Opinion

Anthony Cobb v. Department of the Army

Court: Merit Systems Protection Board
Filed: Jul 1, 2026
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 41.6%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ANTHONY W.N. COBB, DOCKET NUMBER

Appellant, AT-0752-21-0258-X-1

DEPARTMENT OF THE ARMY, DATE: July 1, 2026

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Stephan Benet Caldwell , Esquire, Riverdale, Georgia, for the appellant.

Mary Rae Dudley , Esquire, and Thomas L. Cathey , Esquire,

Fort Eisenhower, Georgia, for the agency.

BEFORE

Henry J. Kerner, Vice Chairman

James J. Woodruff II, Member

FINAL ORDER

On May 24, 2023, the administrative judge issued a compliance initial

decision finding the agency in noncompliance with the decision in the underlying

appeal and granting the appellant’s petition for enforcement. Cobb v. Department

of the Army, MSPB Docket No. AT-0752-21-0258-C-1, Compliance File (CF),

Tab 8, Compliance Initial Decision (CID); Cobb v. Department of the Army, MSPB

A nonprecedential order is one that the Board has determined does not add significantly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 Parties may cite nonprecedential orders, but such orders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

Docket No. AT-0752-21-0258-I-1, Final Order (July 7, 2022) (Final Order). For

the reasons discussed below, we now find the agency in compliance and DISMISS

the appellant’s petition for enforcement.

DISCUSSION OF ARGUMENTS AND EVIDENCE OF COMPLIANCE

On August 27, 2021, the administrative judge issued an initial decision

reversing the agency’s removal of the appellant and ordering the agency to appoint

him to his former position of Police Officer, GS-0083-07. Cobb v. Department of

the Army, MSPB Docket No. AT-0752-21-0258-I-1, Initial Appeal File, Tab 57,

Initial Decision. The Board’s final order affirming the initial decision required the

agency to, inter alia, retroactively restore the appellant, effective February 10,

2021, and to pay the appellant the correct amount of back pay, interest on back pay,

and other benefits under the Office of Personnel Management’s regulations, no

later than 60 calendar days after the date of the decision. Final Order at 3-5. The

appellant filed a petition for enforcement on February 8, 2023. In his petition for

enforcement, the appellant alleged that the agency failed to comply with the final

order because: (1) the agency failed to timely remit the appellant back pay; and

(2) the agency improperly refused to restore the appellant to his former position of

police officer. CF, Tabs 1, 6.

In a compliance initial decision, the administrative judge found that the

agency did not timely pay the appellant back pay and also failed to restore the

appellant to a position substantially similar to his former position, and ordered the

agency to, among other things, pay the appellant the proper amount of back pay

with interest, and submit evidence of its compliance actions. CID at 3-5. The

administrative judge informed the agency that if it decided to take the compliance

actions required by the decision, it must submit to the Office of 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 it had taken the actions identified in the compliance

initial decision, along with evidence establishing that it had taken those actions.

CID at 5-6; see 5 C.F.R. § 1201.183(a)(6)(i) (2023). He also informed the parties

of their option to request Board review of the compliance initial decision by filing a

petition for review by June 28, 2023, the date on which the findings of

noncompliance would become final unless a petition for review was filed. CID

at 7; see 5 C.F.R. §§ 1201.114(e), 1201.183(a)(6)(ii), 1201.183(b). As neither

party filed a petition for review, the administrative judge’s findings of

noncompliance became final, and the appellant’s petition for enforcement was

referred to the Board for a final decision on compliance pursuant to 5 C.F.R.

§ 1201.183(c). 2 See 5 C.F.R. § 1201.183(b).

On June 27, 2023, the agency informed the Board that it had taken the actions

identified in the compliance initial decision. Cobb v. Department of the Army,

MSPB Docket No. AT-0752-21-0258-X-1, Compliance Referral File (CRF), Tab 1.

On June 28, 2023, the Clerk of the Board issued an Acknowledgement Order

informing the parties that the appellant’s response, if any, to the agency’s

submission was due within 20 calendar days of June 27, 2023. CRF, Tab 2. The

appellant filed a response to the agency’s statement of compliance on July 17,

2023, contending that the agency had failed to reinstate him to his prior position

and therefore remained in noncompliance with the Board’s July 7, 2022 Final

Order, and requested sanctions. CRF, Tab 3. The agency filed a reply on July 18,

2023. CRF, Tab 4.

On March 16, 2026, the Board issued an Order finding the agency in

compliance with its obligation to pay the appellant the appropriate amount of

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/or (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).

backpay and interest. Cobb v. Department of the Army, MSPB Docket No.

AT-0752-21-0258-X-1, Order (Mar. 16, 2026) (Order); CRF, Tab 6. However, the

Board found the agency failed to show that it complied with the Board’s order to

reinstate the appellant to his previous or substantially similar position. Order at 1.

The Board directed the agency to offer the appellant, in writing, the opportunity to

be placed in his former Police Officer position or to elect to remain in his current

status. Id. at 9. The Board also notified the appellant that he might respond to the

agency’s compliance submission, and that failure to submit a response within the

required time period might cause the Board to assume he was satisfied and dismiss

the petition for enforcement. Id. at 10.

On March 20, 2026, the agency filed a submission stating that it had

provided the appellant with the opportunity to be placed in his former Police

Officer position, and he had elected to remain in his current position. CRF, Tab 8.

The appellant did not respond to the agency’s submission.

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

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).

compliance by making specific, nonconclusory, and supported assertions of

continued noncompliance. Id.

Here, the agency provided evidence that it had complied with its sole

remaining compliance obligation, as outlined in the Board’s March 16, 2026 Order,

by submitting a form on which it offered the appellant the opportunity to return to

his former position, or stay in his current one. CRF, Tab 8 at 7. The agency

submitted evidence that it had done so and that the appellant had elected to stay in

his current position. Id. The appellant did not respond to the agency’s submission

despite the Board’s explanation that his failure to submit a response might cause

the Board to assume the appellant is satisfied and dismiss the petition for

enforcement. Accordingly, in light of the agency’s submissions, explained above,

and the appellant’s lack of response, we find that the agency is now in full

compliance with the Board’s Final Order. See Baumgartner v. Department of

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

With respect to appellant’s request for sanctions, we deny the request. The

Board’s sanction authority is limited to the sanctions necessary to obtain

compliance with a Board order. Mercado v. Office of Personnel Management,

115 M.S.P.R. 65, ¶ 8 (2010) (stating that the Board’s ability to award sanctions is a

means to enforce compliance, and once compliance has been demonstrated, it

would be inappropriate to impose sanctions). Because the agency has complied

with the Board’s orders, we are without authority to impose sanctions in this

matter.

In light of the foregoing, we find that the agency is in compliance with its

outstanding compliance obligations and dismiss the appellant’s 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)).

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.

NOTICE OF APPEAL RIGHTS 4

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

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.

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.

(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. 5 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).

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.

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: