The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
STEVEN MICHAEL DOCKET NUMBER
NOPPENBERGER, PH-0752-11-0216-X-1
Appellant,
v.
DATE: August 12, 2014
UNITED STATES POSTAL SERVICE,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Steven Michael Noppenberger, Westminster, Maryland, pro se.
Norma B. Hutcheson, Esquire, Landover, Maryland, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The administrative judge issued a recommended decision that the Board
find, under the Board’s regulations in effect at that time, the agency in partial
compliance with the June 21, 2011 initial decision, and referred the matter to the
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
Board for consideration. 2 See 5 C.F.R. § 1201.183 (Jan. 1, 2012). For the
reasons discussed below, we find the agency in compliance 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)).
DISCUSSION OF ARGUMENTS AND EVIDENCE OF COMPLIANCE
¶2 On June 21, 2011, the administrative judge issued an initial decision
ordering the agency to cancel the appellant’s removal and pay him appropriate
back pay, interest, and benefits. See MSPB Docket No. PH-0752-11-0216-I-1,
Initial Appeal File, Tab 28, Initial Decision (ID) at 1-2. The initial decision
became final on July 26, 2011, after neither party petitioned for review. See ID.
¶3 On September 27, 2011, the appellant filed a petition for enforcement, and
the administrative judge found the agency in partial compliance with the initial
decision. The administrative judge found that the agency had paid the
appropriate amount of back pay, with interest. MSPB Docket No. PH-0752-0216-
C-1, Compliance File, Tab 14, Compliance Initial Decision (CID) at 6. The
administrative judge ordered the agency to process the appellant’s election of
thrift savings plan (TSP) coverage during the back pay period, including his 1%
and appropriate matching contributions; “take all necessary steps” within its
power to reactivate repayment of the loan he had taken from his TSP account
prior to the canceled removal; and process his election of federal employee health
benefits (FEHB) coverage, including dental and vision coverage, and correct any
duplicate billing for premiums. CID at 8.
¶4 On December 22, 2011, the agency submitted evidence that it had made the
required 1% deposit and matching contributions to the appellant’s TSP account.
2
Except as otherwise noted in this decision, we have applied the Board’s regulations
that became effective November 13, 2012. We note, however, that the petition for
enforcement in this case was filed before that date. The revisions to 5 C.F.R.
§ 1201.183 do not affect our consideration of the merits of this compliance proceeding.
3
Compliance Referral File (CRF), Tab 5 at 5, 12-13. The agency also stated that it
had restored the appellant’s dental and vision insurance and had made appropriate
deductions. Id. at 6, 14-15. Finally, the agency explained that the appellant had
taken out a loan against his TSP account prior to his canceled removal and was
required to repay it through biweekly TSP contribution deductions from his
salary; but that he defaulted on the repayment when he was placed in non-pay
status and failed to notify the Federal Retirement Thrift Investment Board
(FRTIB) of his non-pay status. Id. at 6. The FRTIB therefore deemed his loan to
be a taxable distribution, which carries certain penalties and does not permit the
employee to repay the loan through salary deductions. Id. at 6, 18. The agency
stated that it had no involvement in the appellant’s attempts to reactivate
repayment of his loan and that such attempts were exclusively between the
appellant, the FRTIB, and the Internal Revenue Service. Id. at 7.
¶5 On December 22, 2011, the appellant responded. 3 He acknowledged that
the agency had restored his dental and vision benefits but stated that BENEFEDS,
which administers federal employee health benefits, informed him that his
benefits had been activated as though he were a new employee, and therefore he
might have a gap in coverage. CRF, Tab 6 at 4. He provided two letters from
BENEFEDS that concerned premiums owed but that did not address his coverage.
Id. at 7-8. The appellant agreed that the agency had probably deposited the
required funds in his TSP account. Id. at 4. Finally, the appellant contended that
the agency was not in compliance with respect to his TSP loan because upon his
return to work in July 2011 (following the initial decision in this appeal), “the
TSP loan was taken out till the Agency took an action that notified the TSP that
he was in a non pay status and they were successful in ending his employment.”
3
The appellant also filed a response on December 9, 2011, that solely concerned issues
raised in his second petition for enforcement, MSPB Docket No. PH-0752-11-0216-C-2.
See CRF, Tab 3. His second petition for enforcement was separately adjudicated and
denied on January 30, 2012. Accordingly, we have not considered his December 9,
2011 response.
4
Id. Although his statements are unclear, it appears the appellant contends that the
agency deliberately obstructed his efforts to reactivate repayment of his loan
because it did not wish to acknowledge that it “wrongfully terminated” him.
¶6 Due to the length of time that had passed between the above submissions
and the Board’s consideration of them, on June 2, 2014, the Board issued an order
requiring both parties to submit statements updating their positions. CRF, Tab 9
at 1. The agency stated that its December 22, 2011 submission was accurate with
respect to resolving issues from the instant compliance proceeding. CRF, Tab 11
at 4. The agency also noted that it had subsequently removed the appellant and
that his petition for review was pending before the Board. Id. The appellant did
not respond either to the Board’s order or to the agency’s submission.
¶7 When the Board finds a personnel action unwarranted or not sustainable, it
orders that the appellant be placed, as nearly as possible, in the situation he would
have been in had the wrongful personnel action not occurred. House v.
Department of the Army, 98 M.S.P.R. 530, ¶ 9 (2005). The agency bears the
burden to prove its compliance with a Board order. An agency’s assertions of
compliance must include a clear explanation of its compliance actions supported
by documentary evidence. Vaughan v. Department of Agriculture, 116 M.S.P.R.
319, ¶ 5 (2011). The appellant may rebut the agency’s evidence of compliance by
making “specific, nonconclusory, and supported assertions of continued
noncompliance.” Brown v. Office of Personnel Management, 113 M.S.P.R. 325,
¶ 5 (2010).
¶8 The agency asserted that it is in compliance, as explained above. The
appellant originally objected to the agency’s evidence with regard to his FEHB
benefits and the reactivation of his TSP loan repayment. However, when the
agency reiterated its compliance statements, the appellant failed to respond. Nor
did he respond to the Board’s express order instructing him to state whether his
arguments remain the same since his December 22, 2011 filing, although the
Board informed him that failure to respond might cause the Board to assume he
5
was satisfied and dismiss his petition for enforcement. See CRF, Tab 9 at 2.
Accordingly, in view of the agency’s detailed explanations and the appellant’s
failure to respond, we assume he is satisfied, find the agency in compliance, and
dismiss the petition for enforcement.
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 TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar days
after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27,
2012). If you choose to file, be very careful to file on time. The court has held
that normally it does not have the authority to waive this statutory deadline and
that filings that do not comply with the deadline must be dismissed. See Pinat v.
Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
6
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode/htm.
Additional information 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, and 11.
If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.