The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
OTIS MILLER, JR., DOCKET NUMBER
Appellant, AT-3443-11-0083-X-1
v.
DEPARTMENT OF THE NAVY, DATE: August 15, 2014
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Otis Miller, Jr., Pensacola, Florida, pro se.
Sandra J. Morris, Esquire, Pensacola, Florida, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 On May 30, 2012, the administrative judge issued a recommendation that
the Board find the agency in noncompliance with the Board’s February 16, 2012
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
Opinion and Order, and the matter was referred to the Board for consideration. 2
MSPB Docket No. AT-3443-11-0083-I-1, Compliance Referral File (CRF), Tab 1;
see 5 C.F.R. § 1201.183 (Jan. 1, 2012). In its Opinion and Order, the Board
found that the appellant suffered an appealable reduction in grade when his
position was converted from the National Security Personnel System (NSPS) to
the General Schedule (GS), and he was not afforded minimum due process.
Miller v. Department of the Navy, 117 M.S.P.R. 393, 395 (2012). Prior to the
implementation of NSPS, the appellant was a GS-0343-12 Program Analyst. Id.
at 394. Under NSPS, his position was converted to a YA-0343-02 Program
Analyst position, and he was subsequently reassigned to a YA-1750-02
Instructional Systems Specialist position. Id. After NSPS was repealed, the
agency converted the appellant’s position to a GS-1750-11 Instructional Systems
Specialist. Id. The Board directed the agency to “restore the appellant to the
GS-12 grade with no reduction in pay, effective September 26, 2010.” Id. at 395.
¶2 Subsequent to the Board’s Opinion and Order, the agency placed the
appellant in a supervisory GS-12 position, rather than restoring him to the
nonsupervisory GS-0343-12 Program Analyst position that the appellant held
prior to his original conversion into the NSPS pay system. CRF, Tab 1 at 2. The
administrative judge found that this action did not restore the appellant to the
status quo ante that existed prior to the wrongful employment action, and that the
agency had not established a strong overriding interest to support its decision to
restore the appellant to a different GS-12 position. See id. at 4. Therefore, the
administrative judge recommended that the agency comply with the Board’s
Opinion and Order by restoring the appellant to his prior position of Program
Analyst, GS-0343-12. See id. at 5-6.
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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¶3 On June 13, 2012, the agency submitted evidence that it had restored the
appellant to the GS-0343-12 Program Analyst position that he encumbered
immediately prior to the agency’s conversion to NSPS. CRF, Tab 3.
¶4 On June 20, 2012, the appellant responded to the agency’s submission,
arguing that the position he encumbered prior to the implementation of NSPS no
longer existed and that various duties previously assigned to that position had
been reassigned to other positions. CRF, Tab 4. He further argued that restoring
him to the Program Analyst position would cause undue interruption and
administrative hardship within the agency and that it had created a hostile work
environment because the employee he displaced from that position resented
having to learn a new job. See id. Finally, the appellant argued that the agency
could have reassigned him to a newly-created Program Analyst position instead of
displacing an existing employee from the appellant’s previously-held position and
that he believed that the agency’s refusal to do so constituted retaliation. See id.
¶5 The agency responded on June 21, 2012, stating that the appellant’s former
GS-0343-12 Program Analyst position did exist and attaching evidence indicating
that the appellant had been returned to that position. CRF, Tab 5 at 2. The
agency stated that the position to which the appellant was returned has the same
position description as the position he previously held. Id. 3
¶6 After considering the evidence of compliance presented by the agency, we
find that the agency has complied with the Board’s Opinion and Order. The
Board ordered the agency to restore the appellant to the GS-12 grade with no
reduction in pay, effective September 26, 2010. See Miller v. Department of the
3
On May 6, 2013, the agency filed a motion to dismiss, stating that appellant had
retired from federal service on October 31, 2012, and arguing that the instant matter
was therefore moot. CRF, Tab 7. We reject the agency’s argument that this case is
now moot due to the appellant’s retirement. The Board has held that an appeal may be
dismissed as moot only when the employee has received all of the relief he could have
received if the matter had been adjudicated and he had prevailed. Haskins v.
Department of the Navy, 106 M.S.P.R. 616, 624 (2007). Therefore, the mere fact of the
appellant’s retirement does not cause this case to be moot.
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Navy, 117 M.S.P.R. 393, 395 (2012). In situations where 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. See Tubesing v. Department of Health & Human Services,
112 M.S.P.R. 393, ¶ 5 (2009). A return to the status quo ante requires that the
agency place the appellant in a position with all the essential privileges of his
previous position. Black v. Department of Justice, 85 M.S.P.R. 650, 653 (2000).
However, the Board does not require perfect consistency with all aspects of an
appellant’s pre- and post-personnel action positions. Id. Rather, the crucial
determination is whether the actual duties and responsibilities of the position to
which the appellant returned are either the same or substantially equivalent in
scope and status to the duties and responsibilities of the position he originally
held. Blackmer v. Department of Navy, 47 M.S.P.R. 624, 629 (1991).
¶7 Here, the agency has produced Standard Form 50s and a position
description indicating that the appellant was restored to the position of GS-0343-
12 Program Analyst effective September 26, 2010. CRF, Tabs 3 and 5. The new
position has the same title, occupational series, pay plan, grade level, and location
as the appellant’s prior position. Compare CRF Tab 5 at 10, with CRF, Tab 5
at 11. In addition, the position description for the two positions has remained the
same with only minor edits relating to the NSPS conversion. See CRF Tab 5 at 5,
12-16.
¶8 The appellant argues that certain functions of the position were reassigned
to other positions prior to the termination of NSPS. CRF, Tab 4, at 4.
Specifically, the appellant states that the F/A-18 IPT Lead position has now been
reassigned to a GS-11 position. Id. In response, the agency denies that the F/A
IPT Lead duties have been reassigned and asserts that the appellant is still
responsible for these duties in his new position. CRF, Tab 5 at 5. The agency
states that the position has evolved in the 3 years since the appellant held the
position, and now includes management of a second platform. Id. Because the
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appellant has not presented evidence to establish that the position is no longer
substantially equivalent to his prior position, and, in light of the evidence
provided by the agency, we find that the appellant has been returned to the status
quo ante position he occupied prior to the agency’s unwarranted personnel action.
¶9 As to the appellant’s argument that his return to the GS-12 Program Analyst
position has created administrative hardship in the agency (CRF, Tab 4 at 4), we
find that he is not in a position to assert hardship on behalf of the agency.
Therefore, we reject this argument.
¶10 In light of the agency’s evidence of compliance, 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)).
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 the United States Court of Appeals for the
Federal Circuit to review this final decision. You must submit your request to the
court at the following address:
6
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.