The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LEANDER L. BURKS, DOCKET NUMBER
Appellant, CH-0752-13-0070-C-1
v.
UNITED STATES POSTAL SERVICE, DATE: September 23, 2014
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Leander L. Burks, Milwaukee, Wisconsin, pro se.
Matthew J. Gowan, Esquire, Chicago, Illinois, 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 his petition for enforcement of a Board decision
mitigating his removal to a 30-day suspension. Generally, we grant petitions such
as this one only when: the initial decision contains erroneous findings of material
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
fact; the initial decision is based on an erroneous 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. The
compliance initial decision is VACATED, and the petition for enforcement is
DISMISSED AS MOOT.
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 The appellant filed a Board appeal challenging his removal. Initial Appeal
File (IAF), Tab 1. On July 16, 2013, the administrative judge issued an initial
decision in which he ordered the agency to cancel the appellant’s removal and
substitute in its place a 30-day suspension without pay no later than 20 days after
the initial decision became final. IAF, Tab 23, Initial Decision (ID) at 4. The
administrative judge also ordered the agency to pay the appellant the appropriate
amount of back pay, interest, and benefits. ID at 4. Neither party filed a petition
for review, and therefore the initial decision became final on August 20, 2013.
See ID at 5.
¶3 On September 13, 2013, the appellant filed a petition for enforcement of the
Board’s decision mitigating his removal. Compliance File (CF), Tab 1. He
submitted a letter from the agency informing him that his removal was being
reduced to a 30-day suspension, but that he was not entitled to any back pay
because he had received two subsequent notices of proposed removal, both of
3
which were to have the same effective date as the removal mitigated by the
Board. CF, Tab 3 at 2. The agency indicated that the appellant had not filed
Board appeals challenging those other removal actions, but that those matters
were scheduled for arbitration in October 2013.
¶4 On November 13, 2013, the administrative judge issued a compliance initial
decision denying the appellant’s petition for enforcement. CF, Tab 7,
Compliance Initial Decision (CID). He found that the other removal action
“effectively super[s]edes” the action that was the subject of the appellant’s Board
appeal. CID at 2. The appellant has filed a petition for review of the compliance
initial decision. Petition for Review (PFR) File, Tab 1. In its response to the
petition for review, the agency indicated that the appellant’s other removal
actions had been “modified” in November 2013 arbitration awards, and that the
appellant would be receiving full back pay extending back to the date of his
removal. PFR File, Tab 3 at 5-6. The agency argued that there was therefore no
relief that the Board could grant on review. Id. at 6.
¶5 The Board issued an order seeking clarification regarding both the status of
the removal that was the subject of the underlying Board appeal as well as any
back pay the appellant has received. PFR File, Tab 6. In response, the agency
submitted evidence appearing to show that the appellant’s removal had been
mitigated to a 30-day suspension, and that the agency had paid the appellant back
pay not only for the period following the 30-day suspension, but also for the
period of the suspension. PFR File, Tab 8. The appellant did not respond to the
Board’s order.
¶6 In the initial decision in the underlying Board appeal, which became the
Board’s final decision when neither party filed a petition for review, the Board
ordered the agency to cancel the appellant’s removal and substitute in its place a
30-day suspension without pay. ID at 4. The Board further ordered the agency to
pay the appellant the appropriate amount of back pay. ID at 4. The agency has
submitted evidence on review that it has complied with both aspects of the
4
Board’s order. PFR File, Tab 8 at 8 (letter informing the appellant that his
removal had been reduced to a 30-day suspension), 24-31 (printout showing the
agency’s back pay calculation). 2 The appellant has not challenged the agency’s
evidence of compliance. We therefore DISMISS the petition for enforcement AS
MOOT. See Singletary v. U.S. Postal Service, 84 M.S.P.R. 211, ¶ 5 (1999)
(dismissal as moot was appropriate in light of the agency’s apparent compliance
and the appellant’s failure to object to the agency’s evidence of compliance).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
This is the Board’s final decision in this enforcement proceeding. 5 C.F.R.
§ 1201.183(c)(1). 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:
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
2
It appears from the agency’s submissions on review that it paid the appellant back pay
in response to arbitration awards in connection with the other removal actions taken
against him, rather than in response to the Board’s order in the underlying appeal. PFR
File, Tabs 3, 8. However, we need not determine the particular reason for the agency’s
apparent compliance; the only issue before us is whether the agency has fully complied
with the Board’s order.
5
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.