Hawkins v. Wilkie

• Court: District Court, District of Columbia
• Decided: April 1, 2025
• Docket: Civil Action No. 2017-2575
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

BRIAN HAWKINS,

Plaintiff, Case No. 17-cv-2575 (JMC)

v.

U.S. DEPARTMENT OF VETERANS AFFAIRS, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

Under the Back Pay Act (BPA), if an “appropriate authority” finds that an agency employee

was denied pay due to “an unjustified or unwarranted personnel action,” that employee is entitled

to the pay he would have earned absent the improper personnel action “less any amounts earned

by the employee through other employment during that period.” 5 U.S.C. § 5596(b)(1). Plaintiff

Brian Hawkins was fired from his position at the U.S. Department of Veterans Affairs (the VA)

and filed this lawsuit against the VA, its Secretary, and the United States of America challenging

his removal. ECF 3; ECF 58.1 While litigation was underway, the VA rescinded Hawkins’

removal, reinstated him with back pay, and removed all references to his termination from his

personnel file. See ECF 60 at 10–11. When the agency paid out Hawkins’ back pay, it subtracted

roughly $128,000 he made through other employment during the relevant time period. Id. at 10.

The sole issue before this Court is whether Hawkins is potentially entitled to payment of that

1 Unless otherwise indicated, the formatting of citations has been modified throughout this opinion, for example, by omitting internal quotation marks, emphases, citations, and alterations and by altering capitalization. All pincites to documents filed on the docket in this case are to the automatically generated ECF Page ID number that appears at the top of each page. The Court refers to Defendants collectively as “the VA” or “Defendants.”

1 $128,000. If he is not, the case is moot. To determine whether Hawkins is potentially entitled to

that payment, the Court must decide whether the BPA applies.

The Court concludes that an “appropriate authority” has already determined that Hawkins

was “affected by an unjustified or unwarranted personnel action,” triggering the BPA. The VA’s

$128,000 offset was therefore proper, and the Court GRANTS the VA’s motion to dismiss the

case (with the exception of Count XII) for lack of jurisdiction pursuant to Federal Rule of Civil

Procedure 12(b)(1). ECF 60.

I. STATUTORY BACKGROUND

Hawkins was a member of the Senior Executive Service (SES), and therefore afforded

various statutory career protections. See ECF 58 ¶ 21; Esparraguera v. Dep’t of the Army, 101

F.4th 28, 31 (D.C. Cir. 2024) (describing SES employee protections). Relevant here, 5 U.S.C.

§§ 5382 and 5383 provide that members of the Senior Executive Service “shall be paid” consistent

with regulations promulgated by the Office of Personnel Management (OPM). And, as a general

rule, a federal employee “is entitled to the emoluments of his position until he has been legally

disqualified.” United States v. Testan, 424 U.S. 392, 402 (1976).

Sometimes, a federal employee’s pay is withdrawn or reduced incorrectly. That is where

the Back Pay Act comes in. The BPA provides:

An employee of an agency who, on the basis of a timely appeal or an administrative determination . . . is found by appropriate authority under applicable law, rule, regulation, or collective bargaining agreement, to have been affected by an unjustified or unwarranted personnel action which has resulted in the withdrawal or reduction of all or part of the pay, allowances, or differentials of the employee . . . is entitled, on correction of the personnel action, to receive for the period for which the personnel action was in effect— (i) an amount equal to all or any part of the pay, allowances, or differentials, as applicable which the employee normally would have earned or received during the period if the personnel action had not occurred, less any amounts earned by the employee through

2 other employment during that period; and (ii) reasonable attorneys fees related to the personnel action.

5 U.S.C. § 5596(b)(1).

Federal regulations define “appropriate authority” for purposes of the BPA to include (as

relevant here), “a court,” and “the head of the employing agency or another official of the

employing agency to whom such authority is delegated.” 5 C.F.R. § 550.803.

II. FACTUAL BACKGROUND

Because this case turns on a narrow question—the applicability of the Back Pay Act—the

Court provides only a brief summary of the relevant facts. Hawkins served as the Director of the

VA’s Washington, D.C. Medical Center from September 2011 to September 16, 2017, when he

was removed from his position and the civil service for “misconduct.” ECF 58 ¶¶ 21, 123, 126. He

filed this suit soon after, arguing that his removal should be set aside as arbitrary and capricious.

ECF 3. Hawkins alleged that he was terminated for political reasons, and that VA officials

engineered baseless misconduct charges to justify his termination after they had already decided

to fire him. See, e.g., ECF 58 ¶¶ 55, 61–71, 79, 89, 100.

Things have changed since Hawkins initially filed suit. In May 2019, while this litigation

was underway, the VA rescinded its September 2017 removal decision. See ECF 62-3. Acting

Principal Deputy Under Secretary for Health Steven Lieberman issued a memorandum (the

“Lieberman Memorandum”) stating that Hawkins’ “removal has been cancelled, back pay shall be

provided, and all references to the rescinded action will be removed from [his] Official Personnel

File”; that Hawkins was “directed to return to duty on June 10, 2019”; and that he had been

reassigned to the position of Senior Advisor at the VA. Id. at 1. The Lieberman Memorandum did

not explain why the agency had decided to cancel Hawkins’ removal. Id. The VA completed a

Standard Form 50 (“SF-50”) to effectuate its cancellation of Hawkins’ removal. ECF 61-4.

3 Hawkins returned to work at the VA on June 10, as ordered, then resigned on June 12. ECF 58

¶¶ 146–47.

In the wake of the Lieberman Memorandum, this case was briefly stayed and the parties

attempted mediation. See May 16, 2019 Minute Order; July 5, 2019 Minute Order. When

mediation proved unsuccessful, Hawkins filed a second amended complaint at the direction of the

Court. See Sept. 16, 2019 Minute Order; ECF 58. This complaint advanced twelve claims, but

Hawkins later voluntarily withdrew Counts I–III, IV, and VI. See ECF 61-1 at 9 n.4. The following

claims remain before the Court:

• Counts V and VII allege that Defendants withheld compensation and benefits for the period

from September 2017 to June 2019 in violation of 5 U.S.C. §§ 5382 and 5383 (Count V)

and committed an unconstitutional taking by doing so (Count VII). ECF 58 ¶¶ 202–13;

222–29.

• Counts VIII, IX, X, and XI concern the propriety of the removal decision itself. Hawkins

claims that the VA’s September 2017 decision to remove him was arbitrary, capricious,

and not supported by substantial evidence (Count VIII), and violated due process because

it was predetermined (Count IX), improperly applied a statute retroactively (Count X), and

denied him the process required by that statute (Count XI). Id. ¶¶ 230–60.

• Count XII alleges that the VA violated the Freedom of Information Act (“FOIA”) by failing

to release non‐exempt records responsive to a FOIA request Hawkins filed in October

2017. Id. ¶¶ 261–67.2

2 Neither party moves for relief on Hawkins’ FOIA claim, so the Court need not address it today. See ECF 60 (arguing that Hawkins’ non-FOIA claims are moot); ECF 61-1 at 24 (seeking summary judgment on all remaining counts except Count XII).

4 The day after Hawkins filed his revised complaint, the VA paid him $71,799.89 in back

pay. ECF 60-3 at 4. To arrive at that figure, the agency calculated the total amount Hawkins would

have earned at the VA between September 2017 and June 2019, then subtracted the $127,877.60

he earned during that period in the new job he had taken as CEO of the Family Health Centers of

Baltimore. See ECF 60 at 10; ECF 60-3 at 3, 6. The VA subsequently removed all documents from

Hawkins’ personnel file that referenced his removal, ECF 60-4, and removed a press release from

its website that mentioned his termination, ECF 60-5.

The parties thereafter filed dispositive motions, which the Court discusses below. The

Court held oral argument on the pending motions in October 2020 (Brown Jackson, J.), and April

2022 (Cobb, J.). See ECF 70; Apr. 5, 2022 Minute Entry.

A. Defendants’ 12(b)(1) Motion to Dismiss

The VA moves to dismiss Hawkins’ non-FOIA claims pursuant to Federal Rule of Civil

Procedure 12(b)(1), arguing that Hawkins has received all the relief he was entitled to under the

Back Pay Act, that there is no further relief the Court can award, and therefore the case is moot.

See ECF 60 at 12–13. Hawkins opposes, contending that it is unclear whether the Back Pay Act in

fact applies. See ECF 61-1 at 8. If no “appropriate authority” has determined that Hawkins’

removal was “unjustified or unwarranted,” as required by statute, then the BPA was never

triggered. See id. at 10–11. And if the BPA was never triggered then—per Hawkins—he is entitled

to his entire VA salary and benefits (with no offset for the roughly $128,000 he earned at his new

job) because 5 U.S.C. §§ 5382–83 guarantee him full pay and benefits. Id. at 12–15. Hawkins

therefore argues that because a court could still award him the remaining $128,000 in back pay,

his claims are not moot. See id. On reply, the VA counters that Hawkins cannot sue for back pay

5 under 5 U.S.C. §§ 5382–83 because such a suit would be barred by sovereign immunity. ECF 64

at 2–3.

B. Hawkins’ Cross-Motion for Summary Judgment

Hawkins moves simultaneously for summary judgment on his remaining non-FOIA

claims. ECF 62. In this motion, he advances a different argument: that the VA itself made a finding

that his removal was unjustified or unwarranted, triggering the BPA. See ECF 62-1 at 15–19. He

therefore asks the Court to rule as a matter of law that his termination was improper, and that he

is entitled to attorney’s fees under the BPA. Id. at 19–21. Hawkins argues in the alternative that, if

there was no determination by an “appropriate authority” that triggered the Back Pay Act, the VA

violated the Fifth Amendment by withholding roughly $128,000 of the salary to which he is

statutorily entitled. Id. at 23. Defendants oppose, arguing again that Hawkins’ claims are moot

because he has already received all the relief he is entitled to under the BPA, and that his Fifth

Amendment claims fail on the merits. ECF 64 at 6–7. Defendants do not seem to contest Hawkins’

argument that the VA itself made a determination that triggered the BPA. See id.

C. Hawkins’ Requested Relief

Although Hawkins initially requested various sorts of declaratory relief, including a

name-clearing hearing, see ECF 61-1 at 8, counsel clarified during the April 2022 oral argument

that the only remaining relief Hawkins seeks in this litigation is payment of the roughly $128,000

in back pay that the VA withheld. Hawkins no longer seeks any declaratory relief from this Court.

III. LEGAL STANDARD

For the reasons explained below, the Court resolves this case under Federal Rule of Civil

Procedure 12(b)(1). When assessing a motion to dismiss under Rule 12(b)(1), “it is to be presumed

that a cause lies outside the federal courts’ limited jurisdiction.” Muhammad v. FDIC, 751 F. Supp.

6 2d 114, 118 (D.D.C. 2010) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377

(1994)). A court must “treat the complaint’s factual allegations as true” and afford the plaintiff

“the benefit of all inferences that can be derived from the facts alleged.” Sparrow v. United Air

Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000). However, “where necessary, the court may

consider the complaint supplemented by undisputed facts evidenced in the record, or the complaint

supplemented by undisputed facts plus the court’s resolution of disputed facts.” Coal. for

Underground Expansion v. Mineta, 333 F.3d 193, 198 (D.C. Cir. 2003) (quoting Herbert v. Nat’l

Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992)).

IV. ANALYSIS

A case becomes moot when there is no further relief the court could award to the prevailing

party. See Chafin v. Chafin, 568 U.S. 165, 172 (2013). The only remaining relief Hawkins requests

from this Court is payment of the roughly $128,000 that the VA subtracted from his back pay

award. If Hawkins is potentially entitled to that payment, the case is still live. Otherwise, the case

is moot.

The parties agree that, if the Back Pay Act applies, the VA’s offset was proper and therefore

Hawkins is not entitled to the $128,000 the VA withheld. The parties also agree that if an

“appropriate authority” determined that Hawkins’ removal was “unjustified or unwarranted,” then

the BPA would apply. So, the threshold question for the Court is: has an appropriate authority

already made such a finding? Because this is a matter of the Court’s jurisdiction, the Court finds

it appropriate to look beyond the pleadings to the record evidence submitted by Hawkins. See

Feldman v. Fed. Deposit Ins. Corp., 879 F.3d 347, 351 (D.C. Cir. 2018) (holding that, where the

court’s subject-matter jurisdiction is at issue, the court must “go beyond the pleadings and resolve

any disputed issues of fact the resolution of which is necessary to a ruling upon the motion to

7 dismiss” (quoting Phoenix Consulting v. Republic of Angola, 216 F.3d 36, 40 (D.C. Cir. 2000))).

The record reveals that the VA itself must have found Hawkins’ removal to be unjustified or

unwarranted in order to cancel his removal and expunge it from his employment records. The

Court therefore concludes that the BPA does apply and Hawkins has received all the relief to which

he is entitled under that statute.

First, the Lieberman Memorandum and associated SF‐50 state that the agency “cancelled”

Hawkins’ removal. See ECF 62-3 at 1; ECF 61-4 (Box 5-B). A cancellation “rescinds an earlier

action that was improper, that was proper but contains references to an improper action, or that

contains remarks that are inappropriate or erroneous and that should not have been recorded.”

ECF 61‐6 at 2; see also ECF 61‐7 at 6. So, if the VA “cancels” a removal, that means the removal

was improper or at least contained improper references. The SF-50 also indicates the authority

who made the cancellation decision: “[t]he head of the employing agency or his or her designee.”

ECF 61-6 at 8 (Rule 11); see ECF 61-4 (Boxes 5-C and 5-E). And the SF-50 cites, as the legal

authority for the cancellation decision, both the Lieberman Memorandum and “5 U.S.C. 5596.

Back Pay.” ECF 61-4 (Boxes 5-D and 5-F).

Second, at the time that the agency cancelled Hawkins’ removal, Executive Order (EO)

13,839 was in effect.3 EO 13,839 provided that agencies “shall not erase, remove, [or]

alter . . . employee’s official personnel records . . . as part of, or as a condition to, resolving a

formal or informal complaint by the employee or settling an administrative challenge to an adverse

personnel action.” ECF 61‐5 at 1. And OPM guidance interpreting that Executive Order explained:

[The EO’s] requirements should not be construed to prevent agencies from taking corrective action should it come to light . . . that the information contained in a personnel record is not accurate or records an action taken by the agency illegally or in error. In such cases, an agency would have the authority, unilaterally 3 EO 13,839 was revoked in January 2021. See Executive Order 14,003.

8 or by agreement, to modify an employee’s personnel file to remove inaccurate information or the record of an erroneous or illegal action . . . [H]owever, the agency must ensure that it removes only information the agency itself has determined to be inaccurate or to reflect an action taken illegally or in error.”

ECF 61‐5 at 1–2 (emphasis added).

The VA not only canceled Hawkins’ removal—it purged all references to that removal

from his personnel files. See ECF 60-4. Under EO 13,839 and the relevant guidance in force at the

time, the agency could not have done so unless it first “itself determined” that Hawkins had been

removed “illegally or in error.” ECF 61-5 at 2. The VA does not substantively contest this

interpretation of EO 13,839 and the related regulations, nor does it advocate a different reading of

the Lieberman Memorandum or SF-50.4 See ECF 64 at 6–7 (failing to raise these issues).

To translate this into the language of the BPA: an “appropriate authority” (the head of the

VA or his designee) must have made “an administrative determination” that Hawkins’ removal

was “unjustified or unwarranted.” 5 U.S.C. § 5596(b)(1); see 5 C.F.R. § 550.803. Otherwise, the

VA could not have (lawfully) canceled Hawkins’ removal and expunged it from his personnel file.

Is that enough to trigger the BPA? Maney v. Department of Health and Human Services, 637 F.

Supp. 1128 (D.D.C. 1986) suggests that it is. In Maney, a federal employee received a poor

performance rating, making her ineligible for a bonus and certain future pay increases. 637 F.

Supp. at 1129. The employee filed a grievance, and the Grievance Examiner recommended that

her performance rating be raised. Id. The agency accepted the Examiner’s recommendation,

bumped up the employee’s performance rating, and retroactively paid out the bonus and pay

4 At oral argument, the government’s only rejoinder to this argument was that EO 13,839 and related OPM guidance do not restrict the Attorney General’s power to settle claims in litigation. But no one is challenging what the Department of Justice can or cannot do in settling a case—after all, this case did not settle. The narrow issue before the Court is: what findings did the VA (not the DOJ) make by cancelling Hawkins’ removal and expunging it from his personnel file?

9 increase she should have received given the revised performance rating. Id. But when the employee

sued in federal court under the BPA to recover attorneys’ fees, the agency argued that the BPA did

not apply because “the Grievance Examiner made no findings that any law had been violated and

found no substantive or procedural defects in the supervisor’s decision.” Id. at 1130. The court

rejected this “narrow reading” of the BPA, explaining that “[t]he Grievance Examiner’s

recommendation that plaintiff receive a higher performance rating was made with the implicit

recognition that the personality conflict between plaintiff and her supervisor interfered with the

supervisor’s duty to evaluate plaintiff impartially.” Id. Hawkins’ case is similar: the VA’s decision

to cancel his removal, given the state of the law at the time, carried “the implicit recognition” that

his removal was improper, even if the agency never identified the particular “substantive or

procedural defects” that made his removal improper. See id. And, like in Maney, the agency has

itself already paid out Hawkins’ earnings retroactively. See id. “The Court need not engage in

semantic gymnastics to conclude that what plaintiff received was back pay” authorized by the

BPA, given the agency’s own representations that it paid Hawkins under the BPA. Id. Thus, as in

Maney, the Court concludes that the VA did make a finding—even if implicitly—that was

sufficient to trigger the BPA.

* * *

For the foregoing reasons, the record is clear that the VA itself made an administrative

determination that Hawkins’ removal was “unjustified and unwarranted.” The Court finds that this

determination triggered the Back Pay Act, and the VA acknowledges that it has already paid

Hawkins pursuant to the BPA. And because the parties agree that the VA’s roughly $128,000

offset was proper under the BPA, and payment of that $128,000 was the only remaining relief

Hawkins sought from this Court, Hawkins’s non-FOIA claims are moot. The Court therefore

10 GRANTS the VA’s motion to dismiss for lack of subject-matter jurisdiction, ECF 60, and

DENIES Hawkins’ motion for summary judgment, ECF 62, as moot. The parties are ORDERED

to file a joint status report by May 1, 2025, updating the Court on the status of Hawkins’ FOIA

request and any further matters for the Court’s consideration in light of this decision.

SO ORDERED.

__________________________ JIA M. COBB United States District Judge

Date: April 1, 2025