The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DERRICK D. JOYNER, DOCKET NUMBER
Appellant, SF-0752-12-0176-X-1
v.
DEPARTMENT OF DEFENSE, DATE: April 9, 2015
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL *
Bobbie Bowling, and Clifford H. Thomas, III, Stockton, California, for
the appellant.
Christine J. Kim, Stockton, California, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 On January 27, 2015, the Board issued a nonprecedential final order finding
the agency noncompliant with the Board’s final order in the underlying removal
appeal, MSPB Docket No. SF-0752-12-0176-I-1. See Joyner v. Department of
Defense, MSPB Docket No. SF-0752-12-0176-C-2, Final Order (Jan. 27, 2015)
*
A nonprecedential order is one that the Board has determined does not add
sign ificantly 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 Parties may cite nonprecedential orders,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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(C-2 Final Order). For the reasons discussed below, we now find the agency in
compliance and DISMISS the petition for enforcement.
DISCUSSION OF ARGUMENTS AND EVIDENCE ON COMPLIANCE
¶2 On May 4, 2012, the administrative judge issued an initial decision in
MSPB Docket No. SF-0752-12-0176-I-1 (Joyner I) mitigating the appellant’s
removal to a 60-day suspension and ordering the agency to pay him back pay. On
April 17, 2013, the Board issued a final order affirming the initial decision. See
Joyner v. Department of Defense, MSPB Docket No. SF-0752-12-0176-I-1, Final
Order (Apr. 17, 2013). The agency again removed the appellant and on
March 12, 2013, the administrative judge issued an initial decision in MSPB
Docket No. SF-0752-13-0075-I-1, mitigating the second removal to a 30-day
suspension. On petition for review, the Board vacated the initial decision and
affirmed the removal action. See Joyner v. Department of Defense, MSPB Docket
No. SF-0752-13-0075-I-1, Final Order (May 20, 2014).
¶3 The appellant filed a petition for enforcement asserting that the agency
failed to pay him back pay in accordance with the final order in Joyner I.
Specifically, the appellant asserted that the agency failed to account for the
within-grade increase (WIGI) he should have earned during the back pay period
(January 27, 2012, to November 9, 2012), miscalculated the number of pay
periods, and incorrectly calculated his leave as accruing at the rate of 4 hours,
rather than 6 hours, per pay period. See C-2 Final Order at 3. The agency
conceded that it failed to process the WIGI due the appellant effective April 8,
2012, failed to process his leave accrual at the correct rate, and filed evidence
attempting to correct these deficiencies. See id. at 3-4. On August 7, 2014, the
administrative judge issued a compliance initial decision finding the agency
noncompliant on these two issues. See id. at 5.
¶4 The agency filed a petition for review. On January 27, 2015, the Board
issued a nonprecedential final order affirming the compliance initial decision.
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The Board found that the agency had failed to submit records demonstrating that
it corrected the appellant’s back pay to reflect his WIGI from April 8, 2012, to
November 9, 2012. C-2 Final Order at 4. The Board further found that the
agency failed to submit documentation that it corrected the appellant’s annual
leave accrual rate. Id. The matter was referred to the Board’s Office of General
Counsel to obtain compliance.
ANALYSIS
¶5 When the Board finds a personnel action unwarranted or not sustainable, it
orders that the appellant be placed, as nearly as possible, in the situation he would
have been in had the wrongful personnel action not occurred. House v.
Department of the Army, 98 M.S.P.R. 530, ¶ 9 (2005). The agency bears the
burden to prove its compliance with a Board order. An agency’s assertions of
compliance must include a clear explanation of its compliance actions supported
by documentary evidence. Vaughan v. Department of Agriculture, 116 M.S.P.R.
319, ¶ 5 (2011). The appellant may rebut the agency’s evidence of compliance by
making “specific, nonconclusory, and supported assertions of continued
noncompliance.” Brown v. Office of Personnel Management, 113 M.S.P.R. 325,
¶ 5 (2010).
¶6 On February 18, 2015, the agency submitted the following evidence of
compliance.
Within-Grade Increase (WIGI)
¶7 The agency conceded that it had inadvertently failed to apply the
appellant’s WIGI effective April 8, 2012, which would have raised his salary
from the 04 step level to the 05 step level. MSPB Docket No. SF-0752-12-0176-
X-1, Compliance Referral File (CRF), Tab 3 at 3. The agency submitted evidence
that it paid the appellant the difference between what it previously had paid him
(at the 04 step level) and what it should have paid him (at the 05 step level)
between April 8, 2012, and November 9, 2012. See id. at 3-4, 29-35. The agency
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also submitted evidence that it paid the appellant interest on this amount. See id.
at 4, 35-37. The appellant did not respond.
Annual Leave
¶8 Regarding the annual leave issue, the agency asserted that the appellant
was not entitled to accrue annual leave at all between November 28, 2011 (the
date of his canceled first removal), and January 27, 2012 (the date his 60-day
suspension ended), because he was suspended per the Board’s order in Joyner I
and was not in a pay status. CRF, Tab 3 at 1-2. The agency provided evidence
that it credited or paid the appellant for the annual leave he would have accrued,
at the 6 hours per pay period rate, between January 28, 2012, and November 9,
2012. See id. at 2-3, 7-21. The appellant did not file a response.
¶9 The Board’s January 27, 2015 Final Order informed the appellant that, if he
did not file a response to the agency’s submissions, then the Board would assume
that he was satisfied and dismiss the petition for enforcement. C-2 Final Order
at 5. The appellant has not responded to the agency’s evidence of compliance.
Accordingly, we assume he is satisfied, find the agency fully compliant, and
dismiss the petition for enforcement.
¶10 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
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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
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
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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.