The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MAURICE PERRY WHITE, DOCKET NUMBER
Appellant, DC-0752-12-0502-X-1
v.
DEPARTMENT OF DEFENSE, DATE: September 20, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL ∗
Marlo Grandberry, Norfolk, Virginia, for the appellant.
Michael Walby, Esquire, North Battle Creek, Michigan, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The administrative judge issued a compliance initial decision finding the
agency in noncompliance with the August 3, 2012 initial decision, which became
final on September 7, 2012. For the reasons discussed below, we find the agency
in compliance and DISMISS the petition for enforcement. This is the final
decision of the Merit Systems Protection Board in this compliance proceeding.
∗
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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Title 5 of the Code of Federal Regulations, section 1201.183(c)(1) (5 C.F.R.
§ 1201.183(c)(1)).
DISCUSSION OF ARGUMENTS AND EVIDENCE ON COMPLIANCE
¶2 On August 3, 2012, the administrative judge issued an initial decision
reversing the appellant’s removal from the position of Material Examiner and
Identifier, WG-6912-06, because the agency violated the appellant’s due process
rights when the deciding official considered the appellant’s 2003 probationary
termination without providing the appellant notice of this specific information
and an opportunity to respond. White v. Department of Defense, MSPB Docket
No. DC-0752-12-0502-I-1, Initial Appeal File (IAF), Tab 11, Initial Decision
(ID). The administrative judge ordered the agency to cancel the removal,
retroactively restore him, effective April 25, 2012, and pay him the appropriate
amount of back pay, with interest, and benefits. ID at 5. Additionally, the
administrative judge ordered the agency to inform the appellant in writing of all
actions taken to comply with the Board’s order and the date on which it believes
it had fully complied. ID at 5-6. The decision became final on September 7,
2012, as neither party filed a petition for review.
¶3 The appellant filed a petition for enforcement on January 30, 2013,
contending that the agency failed to provide a statement showing the calculations
of back pay and other benefits and that the information provided by the agency
could not be used to ascertain whether the agency’s calculations were in fact
correct. White v. Department of Defense, MSPB Docket No. DC-0752-12-0502-
C-1, Compliance File (CF), Tab 1 at 2. The appellant did, however, indicate that
he received a corrected Standard Form 50 on September 10, 2012, and a “lump
sum payment in November.” Id. On May 29, 2013, the administrative judge
issued a compliance initial decision finding that the agency failed to “inform
appellant in writing of all actions taken to comply.” CF, Tab 7, Compliance
Initial Decision (CID). Specifically, the administrative judge found the agency’s
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documentation consisted of 38 pages of accounting codes and figures and “forced
him to assume that the agency did everything required.” CID.
¶4 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).
¶5 On July 23, 2013, and February 24, 2015, the agency filed evidence of
compliance, including a letter explaining the agency’s calculations for the amount
of back pay and interest that contained an explanation of the accounting codes at
issue, and the end date of the back pay period (i.e., October 6, 2012) due to the
appellant’s removal on October 7, 2012. Because the appellant did not respond to
the agency’s evidence of compliance, nor dispute that the agency provided a
written explanation of all actions taken to comply with the Board’s order, we
assume he is satisfied, find the agency in compliance, and dismiss the petition for
enforcement. This is the final decision in this compliance proceeding.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the U.S.
Court of Appeals for the Federal Circuit. You must submit your request to the
court at the following address:
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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 U.S. 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
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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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.