DeOcampo v. Department of the Army
551 F. App'x 1000
Fed. Cir.2014Background
- DeOcampo, a federal police officer, was removed in March 2011 after negligently discharging his firearm and injuring his leg; he appealed and then entered a settlement with the Army rescinding the removal and providing reinstatement effective March 27, 2011.
- Under the settlement, DeOcampo agreed to resign for medical reasons effective September 16, 2011, and the Army agreed to pay back pay within 60 days under the Back Pay Act. The settlement was fully executed October 4, 2011.
- DeOcampo filed a petition for enforcement on December 21, 2011, alleging the Army failed to pay back pay and later raising specific pay computation disputes (short hours, missing allowances, and a 24-hour LWOP deduction).
- The Army submitted detailed payroll spreadsheets, e-mails, timecards, and an affidavit showing processing efforts; the Army paid DeOcampo his back pay on January 13, 2012 (about 40 days late) and paid interest; the Army later agreed to pay an $800 uniform allowance but denied requests for lump-sum sick leave and attorneys’ fees.
- The Administrative Judge denied enforcement, finding the Army exercised reasonable diligence in making the late payment with interest and that the Back Pay Act and its regulations do not authorize lump‑sum payment for unused sick leave; the Board affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Army materially breached settlement by failing to produce personnel documents (5 U.S.C. § 552(b), 5 C.F.R. § 293.102) | DeOcampo: Army failed to provide Official Personnel File and other personnel records, warranting rescission. | Army: Provided detailed accounting and evidence of compliance; production of a specific "Command Letter" was not required by the settlement. | Waived on appeal and, substantively, Board’s finding that Army’s accounting sufficed is supported by substantial evidence. |
| Whether late payment (≈40 days after 60‑day deadline) is a material breach warranting rescission | DeOcampo: Payment was not made within 60 days as required. | Army: Payment delay was minor, DeOcampo was kept informed and received interest; Army exercised reasonable diligence. | Delay was not a material breach; interest and efforts remedied the late payment. |
| Whether DeOcampo is entitled to lump‑sum payment for unused sick leave under the Back Pay Act or 5 C.F.R. § 550.805(d) | DeOcampo: Regulation requires granting sick leave for periods of incapacitation and thus authorizes lump‑sum payment. | Army: Back Pay Act and implementing regs do not authorize lump‑sum payments for sick leave; §550.805(d) allows use of leave during back pay period, not a payout. | Denied: §550.805(d) does not authorize lump‑sum sick‑leave payouts; regs exclude such lump‑sum payments. |
| Whether attorney fees or other outstanding compensatory items are owed | DeOcampo: Sought attorneys’ fees and other unpaid amounts after accounting. | Army: Addressed many specific disputes; denied entitlement to fees and certain items. | Board instructed renewal of fee request later; court found remaining arguments unpersuasive and affirmed Board. |
Key Cases Cited
- Addison v. Dep’t of Health & Human Servs., 945 F.2d 1184 (Fed. Cir. 1991) (standard of review for Board decisions)
- McEntee v. Merit Sys. Prot. Bd., 404 F.3d 1320 (Fed. Cir. 2005) (definition of substantial evidence)
- Lutz v. U.S. Postal Serv., 485 F.3d 1377 (Fed. Cir. 2007) (material breach standard for contract rescission)
- Sargent v. Dep’t of Health & Human Servs., 229 F.3d 1088 (Fed. Cir. 2000) (issue‑exhaustion requirement before the Board)