Judges: Eleni M. Roumel
Filed: Sep. 10, 2020
Latest Update: Sep. 11, 2020
Summary: In the United States Court of Federal Claims MICHELLE C. HONSE, Plaintiff, No. 19-1801 v. Filed: September 10, 2020 THE UNITED STATES, Defendant. Plaintiff: Michelle C. Honse, Cypress, CA, pro se Counsel for Defendant: Douglas T. Hoffman, Trial Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, Washington, DC MEMORANDUM AND ORDER Plaintiff pro se Michelle C. Honse brings this claim against the United States, seeking compensation for amounts she contends the United Sta
Summary: In the United States Court of Federal Claims MICHELLE C. HONSE, Plaintiff, No. 19-1801 v. Filed: September 10, 2020 THE UNITED STATES, Defendant. Plaintiff: Michelle C. Honse, Cypress, CA, pro se Counsel for Defendant: Douglas T. Hoffman, Trial Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, Washington, DC MEMORANDUM AND ORDER Plaintiff pro se Michelle C. Honse brings this claim against the United States, seeking compensation for amounts she contends the United Stat..
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In the United States Court of Federal Claims
MICHELLE C. HONSE,
Plaintiff, No. 19-1801
v. Filed: September 10, 2020
THE UNITED STATES,
Defendant.
Plaintiff: Michelle C. Honse, Cypress, CA, pro se
Counsel for Defendant: Douglas T. Hoffman, Trial Attorney, Commercial Litigation
Branch, Civil Division, Department of Justice, Washington, DC
MEMORANDUM AND ORDER
Plaintiff pro se Michelle C. Honse brings this claim against the United States, seeking
compensation for amounts she contends the United States Department of Veteran Affairs (VA)
improperly charged her for certain health and unemployment benefits. Complaint at ¶¶ 3-4 (ECF
No. 1) (Compl.). Ms. Honse, who was removed from her position with the VA and subsequently
reinstated and compensated for the period of removal through two decisions of the Merit Systems
Protection Board (MSPB), alleges that the VA should not have deducted from her MSPB-ordered
back pay (i) a retroactive charge for medical benefits she alleges she did not have during the period
of removal, and (ii) reimbursement of unemployment benefits she received during that time. See
Defendant’s Motion to Dismiss (ECF No. 9) (Def. Mot.) Appendix (App.) at A1-16, A25-37; see
Compl. at ¶¶ 3-4, Ex. 1 at 1 (requesting the Court “process my back pay properly . . . [and] order
the [VA] to reimburse me for the money deducted from my back pay”); Plaintiff’s Opposition to
Defendant’s Motion to Dismiss (ECF No. 19) (Pl. Resp.) at 1-2, 5. Ms. Honse also seeks interest
on the amounts she alleges she is owed. Compl. at ¶ 4.
Defendant moves to dismiss Plaintiff’s complaint pursuant to Rule 12(b)(1) of the Rules
of the United States Court of Federal Claims (Rules). See Def. Mot. at 1. Specifically, Defendant
argues that the MSPB has already exercised jurisdiction over Plaintiff’s claim, and accordingly
this Court lacks subject-matter jurisdiction.
Id. During briefing on Defendant’s motion to dismiss,
Plaintiff also filed an “Opposed Motion for an Emergency Motion. Request for an Injunctive Order
the Agency Cease and Desisit [sic] in the Proposed Removal of Plaintiff” (ECF No. 12)
(Emergency Motion), stating that the VA sought to remove her from federal service again, and
requesting this Court “issue an injunctive relief order” and “order the [VA] to cease and desist its
intentions to remove [her] from federal service.” Emergency Motion at 2. On or about May 13,
2020, Ms. Honse informed this Court that she is no longer employed by the VA. Pl. Resp. at 8.
On February 27, 2020, this case was transferred to the undersigned judge pursuant to Rule
40.1(c). See ECF No. 11. This Court has considered the parties’ filings and arguments in ruling
on the pending motions. For the reasons set forth below, Defendant’s Motion to Dismiss is
GRANTED and Plaintiff’s Emergency Motion is DENIED.
BACKGROUND
On January 22, 2008, Plaintiff began employment as a health technician in the
ophthalmology department of the U.S. Department of Veteran Affairs in the Long Beach Medical
Center. Compl. at ¶ 3; Def. Mot. at 2. On April 7, 2017, Plaintiff was removed from federal
service on the grounds of “one charge of Failure to Follow Instructions . . . and one charge . . . of
Conduct Unbecoming a Federal Employee.” Compl. at ¶ 3; App. at A1.
On April 30, 2017, Plaintiff filed an appeal of her removal from federal service with the
MSPB, alleging disability discrimination. Compl. at ¶ 3; App. at A1. On September 29, 2017,
MSPB Administrative Law Judge (ALJ) Anthony Ellison reversed Plaintiff’s removal from federal
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service and reinstated Plaintiff to her previous employment.
Id. Specifically, ALJ Ellison ordered
“the agency to cancel the removal and to retroactively restore appellant effective April 7, 2017[,]”
within twenty days of his decision becoming final. App. at A16. The ALJ also ordered the agency
to pay Plaintiff “the appropriate amount of back pay, with interest and to adjust benefits with
appropriate credits and deductions in accordance with the Office of Personnel Management’s
regulations” within sixty days of his decision becoming final.
Id.
On December 2, 2017, Plaintiff filed a petition for enforcement with the MSPB to enforce
the ALJ’s September 29, 2017 decision, seeking compensatory and consequential damages. App.
at A1-2, A27-28. In response to Ms. Honse’s petition, the VA submitted documentation that
Plaintiff’s removal was rescinded, and that her position was restored on November 28, 2017.
Id.
The VA also submitted documentation that Plaintiff received $11,509.02 in net back pay and
interest from the VA. App. at A28. The agency’s calculations were based on gross back pay of
$37,932.40, with deductions of “appropriate amounts for [Ms. Honse’s] receipt of State
unemployment compensation benefits, standard deductions for benefits and taxes, and for
repayment of annual leave paid to Ms. Honse] subsequent to her removal. The agency’s
calculations also provided credit . . . for interest owed on the back pay amount.” App. at A28.
These same deductions and credits are the subject of Ms. Honse’s present Complaint. See Compl.
at ¶¶ 3-4, Ex. 1 at 1. On June 21, 2018, MSPB ALJ Holly Parks issued an enforcement decision
denying Plaintiff’s petition for enforcement, her motion for consequential damages, and her
motion for sanctions, and granting Plaintiff’s petition for non-pecuniary damages, awarding Ms.
Honse $5,000. See App. at A25-37. Important to the present action, the MSPB ALJ held that the
VA had properly restored Plaintiff to her original position and provided appropriate back pay and
interest. App. at A26-28, A36-37.
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On September 7, 2018, Plaintiff filed a petition for review of the MSBP’s enforcement
decision before the United States Court of Appeals for the Federal Circuit. App. at A46. On
November 15, 2018, Defendant filed an unopposed motion to transfer the petition for review to
the United States District Court for the Central District of California, arguing that Plaintiff’s appeal
constituted a “mixed case” 1 MSPB matter that should be brought before the appropriate district
court. App. at A48-55. On December 28, 2018, the Federal Circuit granted Defendant’s motion
to transfer. App. at A58-59.
On July 25, 2019, the United States District Court for the Central District of California
granted Defendant’s motion for summary judgment, dismissing Plaintiff’s claim. App. at A60-77.
Ms. Honse appealed the district court’s decision to the United States Court of Appeals for the
Ninth Circuit. App. at A80-89. On July 22, 2020, the Ninth Circuit summarily affirmed the district
court’s judgment. See generally Honse v. Wilkie, No. 19-55908 (9th Cir. July 22, 2020).
Separately, during the pendency of this case, Plaintiff also informed this Court that she had
received a notice of a proposed removal from the VA and that her last day of federal employment
was March 4, 2020. See Pl. Resp. at 8; Emergency Motion at 1-2. She further reported that she
has appealed her March 2020 removal to the MSPB. See Plaintiff’s Motion for Extension of Time
(ECF No. 15) at 1-2.
1
A “mixed case” is one in which “a federal employee complains of a serious adverse employment action
taken against him, one falling within the compass of the Civil Service Reform Act of 1978 (CSRA), 5
U.S.C. § 1101 et seq., and attributes the action, in whole or in part, to bias based on race, gender, age, or
disability, in violation of federal antidiscrimination laws.” Perry v. MSPB,
137 S. Ct. 1975, 1979 (2017).
In Perry, the Supreme Court held that if a petitioner brings a mixed case, regardless of whether the MSPB
dismissed the case on the merits, on procedural grounds, or on jurisdictional grounds, jurisdiction is proper
in the district court.
Id. at 1988. The MSPB instructed Plaintiff that she could obtain judicial review of its
decision, including a disposition of discrimination claims, by filing an action in an appropriate district court.
App. at A43. The MSPB additionally advised Plaintiff that she could seek judicial review of a final MSPB
order in the U.S. Court of Appeals for the Federal Circuit. App. at A42.
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APPLICABLE LEGAL STANDARDS
Pursuant to Rules 12(b)(1) and 12(h)(3), this Court must dismiss claims that do not fall
within its subject matter jurisdiction. See Arbaugh v. Y&H Corp.,
546 U.S. 500, 514 (2006)
(“[W]hen a federal court concludes that it lacks subject-matter jurisdiction, the court must dismiss
the complaint in its entirety.”); Hertz Corp. v. Friend,
559 U.S. 77, 94 (2010). “In determining
jurisdiction, a court must accept as true all undisputed facts asserted in the plaintiff’s complaint
and draw all reasonable inferences in favor of the plaintiff.” Trusted Integration, Inc. v. United
States,
659 F.3d 1159, 1163 (Fed. Cir. 2011), citing Henke v. United States,
60 F.3d 795, 797 (Fed.
Cir. 1995). On a Rule 12(b)(1) motion, the Court may also consider evidence beyond the pleadings
where the motion challenges jurisdictional facts. See Reynolds v. Army & Air Force Exch. Serv.,
846 F.2d 746, 747-78 (Fed. Cir. 1988). Like the plaintiff here, a pro se litigant’s submissions are
held to “less stringent standards than [those] drafted by lawyers.” Erickson v. Pardus,
551 U.S.
89, 94 (2007); see Mone v. United States, 766 F. App’x 979, 986 (Fed. Cir. 2019). However, the
“leniency” afforded pro se litigants “with respect to mere formalities” does not extend to
circumstances involving “jurisdictional requirement[s].” Kelley v. Sec’y, U.S. Dep’t of Labor,
812
F.2d 1378, 1380 (Fed. Cir. 1987).
DISCUSSION
I. Motion to Dismiss
As noted, Plaintiff filed a claim alleging entitlement to monetary compensation, including
interest, for amounts the VA deducted from Plaintiff’s MSPB-ordered back pay award, including
for certain medical and unemployment benefits. Compl. at ¶¶ 3-4, Ex. 1 at 1. The disputed
payments at issue stem from two MSPB decisions. Compl. at ¶ 3; App. at A1-44. First, on
September 29, 2017, the MSPB reversed the VA’s removal of Plaintiff, ordered the agency to
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retroactively restore Ms. Honse to her position, effective April 7, 2017, and awarded Ms. Honse
back pay. App. at A1-24. Second, on June 21, 2018, the MSPB issued an enforcement decision,
denying Plaintiff’s petition for enforcement and holding that the VA properly restored Ms. Honse
to her position and provided “appropriate back pay and
interest.” 2 Ohio App. at 26-28. In doing so, the
MSPB implicitly rejected Plaintiff’s claims that her back pay award was inappropriately deducted
for amounts relating to medical and unemployment benefits. App. at A28. The MSPB also
addressed Plaintiff’s claim for damages, awarding her compensatory damages, but denying her
claims for consequential damages and sanctions. App. at A37.
The United States Court of Federal Claims is a court of limited jurisdiction. Through the
enactment of the Civil Service Reform Act of 1978 (“CSRA”), 5 U.S.C. § 1101 et seq., Congress
has clearly indicated that this Court does not have jurisdiction over Plaintiff’s claims related to
either the VA’s adverse action or the MSPB’s review of that adverse action, including her claims
related to the MSPB’s back pay order and the VA’s compliance with that order. See 5 U.S.C. §
7703; United States v. Fausto,
484 U.S. 439, 454 (1988); Reed v. United States,
254 F.3d 1064,
1066-67 (Fed. Cir. 2001) (Court of Federal Claims lacks jurisdiction over claims for back pay
stemming from agency’s adverse personnel action); see also Stekelman v. United States, 752 F.
App’x 1008 (Fed Cir. 2018). Indeed, the Federal Circuit has “long held that the Court of Federal
Claims does not have jurisdiction over a case that could be heard by the MSPB.” Pueschel v.
United States,
297 F.3d 1371, 1377 (Fed. Cir. 2002); see also Lindahl v. Office of Pers. Mgmt.,
470 U.S. 768, 775 (1985) (Federal Circuit has exclusive jurisdiction “of an appeal from a final
order or final decision of the [MSPB] pursuant to, inter alia, 5 U.S.C. § 7703(b)(1)”) (internal
2
The MSPB ALJ also noted that Ms. Honse did not challenge the agency’s evidence and calculations
related to her net back pay, including for deductions for medical benefits and unemployment compensation
benefits she received. App. at A28.
6
quotation omitted). Here, the MSPB issued a decision on the merits of her claim, including
concerning back pay, and later specifically ruled that the VA provided appropriate back pay to Ms.
Honse. App. A1-44. This is the same back pay award that Ms. Honse challenges in this action.
Indeed, in examining Ms. Honse’s challenge to the VA’s back pay award, the MSPB ALJ reviewed
the identical deductions from the back pay award for Ms. Honse’s medical benefits and
unemployment benefits that she challenges here. App. at A28; Compl. at ¶¶ 3-4, Ex. 1 at 1.
Ms. Honse initially sought review of the MSPB’s decisions through her petition to the
Federal Circuit, and subsequently agreed to litigate in the U.S. District Court once she opted to
pursue a “mixed case” related to her underlying discrimination claims. App. at A45-59. In her
opposition to Defendant’s motion to dismiss, Plaintiff also requests “review of the clear and
obvious improper judicial reviews . . . [by] the MSPB and [U.S. District] Judge Selna’s error by
refusing to review the merits.” Pl. Resp. 3-4. As noted, it is well-established Court does not have
jurisdiction to review MSPB or U.S. District Court rulings on “mixed cases” based in part on
discrimination, such as the Plaintiff’s case. See 5 U.S.C. § 7702 (granting district courts
jurisdiction where a wrongful removal claim is joined with an allegation of discrimination); see
also
Perry, 137 S. Ct. at 1979 (“mixed claims” must be adjudicated in a United States district
court); Kloeckner v. Solis,
586 U.S. 41, 56 (2012) (“A federal employee who claims that an agency
action appealable to the MSPB violates an antidiscrimination statute listed in § 7702(a)(1) should
seek judicial review in district court. . . .”). Further, the U.S. Court of Appeals for the Ninth Circuit
has reviewed and denied Ms. Honse’s appeal of the district court’s ruling. See Honse v. Wilkie,
No. 19-55908 (9th Cir. July 22, 2020). This Court declines to second-guess the Ninth Circuit’s
decision and has no jurisdiction to do so.
7
Accordingly, for the reasons set forth above, this Court lacks subject matter jurisdiction to
consider Ms. Honse’s claims in this action.
II. Injunctive Relief
This Court similarly lacks jurisdiction to grant Plaintiff’s motion to enjoin the VA from
removing Plaintiff from federal employment. Emergency Motion at 1-2. As noted, claims brought
by federal employees regarding adverse personnel decisions are within the exclusive purview of
MSPB. See, e.g., 5 U.S.C. § 7701;
Fausto, 484 U.S. at 454 (“[U]nder the comprehensive and
integrated review scheme of the CSRA, the Claims Court (and any other court relying on Tucker
Act jurisdiction) is not an “appropriate authority” to review and agency’s personnel
determination.”). The Court of Federal Claims is a court of limited jurisdiction; it has no power
to enjoin removal of a federal employee from an agency. See Worthington v. United States,
168
F.3d 24, 26 (Fed. Cir. 1999) (“Fausto deprives the Court of Federal Claims of jurisdiction over
personnel actions covered by the CSRA.”). Plaintiff is not without an avenue for relief; she has
additionally sought relief from this adverse action from the MSPB, an appropriate forum to
consider Plaintiff’s claim. See Mot. for Ext. of Time at 1-2; 5 U.S.C. § 7701. Accordingly, this
Court must deny Plaintiff’s Motion for Emergency Relief.
******
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CONCLUSION
For the foregoing reasons, this Court GRANTS Defendant’s Motion to Dismiss pursuant
to Rules 12(b)(1) and 12(h)(3) (ECF No. 9) and DENIES Plaintiff’s Emergency Motion (ECF No.
12). The Clerk of the Court is directed to enter judgment for Defendant and mark this case as
closed.
IT IS SO ORDERED.
s/ Eleni M. Roumel
ELENI M. ROUMEL
Judge
Dated: September 10, 2020
Washington, D.C.
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