The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2015 MSPB 25
Docket No. DA-0752-13-0170-X-1
Felicia A. Bills,
Appellant,
v.
Department of the Air Force,
Agency.
February 27, 2015
Anthony W. Walluk, Esquire, San Antonio, Texas, for the appellant.
Charles R. Vaith, Esquire, Randolph Air Force Base, Texas, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
OPINION AND ORDER
¶1 The administrative judge issued a compliance initial decision finding the
agency in noncompliance with the administrative judge’s August 1, 2013 initial
decision in MSPB Docket No. DA-0752-10-0251-I-1, which became the Board’s
final decision in the appellant’s removal appeal on September 5, 2013, when
neither party filed a petition for review. MSPB Docket No. DA-0752-10-0251-C-
1 (C-1), Compliance Initial Decision (CID) (Aug. 18, 2014). The August 1, 2013
final decision required the agency to cancel the appellant’s removal, restore her
to the status quo ante, and pay her appropriate back pay and benefits. MSPB
Docket No. DA-0752-10-0251-I-1 (I-1), Initial Decision (ID) at 17 (Aug. 1,
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2013). The administrative judge held that the agency failed to demonstrate
compliance because it did not provide the appellant the opportunity to make an
election of health care benefits under 5 U.S.C. § 8908(a), and did not comply
with the Federal Retirement Thrift Investment Board’s (FRTIB’s) regulations
regarding back pay awards. For the reasons discussed below, we now find the
agency in compliance with the final order.
BACKGROUND
¶2 On September 11, 2012, the agency proposed to remove the appellant for:
(1) making a false accusation; (2) engaging in unprofessional conduct; and
(3) carelessness in the performance of her duties. I-1, Initial Appeal File (IAF),
Tab 1 at 8. On December 12, 2012, the agency issued a final decision sustaining
the proposed removal, effective the same day. Id. at 18.
¶3 The appellant timely appealed her removal to the Board. On August 1,
2013, the administrative judge issued an initial decision reversing the removal,
finding that the agency failed to prove any of its charges by preponderant
evidence. ID at 1-17. The administrative judge ordered the agency to cancel the
removal action, retroactively restore the appellant to her position, and pay her
back pay with interest and benefits in accordance with the regulations of the
Office of Personnel Management (OPM). ID at 17.
¶4 On December 13, 2013, the appellant timely filed a petition for
enforcement. C-1, Compliance File (CF), Tab 1. She alleged that the agency
failed to: (1) pay the interest on her back pay; (2) either reimburse her for the
amounts withheld for health insurance premiums during the period of the removal
or pay her for the amounts she paid for continuation of insurance coverage during
the removal period; (3) pay the interest on the amounts she withdrew from the
Thrift Savings Plan (TSP) and Federal Employees’ Retirement System (FERS);
and (4) reimburse her for the penalty and interest she will be required to pay for
the early withdrawal of amounts from the TSP and FERS. Id.
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¶5 On January 8, 2014, the agency responded to the petition for enforcement.
It asserted that, with the exception of the interest on the back pay, it was in full
compliance with the Board’s final decision. CF, Tab 3. The agency supported its
claim with documentary evidence showing that the removal was canceled, the
appellant was returned to her former position and paid back pay, and $1,540.44
was withheld from the back pay for retroactive health insurance benefits. Id.
Regarding the amount withheld from the back pay for health insurance, the
agency claimed that the appellant should contact her health insurance company to
request reimbursement for any premiums paid during the back pay period or
should assign to the agency her right to collect an overpayment for the insurance.
Id. As to the claim for reimbursement for interest and penalties resulting from
the withdrawal of amounts from the TSP and FERS accounts, the agency argued it
should not be responsible for these funds. Id.
¶6 In reply to the agency’s submission, the appellant confirmed that she had
been paid the appropriate amount of back pay but claimed that she was not able to
comprehend the documentation provided by the agency. CF, Tab 5. She also
repeated her assertion that the agency should pay her for the penalties accrued
and interest lost stemming from her early withdrawal of her TSP and FERS funds
and stated that she had still not had been paid interest on her back pay. Id. The
administrative judge then held telephonic conferences with the parties’
representatives to discuss the outstanding compliance issues. CF, Tabs 7, 13.
Following these conferences, the parties made final submissions to the
administrative judge regarding the outstanding compliance issues. CF, Tabs
14-15.
¶7 On August 18, 2014, the administrative judge issued a compliance initial
decision granting the appellant’s petition for enforcement. CID. In the decision,
the administrative judge found that the agency was not in compliance with the
Board’s order because it failed to demonstrate that it afforded the appellant an
opportunity to make an election of health benefits pursuant to 5 U.S.C. § 8908(a)
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and failed to show that it complied with FRTIB’s regulations regarding the
appellant’s TSP account. 1 CID at 5, 8. Pursuant to her decision, the
administrative judge ordered the agency to: (1) furnish documentary evidence to
show that the appellant was afforded the opportunity to elect retroactive health
insurance pursuant to 5 U.S.C. § 8908 and evidence of her election; and
(2) furnish documentary evidence to show compliance with OPM’s regulations
relating to the appellant’s TSP contributions. CID at 10. On September 22,
2014, the agency submitted its Response Regarding Compliance to the Board, in
which it asserted that it had complied with the administrative judge’s August 18,
2014 compliance initial decision. MSPB Docket No. DA-0752-13-0170-X-1,
Compliance Referral File (CRF), Tab 1. The petitioner did not file any reply.
ANALYSIS
The agency is in compliance with the Board’s final decision regarding the
appellant’s health insurance benefits.
¶8 The agency’s response provided documentary evidence showing that on
September 9, 2014, the appellant was afforded the opportunity to elect retroactive
health insurance. CRF, Tab 1 at 62. The agency’s response further showed that
on September 17, 2014, the appellant declined to elect retroactive health
insurance. Id. at 60-62. Thus, we find that the agency has fulfilled its obligation
under 5 U.S.C. § 8908, and find the agency in compliance with the August 1,
2013 final decision with respect to the appellant’s health benefits.
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The administrative judge further held that the agency complied with the Board’s order
to pay the appellant back pay and interest, did not have to pay interest on the amounts
the appellant would have contributed to the TSP or retirement accounts, and was not
required to pay for any tax consequences that resulted from the appellant’s withdrawal
of her FERS and TSP contributions. CID. We agree with these findings and will not
address these aspects of the compliance in itial decision any further.
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The agency is in compliance with the Board’s final decision with regard to the
appellant’s TSP contributions.
¶9 The agency’s response also provided documentary evidence showing that
on September 9, 2014, the appellant was afforded the opportunity to submit
missed contributions to her TSP account. CRF, Tab 1 at 62. However, the
appellant declined to elect to submit any make-up contributions. Id. As a result,
the agency has fulfilled its obligations under the current governing TSP
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regulations. See 5 C.F.R. § 1605.13(c). Therefore, we find that the agency is
now in full compliance with the Board’s order concerning the appellant’s TSP
contributions.
¶10 Accordingly, the Board finds that the agency is now in full compliance
with the Board’s August 1, 2013 final decision and DISMISSES the petition for
enforcement. This is the final decision of the Merit Systems Protection Board in
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In the compliance initial decision, the administrative judge incorrectly imposed two
additional requirements on the agency to show compliance. Th e administrative judge
required the agency to inform the TSP record keeper of the back pay award and to show
that it requested FRTIB to provide a computation of interest and lost earnings in accord
with the applicable regulations. CID at 8. The administrative judge’s authority for
these requirements was based on Shobert v. Department of the Air Force, 90 M.S.P.R.
262, ¶ 11 (2001), which in turn derived the requirements from the then-current
govern ing regulations, 5 C.F.R. §§ 1606.3 (2001) and 1606.11 (2001). However, the
authority of 5 C.F.R. Part 1606 expired on August 31, 2003. See Various Changes to
the Thrift Savings Plan, 70 Fed. Reg. 21290, 21291 (April 25, 2005). At that time, the
govern ing authority for all TSP contributions from back pay awards became 5 C.F.R.
Part 1605. 70 Fed. Reg. at 21291. Under 5 C.F.R. § 1605.13, the agency is now no
longer required to request a computation of interest and lost earnings from FRTIB, and
only needs to notify the TSP record keeper of the back pay award if there are employee
make-up contributions. 5 C.F.R. § 1605.13(c). Therefore, the portion of the
compliance initial decision requiring the agency to inform the TSP record keeper of the
back pay award and to show that it requested FRTIB to provide a computation of
interest and lost earnings is hereby VACATED, and Shobert is OVERRULED to the
extent that it requires agencies to comply with 5 C.F.R. §§ 1606.3 (2001) and 1606.11
(2001).
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this appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c)
(5 C.F.R. § 1201.113(c)).
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
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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.