The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GARY S. BLATT, DOCKET NUMBER
Appellant, AT-0752-13-7245-X-1
v.
DEPARTMENT OF THE ARMY, DATE: May 15, 2015
Agency.
THIS FINAL O RDER IS NONPRECEDENTIAL *
Gary S. Blatt, Columbia, South Carolina, pro se.
Eric J. Teegarden, Esquire, Fort McCoy, Wisconsin, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 On January 2, 2015, the administrative judge issued a compliance initial
decision finding that the agency had not fully complied with the Board’s
August 19, 2014 Final Order, and the matter was referred to the Board for
consideration. MSPB Docket No. AT-0752-13-7245-C-1, Compliance File,
Tab 5, Compliance Initial Decision (CID). See 5 C.F.R. § 1201.183. The
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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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administrative judge found that the agency had not complied with the Board’s
final decision concerning paying the appellant the appropriate amount of back
pay and benefits. See CID.
¶2 In response, the agency submitted a narrative statement dated January 20,
2015, stating that the agency had been in regular contact with the Defense
Finance and Accounting Service (DFAS), which was processing the back pay
request. MSPB Docket No. AT-0752-13-7245-X-1, Compliance Referral File
(CRF), Tab 1. The agency stated that DFAS had determined that the appellant
was overpaid by $17,210.49, as a result of a lump sum leave payment and
retirement annuity received after his removal. See i d. at 1. The agency stated
that restoration of sick leave and annual leave owed to the appellant was
underway, pending the input of timecards. Id.
¶3 The appellant responded to the agency’s submission on January 23, 2015,
arguing that the reimbursement of his health and life insurance premiums paid
during the period following his removal were not taxable; that the agency had
failed to include interest in its calculations; and that he should not be obligated to
reimburse the agency for his lump sum annual leave payment. CRF, Tab 3. He
further stated that he was under an economic hardship due to the state of South
Carolina’s requirement that he pay back unemployment benefits he received
following his removal. Id. He requested that the Board re-examine its back pay
order and hold the government responsible “for any and all additional
disbursements.” Id. at 2.
¶4 The appellant submitted an additional response on January 28, 2015,
stating that he had been notified of an $11,758.51 overpayment, asserting that the
agency’s actions in removing him and subsequently assessing the overpayment
caused hardship, and reiterating the arguments set forth in his previous letter.
CRF, Tab 5.
¶5 The agency submitted a second narrative statement and additional evidence
on February 2, 2015. CRF, Tab 4. The agency also submitted an explanation and
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documentation of its back pay and interest calculations. See id. at 10-19.
According to the agency’s calculations, the appellant was due adjusted gross back
pay in the amount of $45,208.37, and interest in the amount of $837.75. See id.
at 4, 14-19. The agency stated that the interest would be paid to the appellant on
the pay period ending on January 14, 2015. See id. at 4. The agency also stated
that the appellant was due restored annual leave and sick leave, which would be
placed in his account. See id. at 5. The agency further stated that the appellant
was overpaid by $11,758.51 for his retirement annuity. See id. at 5-6. The
agency notified the appellant of this debt by letter dated January 24, 2015. See
id. at 23-32. The appellant also was overpaid by $8,997.98 due to a lump sum
annual leave payment. Id. at 6. The agency noted that it had returned the annual
leave that was the source of the lump sum payment to the appellant. Id. The
agency stated that it had partially offset this debt using the appellant’s back pay
award, resulting in a remaining debt of $5,451.98, which the appellant would be
notified of within the next 7-10 days. Id.
¶6 The appellant submitted a response on February 6, 2015, acknowledging
that the accounting of back pay the agency provided was “almost meaningful and
understandable,” and that he had received the interest payment. CRF, Tab 6 at 1.
He continued to argue that the agency should reimburse him for the life insurance
and health insurance premiums he paid during his period of unemployment. See
id. at 2.
¶7 The Board issued an order on March 13, 2015, directing the agency to
respond to the appellant’s claim that he was due to be reimbursed for health and
life insurance premiums; to provide evidence showing that the appropriate
amount of back pay, with interest, was paid to him; and to provide evidence that
he had been restored sick leave and annual leave. CRF, Tab 7.
¶8 The agency submitted a statement and additional evidence on March 25,
2015, stating that it did not include health and life insurance premiums in the debt
amount sought to be collected from the appellant. CRF, Tab 8 at 4. The agency
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reported that it paid the back pay due to the appellant on October 30, 2014, and
that it reinstated the annual leave and sick leave amounts in the appellant’s pay
period ending on October 18, 2014. See id. at 5-6.
¶9 The appellant responded on March 31, 2015, reiterating his argument that
the agency should be required to reimburse him for the health insurance and life
insurance premiums collected, and that he should not be required to reimburse the
agency for annual leave paid. CRF, Tab 9.
¶10 We find that the agency has produced sufficient evidence to establish that it
paid the appellant the appropriate amount of back pay and benefits.
¶11 In light of the agency’s evidence of compliance, we find the agency in
compliance and DISMISS the appellant’s 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.
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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:
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 an appeal to
the United States Court of Appeals for the Federal Circuit, you may visit our
website at http://www.mspb.gov/probono for information regarding pro bono
representation for Merit Systems Protection Board appellants before the Federal
Circuit. The Merit Systems Protection Board neither endorses the services
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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.