# Mervat Soto v. Department of Health and Human Services

> Merit Systems Protection Board · March 6, 2026

URL: https://www.frixlaw.com/law-library/cases/11272364

## Case

- **Court:** Merit Systems Protection Board
- **Decided:** March 6, 2026
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11272364

## Opinion text

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

MERVAT SOTO, DOCKET NUMBER
Appellant, DC-0752-14-0707-X-1

v.

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THIS FINAL ORDER IS NONPRECEDENTIAL 1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

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A nonprecedential order is one that the Board has determined does not add significantly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 Parties may cite nonprecedential orders, but such orders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

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

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,
3

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).
4

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

3
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).
5

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)).

4
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).
6

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

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.
7

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 .
8

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
9

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.
10

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/11272364. Public record. Not legal advice.