Opinion

Mervat Soto v. Department of Health and Human Services

Court: Merit Systems Protection Board
Filed: Mar 6, 2026
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 39.1%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

MERVAT SOTO, DOCKET NUMBER

Appellant, DC-0752-14-0707-X-1

DEPARTMENT OF HEALTH AND DATE: March 6, 2026

HUMAN SERVICES,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Mervat Soto , Holly Springs, North Carolina, pro se.

Madeha Chaudry Dastgir , Esquire, and Jennifer Smith , Esquire,

Washington, D.C., for the agency.

BEFORE

Henry J. Kerner, Vice Chairman

James J. Woodruff II, Member

FINAL ORDER

The administrative judge issued a compliance initial decision finding the

agency noncompliant with the February 27, 2023 final order in the underlying

constructive removal appeal. Soto v. Department of Health and Human Services ,

MSPB Docket No. DC-0752-14-0707-C-1, Compliance File (CF), Tab 34,

Compliance Initial Decision (CID); Soto v. Department of Health and Human

A nonprecedential order is one that the Board has determined does not add significantly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 Parties may cite nonprecedential orders, but such orders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

Services, MSPB Docket No. DC-0752-14-0707-B-1, Final Order (Feb. 27, 2023).

For the following reasons, we now find the agency in compliance and DISMISS the

appellant’s petition for enforcement.

DISCUSSION OF ARGUMENTS AND EVIDENCE OF COMPLIANCE

In a May 30, 2024 compliance initial decision, the administrative judge

found the agency noncompliant with the Board’s February 27, 2023 final decision,

which ordered the agency to cancel the appellant’s constructive removal and

retroactively restore her to her GS-12 Management and Program Analyst Position ,

effective May 5, 2014. CID at 1. Accordingly, the administrative judge granted the

appellant’s petition for enforcement and ordered the agency to take the following

actions: (1) demonstrate that it had paid the appellant all of the money owed for

backpay and interest for the period of July 4, 2021, to July 1, 2023, and if the proper

pay amount was not paid on July 15, 2023, pay the additional interest owed and

submit proof of that payment; (2) demonstrate through a clear explanation

supported by evidence that it had made the required interest payments on the

appellant’s bonuses; and (3) demonstrate that it made contributions to the

appellant’s Thrift Savings Plan (TSP) for the full back pay period (to include

July 9, 2021, to September 29, 2023) and that it made the full contribution for the

breakages, without charge to the appellant. CID at 8-9.

On July 5, 2024, the agency informed the Board that it had taken the actions

identified in the compliance initial decision. Soto v. Department of Health and

Human Services, MSPB Docket No. DC-0752-14-0707-X-1, Compliance Referral

File (CRF), Tab 1. As the agency submitted evidence of compliance and neither

party filed an administrative petition for review, the appellant’s petition for

enforcement was referred to the Board for a final decision on issues of compliance

pursuant to 5 C.F.R. § 1201.183(c). 2

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,

Following referral to the Board, both parties filed submissions regarding the

backpay and interest thereon, interest on bonuses, and TSP compliance issues.

CRF, Tabs 3, 7-10, 14-15. Additionally, the appellant also reraised an issue

concerning her leave restoration. CRF, Tab 15 at 4. Although she did not dispute

the amount of leave restored, she disputed the amount of time afforded to her to use

the restored leave. Id. The Board ordered the agency to respond to the appellant’s

contentions regarding the leave restoration issue, CRF, Tab 16, and both parties

filed subsequent submissions on that issue. CRF, Tabs 19-20. By Order dated

January 20, 2026, the Board found the agency in partial compliance. CRF, Tab 21.

For the reasons explained therein, the Board found the agency in compliance

regarding the outstanding issues related to the backpay and interest on backpay,

interest on bonuses, and TSP repayment and breakages. CRF, Tab 21.

However, in its January 20, 2026 Order, the Board found that the agency had

not complied with its obligations regarding restored leave and ordered the agency

to afford the appellant until January 8, 2028, to schedule and use her leave restored

pursuant to 5 C.F.R. § 550.805(g). CRF, Tab 21 at 8-10. The agency responded to

the Board’s order on February 9, 2026. CRF, Tab 22. The appellant has not

responded to the agency’s response, though afforded an opportunity to do so. For

the reasons explained below, we now find the agency in full compliance and

dismiss the appellant’s petition for enforcement.

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 she would have been in

had the wrongful personnel action not occurred. Vaughan v. Department of

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. §§ 1201.114-1201.115. 5 C.F.R. § 1201.183(a)(6) (2023).

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. 3 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.

Following the Board’s January 20, 2026 Order, the sole area of

noncompliance concerned the date by which the appellant was required to schedule

and use her leave restored pursuant to 5 C.F.R. § 550.805(g), which provides:

(g) An agency shall credit annual leave restored to an employee as a

result of the correction of an unjustified or unwarranted personnel

action in excess of the maximum leave accumulation authorized by

law to a separate leave account for use by the employee. The

employee shall schedule and use annual leave in such a separate leave

account as follows:

(1) A full-time employee shall schedule and use excess annual

leave of 416 hours or less by the end of the leave year in

progress 2 years after the date on which the annual leave is

credited to the separate account. The agency shall extend this

period by 1 leave year for each additional 208 hours of excess

annual leave or any portion thereof.

5 C.F.R. § 550.805(g).

In its prior submissions, the agency indicated that it had restored 651 hours

of leave to the appellant on January 15, 2023, because of its unjustified

constructive removal of the appellant, and that the appellant had until January 10,

2026, to schedule and use such leave. CRF, Tab 19 at 4-6; CF, Tab 22 at 33-34;

Tab 32 at 41. The Board’s January 20, 2026 Order found that the agency had not

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).

complied with 5 C.F.R. § 550.805(g) because the appellant should have been

afforded 4 years after the end of the leave year in progress on the date the annual

leave was credited to use her annual leave of 651 hours, or until January 8, 2028.

CRF, Tab 21. In its latest response, the agency indicates that the January 10, 2026

date referenced in its prior submissions reflected the initial 2-year period by which

the appellant was required to use only the first 416 hours of her excess annual

leave. CRF, Tab 22 at 4, 6. The agency further explains via an affidavit from a

Supervisory Human Resources Specialist that, at the end of the 2025 leave year, the

appellant had 138 hours of restored annual leave remaining. Id. at 6. The appellant

has not challenged this assertion. 4 Accordingly, as the agency asserts, the appellant

is entitled to extend the initial 2-year period in section 550.805(g) by 1 year

because 138 hours is less than 208 and constitutes “any portion thereof.” As such,

the appellant has until January 9, 2027 (the end of the leave year in progress 3 years

after January 15, 2023), to use her remaining 138 hours of leave. CRF, Tab 22 at 6;

OPM Fact Sheet: Leave Year Beginning and Ending Dates , available at

https://www.opm.gov/policy-data-oversight/pay-leave/leave-administration/fact-

sheets/leave-year-beginning-and-ending-dates/ (last accessed Mar. 6, 2026).

Considering the foregoing, we find the agency in compliance with its

outstanding compliance obligations and dismiss the 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)).

As the appellant has not responded to the agency’s February 9, 2026 response to the

Board’s January 20, 2026 Order, which afforded her an opportunity to do so, CRF,

Tab 21, the Board assumes that she is satisfied, see Baumgartner v. Department of

Housing and Urban Development, 111 M.S.P.R. 86, ¶ 9 (2009).

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).

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

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.

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. 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: