The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2015 MSPB 59
Docket No. DA-0752-11-0212-C-1
DA-0752-12-0595-C-1 1
Colbert Allen Rittgers,
Appellant,
v.
Department of the Army,
Agency.
November 4, 2015
Charles C. Smith, Esquire, Corpus Christi, Texas, pro se.
Alex Lopez, Esquire, and Kenneth M. Muir, Esquire, Corpus Christi,
Texas, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
OPINION AND ORDER
¶1 This matter is before the Board on the appellant’s petition for review of the
compliance initial decision, which found the agency partially in compliance with
the Board’s final order. For the reasons set forth below, we GRANT the
appellant’s petition for review. We AFFIRM the compliance initial decision’s
1
The administrative judge issued an erratum correcting the docket numbers on the first
page of the compliance initial decision. Rittgers v. Department of the Army, MSPB
Docket No. DA-0752-11-0212-C-1, Compliance File, Tab 10.
2
finding that the agency is not in compliance concerning restoration of annual
leave and contributions to the appellant’s Thrift Savings Plan (TSP) account. We
MODIFY the compliance initial decision to address the agency’s argument that
the appellant was not entitled to TSP contributions for the 6-month periods
following each of his in-service withdrawals. We REVERSE the compliance
initial decision’s finding that the method the agency used to calculate the
appellant’s overtime back pay is in compliance with the Board’s final order.
BACKGROUND
¶2 The appellant filed a petition for enforcement of the Board’s final order in
Rittgers v. Department of the Army, MSPB Docket Nos. DA-0752-11-0212-B-1
and DA-0752-12-0595-I-1, which ordered the agency to cancel two indefinite
suspensions and pay him the correct amount of back pay, interest on back pay,
and other benefits. Rittgers v. Department of the Army, MSPB Docket No.
DA-0752-11-0212-C-1, Compliance File (CF), Tab 1. The appellant alleged that
the agency failed to comply with this final order by not fully restoring his annual
leave, failing to make the appropriate contributions to his TSP account, and
erroneously calculating his overtime back pay. CF, Tab 5. During the
compliance proceedings, the agency acknowledged that it failed to properly
process the appellant’s TSP contributions. CF, Tab 4 at 4-6. The agency
proposed to remedy the error by giving the appellant a lump sum payment of
$8,613.33, which the agency stated was “an accurate approximation of the
amount owed due to its failure to process the TSP elections.” Id. at 6. The
agency asserted that, because the appellant is no longer an employee, no
contributions can be made into his TSP account, and a lump sum payment is the
only method available to address the TSP contribution portion of the appellant’s
back pay award. CF, Tab 6 at 5-6.
¶3 In her compliance initial decision, the administrative judge found that the
agency was in compliance with the final order regarding the appellant’s overtime
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back pay. CF, Tab 8, Compliance Initial Decision (CID) at 5-7. The
administrative judge found that the agency was not in compliance with the
Board’s final order regarding payment to the appellant for annual leave and
contributions to his TSP account. CID at 4-5, 7-10. The agency has filed a
statement of compliance pursuant to 5 C.F.R. § 1201.183(a)(6)(i), which is being
processed under MSPB Docket Nos. DA-0752-11-0212-X-1 and DA-0752-12-
0595-X-1.
¶4 The appellant has filed a petition for review of the compliance initial
decision, arguing that he had insufficient time to respond to new evidence and
arguments filed by the agency, the administrative judge failed to address whether
the contributions to his TSP account should include contributions for the 6-month
periods following two in-service withdrawals, and the administrative judge erred
in finding that the agency applied an appropriate method for calculating his
overtime back pay. Compliance Petition for Review (CPFR) File, Tab 2. The
agency has filed an opposition to the appellant’s petition for review, but has not
filed a petition for review. CPFR File, Tab 3. The appellant has filed a reply to
the agency’s opposition. CPFR File, Tab 5.
ANALYSIS
The administrative judge did not abuse her discretion in determining when to
close the record.
¶5 As a preliminary matter, the appellant notes that he did not have adequate
time to respond to the agency’s new evidence and arguments, which he received
1 day prior to the record closing. CPFR File, Tab 2 at 5. Determining when to
close the record is within an administrative judge’s sound discretion, but such
discretion must comport with basic requirements of fairness and notice.
Blackmer v. Department of the Navy, 52 M.S.P.R. 571, 574 (1992). The parties
were on notice that the agency had until the close of the record to file new
evidence and arguments. CF, Tab 3. The appellant did not object to the order
establishing the timeframes for filing evidence, nor did he request additional time
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to prepare a response to the agency’s new evidence. The appellant’s failure to
timely object to the administrative judge’s order or to file an extension request
below precludes him from doing so on petition for review. See Tarpley v. U.S.
Postal Service, 37 M.S.P.R. 579, 581 (1988) (finding that the appellant’s failure
to timely object to the administrative judge’s rulings on witnesses precluded his
doing so on petition for review).
¶6 Evidence and argument can be accepted after the record closes in rebuttal
to new evidence or argument submitted by the other party just before the record
closed. 5 C.F.R. § 1201.59(c)(2). It does not appear that the appellant attempted
to file any additional evidence or argument in rebuttal to the agency’s March 12,
2015 pleading. Moreover, the appellant now has had the opportunity to address
the agency’s new evidence and argument through his petition for review, CPFR
File, Tab 2 at 6, and we have addressed those arguments in this order. Thus, we
find that the appellant was not prejudiced by receiving the agency’s pleading
1 day prior to the record closing.
The appellant was not entitled to contribute to his TSP account during the
6-month periods following his in-service withdrawals, and his back pay award
should have been calculated accordingly.
¶7 The regulations implementing the Back Pay Act require that an agency
correct errors affecting an employee’s TSP account consistent with the
regulations prescribed by the Federal Retirement Thrift Investment Board
(FRTIB). Price v. U.S. Postal Service, 118 M.S.P.R. 222, ¶ 16 (2012)
(citing 5 C.F.R. § 550.805(h)). The appellant received financial hardship in-
service withdrawals from his TSP account on August 18, 2010, and February 25,
2011. CF, Tab 6, Exhibits (Exs.) 28-29. A participant who obtains a financial
hardship in-service withdrawal may not contribute to the TSP for a period of
6 months after the withdrawal is processed. 5 C.F.R. § 1650.33(b). The agency
stated that based on this regulation it overestimated the amount of the make-up
contributions due to the appellant. CF, Tab 6 at 6.
5
¶8 The appellant contends that the administrative judge did not explicitly state
whether, in calculating the appellant’s TSP contributions, the agency should
include contributions during the 6-month periods following his withdrawals.
CPFR, Tab 2 at 6. Concerning the first withdrawal, the appellant argues that he
would not have withdrawn the funds from his TSP account but for the agency
placing him on administrative leave prior to his indefinite suspension and the
corresponding loss of overtime pay. Id. The placement of the appellant on paid
administrative leave prior to his indefinite suspension is not an appealable action.
See LaMell v. Armed Forces Retirement Home, 104 M.S.P.R. 413, ¶ 7 (2007).
The Board’s authority to make an aggrieved employee whole under the Back Pay
Act extends back only to the effective date of the reversed adverse action.
Mattern v. Department of the Treasury, 291 F.3d 1366, 1370-71 (Fed. Cir. 2002).
The Board has no authority to order that the appellant’s back pay award include
contributions to his TSP account for the 6-month period following his first
in-service hardship withdrawal, which occurred prior to the effective date of his
first indefinite suspension.
¶9 The second withdrawal occurred after the effective date of the first
indefinite suspension. CF, Tab 6, Exs. 28-29. The negative consequences of this
second withdrawal could be related to the appellant’s indefinite suspension and
could represent damages. See Giove v. Office of Personnel
Management, 106 M.S.P.R. 53, ¶ 9 (2007). However, the instant appeal does not
fall into one of the limited categories of cases in which the Board is authorized to
award damages. 5 C.F.R. § 1201.202(b)-(d). The appellant has not identified any
provision in the Back Pay Act or the FRTIB’s regulations that would permit the
Board to award this type of damages. Therefore, we find that he is not entitled to
an order requiring contributions to his TSP account for the 6-month period
following his second in-service hardship withdrawal.
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The appellant is not entitled to restoration of the funds he withdrew from his
TSP account.
¶10 The appellant also argues that the administrative judge failed to address
properly whether the agency was required to restore the funds he withdrew from
his TSP account. CPFR File, Tab 2 at 10. The appellant cites 5 C.F.R.
§ 1605.13(d) for the proposition that the agency was required to restore the
$47,945.67 that he withdrew. Id. In accordance with the FRTIB’s regulations,
employees who are separated from service are entitled to restore funds withdrawn
from their TSP accounts at the time of their separations. 5 C.F.R. § 1605.13(d).
The appellant’s withdrawals were financial hardship in-service withdrawals.
CPFR File, Tab 2 at 6, Tab 5 at 5-6. Because the appellant’s withdrawals were
in-service and not withdrawals upon separation, he was not entitled to restore the
withdrawn funds. 5 C.F.R. § 1605.13(d). Even if this regulation was applicable,
it allows an employee to restore withdrawn funds, but does not require any action
by the agency. Id.; see Crazy Thunder-Collier v. Department of the
Interior, 115 M.S.P.R. 82, ¶ 13 (2010).
¶11 Although the appellant is not entitled to restore the withdrawn funds or to
make TSP contributions for the 6-month periods following his withdrawals, we
affirm the administrative judge’s finding that the agency has not demonstrated
that it is in compliance with the Board’s final order regarding the appellant’s TSP
contributions. The agency has the burden of proving its compliance with a Board
final decision with the support of relevant, material, and credible evidence.
Gondek v. Department of the Army, 107 M.S.P.R. 292, ¶ 4 (2007). The agency
admits it failed to deduct the appropriate TSP contributions from the appellant’s
back pay and remit the make-up contributions to the FRTIB. CID at 7-10. Based
on our review, we find that the agency has not presented any additional evidence
in the petition for review proceedings that proves it is in compliance regarding
the appellant’s TSP contributions.
7
The appellant is not entitled to overtime back pay for the periods of
administrative leave prior to his indefinite suspensions.
¶12 The appellant also argues that his back pay award should have included
back pay for overtime that he would have worked during two periods of
administrative leave prior to his two indefinite suspensions. CPFR File, Tab 2
at 9. Although the Back Pay Act is designed as a make-whole remedial statute, it
is not without limits. Mattern, 291 F.3d at 1370. Placing the appellant on
administrative leave prior to his indefinite suspensions was not an adverse action
and is not remediable by the Board under the Back Pay Act. Id. The Board lacks
jurisdiction to award back pay for pay enhancements such as overtime pay lost
during periods of administrative leave preceding an appealable action. See
Harris v. U.S. Postal Service, 89 M.S.P.R. 208, ¶ 4 (2001). Therefore, we find
that the appellant is not entitled to overtime back pay for the two periods of
administrative leave that preceded his indefinite suspensions.
The agency should have calculated the appellant’s overtime back pay according
to his overtime history.
¶13 When the Board reverses a personnel action, it orders that the appellant be
placed, as nearly as possible, in the same situation he would have been in had the
wrongful personnel action not occurred. Vaughan v. Department of
Agriculture, 116 M.S.P.R. 319, ¶ 5 (2011). Overtime back pay may be computed
based on either the appellant’s own overtime history or the average overtime
hours worked by similarly situated employees during the relevant time period.
Russo v. U.S. Postal Service, 107 M.S.P.R. 296, ¶ 11 (2007). Although the
appellant is not entitled to receive a windfall, he is entitled to be restored to the
status quo ante, and the agency must use the method of computation most likely
to achieve this goal. Edwards v. Department of Justice, 90 M.S.P.R. 537, ¶ 11
(2002). The Board will not nullify the method employed by the agency in
calculating overtime back pay in the absence of a showing that the method was
unreasonable or unworkable. Ball v. U.S. Postal Service, 91 M.S.P.R. 364, ¶ 10,
aff’d, 53 F. App’x 910 (Fed. Cir. 2002). The Board has rejected the use of the
8
average overtime hours worked by similarly situated employees for computing
overtime back pay where an appellant’s own overtime history would most nearly
place the appellant in the status quo ante. See, e.g., Brady v. Department of the
Navy, 55 M.S.P.R. 693, 696-97 (1992).
¶14 The agency calculated the appellant’s overtime back pay by averaging the
overtime worked by employees in the same directorate, who held the same
position at the same grade level as the appellant, for every pay period from 2010
through October 2012. CF, Tab 4, Ex. 3. The appellant argues that he worked
considerably more overtime than these similarly situated employees. CF, Tab 5
at 7. To support his argument, the appellant provided a summary of the overtime
he worked each pay period for the 3 years and 8 months immediately preceding
his placement on administrative leave prior to his first indefinite suspension. CF,
Tab 5, Ex. C.
¶15 Here, as in Brady, the appellant’s work history demonstrates that he
worked substantial amounts of overtime in the period immediately preceding his
indefinite suspensions, and worked significantly more overtime than similarly
situated employees. Comparing the evidence of the appellant’s overtime history
with that of the overtime worked for similarly situated employees, the appellant’s
overtime history is the method more likely to place him in the status quo ante.
Compare CF, Tab 4, Ex. 3, with CPFR File, Tab 2 at 12-53.
¶16 The agency argues that overtime varies from month-to-month and
year-to-year depending on budget and workload. CF, Tab 6 at 7. Such a
statement, without supporting evidence, is insufficient to justify ignoring the
appellant’s overtime work history. See Brady, 55 M.S.P.R. at 697. The agency
has not presented any evidence that the conditions during the periods of time that
the appellant was indefinitely suspended varied in some way that would justify
ignoring his overtime history in calculating his overtime back pay. Thus, the
method the agency used to calculate the appellant’s overtime back pay was not
9
the one most likely to return the appellant to the status quo ante, and the agency
must recalculate it based on the appellant’s overtime history.
¶17 Because we have found the agency in noncompliance, the agency is being
directed to file evidence of compliance with the Clerk of the Board, and the
appellant will be afforded the opportunity to respond to that evidence. The
appellant’s petition for enforcement will be referred to the Board’s Office of
General Counsel, and, depending on the nature of the submissions, an attorney
with the Office of General Counsel may contact the parties to further discuss the
compliance process. The parties are required to cooperate with that individual in
good faith. Because the purpose of the proceeding is to obtain compliance, when
appropriate, an Office of General Counsel attorney or paralegal may engage in
ex parte communications to, among other things, better understand the evidence
of compliance and any objections to that evidence. Thereafter, the Board will
issue a final decision fully addressing the appellant’s petition for review of the
compliance initial decision 2 and setting forth the appellant’s further appeal rights
and the right to attorney fees, if applicable.
ORDER
¶18 We ORDER the agency to submit to the Clerk of the Board within 60 days
of the date of this Opinion and Order satisfactory evidence of compliance. This
evidence shall adhere to the requirements set forth in 5 C.F.R.
§ 1201.183(a)(6)(i), including submission of evidence and a narrative statement
of compliance. The agency’s submission shall demonstrate that it properly
calculated the appellant’s overtime back pay according to his overtime history,
correctly calculated the appellant’s TSP make-up contributions, and contacted the
FRTIB so that it can calculate the accurate breakage on the appellant’s make-up
2
The subsequent decision may incorporate the analysis and findings set forth in this
Opinion and Order.
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contributions as required by 5 C.F.R. § 1605.2. The agency must serve all parties
with copies of its submission.
¶19 The agency’s submission should be filed in the compliance referral matter
currently pending with the Board’s Office of General Counsel under MSPB
Docket No. DA-0752-11-0212-X-1 pursuant to 5 C.F.R. § 1201.108(a)(6)(i). All
subsequent filings should refer to the compliance referral docket number set forth
above and should be faxed to (202) 653-7130 or mailed to the following address:
Clerk of the Board
U.S. Merit Systems Protection Board
1615 M Street, N.W.
Washington, D.C. 20419
Submissions also may be made by electronic filing at the Board’s e-Appeal site
(https://e-appeal.mspb.gov) in accordance with its regulation at 5 C.F.R.
§ 1201.14.
¶20 The appellant may respond to the agency’s evidence of compliance within
20 days of the date of service of the agency’s submission. 5 C.F.R.
§ 1201.183(a)(8). If the appellant does not respond to the agency’s evidence of
compliance, the Board may assume that he is satisfied with the agency’s actions
and dismiss the petition for enforcement.
¶21 The agency is reminded that, if it fails to provide adequate evidence of
compliance, the responsible agency official and the agency’s representative may
be required to appear before the General Counsel of the Merit Systems Protection
Board to show cause why the Board should not impose sanctions for the agency’s
noncompliance in this case. 5 C.F.R. § 1201.183(a). The Board’s authority to
impose sanctions includes the authority to order that the responsible agency
official “shall not be entitled to receive payment for service as an employee
during any period that the order has not been complied with.” 5 U.S.C.
§ 1204(e)(2)(A).
¶22 This Opinion and Order does not constitute a final order and therefore
is not subject to judicial review under 5 U.S.C. § 7703(a)(1). Upon the Board’s
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final resolution of the remaining issues in the petition for enforcement, a final
order shall be issued, which then shall be subject to judicial review.
FOR THE BOARD:
______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.