# Lance McDermott v. United States Postal Service

> Merit Systems Protection Board · March 14, 2025

URL: https://www.frixlaw.com/law-library/cases/10823735

## Case

- **Court:** Merit Systems Protection Board
- **Decided:** March 14, 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- **Precedential status:** Unpublished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

LANCE MCDERMOTT, DOCKET NUMBER
Appellant, SF-0752-13-0633-C-1
SF-0752-13-0633-X-1
v.

UNITED STATES POSTAL SERVICE,
Agency. DATE: March 14, 2025

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Lance McDermott , Seattle, Washington, pro se.

Steven B. Schwartzman , Esquire, Seattle, Washington, for the agency.

BEFORE

Henry J. Kerner, Vice Chairman
Cathy A. Harris, Member

FINAL ORDER

On April 25, 2024, the Board issued an Order denying the appellant’s
petition for review and affirming the administrative judge’s compliance initial
decision, which found the agency in noncompliance with the decision in the
underlying appeal. McDermott v. U.S. Postal Service, MSPB Docket No. SF-0752-
13-0633-C-1, Compliance Petition for Review (CPFR) File, Tab 7, Order

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A nonprecedential order is one that the Board has determined does not add significantly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 Parties may cite nonprecedential orders, but such orders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

(April 25, 2024). For the reasons discussed below, we now find the agency in
compliance and DISMISS the appellant’s petition for enforcement and petition for
review.

DISCUSSION OF ARGUMENTS AND EVIDENCE OF COMPLIANCE
At the time relevant to the appellant’s initial appeal, he was employed with
the agency as a maintenance mechanic. McDermott v. U.S. Postal Service,
MSPB Docket No. SF-0752-13-0633-I-1, Initial Appeal File (IAF), Tab 8 at 38.
Following his appeal of the agency’s May 30, 2013 decision to place him on
enforced leave, on April 28, 2015, an administrative judge issued an initial decision
sustaining the charge and the imposition of enforced leave, denying the appellant’s
affirmative defenses, and modifying the period of enforced leave. IAF, Tab 52,
Initial Decision (ID) at 9-26. Specifically, the initial decision ordered the agency
to, among other things, commence the enforced leave action on June 7, 2013;
restore the annual leave the appellant used during the period of May 30 to June 7,
2013; and pay the appellant for the appropriate amount of backpay, if any, with
interest, no later than 60 calendar days after the date the initial decision became
final. ID at 25.
The appellant filed a petition for review, and, following a remand order from
the Board concerning certain unaddressed affirmative defenses, McDermott v. U.S.
Postal Service, MSPB Docket No. SF-0752-13-0633-I-1, Remand Order (Oct. 13,
2015), the administrative judge issued a remand initial decision, which denied the
affirmative defenses at issue. McDermott v. U.S. Postal Service, MSPB Docket No.
SF-0752-13-0633-B-1, Remand File, Tab 36, Remand Initial Decision (Feb. 12,
2016) (RID). That decision became the final decision of the Board on the merits of
the appellant’s enforced leave appeal after his petition for review was denied as
untimely filed without good cause shown. McDermott v. U.S. Postal Service,
MSPB Docket No. SF0752-13-0633-B-1, Final Order (Jan. 19, 2023) at 1, 5.
Accordingly, the administrative judge’s original orders concerning the modified
3

commencement date of the enforced leave, the restoration of the appellant’s annual
leave, and the issuance of any relevant backpay with interest remained intact.
In the time between the April 28, 2015 initial decision and the time the
remand initial decision became final (January 19, 2023), the appellant retired. His
last day in a pay status with the agency was December 10, 2019. Thus, as of that
date, he became entitled to the value of his restored leave through the issuance of
backpay. 2
On January 29, 2023, the appellant filed a petition for enforcement with the
Board. McDermott v. U.S. Postal Service, SF-0752-13-0633-C-1, Compliance File
(CF), Tab 1. In his petition for enforcement, he argued that the agency was not in
compliance with the administrative judge’s April 28, 2015 order because the
agency had not: (1) paid him 30 days of back pay; (2) restored his 8 days’ worth of
annual leave; (3) placed him on enforced leave consistent with agency and Office
of Personnel Management (OPM) regulations; or (4) given him written notice that
it had fully complied with the Board’s order. CF, Tab 1 at 5, Tab 6 at 6-7.
After developing the record, the administrative judge issued a compliance
initial decision finding that the agency must restore and pay the appellant for the
8-day annual leave period “as an undisputed amount.” CF, Tab 18, Compliance
Initial Decision (CID) at 5-7. He considered the agency’s argument that the
appellant refused to complete the requisite forms necessary for it to process the
annual leave restoration and backpay amount, but he explained that the agency’s
compliance was “not contingent” upon the appellant completing the relevant forms.

2
The appellant disputes that he retired from the agency in December 2019. McDermott v.
U.S. Postal Service, MSPB Docket No. SF-0752-13-0633-X-1, Compliance Referral File
(CRF), Tab 8 at 6. However, it appears he is disputing the nature of his separation from
the agency, rather than the fact that he separated as of that date—which is a matter of
record in at least one of his other appeals. See McDermott v. U.S. Postal Service, MSPB
Docket No. SF-0752-20-0705-I-1, Initial Decision (Jun. 8, 2021). The nature of the
separation is irrelevant to the back pay issues at hand, however. The only relevant issue is
the date of the separation, which determines the value of the appellant’s leave to be paid
out.
4

CID at 5. He concluded that the agency failed to comply with the Board’s order to
restore the appellant’s annual leave for the period of May 30 to June 7, 2013, and to
pay the appellant for the appropriate amount of backpay, if any, with interest, as
ordered in the Board’s April 28, 2015 initial decision. CID at 7. Accordingly, he
granted the appellant’s petition for enforcement. Additionally, he again ordered
the agency to provide evidence that it complied with the order and to provide a
narrative explanation of how it arrived at its calculations, with an accounting of any
deductions and any other adjustments. CID at 7-8.
On June 7, 2023, the agency informed the Board that it had taken the actions
identified in the compliance initial decision. McDermott v. U.S. Postal Service,
MSPB Docket No. SF-0752-13-0633-X-1, Compliance Referral File (CRF), Tab 1. The
appellant’s petition for enforcement accordingly was referred to the Board for a
final decision on issues of compliance, pursuant to 5 C.F.R. § 1201.183(c). 3 CRF,
Tab 2.
Separately, the appellant filed a petition for review purporting to challenge
the compliance initial decision, but primarily challenging the merits of the Board’s
decision in his underlying case. CPFR File, Tab 2. The agency responded to the
appellant’s petition for review, to which the appellant replied. CPFR File,
Tabs 5-6.
On April 25, 2024, the Board denied the appellant’s petition for review of the
compliance initial decision, leaving the CID as the operative compliance -related
order. CPFR File, Tab 7. Thus, the petition for enforcement was referred to the

3
As noted in the compliance initial decision, the Board’s regulations provide that, upon a
finding of noncompliance, the party found to be in noncompliance must do the following:
(i) to the extent that the party decides to take the actions required by the initial decision,
the party 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 the party has taken the actions
identified in the initial decision, along with evidence establishing that the party has taken
those actions; and (ii) to the extent that the party decides not to take all of the actions
required by the initial decision, the party must file a petition for review under the
provisions of 5 C.F.R. §§ 1201.114-.115. 5 C.F.R. § 1201.183(a)(6).
5

Board’s Office of General Counsel for additional processing and issuance of a final
decision in both matters (the appellant’s petition for review, which the Board
denied in a non-final order; and the pending matter in which the agency had filed a
pleading asserting that it had complied with the CID). See 5 C.F.R. § 1201.183(c).
As explained below, the parties submitted additional pleadings following the
agency’s assertion of compliance, which we now address.

ANALYSIS
When, as here, the Board finds a personnel action unwarranted, the aim is to
place the appellant, as nearly as possible, in the situation he would have been in had
the wrongful personnel action not occurred. Vaughan v. Department of
Agriculture, 116 M.S.P.R. 319, ¶ 5 (2011); King v. Department of the Navy,
100 M.S.P.R. 116, ¶ 12 (2005), aff’d per curiam, 167 F. App’x 191 (Fed. Cir.
2006). The agency bears the burden to prove compliance with the Board’s order by
a preponderance of the evidence. 4 Vaughan, 116 M.S.P.R. 319, ¶ 5; 5 C.F.R.
§ 1201.183(d). An agency’s assertions of compliance must include a clear
explanation of its compliance actions supported by documentary evidence.
Vaughan, 116 M.S.P.R. 319, ¶ 5. The appellant may rebut the agency’s evidence of
compliance by making specific, nonconclusory, and supported assertions of
continued noncompliance. Id.
The agency’s statement of compliance asserted that it sent the appellant
checks representing backpay and interest and that it is therefore compliant with the
Board’s orders. CRF, Tab 1 at 4. With this statement of compliance, the agency
included copies of the two letters it sent to the appellant informing him that it
issued him checks for the backpay and interest, photocopies of the checks, and a
copy of a backpay computation summary report demonstrating how the interest was
calculated. Id. at 6-11. In response, the appellant asserted, among other things,

4
A preponderance of the evidence is the degree of relevant evidence that a reasonable
person, considering the record as a whole, would accept as sufficient to find that a
contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).
6

that the agency calculated the back pay incorrectly, stating that the agency’s
explanation of how it arrived at the hours of restored annual leave “is not based on
any of the [a]gency’s or OPM’s [l]eave [r]estoration regulations or the official
record.” CRF, Tab 3 at 7-8. Specifically, he asserts he was entitled to 72 hours of
restored annual leave, as opposed to the 45.5 hours of annual leave restored by the
agency. Id.
An agency’s assertion of compliance must be supported by relevant,
material, and credible evidence of compliance in the form of documentation or
affidavits. Cuevas v. U.S. Postal Service, 90 M.S.P.R. 391, ¶ 5 (2001). In its
April 25, 2024 Order, the Board found that the documents submitted by the agency
were insufficient to demonstrate whether the appellant’s backpay and interest
award was correct and whether the agency is therefore compliant with the Board’s
order. Notably, the agency’s documentation did not include evidence, such as time
and attendance records, showing how much annual leave the appellant took
between May 30 and June 7, 2013, that he was entitled to have restored. Further,
neither the agency’s statement of compliance, nor its documentation in support
thereof, provided an explanation of the rate of pay it used to convert the appellant’s
restored annual leave to a monetary amount. CPFR File, Tab 7 at 7-8.
The Board therefore ordered the agency to submit satisfactory evidence of
compliance within 60 days of the date of the April 25, 2024 Order. Specifically,
the Board ordered that the evidence shall adhere to the requirements set forth in
5 C.F.R. § 1201.183(a)(6)(i), including submission of evidence and a narrative
statement of compliance. The Board further ordered that the agency’s submission
shall demonstrate that it properly calculated the appellant’s backpay according to
the appropriate amount of restored annual leave and related interest. CPFR File,
Tab 7 at 7-8.
On May 23, 2024, the agency submitted its evidence of compliance. CRF,
Tab 7. The agency provided evidence supporting its assertions, including a
declaration explaining the amount of restored annual leave and the rate for such
7

leave, calculations explaining the amount of interest, and time and attendance
records. Id.
In a response, the appellant argued, among other things, that the agency’s
method of calculating the back pay is “not admissible,” because the declarant is not
the back pay coordinator responsible for personally completing the necessary back
pay forms. CRF, Tab 8. The appellant also raises other various issues with the
information provided by the agency. Nonetheless, the appellant has not identified
any specific errors in the amounts calculated by the agency in terms of the amount
of restored leave, the pay rate for such, or the amount of interest. The appellant’s
general charges of error do not rebut the agency’s detailed and specific evidence,
because they do not make specific, nonconclusory, and supported assertions of
continued noncompliance. Vaughan, 116 M.S.P.R. 319, ¶ 5.
In light of the foregoing, we find that the agency is in compliance with its
outstanding compliance obligations, and we dismiss the appellant’s petition for
enforcement and petition for review. 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)).

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.
8

NOTICE OF APPEAL RIGHTS 5
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).

5
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.
9

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
10

courtappointed 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
11

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. 6 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:
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.

6
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.
12

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10823735. Public record. Not legal advice.