The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DAVID KINGLEE, DOCKET NUMBER
Appellant, SF-0353-09-0520-X-1
v.
UNITED STATES POSTAL SERVICE, DATE: August 21, 2014
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Frederick D. Brown, Sr., Los Angeles, California, for the appellant.
Jason D. Marsh, Esquire, Long Beach, California, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 This compliance proceeding was initiated by the petitioner’s petition for
enforcement of the Board’s December 28, 2010 final decision. On August 5,
2011, 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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compliance with the final decision, and the matter was referred to the Board for
consideration. 2 See 5 C.F.R. § 1201.183 (Jan. 1, 2012).
¶2 After the issuance of the administrative judge’s recommended decision, the
agency submitted evidence showing full compliance with the Board’s order. The
agency’s response shows that the agency restored all annual and sick leave due to
the petitioner and provides a detailed explanation of how the annual and sick
leave totals were calculated. Compliance Referral File (CRF), Tab 4 at 4-6, Tab
9 at 35-36.
¶3 Additionally, we find that the agency’s response, which provided an
explanation of the agency’s advanced leave system, rebuts the petitioner’s
contention that his leave was actually reduced. CRF, Tab 4 at 5-6. In this
system, the agency advances at the beginning of the year all anticipated earned
leave for the year to an employee. Id. If an employee does not work a particular
pay period during the year, the total amount of leave is reduced by the amount of
leave he would have earned for that pay period. Id. Thus, because the petitioner
did not originally work during the periods in question, his leave totals were
reduced. CRF, Tab 8 at 14-21. However, the agency restored his leave totals to
the proper amount when it retroactively restored his employment. CRF, Tab 9 at
35-36.
¶4 Accordingly, the Board finds that the agency is in compliance and
DISMISSES 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(b) (5 C.F.R. § 1201.183(b)).
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.
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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).
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
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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.