# Anthony Cobb v. Department of the Army

> Merit Systems Protection Board · July 1, 2026

URL: https://www.frixlaw.com/law-library/cases/11381897

## Case

- **Court:** Merit Systems Protection Board
- **Decided:** July 1, 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- **Precedential status:** Unpublished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

ANTHONY W.N. COBB, DOCKET NUMBER
Appellant, AT-0752-21-0258-X-1

v.

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THIS FINAL ORDER IS NONPRECEDENTIAL 1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
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A nonprecedential order is one that the Board has determined does not add significantly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 Parties may cite nonprecedential orders, but such orders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

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.
3

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

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/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).
4

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

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

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)).
6

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

4
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

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.
8

§ 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
9

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).

5
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

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/11381897. Public record. Not legal advice.