Opinion

Antonio L Sinclair v. Department of the Air Force

Court: Merit Systems Protection Board
Filed: Feb 27, 2025
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 34.3%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ANTONIO LAMAR SINCLAIR, DOCKET NUMBER

Appellant, AT-0752-16-0376-X-1

DATE: February 27, 2025

DEPARTMENT OF THE AIR FORCE,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Marion L. Williams , Warner Robins, Georgia, for the appellant.

Biron Ross , Esquire, Warner Robins, Georgia, for the agency.

BEFORE

Cathy A. Harris, Chairman

Henry J. Kerner, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

In a November 1, 2022 compliance initial decision, the administrative judge

found the agency in partial noncompliance with the final decision in the underlying

appeal. Sinclair v. Department of the Air Force, MSPB Docket No. AT-0752-16-

0376-C-1, Compliance File (CF), Tab 6, Compliance Initial Decision (CID) at 5.

A nonprecedential order is one that the Board has determined does not add significantly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 Parties may cite nonprecedential orders, but such orders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

For the reasons discussed below, we find the agency in compliance and DISMISS

the petition for enforcement.

DISCUSSION OF ARGUMENTS AND EVIDENCE OF COMPLIANCE

On July 22, 2022, the Board issued a Final Order affirming the initial

decision in the appellant’s underlying appeal, which directed the agency to cancel

the appellant’s removal, substitute a 5-day suspension, and pay the appellant the

correct amount of back pay, including benefits. CID at 2. On September 27, 2022,

the appellant filed a petition for enforcement, contending that the agency had failed

to pay him any back pay. Id. at 1-2. The appellant also requested additional

damages and alleged that the agency had incorrectly stated that he owed a debt to

the government. Id. at 2-4.

On November 1, 2022, the administrative judge issued a compliance initial

decision granting the petition for enforcement, in part. Id. at 5. The administrative

judge denied the appellant’s request for additional damages, but she ordered the

agency to pay the appellant his back pay with a narrative explanation of the

payment calculation and to immediately cease all collection actions for an

overpayment, unless the agency was able to justify that such an overpayment

existed. Id. at 5. 2

On December 7, 2022, the Board issued an Acknowledgement Order

notifying the parties that a new docket number had been assigned, reflecting the

referral of the matter to the Board for a final compliance determination. Sinclair v.

Department of the Air Force, MSPB Docket No. AT-0752-16-0376-X-1,

The compliance initial decision informed the agency that, if it took the actions ordered

by the decision, it must submit to the Clerk of the Board, within the time limit for filing a

petition for review under 5 C.F.R. § 1201.114(e), a statement that it has taken the actions

identified in the compliance initial decision, along with evidence establishing that it has

taken those actions. CID at 5-6; 5 C.F.R. § 1201.183(a)(6)(i) (2022). The compliance

initial decision also informed the parties that they could file a petition for review if they

disagreed with the compliance initial decision. CID at 6-11; see 5 C.F.R. §§ 1201.114(e),

1201.183(a)(6)(ii) (2022). Neither party petitioned for review of the compliance initial

decision.

Compliance Referral File (CRF), Tab 1 at 2. The order notified the agency that it

was required to file evidence of compliance within 15 calendar days of the date of

the order, and specifically informed the appellant that if he failed to file a response

to the agency’s evidence of compliance within 20 calendar days, the Board might

assume that he was satisfied and dismiss the petition for enforcement. Id. at 3.

On December 22, 2022, the agency filed a response to the Acknowledgement

Order, contending that it changed the appellant’s personnel record to cancel his

removal and reflect a 5-day suspension and sent a request for back pay to its finance

organization, the Defense Finance and Accounting Service (DFAS). CRF, Tab 2

at 5. The agency provided Standard Form 50 Notifications of Personnel Action

cancelling the appellant’s removal and replacing it with a suspension and returning

him to duty, effective February 3, 2016. Id. at 8-10. The agency requested an

extension of time until February 28, 2023, to finish processing the back pay. Id.

at 6. On December 29, 2022, the appellant filed a response contending that the

agency continued to debit his pay and had not yet paid him back pay. CRF, Tab 3

at 3. The appellant requested damages and sanctions. Id.

On January 9, 2023, the Clerk of the Board granted the agency’s request for

an extension until February 28, 2023. CRF, Tab 4 at 1. On February 28, 2023, the

agency requested another extension of time, until May 28, 2023, to achieve full

compliance. CRF, Tab 5 at 4. The Clerk of the Board granted the agency’s request

on March 1, 2023. CRF, Tab 6 at 1. On May 30, 2023, the agency requested

another extension of time, until June 30, 2023, to achieve full compliance. CRF,

Tab 7 at 4. The Clerk of the Board granted the agency’s request on May 31, 2023.

CRF, Tab 8 at 1. On May 31, 2023, the appellant filed a response opposing the

agency’s request for extension of time. CRF, Tab 9 at 3.

On June 30, 2023, the agency filed a submission entitled “Additional

Evidence of Compliance,” asserting that it was still attempting to resolve back pay

issues identified by DFAS and requesting a further extension of time until

August 31, 2023. CRF, Tab 10 at 4-5. On the same day, the appellant filed a

response to the agency’s submission, requesting sanctions and opposing any further

extension of time. CRF, Tab 11 at 3. On August 9, 2023, the appellant filed an

additional request for damages. CRF, Tab 13 at 3.

On November 7, 2023, the agency finally filed its “Compliance

Documentation,” asserting that it had made the corrections to the appellant’s

records, paid the appellant’s back pay and interest, and resolved all back pay

issues. CRF, Tab 14 at 4. The agency’s submission included spreadsheets

documenting the calculations of the appellant’s back pay and interest. Id. at 6-21.

On September 6, 2024, the agency filed a second submission documenting

compliance, reflecting that it had credited the appellant with leave and detailing the

overpayment that caused the appellant’s debt. CRF, Tab 15. The appellant has not

filed responses to the agency’s November 7, 2023, and September 6, 2024

compliance submissions.

ANALYSIS

When the Board finds a personnel action unwarranted or not sustainable, it

orders that the appellant be placed, as nearly as possible, in the situation he would

have been in had the wrongful personnel action not occurred. House v. Department

of the Army, 98 M.S.P.R. 530, ¶ 9 (2005). The agency bears the burden to prove its

compliance with a Board order. Vaughan v. Department of Agriculture,

116 M.S.P.R. 319, ¶ 5 (2011). An agency’s assertions of compliance must include

a clear explanation of its compliance actions supported by documentary evidence.

Id. 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 filed evidence that it had mitigated the appellant’s removal

to a 5-day suspension. CRF, Tab 2 at 8-10. The agency also submitted data

breaking down the appellant’s back pay by pay period for the time from the

appellant’s removal, effective January 29, 2016, to his interim appointment,

effective December 21, 2016; a Back Pay Computation Summary Report, that

provided a detailed computation of the interest due on the back pay; and a DFAS

remedy ticket that detailed the appellant’s back pay, including a performance

award which was re-processed, deductions, and interest on the back pay, resulting

in a net payment of $44,502.01. CRF, Tab 14 at 6-21. Finally, the agency

submitted evidence that the appellant’s leave had been restored, as well as evidence

regarding the calculation of his debt, which was offset, although the agency did not

explain the debt calculations. CRF, Tab 15 at 6-11.

The appellant did not respond to the agency’s calculation of his back pay,

interest, leave, or debt despite being apprised that the Board might construe his lack

of response as satisfaction with the agency’s response. Accordingly, taking into

account the appellant’s failure to respond, we find that the agency is now in full

compliance with the February 25, 2022 decision.

With respect to the appellant’s request for damages, the Board’s

November 1, 2022 opinion previously held that the Back Pay Act does not permit

the payment of consequential damages. CID at 4. Accordingly, the appellant’s

request for damages is denied.

Regarding the appellant’s request for sanctions, we deny the request. The

Board’s sanction authority is limited to the sanctions necessary to obtain

compliance with a Board order. Mercado v. Office of Personnel Management,

115 M.S.P.R. 65 ¶ 8 (2010) (stating that the Board’s ability to award sanctions is a

means to enforce compliance, and once compliance has been demonstrated, it

would be inappropriate to impose sanctions). Because the agency has complied

with the Board’s orders, we are without authority to impose sanctions in this

matter.

In light of the foregoing, we find that the agency is in compliance with its

outstanding compliance obligations and dismiss the appellant’s petition for

enforcement. This is the final decision of the Merit Systems Protection Board in

this compliance proceeding. Title 5 of the Code of Federal Regulations,

section 1201.183(c)(1) (5 C.F.R. § 1201.183(c)(1)).

NOTICE TO THE APPELLANT REGARDING

YOUR RIGHT TO REQUEST

ATTORNEY FEES AND COSTS

You may be entitled to be paid by the agency for your reasonable attorney

fees and costs. To be paid, you must meet the requirements set out at Title 5 of the

United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The

regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If you

believe you meet these requirements, you must file a motion for attorney fees

WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You must

file your attorney fees motion with the office that issued the initial decision on your

appeal.

NOTICE OF APPEAL RIGHTS 3

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.

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.

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).

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).

The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expired on

December 27, 2017. The All Circuit Review Act, signed into law by the President on July

7, 2018, permanently allows appellants to file petitions for judicial review of MSPB

decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the

Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All

Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat.

1510.

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: