KINKAID v. MCDONALD et al

Filing 31

MEMORANDUM OPINION. Signed by Judge Amy Berman Jackson on 9/22/2016. (lcabj2)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
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STANLEY G. KINKAID,
)
)
Petitioner,
)
)
v.
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Civil Action No. 15-0797 (ABJ)
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ROBERT A. MCDONALD, et al.,
)
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Respondents.
)
____________________________________)
MEMORANDUM OPINION
Petitioner Stanley Kinkaid has brought this action seeking to compel Robert McDonald, in
his official capacity as Secretary of the U.S. Department of Veterans Affairs (“VA”), and Ash
Carter, in his official capacity as Secretary of the U.S. Department of Defense, to award him back
pay under the Back Pay Act, 5 U.S.C. § 5596. Pet. for Writ of Mandamus [Dkt. # 1] (“Pet.”). He
claims respondents have failed to award him the wages he is owed for the period between his
unjustified discharge and the administrative decision ordering his reinstatement. Id. at 1–2.
Respondents have moved to dismiss the petition for lack of subject matter jurisdiction, on the
grounds that the Defense Finance and Accounting Service (“DFAS”) has paid petitioner in full for
the wages he was owed, rendering this action moot. Resp’ts’ Mot. to Dismiss as Moot [Dkt. # 22]
(“Resp’ts’ Mot.”) at 1. While it should not have taken as long as it did, petitioner has now received
the full amount of back pay to which he is entitled by law, so there is no longer a live case or
controversy over which this Court has jurisdiction, and respondents’ motion will be granted.
BACKGROUND
Petitioner was formerly employed as a full-time staff physician at the VA Medical Center
in Beckley, West Virginia. Pet. at 2. On April 19, 2011, he was notified of his proposed removal

from his position based on eight charges, which were sustained on May 25, 2011. Id. Petitioner
requested a Disciplinary Appeals Board (“DAB”) hearing, which was held in December 2012. Id.
The DAB upheld five of the charges against petitioner in whole and two in part, and rejected one
charge. Id. But on April 25, 2013, the Principal Deputy Under Secretary for Health ordered that
petitioner’s charges be overturned on due process grounds, and further ordered that petitioner be
reinstated and that he be awarded back pay within sixty days of the reinstatement decision. Id.
Petitioner states that he repeatedly contacted the VA to inquire as to the status of his award.
Pet. at 3. He initiated this civil action on May 31, 2015, and alleged that as of the date of filing,
he had still not received any back pay. Id. at 4. Respondents answered the petition on September
18, 2015, Resp’ts’ Answer to Pet. [Dkt. # 8], and after the parties agreed that there was “a realistic
possibility of resolving this case without further litigation,” see Joint Rule 16 Pretrial Conf. Report
[Dkt. # 13] at 2, the parties engaged in several attempts to settle the matter through the exchange
of documentation regarding petitioner’s claimed back pay and respondents’ calculations of the
amount owed. See Joint Status Reports [Dkt. ## 15–19].
On January 27, 2016, DFAS mailed petitioner a check for $116,499.87 for back pay and
interest. Resp’ts’ Mot. at 2; Decl. of Lilia Rivera [Dkt. # 25] (“Rivera Decl.”) ¶ 5; see also Pet’r’s
Opp. to Resp’ts’ Mot. [Dkt. # 27] (“Pet’r’s Opp.”) at 2 (acknowledging that petitioner received the
check). Accordingly, respondents have moved to dismiss the petition as moot. Resp’ts’ Mot. at
1. Petitioner opposes the motion, arguing that respondents’ calculations of his back pay award
“improperly deduct portions of non-replacement wages” and that he has therefore only received
part of what his petition seeks. Pet’r’s Opp. at 1.

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STANDARD OF REVIEW
In evaluating a motion to dismiss under Rule 12(b)(1), the Court must “treat the
complaint’s factual allegations as true . . . and must grant 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) (internal citations omitted), quoting Schuler v. United States, 617 F.2d 605, 608
(D.C. Cir. 1979); see also Am. Nat’l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011).
Nevertheless, the Court need not accept inferences drawn by the plaintiff if those inferences are
unsupported by facts alleged in the complaint, nor must the Court accept plaintiff’s legal
conclusions. Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002).
Under Rule 12(b)(1), the plaintiff bears the burden of establishing jurisdiction by a
preponderance of the evidence. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992); Shekoyan
v. Sibley Int’l Corp., 217 F. Supp. 2d 59, 63 (D.D.C. 2002). Federal courts are courts of limited
jurisdiction and the law presumes that “a cause lies outside this limited jurisdiction.” Kokkonen v.
Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); see also Gen. Motors Corp. v. EPA, 363
F.3d 442, 448 (D.C. Cir. 2004) (“As a court of limited jurisdiction, we begin, and end, with an
examination of our jurisdiction.”). “[B]ecause subject-matter jurisdiction is ‘an Art[icle] III as
well as a statutory requirement . . . no action of the parties can confer subject-matter jurisdiction
upon a federal court.’” Akinseye v. District of Columbia, 339 F.3d 970, 971 (D.C. Cir. 2003),
quoting Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 (1982).
When considering a motion to dismiss for lack of jurisdiction, the court “is not limited to
the allegations of the complaint.” Hohri v. United States, 782 F.2d 227, 241 (D.C. Cir. 1986),
vacated on other grounds, 482 U.S. 64 (1987). Rather, “a court may consider such materials
outside the pleadings as it deems appropriate to resolve the question [of] whether it has jurisdiction

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to hear the case.” Scolaro v. D.C. Bd. of Elections & Ethics, 104 F. Supp. 2d 18, 22 (D.D.C. 2000),
citing Herbert v. Nat’l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992); see also Jerome Stevens
Pharm., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005).
ANALYSIS
Respondents have moved to dismiss this action for lack of subject matter jurisdiction on
the grounds that the payment of $116,499.87 renders petitioner’s petition moot. Resp’ts’ Mot.
at 1–2. Petitioner has opposed the motion, arguing that respondents’ calculations improperly
deducted petitioner’s outside earnings from the total amount of back pay he was owed, and that
the award is therefore incomplete. Pet’r’s Opp. at 1. But the Court finds that DFAS correctly
calculated the amount of wages petitioner was owed under the relevant statute and regulations.
Since petitioner has been made whole, there is no longer a live case or controversy, and the Court
will grant respondents’ motion to dismiss this matter.
“The purpose of the Back Pay Act was to make an employee affected by an unjustified
personnel action financially whole . . . .”

Am. Fed’n of Gov’t Emps. v. FLRA, 843 F.2d

550, 555 (D.C. Cir. 1988); see also Martin v. Dep’t of Air Force, 184 F.3d 1366, 1372 (Fed. Cir.
1999) (“[T]he purpose of the Back Pay Act is to place a wrongfully discharged employee back in
the position he would have been in had the termination not occurred . . . .”). In furtherance of that
goal, the Back Pay Act provides that a government employee who has been subjected to an
unjustified personnel action which caused him to suffer a loss in pay:
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

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not occurred, less any amounts earned by the employee through
other employment during that period . . . .
5 U.S.C. § 5596(b)(1)(A)(i).
Here, in support of their position that petitioner has been made whole by the back pay
award he has already received, respondents rely on the declaration of Lilia Rivera, a DFAS
Financial Systems Analyst. Resp’ts’ Mot. at 3–4; Rivera Decl. ¶ 1. Rivera avers that petitioner’s
gross back pay totaled $456,714.05, but that the award was subject to a series of deductions:
$192,534.86 in outside earnings received by petitioner during the separation period; $39,384.15
for a lump sum accumulated annual leave payment; $26,316.90 for a lump sum payment for market
pay; $1,091.00 in mandatory employee retirement contributions; $10,224.93 in Social Security
and Medicare taxes; $28,789.11 in federal income tax; $9,263.00 in state income tax; and
$56,415.00 in Thrift Savings Plan deductions. Rivera Decl. ¶ 5. She adds that petitioner was
awarded $23,804.77 in interest pursuant to 5 C.F.R. § 550.806. Id. ¶ 6. After those deductions
and with interest, petitioner’s net back pay award totaled $116,499.87. Id. ¶ 5.
Petitioner does not appear to challenge the majority of the deductions listed by Rivera or
the amount of interest to which he was entitled, but he insists that the deduction for outside earnings
was improper, because respondents failed to “tak[e] into account the nature of those earnings in
comparison to [his] government employment.” Pet’r’s Opp. at 1. Specifically, he maintains that
“these earnings are not equivalent and should not be . . . treated as solely replacement income,”
because his “work during his separation period was . . . not substantially similar” to his work at
the VA, and because he “had to work more hours in a week, with longer work days and weekend
work, compared to his VA schedule.” Id. at 5, 7.

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But there is no support in the statute, regulations, or case law for petitioner’s position. The
relevant regulation requires that “an agency must make the following offsets and deductions” in
calculating a net back pay award under the Back Pay Act:
Any outside earnings (gross earnings less any associated business losses
and ordinary and necessary business expenses) received by employee for
other employment (including a business enterprise) undertaken to replace
the employment from which the employee was separated by the unjustified
or unwarranted personnel action during the interim period covered by the
corrective action.
5 C.F.R. § 550.805(e)(1). The regulation further provides that the agency should not deduct
“earnings from additional or ‘moonlight’ employment the employee may have engaged in while
Federally employed (before separation) and while erroneously separated.” Id.
Here, petitioner explains that “[f]ollowing [his] suspension from the VA, he began working
at other medical practices in an attempt to support himself and his family while his administrative
case was ongoing.” Pet’r’s Opp. at 5. By his own admission, then, the wages he obtained from
that employment are “outside earnings” received for employment “undertaken to replace the
employment from which [petitioner] was separated” improperly. 5 C.F.R. § 550.805(e)(1). As
discussed in greater detail below, the wages are not subject to the “moonlighting” exception,
because petitioner does not allege that he engaged in that employment both “before separation”
and after. Id. Based on the plain language of the statute – which requires the agency to deduct
“any amounts earned by the employee through other employment” during the separation period, 5
U.S.C. § 5596(b)(1)(A)(i) – and the regulations, the Court finds that the agency properly deducted
the income petitioner earned from working at other medical practices during the period in question,
and that the award he received was in the correct amount.
Petitioner insists that the outside earnings deduction was improper because DFAS’s
“calculations of back pay do not look at the substantial differences in [his] employments.” Pet’r’s
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Opp. at 7. He states that he “could work 40 hours at the VA, but have to work 70 hours at his
separation jobs (and still net less income),” and he argues that DFAS therefore incorrectly deducted
“the entirety of those 70 hours of pay . . . from the VA’s 40 hours of pay.” Id. But this argument
is unavailing: the regulation provides that “[a]ny outside earnings” should be deducted from the
back pay award, and it provides no basis to adjust an outside earnings deduction based on the
number of hours an employee must work to match his former earnings or to differentiate between
similar and dissimilar types of employment. See 5 C.F.R. § 550.805(e)(1) (emphasis added).
In support of his claim that his interim employment was not sufficiently similar to his VA
employment and that the wages therefore should not be deducted from his award, petitioner relies
upon two employment discrimination cases brought pursuant to Title VII of the Civil Rights Act.
See Pet’r’s Opp. at 6–7, citing Ford Motor Co. v. EEOC, 458 U.S. 219 (1982), and Donlin v.
Phillips Lighting N. Am. Corp., 581 F.3d 73 (3d Cir. 2009). Those decisions have no relation to
or bearing upon the proper application of the Back Pay Act, and they do not support petitioner’s
position in any event. Both cases provide that a Title VII plaintiff who obtains a better or
substantially equivalent replacement position is not entitled to lost wages damages from that point
forward. See Donlin, 581 F.3d at 84 (“When a plaintiff finds employment that is equivalent or
better than the position she was wrongly denied, the right to damages ends because it is no longer
necessary to achieve an equitable purpose . . . .”); see also Ford Motor Co., 458 U.S. at 236 (“[T]he
victim of discrimination who finds a better or substantially equivalent job no longer suffers
ongoing injury stemming from the unlawful discrimination.”). So they offer petitioner with no
support for his back pay claims here.
Petitioner also argues that earnings from his replacement position for hours he worked in
excess of his VA schedule should not be deducted from his back pay award because those hours

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constitute overtime. See Pet’r’s Opp. at 8–9, citing Piscopo v. Pub. Serv. Elec. & Gas Co., No. 13552 (ES), 2014 WL 3014284, at *4 (D.N.J. July 3, 2014), and Aboud v. City of Wildwood, No. 127195 (JS), 2013 WL 2156248, at *5 (D.N.J. May 17, 2013). He insists that “the courts have held
that prior employment overtime should not be included when calculating back pay.” Id. at 8. But
as with his other arguments, there is no basis for such an interpretation in the statute or in the
relevant regulations, which do not distinguish in any way between earnings from regular work
hours and overtime hours, and the cases upon which he relies are inapposite. 1
Because he “worked at different clinics on both nights and weekends,” which were “not
time periods that [he] could have been working at the VA,” petitioner also claims that “[t]hese
shifts would qualify as ‘moonlighting’ under the Back Pay Act . . . and therefore should not be
included in the deduction calculations.” Id. at 9. But the regulations are clear that in order for
earnings from “moonlight” employment to be shielded from an outside earnings deduction, the
employee must have been engaged in that occupation “while Federally employed (before
separation) and while erroneously separated.” 5 C.F.R. § 550.805(e)(1) (emphasis added). 2
Petitioner does not allege that he had engaged in the night and weekend clinical work prior to his

1
Both Piscopo and Aboud involved claims for overtime compensation under the Fair Labor
Standards Act, and have no discernible relevance to the calculation of outside earning deductions
under the Back Pay Act. In Piscopo, the court explicitly rejected the plaintiff’s argument that the
Back Pay Act applied, see 2014 WL 3014284, at *4 (“[N]either the Back Pay Act, nor the related
cited regulation, applies.”), and back pay is not even mentioned in Aboud.
2
Petitioner argues that “[n]either the regulation . . . nor case law states that the [petitioner]
must have been engaged in the moonlighting prior to his separation, but instead they both state that
moonlighting work is work that the plaintiff ‘may’ have done ‘while employed’ in his VA
position.” Pet’r’s Opp. at 9. Petitioner appears to be arguing that the moonlighting exception does
not require the employee to have held the moonlighting position prior to the termination of his
federal employment – it just permitted him to do so. But petitioner’s reading is counter to the plain
language of the regulation. See 5 C.F.R. § 550.805(e)(1) (“Do not count earnings from additional
or ‘moonlight’ employment the employee may have engaged in while Federally employed (before
separation) and while erroneously separated.”).
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separation from the VA, and in fact, his opposition makes clear that he only began that work after
he was wrongfully terminated. See Pet’r’s Opp. at 5 (“Following [petitioner’s] suspension from
the VA, he began working at other medical practices in an attempt to support himself and his
family while his administrative case was ongoing.”).

So the exception for earnings from

“moonlight” employment plainly does not apply. 3
Finally, petitioner appears to argue in his opposition that respondents’ delay in awarding
him back pay constitutes a violation of the Administrative Procedure Act, see Pet’r’s Opp. at 11,
which requires that “each agency shall proceed to conclude a matter presented to it” “[w]ith due
regard for the convenience and necessity of the parties.” 5 U.S.C. § 555(b). Such a claim is
entirely absent from his petition, and it is unavailing in any event. Petitioner has been compensated
for the delay in awarding him the back pay through the inclusion of $23,804.77 in interest in his
final award. See Rivera Decl. ¶ 6. The APA does not provide a separate cause of action for
awarding him additional damages, nor does it provide a basis for the Court to find that this case
still presents a live case or controversy.
“Federal courts lack jurisdiction to decide moot cases because their constitutional authority
extends only to actual cases or controversies.” Larsen v. U.S. Navy, 525 F.3d 1, 4 (D.C. Cir. 2008),
quoting Iron Arrow Honor Soc’y v. Heckler, 464 U.S. 67, 70 (1983). “[A] case is moot when the
issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the

3
In support of his moonlighting argument, petitioner cites Shapiro v. Textron, No. 95-4083,
1997 WL 45288 (E.D. La. Feb. 4, 1997), a case brought pursuant to the Age Discrimination in
Employment Act. In that case, the court held that income the plaintiff received after termination,
which was “unrelated to the termination of his employment,” should not be deducted from his back
pay award because “he would have received the back pay in addition to the income from the other
sources” if he had not been wrongly terminated. Id. at *1 (emphasis in original). That is not the
case here, where the earnings in question are from employment that petitioner obtained only after
termination, and were not earned in addition to his federal employment. See Pet’r’s Opp. at 5.
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outcome.” Cty. of L.A. v. Davis, 440 U.S. 625, 631 (1979), quoting Powell v. McCormack, 395
U.S. 486, 496 (1969). “Even where litigation poses a live controversy when filed, the [mootness]
doctrine requires a federal court to refrain from deciding it if ‘events have so transpired that the
decision will neither presently affect the parties’ rights nor have a more-than-speculative chance
of affecting them in the future.’” Clarke v. United States, 915 F.2d 699, 701 (D.C. Cir. 1990),
quoting Transwestern Pipeline Co. v. FERC, 897 F.2d 570, 575 (D.C. Cir. 1990).
Here, the Court finds that petitioner has received the amount of back pay and interest to
which he is properly entitled by law. Accordingly, his requests that respondents “[p]rocess [his]
owed back pay, including actual pay owed,” and award him interest, see Pet. at 8, have been
fulfilled and the purpose of the Back Pay Act – “to make an employee affected by an unjustified
personnel action financially whole,” Am. Fed’n of Gov’t Emps., 843 F.2d at 555 – has been served.
The petition therefore no longer presents a live case or controversy over which this Court has
subject matter jurisdiction.
CONCLUSION
Because petitioner has been awarded the back pay and interest to which he is entitled under
the Back Pay Act, his petition is moot. The Court therefore lacks jurisdiction over this dispute,
and respondents’ motion to dismiss this action pursuant to Rule 12(b)(1) will be granted.
A separate order will issue.

AMY BERMAN JACKSON
United States District Judge
DATE: September 22, 2016

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