# Antonio L Sinclair v. Department of the Air Force

> Merit Systems Protection Board · February 27, 2025

URL: https://www.frixlaw.com/law-library/cases/10814143

## Case

- **Court:** Merit Systems Protection Board
- **Decided:** February 27, 2025
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

ANTONIO LAMAR SINCLAIR, DOCKET NUMBER
Appellant, AT-0752-16-0376-X-1

v.
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THIS FINAL ORDER IS NONPRECEDENTIAL 1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.

1
A nonprecedential order is one that the Board has determined does not add significantly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 Parties may cite nonprecedential orders, but such orders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).
2

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,

2
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.
3

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
4

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,
5

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
6

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.

3
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.
7

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
8

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
9

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).

4
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.
10

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:
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.
Contact information for the courts of appeals can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10814143. Public record. Not legal advice.