UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD
JESSE R. HALTERMAN, DOCKET NUMBERS Appellant, DC-0432-16-0833-X-1 DC-0432-16-0833-C-1 v.
DEPARTMENT OF HOMELAND SECURITY, Agency. DATE: May 3, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Neil C. Bonney, Esquire, and Allison B. Eddy, Esquire, Virginia Beach, Virginia, for the appellant.
Lorna Jerome, Esquire, and Edith Moore McGee, Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member 2
1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions.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 Member Leavitt’s name is included in decisions on which the three -member Board completed the voting process prior to his March 1, 2023 departure. 2
FINAL ORDER
¶1 The agency filed a petition for review of the administrative j udge’s compliance initial decision in Halterman v. Department of Homeland Security, MSPB Docket No. DC-0432-16-0833-C-1, and the appellant filed a cross petition for review. Compliance Petition for Review File, Tabs 1, 3. In an Order issued on June 23, 2022, the Board found that the agency’s evidence showed that it was largely in compliance with the administrative judge’s order. Halterman v. Department of Homeland Security, MSPB Docket No. DC-0432-16-0833-C-1, Order (June 23, 2022) (Order). However, the Board found the agency failed to provide evidence that it had awarded the appellant the proper amount of interest due for the back pay awarded and directed it to address this issue, docketing the subsequent proceedings under Halterman v. Department of Homeland Security, MSPB Docket No. DC-0432-16-0833-X-1. Order, ¶¶ 15, 19, 25-27. ¶2 We now JOIN these matters for processing, and, for the reasons discussed below, we find the agency is now in compliance and DISMISS the petition for enforcement.
DISCUSSION OF ARGUMENTS AND EVIDENCE ON COMPLIANCE ¶3 In its June 23, 2022 Order, the Board noted, in pertinent part, that the agency included back pay for the initial pay period, but for that period, August 17-20, 2016, no interest was awarded. Order, ¶ 19. The Board’s Order required the agency to submit evidence and a narrative statement of complianc e, which must include proof the appellant was properly paid the interest owed on back pay for PP 16/2016 that has accrued from August 17, 2016. Id., ¶ 26. The Order notified the appellant that he may respond within 20 days of the agency’s submission of its evidence. Id., ¶ 28. It also advised the appellant that, if he did not respond, the Board might assume that he is satisfied with the agency’s action. Id. 3
¶4 The agency submitted evidence of compliance on August 18, 2022. Compliance Referral File, Tab 2. The evidence includes a sworn statement that the agency paid the appellant the interest owed on the back pay for pay period 16 in 2016 that has accrued since August 17, 2016. Id. at 6-7. The agency’s submission also includes the calculations it used, based on the Office of Personnel Management’s back pay/interest calculator. Id. at 9, 15, 21. The appellant has not filed a timely response to this evidence, and the Board therefore assumes that he is satisfied. ¶5 Accordingly, we find the agency is now in compliance and dismiss the petition for enforcement. This is the final decision of the Merit Systems Protection Board in these compliance proceedings. Title 5 of the Code of Federal Regulations, section 1201.183(c)(1) (5 C.F.R. § 1201.183(c)(1)).
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 (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). 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 and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You must file your motion for attorney fees and costs with the office that issued the initial decision on your appeal.
NOTICE OF APPEAL RIGHTS 3 You may obtain review of this final decision. See 5 U.S.C. § 7703(a)(1). By statute the nature of your claims determines the time limit for seeking such
3 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. 4
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 below 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: 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. 5
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UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD
JESSE R. HALTERMAN, DOCKET NUMBERS Appellant, DC-0432-16-0833-X-1 DC-0432-16-0833-C-1 v.
DEPARTMENT OF HOMELAND SECURITY, Agency. DATE: May 3, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Neil C. Bonney, Esquire, and Allison B. Eddy, Esquire, Virginia Beach, Virginia, for the appellant.
Lorna Jerome, Esquire, and Edith Moore McGee, Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member 2
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 Member Leavitt’s name is included in decisions on which the three -member Board completed the voting process prior to his March 1, 2023 departure. 2
FINAL ORDER
¶1 The agency filed a petition for review of the administrative j udge’s compliance initial decision in Halterman v. Department of Homeland Security, MSPB Docket No. DC-0432-16-0833-C-1, and the appellant filed a cross petition for review. Compliance Petition for Review File, Tabs 1, 3. In an Order issued on June 23, 2022, the Board found that the agency’s evidence showed that it was largely in compliance with the administrative judge’s order. Halterman v. Department of Homeland Security, MSPB Docket No. DC-0432-16-0833-C-1, Order (June 23, 2022) (Order). However, the Board found the agency failed to provide evidence that it had awarded the appellant the proper amount of interest due for the back pay awarded and directed it to address this issue, docketing the subsequent proceedings under Halterman v. Department of Homeland Security, MSPB Docket No. DC-0432-16-0833-X-1. Order, ¶¶ 15, 19, 25-27. ¶2 We now JOIN these matters for processing, and, for the reasons discussed below, we find the agency is now in compliance and DISMISS the petition for enforcement.
DISCUSSION OF ARGUMENTS AND EVIDENCE ON COMPLIANCE ¶3 In its June 23, 2022 Order, the Board noted, in pertinent part, that the agency included back pay for the initial pay period, but for that period, August 17-20, 2016, no interest was awarded. Order, ¶ 19. The Board’s Order required the agency to submit evidence and a narrative statement of complianc e, which must include proof the appellant was properly paid the interest owed on back pay for PP 16/2016 that has accrued from August 17, 2016. Id., ¶ 26. The Order notified the appellant that he may respond within 20 days of the agency’s submission of its evidence. Id., ¶ 28. It also advised the appellant that, if he did not respond, the Board might assume that he is satisfied with the agency’s action. Id. 3
¶4 The agency submitted evidence of compliance on August 18, 2022. Compliance Referral File, Tab 2. The evidence includes a sworn statement that the agency paid the appellant the interest owed on the back pay for pay period 16 in 2016 that has accrued since August 17, 2016. Id. at 6-7. The agency’s submission also includes the calculations it used, based on the Office of Personnel Management’s back pay/interest calculator. Id. at 9, 15, 21. The appellant has not filed a timely response to this evidence, and the Board therefore assumes that he is satisfied. ¶5 Accordingly, we find the agency is now in compliance and dismiss the petition for enforcement. This is the final decision of the Merit Systems Protection Board in these compliance proceedings. Title 5 of the Code of Federal Regulations, section 1201.183(c)(1) (5 C.F.R. § 1201.183(c)(1)).
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 (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). 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 and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You must file your motion for attorney fees and costs with the office that issued the initial decision on your appeal.
NOTICE OF APPEAL RIGHTS 3 You may obtain review of this final decision. See 5 U.S.C. § 7703(a)(1). By statute the nature of your claims determines the time limit for seeking such
3 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. 4
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 below 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: 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. 5
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 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 6
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 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. 4 The court of appeals must receive your petition for
4 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on 7
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 Fed eral 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.
July 7, 2018, permanently allows appellants to file petitions for judic ial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court 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. 8
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.