The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MELINDA GIBSON, DOCKET NUMBER
Appellant, NY-0752-22-0028-C-1
v.
DEPARTMENT OF THE ARMY, DATE: March 31, 2025
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Neil C. Bonney , Esquire, and Laura A. O’Reilly , Esquire, Virginia Beach,
Virginia, for the appellant.
John B. Gupton , Esquire, and Felix A. Lizasuain , Esquire, Kingshill,
Virgin Islands, for the agency.
BEFORE
Henry J. Kerner, Vice Chairman
Cathy A. Harris, Member*
*The Board members voted on this decision before March 28, 2025.
ORDER
The appellant has filed a petition for review, and the agency has filed a
cross petition for review of the compliance initial decision finding the agency in
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
partial noncompliance with the underlying initial decision that reversed the
appellant’s removal. For the reasons set forth below, we GRANT the appellant’s
petition for review, DENY the agency’s cross petition for review, AFFIRM as
MODIFIED the finding in the compliance initial decision that the agency did not
comply with the underlying initial decision when it failed to restore the appellant
to her full duties, and REVERSE the finding in the compliance initial decision
denying the appellant’s requests for reclassification of her position and
restoration of her sick leave balance.
BACKGROUND
The appellant was a GS-9 Victim Advocate Coordinator (VAC) for the
agency’s U.S. Virgin Islands National Guard (VING), effective April 22, 2013.
Gibson v. Department of the Army, MSPB Docket No. NY-0752-22-0028-I-1,
Initial Appeal Tab (IAF), Tab 9 at 120, Tab 10 at 324. In this position, the
appellant was required to maintain a Department of Defense Sexual Assault
Advocate Credentialing Program (D-SAACP) certificate. IAF, Tab 9 at 22. The
National Organization for Victim Assistance (NOVA) oversees the D-SAAP on
behalf of the agency. Id. at 81. NOVA made a determination to suspend the
appellant’s certificate in November 2020. Id. at 106. Subsequently, in
January 2021, the agency revoked the appellant’s certificate. IAF, Tab 10
at 317-19, Tab 30 at 69-71.
The agency removed the appellant, effective December 4, 2021, for failure
to maintain a condition of employment, the D-SAACP certificate. IAF, Tab 9
at 130-31, Tab 30 at 7-8. The appellant filed an appeal and, after holding a
hearing, the administrative judge issued a July 11, 2022 initial decision which
reversed the removal upon finding that the agency failed to prove its charge by
preponderant evidence. IAF, Tab 1, Tab 73, Initial Decision (ID) at 2, 12-20, 31.
In making her determination, the administrative judge found that the
agency had control over the D-SAACP certification process. ID at 10, 18-19.
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She reasoned that NOVA is under contract with the Department of Defense
(DOD) to administer the D-SAACP certification process, which DOD designed in
response to a statutory mandate. ID at 14-19. The administrative judge found
that DOD created the certification requirements, that the forms NOVA used were
DOD forms, and that NOVA lacked the authority to revoke a D-SAACP
certification. ID at 17. The administrative judge reviewed the merits of the
agency’s decision to revoke the D-SAACP certificate, found that the agency did
not explain why it revoked the certificate, and concluded that the agency failed to
meet its burden in proving the charge. ID at 14, 19-20. She ordered the agency
to cancel the removal, retroactively restore the appellant, pay her back pay, and
adjust her benefits. ID at 32. Neither party filed a petition for review.
The appellant thereafter filed a motion for attorney fees and expenses
incurred between December 2020 and August 2022. Gibson v. Department of the
Army, MSPB Docket No. NY-0752-22-0028-A-1, Attorney Fees File (AFF),
Tab 1 at 25-52. In an addendum initial decision, the administrative judge granted
the appellant’s motion for attorney fees and costs, in part. AFF, Tab 6,
Addendum Initial Decision (AID) at 2. Specifically, she awarded all the
requested fees but found the appellant could not recover a portion of her costs.
AID at 11-15. She ordered the agency to pay a total of $96,735.00 in fees and
costs. AID at 15. On petition for review, the Board issued a Final Order that
affirmed that decision. Gibson v. Department of the Army, MSPB Docket
No. NY-0752-22-0028-A-1 (A-1), Final Order at 2 (Mar. 20, 2024).
In May 2023, the appellant filed the instant petition for enforcement
alleging that the agency failed to return her to the status quo ante when it did not
restore her full duties as a VAC, failed to upgrade her position to a GS-11 when
the grade changed due to a reclassification while she was separated, and failed to
restore her sick leave balance. Gibson v. Department of the Army, MSPB Docket
No. NY-0752-22-0028-C-1, Compliance File (CF), Tab 1 at 4, Tab 5 at 4-5,
Tab 14 at 5. The agency filed a response, asserting it restored her to her original
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position but she was not performing the full duties due to her lack of the
D-SAACP certification. CF, Tab 2 at 4-5. The agency did not respond to the
appellant’s arguments regarding the reclassification of her position or the
restoration of her sick leave balance. Instead, the agency moved to dismiss the
appellant’s compliance appeal and requested reversal of the underlying initial
decision, arguing that the Board lacks authority and jurisdiction to order relief.
CF, Tab 7.
The administrative judge issued a compliance initial decision granting the
appellant’s petition for enforcement in part. CF, Tab 16, Compliance Initial
Decision (CID). She found that the agency failed to meet its burden of providing
evidence that it was in compliance. CID at 5. Because the parties agreed that the
appellant was not performing her full range of duties, the administrative judge
determined the agency failed to reinstate the appellant to her former position. Id.
She denied the appellant’s request that her position be upgraded due to the
reclassification of the VAC position, concluding that an upgrade was beyond the
scope of ordered relief. CID at 6 n.5. She also denied the appellant’s “belated”
request for restoration of her sick leave balance. Id. She also determined that the
agency’s argument regarding the Board’s authority and jurisdiction was without
merit and explained that the initial decision in the underlying action had since
become final when neither party filed a petition for review. CID at 5-6 n.4.
The appellant has filed a petition for review of the compliance initial
decision, disputing the administrative judge’s findings regarding her request for
her position to be upgraded due to the reclassification and restoration of her sick
leave. Compliance Petition for Review (CPFR) File, Tab 1 at 4-6. The agency
filed a response and a cross petition for review in which it again argues that the
Board has no authority over the Adjutant General of the Virgin Islands or the
Virgin Islands National Guard. CPFR File, Tab 2. The agency did not respond to
the appellant’s arguments regarding the reclassification of the VAC position or
the sick leave balance. Id. The appellant has filed a reply to the agency’s
5
response to her petition for review and a response to the cross petition for review.
CPFR File, Tabs 3, 5.
ANALYSIS
We agree with the administrative judge’s decision to grant the appellant’s petition
for enforcement, as modified.
The administrative judge found that the agency did not meet its burden of
proving compliance because it admitted that the appellant was not performing the
full duties of the VAC position and provided no evidence that it had made efforts
towards compliance. CID at 5. The parties do not dispute this finding on review.
We agree with the administrative judge’s determination but modify her reasoning
to explain that the agency has not provided a compelling reason for its failure to
return the appellant to her full duties.
When, as here, the Board finds a personnel action unwarranted, the aim is
to place the appellant, as nearly as possible, in the situation she 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). This is called status quo ante relief. Black v. Department of
Justice, 85 M.S.P.R. 650, ¶ 6 (2000). A return to the status quo ante requires that
the agency place the appellant in a position with all the essential privileges of her
previous position. Id. The agency must reinstate the appellant to her former
position and duties absent a strong overriding interest or compelling reasons for
not doing so. Tubesing v. Department of Health & Human Services ,
112 M.S.P.R. 393, ¶ 5 (2009).
The agency bears the burden to prove compliance with the Board’s order by
a preponderance of the evidence. 2 Vaughan, 116 M.S.P.R. 319, ¶ 5; 5 C.F.R.
2
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
§ 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.
Simply placing an appellant in the same grade, pay, and job title alone is
not status quo ante relief. Kerr v. National Endowment for the Arts , 726 F.2d
730, 733-34 (Fed. Cir. 1984); Doe v. Department of Justice, 95 M.S.P.R. 198, ¶ 7
(2003). An agency is also required to return an appellant to the same or
substantially the same status, duties, and responsibilities. Kerr, 726 F.2d
at 733-34. An appellant’s duties and responsibilities may be changed only if the
agency has demonstrated a compelling reason for doing so. Doe, 95 M.S.P.R.
198, ¶ 7. However, an agency cannot refuse to comply with a Board
reinstatement order based on reasons that were rejected by the Board in the
decision reversing the action. Id., ¶ 14; Briggs v. National Council on Disability,
68 M.S.P.R. 296, 302 (1995).
Here, the agency argued that it had, in essence, a compelling reason not to
return the appellant to her full duties because she did not have the D -SAACP
certification required to complete the duties of the position. CF, Tab 2 at 4-5. As
detailed above, the administrative judge has already determined in the initial
decision reversing the appellant’s removal that the agency has the ability to
reinstate the appellant’s D-SAACP certification, i.e., that the agency is in control
of the recertification process. ID at 10, 18-19. Because the agency failed to
provide any of the specifics regarding its decision to revoke the appellant’s
certificate, the administrative judge found that the agency failed to prove its
charge relating to the appellant’s alleged failure to maintain the certificate. ID
at 19-20. Because neither party petitioned the Board for review, the initial
decision became the final decision on August 15, 2022. ID at 1, 34; see Morley v.
Department of Veterans Affairs, 2024 MSPB 17, ¶ 2; 5 C.F.R. § 1201.113.
7
We modify the compliance initial decision to make specific findings that,
to the extent that the agency asserted below that its decision to revoke the
appellant’s certificate was justified, it cannot rely on this unproven basis for the
appellant’s removal. CF, Tab 2 at 4-5. We also explicitly find that, to the extent
that the agency argued that it was justified in declining to reinstate the certificate
due to the appellant’s failure to submit sufficient application materials, the
agency did not meet its burden of proving compliance because it did not provide
any basis for its determination. Id. at 5. The appellant, on the other hand,
asserted that she submitted her application in October or November 2022, and
later submitted updated forms in May 2023, but did not hear back from the
agency. CF, Tab 5 at 5. The agency has not disputed this claim or explained its
efforts to process the application. Therefore, the agency has failed to prove a
compelling reason for its decision not to assign the appellant the full duties of her
position. Because the agency has the burden on compliance and has failed to
meet that burden, we agree with the administrative judge’s determination of
noncompliance.
We reverse the administrative judge’s denial of the appellant’s request to be
reclassified from a GS-9 to a GS-11 and find that the agency is noncompliant on
this issue.
On review, the appellant reargues that the agency has failed to provide
status quo ante relief because it has not retroactively upgraded her to a GS-11,
consistent with its reclassification of all GS-9 VAC positions to the GS -11
position of Sexual Assault Prevention and Response Specialist (Victim
Advocate). CF, Tab 5 at 7-10, 24, Tab 14 at 5; CPFR File, Tab 1 at 4-5. The
agency has not responded to this argument. The administrative judge denied the
appellant’s request for her position to be upgraded to a GS-11 after the VAC
reclassification because the underlying initial decision “did not contemplate a
reclassification/upgrade.” CID at 6 n.5. We disagree and again find the agency
in noncompliance.
8
Placing the appellant in the status quo ante means restoring her, as nearly
as possible, to the situation she would have been in had the personnel action that
formed the basis of the Board appeal not occurred. Tubesing, 112 M.S.P.R. 393,
¶ 5. In deciding whether reinstating an employee to her former position at her
prior grade/level, notwithstanding an intervening reclassification, amounts to a
restoration to the status quo ante, the Board will analyze the reasons why the
position was reclassified in order to determine whether the employee would have
remained in the position at the higher grade level if the unwarranted personnel
action had not occurred. Taylor v. Department of the Treasury, 43 M.S.P.R. 221,
225 (1990).
The appellant occupied a GS-9 VAC position at the time of her removal in
December 2021. IAF, Tab 10 at 324. The initial decision reversing the
appellant’s removal was issued on July 11, 2022. ID at 1. Below, she submitted
documentation reflecting that on June 8, 2022, the agency reclassified all the
VAC positions from “Victim Advocate Coordinator, GS-0301-09” to “Sexual
Assault Prevention and Response Specialist (Victim Advocate) GS -0101(99)-11.”
CF, Tab 5 at 7-10. It explicitly stated that, “[d]ue to the change in grade and
occupational series, T5305***, Victim Advocate Coordinator, GS -0301-09 is
abolished.” Id. at 9. The classification announcement also stated, in relevant
part, that “[t]his position has been upgraded as a result of position review;
therefore, current incumbents meeting the full performance level of this new
position description may be non-competitively promoted, if otherwise qualified.”
Id. at 10.
On February 27, 2023, the appellant was notified that her current position
had been abolished and that she was being reassigned from the position of GS -9
VAC, “T5-030500” to the “GS-0301-09, Victim Advocate Coordinator
(T5305P01) position.” Id. at 24. The agency did not address the reclassification
issue below, and again has not done so on review. Because the agency has not
proven its compliance on this issue, we find it noncompliant and order the agency
9
to retroactively place the appellant in a GS-11 Assault Prevention and Response
Specialist (Victim Advocate) position.
We reverse the administrative judge’s denial of the appellant’s request for
restoration of the appellant’s sick leave balance and find that the agency is
noncompliant on this issue.
The appellant reargues that the agency failed to restore the sick leave she
had accrued prior to her removal. CPFR File, Tab 1 at 6; CF, Tab 14 at 5. For
the first time on review, she submits leave and earnings statements from February
2022 with a sick leave balance of 100 hours, and from March 2023 with a sick
leave balance from the prior year of 19.5 hours, to demonstrate that her sick leave
was not restored. CPFR File, Tab 1 at 8-9. However, she has not shown that this
evidence was unavailable prior to the close of the record on appeal below, despite
her due diligence; thus, we have not considered this new evidence on review. See
Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980) (finding that the
Board will not consider evidence submitted for the first time with the petition for
review absent a showing that it was unavailable before the record was closed
despite the party’s due diligence).
Regardless, the burden is on the agency to submit proof of compliance with
the Board’s final order. Vaughan, 116 M.S.P.R. 319, ¶ 5; 5 C.F.R.
§ 1201.183(d). Here, the agency has not disputed, or otherwise addressed, the
appellant’s claim as to the restoration of her sick leave balance. CF, Tab 2 at 4-5,
Tab 10 at 4-6, Tab 15 at 3; CPFR File, Tab 2. Similarly, the administrative judge
stated the request was “belated” without explanation and did not otherwise
address this allegation. 3 CID at 6 n.5.
3
To the extent the administrative judge meant that the appellant untimely sought
enforcement on this issue, we disagree. A petition for enforcement of a Board order
must be filed “promptly.” 5 C.F.R. § 1201.182(a). A petition filed more than 30 days
after the date the agency notifies the appellant of its compliance with a Board order is
presumed untimely, and the appellant must show good cause for the delay. Id. Here,
the agency has not claimed, and there is no indication, that it has notified the appellant
of its compliance with the Board’s order. Therefore, the record lacks any basis on
which to find that the appellant exceeded the 30-day timeliness requirement.
10
The underlying initial decision ordered the agency, in relevant part, “to pay
appellant . . . back pay . . . and to adjust benefits with appropriate credits and
deductions.” ID at 32. An employee whose removal is reversed is entitled to
recrediting of her sick leave. Andreko v. Department of Transportation,
30 M.S.P.R. 65, 67 (1986). Because the agency has not provided evidence of its
compliance on this issue, we find it noncompliant and order the agency to restore
the appellant’s sick leave balance.
We deny the agency’s cross compliance petition for review.
In its cross petition for review, the agency maintains that the Board lacks
authority and jurisdiction over National Guards and adjutant generals. CPFR
File, Tab 2 at 7-20. The Board usually will not consider new evidence and
argument regarding the merits of a case during a compliance proceeding, and we
decline to do so here. See, e.g., Senyszyn v. Department of the Treasury,
110 M.S.P.R. 437, ¶ 2 n.* (2009); Henry v. Department of Veterans Affairs,
108 M.S.P.R. 458, ¶ 13 (2008). In any event, the Board rejected this argument in
its Final Order affirming the addendum initial decision granting the appellant’s
motion for attorney fees and costs. A-1 Final Order at 2-3. We decline to revisit
that reasoning here.
Because we have found the agency in noncompliance, it is being directed to
file evidence of compliance with the Clerk of the Board and the appellant will be
afforded the opportunity to respond to that evidence. The appellant’s petition for
enforcement will be referred to the Board’s Office of General Counsel, and,
depending on the nature of the submissions, an attorney with the Office of
General Counsel may contact the parties to further discuss the compliance
process. The parties are required to cooperate with that individual in good faith.
Because the purpose of the proceeding is to obtain compliance, when appropriate,
an Office of General Counsel attorney or paralegal may engage in ex parte
communications to, among other things, better understand the evidence of
compliance and/or any objections to that evidence. Thereafter, the Board will
11
issue a final decision fully addressing the appellant’s petition for review of the
compliance initial decision and setting forth the appellant’s further appeal rights
and the right to attorney fees, if applicable.
ORDER
We ORDER the agency to submit to the Clerk of the Board within
45 days of the date of this Order satisfactory evidence of compliance. This
evidence shall adhere to the requirements set forth in 5 C.F.R.
§ 1201.183(b)(1)(i), including submission of evidence and a narrative statement
of compliance. The agency must serve all parties with copies of its submission.
The Board will assign a new docket number to this matter, NY-0752-
22-0028-X-1. All subsequent filings should refer to the new docket number set
forth above and should be faxed to (202) 653-7130 or mailed to the following
address:
Clerk of the Board
U.S. Merit Systems Protection Board
1615 M Street, N.W.
Washington, D.C. 20419
Submissions may also be made by electronic filing at the MSPB’s e-Appeal site
(https://e-appeal.mspb.gov) in accordance with the Board’s regulation at
5 C.F.R. § 1201.14.
The appellant may respond to the agency’s evidence of compliance within
20 days of the date of service of the agency’s submission. 5 C.F.R.
§ 1201.183(b)(1)(i). If the appellant does not respond to the agency’s evidence of
compliance, the Board may assume that she is satisfied with the agency’s action
and dismiss the petition for enforcement.
The agency is reminded that, if it fails to provide adequate evidence of
compliance, the responsible agency official and the agency’s representative may
be required to appear before the General Counsel of the Merit Systems Protection
Board to show why the Board should not impose sanctions for the agency’s
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noncompliance in this case. 5 C.F.R. § 1201.183(c)(1). The Board’s authority to
impose sanctions includes the authority to order that the responsible agency
official “shall not be entitled to receive payment for service as an employee
during any period that the order has not been complied with.” 5 U.S.C.
§ 1204(e)(2)(A).
This Order does not constitute a final order and is therefore not subject to
judicial review under 5 U.S.C. § 7703(a)(1). Upon final resolution of the
remaining issues in this petition for enforcement by the Board, a final order shall
be issued which shall be subject to judicial review.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.