Yolanda Acuna v. Equal Employment Opportunity Commission

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
YOLANDA ACUNA,
Petitioner
v.
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,
Respondent
______________________
2024-2114
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-0752-15-0230-X-1.
______________________
Decided: March 4, 2025
______________________
YOLANDA A CUNA, South Gate, CA, pro se.
D ANIEL F ALKNOR, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent. Also represented by BRIAN M.
BOYNTON, P ATRICIA M. MCCARTHY , CORINNE ANNE N IOSI.
______________________
Before P ROST , T ARANTO, and STARK, Circuit Judges.
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ACUNA v. EEOC 2
P ER CURIAM .
Trevor McCardle, a former employee of the Equal Em-
ployment Opportunity Commission (EEOC), passed away
on August 4, 2019. In January 2023, the Merit Systems
Protection Board (Board) determined that he was entitled
to back pay for a period in 2014–15 and ordered the EEOC
to make the appropriate payment. Three months later,
Yolanda Acuna—who was married to Mr. McCardle at the
time of his death and had been substituted for him in the
Board proceeding—petitioned the Board to enforce its Jan-
uary 2023 decision by directing the EEOC to disburse the
payment required by that decision. The Board’s assigned
administrative judge found that the EEOC had not made
the required payment, McCardle v. Equal Employment Op-
portunity Commission, No. SF-0752-15-0230-C-1, 2023 WL
3686899 (May 24, 2023) (2023 Decision); S. Appx. 14–24,1
and the EEOC then made the payment—though it directed
the payment not to Ms. Acuna, but to Mr. McCardle’s for-
mer wife, who remained his designated beneficiary.
Ms. Acuna appealed to the full Board, which found the
agency now to be in compliance and dismissed the petition
for enforcement. McCardle v. Equal Employment Oppor-
tunity Commission, No. SF-0752-15-0230-X-1, 2024 WL
2152118, at *2–3 (M.S.P.B. May 13, 2024) (2024 Decision);
S. Appx. 1–13. Ms. Acuna appeals to this court. We affirm.
I
A
Trevor McCardle was employed as a Paralegal Special-
ist by the EEOC’s Office of General Counsel. 2023
1 “S. Appx.” refers to the Supplemental Appendix
submitted by the Respondent. For the 2023 Decision, we
cite the page numbers on the administrative judge’s opin-
ion in the Supplemental Appendix. See S. Appx. 14–24.
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ACUNA v. EEOC 3
Decision, at 3; S. Appx. 56–57. In December 2010, he
signed a Standard Form 1152 (SF-1152), titled “Designa-
tion of Beneficiary – Unpaid Compensation of Deceased Ci-
vilian Employee.” S. Appx. 58. The form records Mr.
McCardle as designating his then-wife, Monica McCardle
(now Monica Gaya), as “the beneficiary . . . to receive any
unpaid compensation due and payable after [his] death.”
S. Appx. 58 (emphasis omitted); see also 2024 Decision, at
*1 (noting surname change).
In December 2014, Mr. McCardle was suspended indef-
initely by the agency (for reasons not at issue here).
S. Appx. 56–57. Upon Mr. McCardle’s appeal to the Board,
S. Appx. 42, an administrative judge issued an initial deci-
sion in December 2015, ordering the agency to cancel his
suspension, retroactively restore him to his position, and
provide the appropriate amount of back pay. McCardle v.
Equal Employment Opportunity Commission, No. SF-
0752-15-0230-I-1, 2015 WL 8971924 (Dec. 8, 2015); see
2023 Decision, at 2, 4. Both the EEOC and Mr. McCardle
sought review by the full Board. S. Appx. 45. In August
2019, with the matter pending, Mr. McCardle passed away.
2023 Decision, at 5.
In January 2023, when the Board regained a quorum
after several years without one, the full Board affirmed the
administrative judge’s initial decision (with some modifica-
tions), ordering the EEOC to provide the above-described
relief as well as the appropriate amount of interest and/or
other benefits due within 60 calendar days. McCardle v.
Equal Employment Opportunity Commission, No. SF-
0752-15-0230-I-1, 2023 WL 119412, at *1, *11 (M.S.P.B.
Jan. 6, 2023); see 2024 Decision, at *1; 2023 Decision, at 7.
The Board also permitted Yolanda Acuna, Mr. McCardle’s
wife at the time of his death, to be substituted for him as
the appellant. McCardle, 2023 WL 119412, at *1 n.1; see
2024 Decision, at *1; 2023 Decision, at 6–7.
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ACUNA v. EEOC 4
B
Ms. Acuna filled out a form to claim the required back
pay in February 2023; and Ms. Gaya did the same in May
2023. S. Appx. 49–50; S. Appx. 51–52.
In April 2023, before Ms. Gaya filed for the back pay,
Ms. Acuna, having yet to receive any payment, filed a peti-
tion for enforcement with the Board. 2023 Decision, at 8.
On May 24, 2023, the administrative judge issued an initial
decision on the petition, finding that the EEOC “ha[d]
failed to meet its burden of proving it has complied with
the Board’s final order to pay the appellant . . . for the in-
definite suspension period at issue.” Id. at 11. Based on
that finding, the administrative judge granted the petition,
ordering the EEOC to issue the payment. Id.
On June 6, 2023, the EEOC submitted a statement of
compliance to the administrative judge stating that it had
paid the money to Ms. Gaya, the beneficiary designated on
Mr. McCardle’s SF-1152. S. Appx. 48; S. Appx. 53–55; see
2024 Decision, at *2. The EEOC said it was doing so pur-
suant to 5 U.S.C. § 5582(b) (stating that the first preferred
recipient for “money due an employee at the time of his
death” is “the beneficiary or beneficiaries designated by the
employee in a writing received in the employing agency be-
fore his death”) and 5 C.F.R. § 178.204 (similar). 2024 De-
cision, at *2. The matter was then automatically referred
to the full Board for a final decision. See id. Ms. Acuna
argued to the Board that back pay was governed by 5
U.S.C. § 5596, not § 5582, and that the SF-1152 form did
not cover back pay, whereas the EEOC urged that § 5582
applied and that the SF-1152 was in full force and effect
and covered back pay. Id.
On May 13, 2024, the full Board issued a final order
finding that the agency had met its burden to show compli-
ance with the enforcement order and dismissing the peti-
tion for enforcement. Id. at *3. The Board noted that
“[n]either party has contested the agency’s calculations or
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ACUNA v. EEOC 5
its evidence that the resulting payment was issued.” Id.
The Board then concluded that Ms. Gaya was the appropri-
ate recipient under 5 U.S.C. § 5582(b) and 5 C.F.R.
§ 178.204. Id.
Ms. Acuna timely appealed. We have jurisdiction un-
der 28 U.S.C. § 1295(a)(9) and 5 U.S.C. § 7703(b)(1)(A).
II
We may set aside the Board’s decision only if it is
“(1) arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with law; (2) obtained without pro-
cedures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence.”
5 U.S.C. § 7703(c). “We review the Board’s determinations
of law for correctness without deference to the Board’s de-
cision.” Harrington v. Department of Veterans Affairs, 981
F.3d 1356, 1358 (Fed. Cir. 2020) (citation omitted). Statu-
tory interpretation is reviewed for correctness as a matter
of law. Banks v. Merit Systems Protection Board, 854 F.3d
1360, 1361 (Fed. Cir. 2017). We exercise our “independent
judgment” about the correctness of an agency’s statutory
interpretation. Loper Bright Enterprises v. Raimondo, 603
U.S. 369, 412 (2024).
On appeal, Ms. Acuna argues that the Board errone-
ously applied 5 U.S.C. §§ 5581 and 5582 to determine that
Ms. Gaya was the appropriate recipient of the back-pay
payment. Acuna Informal Br. at 2–4. Ms. Acuna contends
that § 5582 is inapplicable because the back pay did not
become due until January 6, 2023, the day of the full
Board’s decision, and thus was not “money due an em-
ployee at the time of his death.” Id. at 5. Ms. Acuna points
out that § 5581, which defines “money due” and provides
examples, does not include back pay as an example. Id. at
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ACUNA v. EEOC 6
4–5. Ms. Acuna argues that the payment should have been
made to her pursuant to 5 U.S.C. § 5596.2 Id. at 2, 5.
Section 5582(b) states that, “[i]n order to facilitate the
settlement of the accounts of deceased employees, money
due an employee at the time of his death shall be paid to
the person or persons surviving at the date of death, in the
following order of precedence . . .”:
First, to the beneficiary or beneficiaries designated
by the employee in a writing received in the em-
ploying agency before his death.
5 U.S.C. § 5582(b); see also 5 C.F.R. § 178.204 (similar); id.
§ 178.203 (regulating designation of beneficiary). Ms.
Acuna does not challenge the Board’s finding that Ms.
Gaya is the sole beneficiary designated in writing. See
Acuna Informal Br. at 2–5; 2024 Decision, at *3; S. Appx.
58 (Mr. McCardle’s SF-1152).
The remaining question is whether “money due an em-
ployee at the time of his death,” 5 U.S.C. § 5582, encom-
passes the type of payment at issue here. We conclude that
it does.
“Money due” is defined by § 5581 in relevant part as
“the pay and allowances due on account of the services of a
deceased employee for the Government of the United
States.” 5 U.S.C. § 5581(2) (emphasis added); see also 5
C.F.R. § 178.202(b) (similar). Section 5596, i.e., the Back
Pay Act, in turn states that when a qualifying employee is
found to have been affected by an unjustified personnel ac-
tion resulting in a loss of pay, the individual is entitled to
receive back pay for the period of the personnel action “and
. . . for all purposes, is deemed to have performed service for
2 Ms. Acuna refers to § 8596, but we understand her
to mean § 5596 based on the prior proceedings. See, e.g.,
2024 Decision, at *2.
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ACUNA v. EEOC 7
the agency during that period . . . .” 5 U.S.C.
§ 5596(b)(1)(B) (emphasis added). Deeming the individual
to have performed the service during the period for all pur-
poses means deeming the individual to have been due the
pay during the same period. Thus, the statutory language
naturally means that back pay—“pay . . . due on account of
the services of a deceased employee,” i.e., “money due,”
§ 5581(2)—was due at the time of the service that would
have been performed but for the unjustified personnel ac-
tion. Accord Bario v. Department of Justice, 8 M.S.P.B.
513, 515–16 (1981). This straightforward analysis makes
clear that § 5596 is not an exception to § 5582, but instead
confirms § 5582’s coverage of back pay through the defini-
tion of § 5582’s term, “money due,” as defined in § 5581.
III
We have considered Ms. Acuna’s remaining arguments
and find them unavailing. We affirm the Board’s decision.
The parties shall bear their own costs.
AFFIRMED
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