Case: 13-165    Document: 12   Page: 1    Filed: 12/12/2013




          NOTE: This order is nonprecedential.

   United States Court of Appeals
       for the Federal Circuit
                __________________________

               IN RE SHERMAN HOWARD,
                       Petitioner.
                __________________________

                         2013-165
                __________________________

 On Petition for Writ of Mandamus to the Merit Systems
      Protection Board in No. DA0752090172-C-1.
                __________________________

                      ON PETITION
                __________________________

    Before NEWMAN, PROST and REYNA, Circuit Judges.
REYNA, Circuit Judge.

                        ORDER

    Sherman Howard (“Howard”) petitions for a writ of
mandamus directing the Merit Systems Protection Board
(“MSPB”) to issue a final decision in his case. Howard
also seeks attorney fees and costs associated with filing
this petition pursuant to the Equal Access to Justice Act,
28 U.S.C. § 2412(d). The MSPB opposes.

    In late 2008, Howard was removed from his auditor
position at the Department of the Air Force based in part
Case: 13-165   Document: 12     Page: 2    Filed: 12/12/2013




IN RE HOWARD                                             2

on allegedly poor performance that was not mentioned in
the agency’s proposed notice of removal. At the time of
his removal, Howard had been working four hours a day
due to medical restrictions. After this court remanded the
case in 2010, the MSPB on April 26, 2012 held that the
Air Force’s reliance on ex parte information violated
Howard’s due process rights. Accordingly, the MSPB
ordered the Air Force to reinstate Howard and award him
back pay, interest, and other benefits due.

    Following the MPSB’s reinstatement decision, the Air
Force cancelled Howard’s removal, and returned him to a
four-hour pay status. Soon thereafter, Howard was
placed on administrative leave with pay based on charges
of misconduct. Howard was subsequently removed from
his position.

    In July 2012, Howard filed a petition to enforce the
reinstatement order arguing, inter alia, that the Air Force
had improperly offset his back pay award, failed to pay
the proper amount of interest, improperly offset income
received while removed, failed to restore hours of annual
leave, and failed to pay performance and cash awards.
Howard additionally asserted that upon being restored to
his position until June 26, 2012 the agency constructively
suspended him by not affording eight hour pay status.

    On March 29, 2013, the MSPB’s chief administrative
judge granted-in-part Howard’s petition for enforcement,
and dismissed his constructive suspension action. As to
Howard’s petition for enforcement, the chief administra-
tive judge noted that the Air Force acknowledged certain
matters of noncompliance, but subsequently corrected
those mistakes by, among other things, paying Howard
$9,991.91 in interest, $2,017.74 in a lump sum leave
offset, $4,831.85 in earnings, and $35.67 in performance
award interest. While the agency was found to otherwise
Case: 13-165    Document: 12     Page: 3   Filed: 12/12/2013




3                                             IN RE HOWARD

be in material compliance with the MSPB’s prior order,
the chief administrative judge required the Air Force to
re-compute the interest on the back pay award, resulting
in Howard receiving an additional payment of $546.55.

    The chief administrative judge further determined
that Howard had failed to make a non-frivolous allegation
regarding his constructive suspension claim. The chief
administrative judge explained that Howard was on
medical restrictions at the time of his removal and had
not requested to return to full-time status. The judge
further noted that the Air Force increased Howard’s pay
status to a full eight hours after being informed that the
medical restrictions had been lifted. The chief adminis-
trative judge therefore dismissed the constructive suspen-
sion claim for lack of jurisdiction.

    Howard filed a petition for review of the administra-
tive judge’s decision on May 2, 2013, which remains
pending before the MPSB. On September 13, 2013,
Howard filed this petition for a writ of mandamus, seek-
ing to compel the Board to expedite review of his pending
case. To prevail, Howard must show: (1) he has a clear
legal right to relief; (2) there are no adequate alternative
legal channels through which he may obtain that relief;
and (3) the grant of mandamus is appropriate under the
circumstances. Cheney v. U.S. Dist. Court, 542 U.S. 367,
380-81 (2004); Kerr v. U.S. Dist. Court, 426 U.S. 394, 403
(1976).

    This exacting standard is not satisfied here. While a
large amount of time has passed since the filing of How-
ard’s initial wrongful removal action, it cannot be said
that this matter is at a standstill, as decisions favorable
to Howard have been issued, he has received relief re-
quested, and his case before the MSPB is proceeding
toward a final outcome. Moreover, only a few months had
Case: 13-165     Document: 12    Page: 4    Filed: 12/12/2013




IN RE HOWARD                                                 4

elapsed since the record closed in the current proceedings
before the MSPB. As such, we are not prepared to say
that there has been the egregious delay here necessary to
warrant mandamus relief. See In re Monroe Commc’ns
Corp., 840 F.2d 942, 945 (D.C. Cir. 1988).

    We do, however, note that the long delay in reaching a
final outcome in this case might tip the balance in favor of
mandamus relief upon reapplication in the future. We
assume, however, that the MSPB will soon address this
matter.

      Accordingly,

      IT IS ORDERED THAT:

      (1) The petition for writ of mandamus is denied.

    (2) The request for attorney fees and costs incurred in
association with this petition is denied.


                                    FOR THE COURT

                                     /s/ Daniel E. O’Toole
                                         Daniel E. O’Toole
                                         Clerk
s23
