The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DEBORAH A. PERLICK, DOCKET NUMBER
Appellant, NY-1221-19-0052-X-1
v.
DEPARTMENT OF VETERANS DATE: September 27, 2022
AFFAIRS,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Robert B. Stulberg, Esquire, New York, New York, for the appellant.
Mark E. Frassinelli, Esquire, Pittsburgh, Pennsylvania, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
ORDER
¶1 In a January 12, 2022 compliance initial decision, the administrative judge
found the agency in partial noncompliance with the Board’s final decision in the
underlying appeal. Perlick v. Department of Veterans Affairs, MSPB Docket No.
1
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
2
NY-1221-19-0052-C-1, Compliance File, Tab 6, Compliance Initial Decision
(CID); Perlick v. Department of Veterans Affairs, MSPB Docket No. NY-1221-
19-0052-W-2, Appeal File, Tab 18, Initial Decision (ID). For the reasons stated
below, we find that the agency continues to be in noncompliance and ORDER
appropriate relief.
DISCUSSION OF ARGUMENTS AND EVIDENCE ON COMPLIANCE
¶2 In a January 12, 2022 compliance initial decision, the administrative judge
found the agency in partial noncompliance with the Board’s December 23, 2020
final decision in the underlying appeal 2 because the agency had failed to pay the
appellant all the back pay to which she was entitled, with interest; had not
adjusted the appellant’s benefits with appropriate credits and deductions in
accordance with the Office of Personnel Management’s regulations; and had not
informed the appellant in writing of all the actions the agency had taken to
comply with the Board’s order and the date on which the agency believed it had
fully complied. In regard to back pay specifically, the administrative judge found
that while the agency had paid the appellant $48,716.66, representing back pay
for the period between November 4, 2017, and June 6, 2018, it still owed the
appellant back pay from June 7, 2018, through March 31, 2020. See CID at 2 n.2,
3-5
¶3 The administrative judge ordered the agency to “[p]ay appellant . . . for the
appropriate amount of back pay, with interest, through Mar ch 31, 2020,
minus . . . []$48,716.66[,] and to adjust her benefits with appropriate credits and
deductions (among these a credit of $11,359.44 in Thrift Savings Plan deductions
and $1,668.72 in health insurance for the back pay period).” CID at 5. The
administrative judge further ordered the agency to “[i]nfo rm appellant in writing
2
The administrative judge’s December 23, 2020 initial decision in the underlying
appeal became the final decision of the Board by operation of law on January 27, 2021,
after neither party filed a petition for review. ID at 27.
3
of all actions taken to comply with the Board’s Order and the date on which it
believes it has fully complied.” Id.
¶4 The agency thereafter did not file a timely pleading with the Clerk of the
Board. 3 Perlick v. Department of Veterans Affairs, MSPB Docket No. NY-1221-
19-0052-X-1, Compliance Referral File (CRF), Tab 1 at 2. Accordingly, the
appellant’s petition for enforcement has now been referred to the Board for a
final decision on issues of compliance pursuant to 5 C.F.R. § 1201.183(c)(1).
¶5 On February 17, 2022, the Office of the Clerk of the Board issued an
acknowledgment order in the instant proceeding advising the parties that the
petition for enforcement had been referred to the Board for a final decision and
ordering the agency to submit evidence of compliance within 15 calendar days.
CRF, Tab 1 at 3. On March 2, 2022, the agency filed its response, in which it
represented that it was in full compliance with the compliance initial decision
because it: (1) sent the appellant’s representative a bulleted list of the personnel
actions it had taken to effectuate the back pay payment to the appellant;
3
As noted in the compliance initial decision, the Board’s regulations provide that, upon
a finding of noncompliance, the party found to be in noncompliance must do the
following:
(i) To the extent that the party decides to take the actions required by the
initial decision, the party must submit to the Clerk of the Board, within
the time limit for filing a petition for review under § 1201.114(e) of this
part, a statement that the party has taken the actions identified in the
initial decision, along with evidence establishing that the party has taken
those actions. The narrative statement must explain in detail why the
evidence of compliance satisfies the requirements set forth in the ini tial
decision.
(ii) To the extent that the party decides not to take all of the actions
required by the initial decision, the party must file a petition for review
under the provisions of §§ 1201.114 and 1201.115 of this part.
5 C.F.R. § 1201.183(a)(6)(i)-(ii). The Board’s regulations further provide that if “a
party found to be in noncompliance under paragraph (a)(5) does not file a timely
pleading with the Clerk of the Board as required by paragraph (a)(6), the findings of
noncompliance become final and the case will be processed under the enforcement
provisions of paragraph (c)(1) of this section.” 5 C.F.R. § 1201.183(b).
4
(2) attempted unsuccessfully to email the appellant’s represen tative the Standard
Form 50s (SF-50s) reflecting the personnel actions; (3) spoke with the appellant’s
representative by telephone on February 9 and 10, 2022; and (4) submitted a
remedy ticket on February 9, 2022, to the Defense Finance and Accounting
Service (DFAS) requesting DFAS to process the payment. CRF, Tab 2 at 4 -5.
On March 22, 2022, the appellant responded to the agency’s statement of
compliance and alleged that she had not received the payments she was owed
outside of a check for $1,668.82, to compensate her for improper health insurance
deductions. CRF, Tab 3 at 2. The appellant further noted that the agency still
had not provided a detailed narrative explaining how its evidence of compliance
satisfied the requirements of the compliance initial decision. Id.
¶6 On June 21, 2022, the Clerk of the Board issued an order directing the
agency to respond to the appellant’s challenges to its compliance submission.
CRF, Tab 4 at 5. The Clerk further directed the agency to “identify, by name and
address, the agency official charged with complying with the Board’s order and
provide evidence that it has informed such official in writing of the potential
sanction for noncompliance . . . even if the agency asserts that it has fully
complied with the Board’s order.” Id.
¶7 On June 30, 2022, the agency responded to the June 21, 2022 Order. In it s
response, the agency states that on May 9, 2022, the agency received notice of
certified delivery to the appellant of a check in the amount of $174,302.28, which
purportedly represented the back pay to which the appellant is entitled. CRF, Tab
5 at 5, 81-82. The agency has also resubmitted the same summary of personnel
actions, SF-50s, and DFAS remedy ticket it attached to its March 2022 filing.
See id. at 9-40. The agency has not explained how it calculated the back pay
amount. The agency also has not identified the official charged with compliance.
The agency asserts that it is in compliance and requests that the Board dismiss the
petition for enforcement.
5
¶8 In reply, the appellant represented that the agency still had not provided
her with a detailed, clear explanation of the calculations the agency made to
determine the amounts due to her. CRF, Tab 6 at 9. Instead, the agency had sent
the appellant Excel spreadsheets from DFAS that appeared to state the amounts
due to her, but without an explanation of the codes and abbreviations used in the
spreadsheets. Id. at 9-10. The appellant further argued that the agency had not
carried its burden of proving compliance due to its failure to explain its
calculations. Id. at 10. The appellant has requested an award of monetary
sanctions and leave to file a claim for attorney fees and costs. Id. at 11.
ANALYSIS
¶9 In a compliance proceeding, the agency bears the burden of proving
compliance with a Board order by a preponderance of the evidence. 5 C.F.R.
§ 1201.183(d). “[A]n agency’s evidence of compliance must include a clear
explanation of its compliance efforts supported by understandable documentary
evidence.” Bruton v. Department of Veterans Affairs, 111 M.S.P.R. 489, ¶ 13
(2009). As we ruled in Bruton, a case which also concerned the provision of back
pay and benefits, the agency’s burden is as follows:
To be in compliance regarding the provision of back pay, interest on
back pay, and benefits, the agency must provide a detailed and clear
explanation of the calculations it has made in determining the
amount due the appellant. Among other things, the agency must:
1) clearly set forth the gross amount due the appellant and show how
that amount was determined; 2) clearly set forth the amount and
reason for all deductions, reductions, and offsets from the gross
amount due the appellant; 3) clearly set forth the source and amount
of all checks or electronic payments already received by the
appellant and provide evidence that such checks or electronic
payments were received; and 4) clearly set forth the amount of
interest due the appellant and how that amount was calculated. The
agency must also clearly set forth its calculations relating to the
appellant’s sick and annual leave balances, his Thrift Savings Plan
account, including both the appellant’s and the agency’s
contributions, and any other benefits of employment the appellant
would have received but for the agency’s unwarranted personnel
6
action. . . . In addition to the calculations, the agency must provide a
clear and detailed narrative explanation of its c alculations so that
the Board may understand the calculations and verify that they are
correct. The agency must provide an explanation of all codes and
abbreviations used in its documentation.
Bruton, 111 M.S.P.R. 489, ¶ 17 (footnotes omitted) (emphasis added). If the
agency is found to be in noncompliance, then the Board may requir e the agency
and the responsible agency official to show cause why sanctions should not be
imposed, either personally, in writing, or both. 5 C.F.R. § 1201.183(c)(1).
¶10 In this case, the administrative judge issued orders in two measures: to pay
the appellant the back pay and benefits to which she is entitled; and 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 has fully complied.” CID at 5. We find that the
agency has not demonstrated full compliance with either of these orders.
¶11 Regarding the first order, while the agency has shown that it delivered a
check in the amount of $174,302.28 to the appellant, t he agency has made no
effort to prove to the Board that this amount is correct by explaining how the
agency arrived at it. The agency also did not produce any documentary evidence
to the Board to support any calculations it might have made. Instead, the agency
produced SF-50s, which show that personnel actions were taken in accordance
with the Board’s underlying decision. While the SF-50s reflect the appellant’s
gross annual salary, they do not show “the gross amount due the appellant” for
the relevant time periods, “the amount and reasons for all deductions, reductions,
and offsets from the gross amount,” “the amount of interest due the appellant,” or
the appellant’s benefits. Bruton, 111 M.S.P.R. 489, ¶ 17. Given that the agency
has not provided “a clear explanation of its compliance efforts supported by
understandable documentary evidence,” Bruton, 111 M.S.P.R. 489, ¶ 13, we
determine that it has not met its burden of proof. 4 This burden rests with the
4
That the appellant attached the documents her representative received from the agency
regarding her back pay and benefits does not excuse the agency’s failure to carry its
7
agency, and the agency cannot evade its responsibility by relying on unexplained
calculations from its payor, DFAS. See Raymond v. Department of the Navy,
116 M.S.P.R. 223, ¶¶ 14-17 (2011) (rejecting “unsworn, vague” DFAS
memorandum and spreadsheet as evidence of compliance with the agency’s
agreement to provide back pay to the appellant, in part because they lacked
narrative explanation of calculations); see also Tichenor v. Department of the
Army, 84 M.S.P.R. 386, ¶ 8 (1999) (rejecting the agency’s argument that DFAS,
not the agency, improperly withheld payment from the appellant because DFAS is
the agency’s agent and no indication existed that DFAS would have refused to
pay the appellant if the agency ordered it to do so); Bradstreet v. Department of
the Navy, 83 M.S.P.R. 288, ¶ 12 (1999) (holding that “any failure on the part of
DFAS ‘to follow through’ or its ‘extraordinary’ processing requirements” did not
“excuse the agency’s substantial delay” in complying with interim relief order).
The agency must timely work with DFAS to supply the required information in a
form that the Board can understand.
¶12 Additionally, we note that the agency has not provided all the information
to the appellant in writing as required. Here, the agency has shown that it sent
the appellant’s representative a list of personnel actions and eventually provided
the appellant’s representative with the SF-50s memorializing those actions.
However, the agency did not inform the appellant’s representative in writing of
its efforts to process the back pay payment through DFAS (instead, the parties
spoke by telephone), and there is no indication in the record that it informed the
appellant’s representative in writing that it had mailed the $174,302.28 check to
burden as required under our precedents. Further, the documents are n ot accompanied
by any narrative or explanation that would help the Board to interpret them, contain
multiple abbreviations that further obscure matters, and have been produced in a form
where they are missing columns on both sides, such that the Board cann ot glean the
required information from the documents. See CRF, Tab 6 at 14-17, 31-35.
8
her. Thus, we find that the agency has not proven that it obeyed the order to
inform the appellant in writing of the actions it took to com ply.
ORDER
¶13 Based upon the foregoing, we find the agency in noncompliance.
Accordingly, we ORDER the agency to submit to the Office of the Clerk of the
Board, within 20 days of this decision, satisfactory evidence of compliance with
this decision.
¶14 To be in compliance regarding the initial decision’s provision regarding
back pay, the agency must provide detailed and clear documentation and data of
the calculations it has made in determining the amount due the appellant. Among
other things, the agency must: (1) clearly set forth the gross amount due the
appellant and show how that amount was determined; (2) clearly set forth the
amount and reason for all deductions, reductions, and offsets from the gross
amount due the appellant; (3) clearly set forth the source and amount of all
checks or electronic payments already received by the appellant and provide
evidence that such checks or electronic payments were received; and (4) clearly
set forth the amount of interest due the appellant and how that amount was
calculated. The agency must also clearly set forth its calculations relating to the
appellant’s sick and annual leave balances, her Thrift Savings Plan account
(including both the appellant’s and the agency’s contributions ), and any other
benefits of employment the appellant should have received but for the agency’s
unwarranted personnel action.
¶15 In addition to the calculations described in the previous paragraph, the
agency must also provide a clear, detailed narrative explanation of its calculations
so that the Board may understand the calculations and verify that they are correct.
The agency must provide an explanation of all codes and abbreviations used in its
narrative explanation and supporting documentation.
9
¶16 The appellant may respond to the agency’s evidence of compliance within
10 days of service of the agency’s evidence. If the appellant does not respond
timely, the Board may conclude that the agency’s evidence is satisfactory and
dismiss this case as moot.
¶17 We further ORDER the agency to submit to the Office of the Clerk of the
Board, within 20 days of this decision, evidence that it has informed the
appellant’s representative, in writing, of the actions the agency has taken to
comply with the Board’s orders and the date on which it believes it has fully
complied.
¶18 We further ORDER the agency to submit to the Office of the Clerk of the
Board, within 20 days of this decision, the name and address of the agency
official charged with complying with the Board’s order and to provide evidence
that it has informed such official in writing of the potential sanction for
noncompliance as set forth in 5 U.S.C. § 1204(a)(2) and (e)(2)(A), even if the
agency asserts that it has fully complied with the Board’s order. 5 C.F.R.
§ 1201.183(a)(2).
¶19 The agency is advised that should it fail to identify the agency official
charged with compliance, then the Board will presume that the h ighest-ranking
appropriate agency official who is not appointed by the President by and with the
consent of the Senate is charged with compliance. Id.
¶20 The agency is further advised that failure to comply with this Order may
result in the issuance of an order requiring the agency’s representative and the
10
responsible agency official to appear before the Board to show cause why
sanctions should not be imposed under 5 U.S.C. § 1204(a)(2) and (e)(2)(A).
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.