The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
NYSIAAVIS M. CHERRY, DOCKET NUMBER
Appellant, PH-0752-18-0225-X-1
v.
DEPARTMENT OF THE ARMY, DATE: August 22, 2022
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Conor Ahern, Esquire, Matthew D. Estes, Esquire, P. Sean Murphy,
Esquire and Angel Juan Valencia, Esquire, Washington, D.C., for the
appellant.
James R. Herald, Esquire, Fort Meade, Maryland, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
ORDER TO SHOW CAUSE
¶1 In a December 9, 2019 compliance initial decision, the administrative judge
found the agency in noncompliance with the Board’s December 3, 2018 decision
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
dismissing the appellant’s appeal based on a settlement agreement entered into
the record for purposes of enforcement by the Board. Cherry v. Department of
the Army, PH-0752-18-0225-C-1, Compliance File, Tab 4, Compliance Initial
Decision (CID); Cherry v. Department of the Army, PH-0752-18-0225-I-1, Initial
Appeal File, Tab 19, Initial Decision. In relevant part, the administrative judge
found that the agency had failed to credit the appellant with 84 hours of annual
leave and 56 hours of sick leave pursuant to the settlement agreement. CID at 2,
4. Accordingly, the administrative judge granted the appellant’s petition for
enforcement and ordered the agency to comply with its obligation under the terms
of the settlement agreement. CID at 4.
¶2 In the compliance initial decision, the administrative judge informed the
agency that, if it decided to take the ordered actions, it must submit to the Clerk
of the Board a narrative statement and evidence establishing compliance. CID
at 5. The compliance initial decision also informed the parties that they could
file a petition for review if they disagreed with the compliance initial decision.
CID at 5-6. Neither party filed any submission with the Clerk of the Board
within the time limit set forth in 5 C.F.R. § 1201.114. Accordingly, pursuant to
5 C.F.R. § 1201.183(b)-(c), the administrative judge’s findings of noncompliance
became final, and the appellant’s petition for enforcement was referred to the
Board for a final decision on the issues of compliance. Cherry v. Department of
the Army, PH-0752-18-0225-X-1, Compliance Referral File (CRF), Tab 1.
¶3 On January 16, 2020, the Board issued an acknowledgment order directing
the agency to submit evidence, within 15 days, showing that it had complied with
all actions identified in the compliance initial decision. CRF, Tab 1 at 3. The
agency filed its Interim Response to Acknowledgment Order on March 2, 2020.
CRF, Tab 3. In relevant part, the agency indicated that it was still in
noncompliance because the Defense Finance and Accounting Service needed to
“[make] the changes required to carry out the settlement.” Id. at 4.
3
¶4 On August 25, 2020, the Board issued a second order, again directing the
agency to file evidence of compliance, within 30 days. CRF, Tab 4 at 2. We also
instructed the agency to submit (or resubmit), within 30 days, the name of the
agency official responsible for compliance under 5 U.S.C. § 1204(e)(2)(A). Id.
The agency failed to respond, although the appellant filed a response on
November 23, 2020, asserting that the agency still had not credited her annual
and sick leave balances as instructed. CRF, Tab 5 at 3.
¶5 On May 31, 2022, the Board issued a third order, again directing the agency
to file evidence of compliance, within 21 days. CRF, Tab 9 at 2-3. The order
noted that this evidence of compliance must specifically address, via affidavit and
documentary evidence, whether the agency had credited the appellant with her
entitled leave pursuant to the parties’ settlement agreement, or had provided the
appellant with some other mutually agreed upon alternative relief. Id. The order
warned the agency that if it failed to file a timely and substantive response, the
Board would issue an order to show cause why the agency should not be
sanctioned for its failures to respond in this matter. The order also instructed for
the agency to file, within 21 days, the name, title, grade, and address of the
agency official responsible for compliance under 5 U.S.C. § 1204(e)(2)(A), and
to inform such official in writing of the potential sanction for noncompliance as
set forth in 5 U.S.C. § 1204(a)(2) and section (e)(2)(A), even if the agency asserts
it has fully complied. Id. To date, the agency has failed to file a response.
¶6 Pursuant to 5 U.S.C. § 1204(e)(2)(A) and 5 C.F.R. § 1201.183(c), the Board
has the authority to impose sanctions against the agency official responsible for
noncompliance with a Board order. Such sanctions may include a ruling adverse
to the agency and certification to the Comptroller General of the United States
that no payment is to be made to certain agency employees found to be in
noncompliance with the Board’s order. 5 C.F.R. § 1201.183(e). Under 5 C.F.R.
§ 1201.183(a)(2), if the agency fails to submit the name, title, grade, and address
of the agency official charged with complying with the Board’s order, the Board
4
will presume that the highest-ranking appropriate agency official who is not
appointed by the President by and with the consent of the Senate is charged with
compliance.
¶7 As the agency has repeatedly failed to provide us with the required
information, we must presume that Mr. William J. Koon, 2 the highest
highest-ranking appropriate agency official who is not appointed by the President
by and with the consent of the Senate, is the agency official charged with
complying with the Board’s order(s) and that he is responsible for the agency’s
continued noncompliance with these orders. Id.
¶8 Accordingly, pursuant to 5 U.S.C. § 1204(e)(2)(A) and 5 C.F.R.
§ 1201.183(c), the agency and Mr. Koon are hereby DIRECTED TO SHOW
CAUSE why sanctions should not be imposed for the agency’s failure to comply
with the Board’s August 25, 2020 and May 31, 2022 orders. 3 The agency and
Mr. Koon shall submit their written responses within 14 days of the date of this
Order. If the agency or Mr. Koon fail to respond within this timeframe, the
Board will issue an order requiring them to appear in person before the
Board at MSPB Headquarters, Washington, D.C, for a show cause hearing.
See 5 C.F.R. § 1201.183(c)(1).
¶9 The appellant shall file any response to the agency’s and Mr. Koon’s
submissions within 14 days of the date of the submissions. If the appellant fails
2
According to the United States Army Judge Advocate General’s Corps websites,
Mr. Koon is the Director, Civilian Personnel, Labor and Employment Law for the
Office of The Judge Advocate General. See https://www.jagcnet.army.mil
/Sites/JAGC.nsf/homeContent.xsp?open&documentId=491917DFD8A389CC852586150
053871D (last visited Aug. 22, 2022), and https://www.jagcnet.army.mil/Sites/
jagc.nsf/0/528CEE10D3E3CA20852584A9006E57DF/$File/Koon%20-%20Bio%20-
%20SES%20-%2020191101.pdf (last visited Aug. 22, 2022).
3
A copy of this order will be served to Mr. Koon via email, and to the Initial Contact
for Fort Meade electronically via e-Appeal. The Initial Contact for Fort Meade will
also be sent a courtesy copy of this order via U.S. Mail.
5
to respond to these submissions, the Board may assume she is satisfied and
dismiss the petition for enforcement.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.