that normally it does not have the authority to waive this statutory deadline and
that filings that do not comply with the deadline must be dismissed. See Pinat v.
Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode/htm.
Additional information 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, and 11.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.
