The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SHELLI FINCH, DOCKET NUMBER
Appellant, DE-0752-12-0006-C-1
v.
DEPARTMENT OF VETERANS DATE: August 29, 2014
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Vernon R. Cook, Oacoma, South Dakota, for the appellant.
Aleksander D. Radich, Esquire, Cheyenne, Wyoming, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the compliance initial
decision, which denied her petition for enforcement. Generally, we grant
petitions such as this one only when: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the judge’s rulings during either the course of the appeal or
the initial decision were not consistent with required procedures or involved an
abuse of discretion, and the resulting error affected the outcome of the case; or
new and material evidence or legal argument is available that, despite the
petitioner’s due diligence, was not available when the record closed. See Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, and based on the following
points and authorities, we conclude that the petitioner has not established any
basis under section 1201.115 for granting the petition for review. Therefore, we
DENY the petition for review and AFFIRM the initial decision, which is now the
Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
¶2 Effective September 6, 2011, the agency removed the appellant from her
position as a GS-6 Licensed Practical Nurse (LPN). MSPB Docket No. DE-0752-
12-0006-I-1 (0006-I-1), Initial Appeal File (IAF), Tab 4, Subtab 4a. The
appellant filed a timely appeal. 0006-I-1, IAF, Tab 1. While that appeal was
pending, the agency rescinded the removal action and moved to dismiss the
appeal as moot. 2 Id., Tabs 12, 15. The appellant argued that the appeal was not
2
After rescinding the September 6 removal, the agency reissued a new proposal notice
and removed the appellant for the second time, effective February 5, 2012. See MSPB
Docket No. DE-0752-12-0205-I-2 (0205-I-2), IAF, Tab 15, Initial Decision (0205-I-2
ID) at 2-3. The appellant timely appealed the second removal. 0205-I-2 ID at 3. On
March 8, 2012, the administrative judge joined the appellant’s two pending appeals,
MSPB Docket Nos. DE-0752-12-0006-I-1 and DE-0752-12-0205-I-1, for adjudication.
0006-I-1, IAF, Tab 23. On May 24, 2012, the joined appeals were dismissed without
prejudice to refile, and were automatically refiled by the field office on June 29, 2012.
0006-I-1 IAF, Tab 32 at 3; MSPB Docket No. DE-0752-12-0006-I-2 (0006-I-2), IAF,
Tab 1, Initial Decision (0006-I-2 ID) at 3. On September 5, 2012, the administrative
judge conducted a joint hearing of both appeals. 0006-I-2 ID at 1 n.1. The
administrative judge issued separate initial decisions in the two appeals. 0006-I-2 ID;
0205-I-2 ID.
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moot because the agency had not returned her to the status quo ante because it
had failed to restore her to an LPN position, pay all her back pay, provide
adequate documentation regarding the calculation of her back pay, properly
restore her health benefits, and expunge all references to the removal from her
personnel records. Id., Tabs 16, 18, 25. She also alleged discriminatory disparate
treatment and retaliation for prior equal employment opportunity (EEO) activity.
Id., Tab 18 at 10-20.
¶3 On October 26, 2012, the administrative judge issued an initial decision
finding that the agency: (1) had demonstrated a compelling reason for detailing
the appellant out of her position of record; (2) submitted sufficient documentation
showing that the appellant was paid the appropriate amount of back pay; and
(3) processed the appellant’s request for restoration of health benefits in
accordance with her election. 0006-I-2 ID at 5-9. However, the administrative
judge found that the agency failed to expunge all references to the appellant’s
termination from her Official Personnel File, and, accordingly, the appeal was not
moot. 0006-I-2 ID at 9-10. As the appeal was not moot, the administrative judge
proceeded to adjudicate the removal appeal and found that the agency had failed
to provide the appellant minimal due process. 0006-I-2 ID at 10-13. The
administrative judge thus reversed the removal action and ordered the agency to
cancel the removal, restore the appellant effective September 6, 2011, and
provide her with all back pay and benefits. 3 0006-I-2 ID at 17-18.
¶4 The appellant petitioned for review of the initial decision, arguing that the
administrative judge erred in upholding the agency’s calculation of her back pay
and restoration of her health benefits and failed to provide her with a fair hearing.
0006-I-2, Petition for Review (PFR) File, Tab 1. The Board denied the
appellant’s petition for review and forwarded her allegations of the agency’s
noncompliance pertaining to back pay and benefits to the field office for
3
The administrative judge also determined that the appellant had failed to prove the
affirmative defense of reprisal for prior EEO activities. 0006-I-2 ID at 13-18.
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adjudication as a petition for enforcement. Id., Tab 6 at 2; MSPB Docket No.
DE-0752-12-0006-C-1 (C-1); Compliance Appeal File (CAF), Tab 1.
¶5 On December 5, 2013, the administrative judge denied the petition for
enforcement, finding that the agency had appropriately handled the appellant’s
premium back pay and restoration of health benefits. CAF, Tab 7, Compliance
Initial Decision (CID) at 3-5.
¶6 On January 9, 2014, the appellant filed a “compliance petition for
supplemental review and/or reconsideration” of MSPB Docket Numbers
DE-0752-12-0006-I-1 and DE-0752-12-0205-I-1 4. C-1, PFR File, Tab 1 at 1.
The Office of the Clerk of the Board docketed the filing as a petition for review
of the compliance initial decision in MSPB Docket No. DE-0752-12-0006-C-1.
Id., Tab 2.
DISCUSSION OF ARGUMENTS ON REVIEW
¶7 In her petition for review, the appellant, among other things, attacks the
compliance initial decision, arguing again that the agency: (1) improperly
calculated her back pay; and (2) improperly reinstated her Federal Employee
Health Benefits (FEHB) retroactively without consulting her. C-1, PFR File, Tab
1 at 9-13. The rest of her compliance petition for review attacks the
administrative judge’s handling of the hearing and the decisions on the merits of
the two removal actions. Id. at 1-9, 13-16. However, the Board issued final
orders on the merits of the adverse actions on September 9, and 13, 2013, and the
appellant was advised of her appeal rights at that time. See 0205-I-2, PFR File,
Tab 6; 0006-I-2, PFR File, Tab 6. It is well settled that an employee’s arguments
on the merits of her case will not be considered by the Board in a petition for
review of the denial of a petition for enforcement. Connor v. U.S. Postal Service,
4
In a September 9, 2013 final order, the Board affirmed the initial decision that
mitigated the appellant’s second removal to a 30-day suspension. 0205-I-2, PFR File,
Tab 6.
5
50 M.S.P.R. 389, 395 (1991); Nelson v. Veterans Administration, 27 M.S.P.R.
133, 135 (1985). Accordingly, only the appellant’s arguments pertaining to the
agency’s compliance with the October 12, 2012 initial decision and the
September 13, 2013 final order will be considered here.
The agency properly determined the appellant’s back pay.
¶8 The appellant argues that the agency improperly calculated her premium
back pay for Sundays and holidays by using an “arbitrary methodology” that
failed to return her to the status quo ante, and that the administrative judge erred
by affirming the agency’s calculations. C-1, PFR File, Tab 1 at 9-13.
Specifically, she argues that the initial decision is contrary to law because: (1) it
relies on case law pertaining to overtime back pay, which should not be applied to
premium back pay; and (2) it upholds a methodology that fails to compensate her
in accordance with 5 C.F.R § 550.805(a)(1), which requires that the employee
“shall be deemed to have performed service for the agency during the period
covered by the corrective action.” Id.
¶9 When the Board orders an agency action cancelled, the ultimate goal is to
place, as nearly as possible, the appellant in the status quo ante; that is, the
situation in which she would have been had the wrongful personnel action not
occurred. Kerr v. National Endowment for the Arts, 726 F.2d 730, 733 (Fed. Cir.
1984); Owens v. Department of Transportation, 99 M.S.P.R. 377, ¶ 6 (2005).
This obligation requires paying her all the back pay to which she is entitled under
the Back Pay Act, including the pay, annual and holiday leave, allowances, or
differentials plus interest she normally would have earned or received but for the
wrongful personnel action. See Vidal v. U.S. Postal Service, 84 M.S.P.R. 395,
¶ 10 (1999). It also generally includes the premium pay she would have received
but for the action. Owens, 99 M.S.P.R. 377, ¶ 6.
¶10 In the instant appeal, the record shows that the agency determined the
premium pay due to the appellant by calculating the percentage of Sundays and
6
holidays she worked for a 2½-year period prior to the removal notice and then
using that percentage to extrapolate the premium pay she would have earned but
for the removal. 0006-I-1, IAF, Tab 19 at 8. The administrative judge found this
method was reasonable or workable, and consistent with Board precedent. CID at
3-4; see House v. Department of the Army, 98 M.S.P.R. 530, ¶ 9 (2005).
¶11 Contrary to her argument, it is well settled that an appellant’s entitlement to
premium back pay is computed using the same principles applied to overtime
back pay. See House, 98 M.S.P.R. 530, ¶ 9; Blanchard v. Department of Justice,
40 M.S.P.R. 513, 515-16 (1989). Both overtime and premium back pay may be
calculated, as the agency did here, by using the average premium hours worked
by the employee prior to the removal to extrapolate the premium hours she would
have worked but for the removal. See id. The Board will not nullify the method
employed by the agency in calculating a back pay award absent a showing that
the method was unreasonable or unworkable. Ball v. U.S. Postal Service,
91 M.S.P.R. 364, ¶ 10, aff’d, 53 F. App’x 910 (Fed. Cir. 2002); Vidal,
84 M.S.P.R. 395, ¶ 12. We discern no error in the administrative judge’s finding
that the agency applied a reasonable or workable method to determine the
appellant’s premium back pay.
¶12 Next, the appellant argues that the agency’s methodology for calculating her
premium back pay violates 5 C.F.R. § 550.805(a)(1) because it fails to
compensate her as if she “performed service for the agency during the period
covered by the corrective action.” C-1, PFR File, Tab 1 at 12-13. In determining
the appropriate amount of premium back pay, however, the agency is not required
to reconstruct the actual times the appellant would have worked. See Welber v.
U.S. Postal Service, 72 M.S.P.R. 244, 246 n.2 (1996). The agency may use either
of the methods discussed above for computing the premium pay that the appellant
likely would have earned but for the wrongful personnel action. Id. In this case,
the agency used an acceptable method when it calculated the appellant’s premium
back pay based on her history of working premium assignments for the 2½-year
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period before the removal. We discern no reason to find that this time period was
unreasonable or unworkable. See Ball, 91 M.S.P.R. 364, ¶ 10; Vidal, 84 M.S.P.R.
395, ¶ 12. Accordingly, we agree with the administrative judge that the agency’s
calculation of premium back pay was reasonable or workable, and that the agency
paid the appellant an appropriate amount of back pay. CID at 4.
The agency properly reinstated the appellant’s health benefits.
¶13 The appellant next argues that the agency improperly retroactively
reinstated her FEHB without consulting her, thereby depriving her of her
statutory right to elect when to reinstate her FEHB. 5 C-1, PFR File, Tab 1 at
12-13. The administrative judge determined that the appellant made a valid
election to retroactively reinstate her FEHB when, on January 3, 2012, she signed
a Health Benefits Election Form, Standard Form (SF) 2809, indicating an
effective date of September 6, 2011. CID at 4-5; see 0006-I-1, IAF, Tab 19 at 14.
¶14 On review, the appellant fails to present any evidence or argument to
suggest that her signed SF-2809 should not be considered her valid election to
have her FEHB retroactively restored. See C-1, PFR File, Tab 1 at 12-13. We
therefore agree with the administrative judge that the appellant made a valid
election to reinstate her FEHB effective September 6, 2011, and that the agency
took the appropriate actions to effectuate this election. See CID at 4-5.
5
The appellant’s petition for review also argues that she never elected to reinstate her
FEHB during the period of November 28, 2011, through January 2-3, 2012, and that she
was forced to pay for health benefits that were not in effect from November 28, 2011,
through February 4, 2012. C-1, PFR File, Tab 1 at 12-13. However, she did not present
these arguments in her petition for enforcement or at any time before the administrative
judge. See 0006-I-2, PFR File, Tab 1 at 6-9; CAF, Tab 6 at 3. The Board will not
consider an argument raised for the first time in a petition for review absent a showing
that it is based on new and material evidence not previously available despite the
party’s due diligence. Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271
(1980). The appellant has not attempted to show that her new argument is based on new
or material evidence not previously available. C-1, PFR File, Tab 1 at 12-13.
Accordingly, the appellant’s new arguments will not be considered for the first time on
review.
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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).
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
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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.