# Kevin M. Torgersen v. Department of the Army

> Merit Systems Protection Board · March 19, 2026

URL: https://www.frixlaw.com/law-library/cases/11278408

## Case

- **Court:** Merit Systems Protection Board
- **Decided:** March 19, 2026
- **Precedential status:** Unpublished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

KEVIN M. TORGERSEN, DOCKET NUMBERS
Appellant, PH-0752-22-0072-C-1
PH-0752-22-0072-X-1
v.

DEPARTMENT OF THE ARMY,
Agency. DATE: March 19, 2026

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Kevin M. Torgersen , Marshfield Hills, Massachusetts, pro se.

Matthew Harris , Esquire, Concord, Massachusetts, for the agency.

BEFORE

Henry J. Kerner, Vice Chairman
James J. Woodruff II, Member

FINAL ORDER

The Board issued a March 27, 2024 compliance order finding the agency in
noncompliance with the final decision in the underlying appeal and granting the
appellant’s petition for enforcement. Torgersen v. Department of the Army, MSPB
Docket No. PH-0752-22-0072-C-1, Order (Mar. 27, 2024) (Order); Torgersen v.
Department of the Army, MSPB Docket No. PH-0752-22-0072-X-1,
Compliance Referral File (CRF), Tab 1. For the reasons discussed below, we

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A nonprecedential order is one that the Board has determined does not add significantly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 Parties may cite nonprecedential orders, but such orders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

now find the agency in compliance and DISMISS the appellant’s petition for
enforcement and compliance petition for review.

DISCUSSION OF ARGUMENTS AND EVIDENCE OF COMPLIANCE
On May 23, 2022, the administrative judge issued an initial decision
finding that the agency failed to establish that the appellant was medically
unable to perform the duties of his Survey Technician position and ordering the
agency to cancel the removal and retroactively restore the appellant, effective
April 16, 2021. Torgersen v. Department of the Army, MSPB Docket No.
PH-0752-22-0072-I-1, Initial Appeal File, Tab 92, Initial Decision (ID)
at 13, 21. The administrative judge also ordered the agency to pay the appellant
the appropriate amount of back pay with interest and to adjust benefits with
appropriate credits and deductions. ID at 21. Neither party petitioned for
review of the initial decision, which thus became final on June 27, 2022. ID
at 23.
On September 11, 2022, the appellant filed a petition for enforcement.
Torgersen v. Department of the Army, MSPB Docket No. PH-0752-22-0072-C-1,
Compliance File (CF), Tab 1. He did not dispute that the agency restored him
to his former position, but he argued that: (1) the agency had not paid any of
the back pay owed to him; (2) the agency informed him that it did not intend to
include any overtime or differential pay in the back pay award, while failing to
provide him with the records necessary for determining the proper calculation of
any overtime or differential pay; and (3) the agency failed to restore his sick
leave balances. Id. He further argued that he was entitled to overtime that he
earned while working as a Material Handler with the Department of Veterans
Affairs (DVA), from January 30 to July 16, 2022, when he was restored to his
position at U.S. Army Corps of Engineers (USACE), but that the agency intended
to deduct these earnings from its back pay award. Id.
3

On February 28, 2023, the administrative judge issued a compliance initial
decision denying the appellant’s petition for enforcement without prejudice.
CF, Tab 37, Compliance Initial Decision (CID) at 5. Specifically, the
administrative judge found that the agency, while not in technical compliance
with the Board’s final decision, had acted in good faith to process the
appellant’s back pay and benefits adjustments. CID at 4. The appellant filed a
timely petition for review of the compliance initial decision in which he
requested that the Board order the agency to pay the undisputed amount of back
pay owed to him, along with interest and penalties, and restore his sick leave. 2
Compliance Petition for Review File, Tab 1 at 5.
On March 27, 2024, the Board issued a compliance order granting the
petition for review, reversing the compliance initial decision, finding the agency in
noncompliance with the final decision on the merits, and ordering the agency to
submit satisfactory evidence of compliance with the Board’s Order. Order
at 1-2. The Board found that there was an unresolved factual dispute as to whether
the information that the agency provided to the Defense Finance Accounting
Service (DFAS) reflected the proper overtime and differential pay hours. Order
at 5. Specifically, the Board determined that the agency had not presented clear
and understandable argument and evidence that its determination that the
appellant would not have worked overtime or differential time was accurate. Order
at 7. Accordingly, the Board ordered the agency to submit evidence and argument
demonstrating that it properly calculated the appellant’s overtime hours for

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, 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

April 16, 2021, through July 17, 2022, and that its submission to DFAS reflected
that calculation. Id. Furthermore, the Board ordered the agency to submit evidence
demonstrating full compliance with the Board’s order, including an explanation of
how it calculated interest on the back pay award. Order at 9. The Board docketed
the instant compliance referral matter and instructed the agency to file its
compliance evidence under the new docket number. Order at 10-11.
On May 24, July 26, and December 12, 2024, the agency filed updates on the
status of the appellant’s back pay. CRF, Tabs 4, 6, 9. The appellant has filed
several replies to the agency’s submissions. CRF, Tabs 3, 5, 7-8, 11.

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. 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.

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

The agency is in compliance with its obligation to demonstrate that it properly
calculated the appellant’s overtime and differential pay hours from April 16, 2021,
through July 17, 2022.
Overtime back pay may be computed based on either the appellant’s own
overtime history or the average overtime hours worked by similarly situated
employees during the relevant time period. Rittgers v. Department of the Army,
123 M.S.P.R. 31, ¶ 13 (2015). Although the appellant is not entitled to receive a
windfall, he is entitled to be restored to the status quo ante, and the agency must use
the method of computation most likely to achieve this goal. Id. The Board will not
nullify the method employed by the agency in calculating overtime back pay in the
absence of a showing that the method was unreasonable or unworkable. Id. The
overtime determination necessarily includes a consideration of the relevant
circumstances, including working conditions during the time of the wrongful
separation. See Brady v. Department of the Navy, 55 M.S.P.R. 693, 697 (1992).
Here, the agency determined that the appellant’s back pay should not include
overtime or differential pay based on the appellant’s own pay history. The agency
submitted a signed declaration from M.T., the Chief of Design Branch at USACE,
explaining that Survey Technicians such as the appellant “generally do not work
any overtime unless their work requires them to travel to remote locations
involving difficult travel” or if there is another unanticipated mission-critical need.
CFR, Tab 2 at 62. M.T. explained that, following a March 2020 shift in operations
due to the COVID-19 pandemic, the appellant worked overtime in April and early
May 2020. Id. at 63, 172-74. However, following the expiration of agency
COVID-19 travel restrictions on May 13, 2020, the Survey Section where the
appellant worked returned to normal operations and overtime was no longer
regularly authorized. Id. at 64 (declaration of M.T). The agency submitted
evidence indicating that, other than the overtime the appellant worked under the
COVID-related shift in operations, in the nearly 3-year period between his hiring
and removal in April 2021, the appellant worked a single hour of overtime on
6

December 4, 2019, and 6.5 hours of holiday pay on February 17, 2020. Id.
at 123-174.
The agency submitted evidence indicating that it employed eleven similarly
situated Survey Technicians between April 16, 2021, and July 17, 2022. See id.
at 64 (declaration of M.T). The agency produced the timecards and overtime
requests of these similarly situated employees during the back pay period. Id.
at 202-576. Out of these similarly situated employees, seven earned overtime or
compensatory time off during the relevant period. Five of these Survey
Technicians worked 16 hours of overtime, CFR, Tab 2 at 310, 379, 382, 441-42,
499, 503, 541, 544, one worked 8 hours of overtime, id. at 487, and one earned
8 hours of compensatory time off, id. at 344. None of these employees received
differential pay during the back pay period. The agency contends that these work
patterns do not accurately reflect the overtime hours that the appellant would have
worked because they were unpredictable and situational in nature. Id. at 13. For
example, the agency submitted M.T.’s February 15, 2022 request for overtime due
to long travel distances to a survey site in northeastern Maine for a “tide dependent
project.” Id. at 455-56. The record reflects that two other Survey Technicians
worked 8 hours of overtime together on April 30, 2022, because weather conditions
prevented surveying during work hours. Id. at 319-20, 495-96.
We find that the appellant has not shown that the agency's method of
calculating overtime was unreasonable under the circumstances. See Rittgers,
123 M.S.P.R. 31, ¶ 13; see also Brady, 55 M.S.P.R. at 697 (where there is no
evidence that conditions during the wrongful separation varied from conditions
prior to the removal, basing an overtime award on preseparation work history is an
appropriate means of calculation to restore the appellant to the status quo ante).
We likewise find reasonable the agency’s determination that the appellant was not
entitled to overtime or differential pay during the relevant back pay period based on
his de minimis history of such pay.
7

On review, the appellant renews his argument that he is entitled to overtime
for his time working at the DVA. CRF, Tab 8. However, in its March 27, 2024
Order, the Board found “that the appellant’s full-time position as a Materials
Handler at DVA was replacement employment—not moonlight employment—and,
thus, all earnings from this position are deductible.” Order at 8 (citing LaBatte v.
Department of the Air Force, 58 M.S.P.R. 586, 595 (1993) (stating that, pursuant to
5 U.S.C. § 5596(b)(1)(A), an agency must deduct from a back pay award any
amount an appellant earned from employment obtained as a replacement for his
position during the period the corrected personnel action was in effect)). Based on
the foregoing, we find that the agency is in compliance with its obligation to
demonstrate that it properly calculated the appellant’s overtime and differential pay
hours from April 16, 2021, through July 17, 2022.

The agency has demonstrated full compliance with the Board’s order by paying the
appellant back pay, interest on back pay, and restoring the appellant’s leave
balances.
In its July 26, 2024 submission, the agency provided a declaration averring
that the appellant was paid back pay in full on July 11, 2024, as well as a DFAS
backpay audit documenting the same. CRF, Tab 6. The record reflects that the
appellant received $45,952.56 in back pay, which DFAS calculated by offsetting
the appellant’s $12,497.28 outside earnings at South Shore Hospital from a gross
back pay amount of $58,449.84. Id. at 6-7. DFAS also deducted $3,104.23 from
the appellant’s back pay award to account for the previous lump sum leave payout
he had received at the time of his removal. Id. at 6, 12-13. DFAS further reduced
the appellant’s back pay by retirement contributions, Social Security and Medicare
taxes, health benefits premiums, and federal income tax withholdings. Id. at 13.
The appellant received an additional payment of $5,957.14 in interest. Id.
at 6, 13-14. DFAS calculated interest based on an adjusted gross back pay of
$35,876.58, which was based on the appellant’s gross pay of $58,449.84 as offset
by the appellant’s $12,497.28 outside earnings at South Shore Hospital and by his
8

$10,076.08 in DVA outside earnings. 4 Id. at 12-13, 16. The appellant’s leave
balances also were adjusted, including 124.25 hours of restored annual leave. Id.
at 9, 20.
The appellant does not raise specific errors with these calculations. Rather,
the appellant asserts that the agency improperly offset his outside earnings at South
Shore Hospital from back pay because that position was “moonlight [employment]”
as defined in 5 C.F.R. § 550.805(e)(1). CRF, Tab 8 at 9. To establish that
replacement earnings received during the period that an employee was improperly
removed from his position should be viewed as “moonlight” employment, and thus
not deductible from a back pay award, the employee must show that he could or
would have worked at the interim employment had the removal not occurred.
Weber v. Department of Justice, 88 M.S.P.R. 345, ¶ 11 (2001). Here, the appellant
began working for the South Shore Hospital following his separation from the
agency, and he had not previously worked there while employed with the agency.
Under these circumstances, we find that the appellant’s employment at South Shore
Hospital was replacement employment, not “moonlight” employment.
The appellant also asserts that the Board should include mileage and per
diem payments in back pay. CRF, Tab 8 at 9. However, as the Board found in its
March 27, 2024 compliance order, “incidental expenses such as per diem and travel
expenses are not covered by the phrase ‘pay, allowances or differentials’ under
either the Back Pay Act, 5 U.S.C. § 5596(b)(1)(A), or its implementing regulations,
found at 5 C.F.R. § 550.805.” Order at 5 n.4.
Finally, the agency concedes that DFAS has failed to offset the appellant’s
debt to the DVA from his back pay. CRF, Tab 8 at 4. However, the collection of
this debt is unrelated to the matter before us.

4
With respect to the applicable interest rates, the Back Pay Act provides for interest to be
paid at the overpayment rate in the Internal Revenue Code. 5 U.S.C. § 5596(b)(2)(B);
26 U.S.C. § 6621(a)(1). The Office of Personnel Management (OPM) publishes these
rates on its website. A comparison of the rates used by the agency and those on OPM's
website demonstrates that the interest rates used were correct. CRF, Tab 6 at 16-19.
9

In light of the foregoing, we find that agency is in compliance with its
outstanding compliance obligations and dismiss the appellant’s petition for
enforcement and compliance 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 forth 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 and
costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You
must file your motion for attorney fees and costs with the office that issued the
initial decision on your appeal.

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

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.
10

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

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.
11

(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:
12

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).

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.
13

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/11278408. Public record. Not legal advice.