Honse v. United States

• Court: United States Court of Federal Claims
• Decided: September 10, 2020
• Docket: 19-1801
• Status: Published

Opinion

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

2 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.

3 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.

4 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

5 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 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.

******

8 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.