Opinion

Maria B Escobar v. Department of Justice

Court: Merit Systems Protection Board
Filed: Feb 5, 2025
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 33.9%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

MARIA B. ESCOBAR, DOCKET NUMBER

Appellant, DE-0752-21-0108-X-1

DE-0752-21-0108-C-1

DEPARTMENT OF JUSTICE,

Agency. DATE: February 5, 2025

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Maria B. Escobar , Tucson, Arizona, pro se.

Debbie Stevens , Marie Clarke , and Ted Booth , Esquire, Washington, D.C.,

for the agency.

BEFORE

Cathy A. Harris, Chairman*

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member

*The Board members voted on this decision before January 20, 2025.

A nonprecedential order is one that the Board has determined does not add significantly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 Parties may cite nonprecedential orders, but such orders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).

FINAL ORDER

This case is before the Board pursuant to a May 16, 2024 Board Order, which

denied the agency’s petition for review of the compliance initial decision that

found the agency not in compliance with the Board’s March 14, 2022 final decision

in the underlying appeal. Escobar v. Department of Justice, MSPB Docket No.

DE-0752-21-0108-C-1, Order (May 16, 2024); Escobar v. Department of Justice,

MSPB Docket No. DE-0752-21-0108-C-1, Compliance File (CF), Tab 6,

Compliance Initial Decision (CID); Escobar v. Department of Justice, MSPB

Docket No. DE-0752-21-0108-I-2, Initial Appeal File, Tab 7, Initial Decision (ID).

For the reasons set forth below, we now find the agency in compliance and

DISMISS the petition for enforcement.

DISCUSSION OF ARGUMENT AND EVIDENCE ON COMPLIANCE

The appellant filed the instant petition for enforcement alleging that the

agency had failed to comply with the Board’s March 14, 2022 final decision in the

underlying appeal, which reversed the appellant’s suspension and ordered the

agency to pay the appellant the appropriate amount of back pay, with interest and

benefits. ID at 4-5. The appellant asserted that the agency had failed to pay her the

appropriate amount of backpay and had not changed her leave status from absent

without leave (AWOL) to an approved leave status. CF, Tab 1. The administrative

judge granted the petition for enforcement in a November 7, 2022 compliance

initial decision, finding that the agency had “failed to submit any relevant,

material, and credible evidence . . . to establish that it was in compliance with the

final Board order in this matter.” CID at 3.

The agency filed a petition for review of the compliance initial decision.

Escobar v. Department of Justice, MSPB Docket No. DE-0752-21-0108-C-1,

Compliance Petition for Review File, Tab 2. On May 16, 2024, the Board denied

the petition for review, holding that there was no evidence in the record to

demonstrate that the appellant’s AWOL had been converted to an approved leave

status between September 28, 2020, and February 14, 2021. The Board found that

a Standard Form (SF) 52 provided by the agency, which requested to change the

appellant’s leave to “LWOP/OWCP,” was insufficient to prove compliance because

it was unsigned, the approval date was blank, and the nature of the action requested

was vague and did not identify a date range. Order, ¶ 8. The Board affirmed the

compliance initial decision as modified to clarify that the appellant was not entitled

to backpay and benefits during the time that she was receiving wage replacement

benefits from the Office of Workers’ Compensation Programs (OWCP). Id., ¶¶ 1,

9-11. The Board ordered the agency to substitute an approved leave status for the

appellant’s AWOL between September 28, 2020, and February 14, 2021, remove

all references to AWOL from the appellant’s personnel file, and submit satisfactory

evidence of compliance to the Clerk of the Board within 60 days of the date of the

Order. Id. at 7.

On July 9, 2024, the agency submitted its Response to the May 16, 2024

Order. Escobar v. Department of Justice, MSPB Docket No. DE-0752-21-0108-

X-1, Compliance Referral File (CRF), Tab 2. The agency provided signed

documentation that on November 17, 2021, the agency had initiated a personnel

action to place the appellant in “LWOP/OWCP” for the period beginning

September 26, 2020, through September 26, 2022. Id. at 8. The agency also

provided the appellant’s electronic official personnel folder (eOPF), which

contained no reference to AWOL. Id. at 12-166.

On July 29, 2024, the appellant filed a response to the agency’s July 9, 2024

submission. CRF, Tab 4.

ANALYSIS

The agency bears the burden of proving that it has complied with a Board

order. Mercado v. Office of Personnel Management, 115 M.S.P.R. 65, ¶ 4 (2010).

The agency is required to produce relevant, material, and credible evidence of

compliance in the form of documentation or affidavits. Spates v. U.S. Postal

Service, 70 M.S.P.R. 438, 443 (1996). The appellant may rebut the agency’s

evidence of compliance by making “specific, nonconclusory, and supported

assertions of continued noncompliance.” Brown v. Office of Personnel

Management, 113 M.S.P.R. 325, ¶ 5 (2010).

Here, the agency has submitted a signed SF-52 requesting personnel action

“LWOP/OWCP,” effective September 26, 2020, and not to exceed September 26,

2022. CRF, Tab 2 at 8. Moreover, as noted above, the agency submitted the

appellant’s eOPF, which contained no reference to AWOL. Id. at 12-166. Thus,

the agency has produced detailed, credible evidence that it has complied with the

Board’s May 16, 2024 Order to convert the appellant’s AWOL to an approved

leave status and remove all references to AWOL from the appellant’s personnel

file.

The appellant contends that the agency has not proved that it converted her

AWOL to an approved leave status because the signatures are unclear, the nature of

the action “LWOP/OWCP” is vague, and “the ending date is not typed, but

handwritten in a different ink and handwriting as all other signatures on the page.” 2

CRF, Tab 4 at 5-6. However, the agency’s evidence shows that it has complied

with the Order in that the appellant’s eOPF does not contain any mention of

AWOL. Moreover, the SF-52 is signed and dated, and the effective dates of the

action are present, as the Board ordered. CRF, Tab 2 at 8-166. The appellant has

not convincingly demonstrated that the agency is in noncompliance. As a result,

we find the agency in compliance.

Accordingly, in light of the agency’s evidence, the Board finds the agency in

compliance and dismisses 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)).

The appellant also appears to contend that she is still entitled to back pay, CRF, Tab 4

at 6; however, the Board previously denied the appellant’s request for back pay and held

that the appellant is not entitled to back pay and other benefits for the time she was

receiving OWCP benefits, from September 21, 2020 to January 2, 2022, CRF, Tab 1 at 6.

NOTICE OF APPEAL RIGHTS 3

The initial decision, as supplemented by this Final Order, constitutes the

Boards final decision in this matter. 5 C.F.R. § 1201.113. You may obtain review

of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims

determines the time limit for seeking such 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).

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.

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.

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. 420 (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

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 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: