The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TYSHA S. HOLMES, DOCKET NUMBER
Appellant, AT-0752-11-0263-C-1
v.
DEPARTMENT OF THE ARMY, DATE: April 15, 2022
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Evan Greenstein, Washington, D.C., for the appellant.
Robert J. Barham, Fort Jackson, South Carolina, for the agency.
BEFORE
Raymond A. Limon, Vice Chair
Tristan L. Leavitt, Member
ORDER
¶1 The agency has filed a petition for review and the appellant has filed a cross
petition for review of the compliance initial decision, which granted in part and
denied in part the appellant’s petition for enforcement. For the reasons discussed
below, we GRANT the agency’s petition for review and DENY the appellant’s
cross petition for review. Except as expressly MODIFIED by this Order to
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
correct the relevant dates that the appellant received both interim relief and
Office of Workers’ Compensation Programs (OWCP) benefits, we AFFIRM the
compliance initial decision that found the agency in partial noncompliance.
BACKGROUND
¶2 The appellant was a Physician Assistant who worked in the Department of
Preventive Medicine Service 2 at the agency’s Moncrief Army Community
Hospital. Holmes v. Department of the Army, MSPB Docket No. AT-0752-11-
0263-I-2, Appeal File, Tab 8, Exhibit (Ex.) 28. The agency removed the
appellant based on four charges of failing to follow supervisory instructions,
making an offensive remark and disrespectful behavior towards her supervisor,
insubordination, and unauthorized disclosure of medical quality assurance
information. Id., Exs. 19, 28. The appellant appealed her removal to the Board.
Holmes v. Department of the Army, MSPB Docket No. AT-0752-11-0263-I-1,
Initial Appeal File, Tab 1.
¶3 On appeal, the administrative judge reversed the removal action, finding
that the agency violated the appellant’s due process rights, and ordered the
agency to provide interim relief. Holmes v. Department of the Army, MSPB
Docket No. AT-0752-11-0263-I-3, Initial Decision at 6-7 (Jan. 2, 2013). As a
result, the agency reinstated the appellant to her position, made an undue
disruption determination, and placed her on administrative leave. Holmes v.
Department of the Army, MSPB Docket No. AT-0752-11-0263-C-1, Compliance
File (CF), Tab 3 at 16-26, 28. The agency petitioned for review of the initial
decision, and the Board found that the agency did not violate the appellant’s due
process rights and remanded the case for further adjudication. Holmes v.
Department of the Army, MSPB Docket No. AT-0752-11-0263-I-3, Remand Order
2
At various times in the record this office is also referred to as the Preventive Medicine
Department.
3
at 2 (July 9, 2014). The Board also found that the appellant was not entitled to
interim relief because she was receiving compensation from OWCP. Id. at 3-4.
¶4 During the remand proceedings, the appellant filed a motion claiming that
the agency improperly initiated a collection action through the Defense Finance
and Accounting Service (DFAS) to recoup her interim relief payments. Holmes v.
Department of the Army, MSPB Docket No. AT-0752-11-0263-B-1, Remand File,
Tab 6. The administrative judge docketed her motion as a separate petition for
enforcement. CF, Tab 1. After accepting evidence and argument on the matter,
he issued a compliance initial decision in which he found two relevant time
periods in this case. CF, Tab 12, Compliance Initial Decision (CID) at 3. He
found that from January 13 through December 13, 2013 (Period One), the
appellant received both interim relief payments and OWCP payments, and from
December 14, 2013, through July 9, 2014 (Period Two), the appellant received
only interim relief payments. Id. The administrative judge also found that the
appellant was not entitled to retain the interim relief payments for Period One
because she was receiving OWCP benefits at the same time. CID at 3-4. He
further found that she was entitled to retain the interim relief payments for Period
Two. Id.
¶5 The agency has filed a petition for review. Compliance Petition for Review
(CPFR) File, Tabs 1-2. The appellant has filed a response and a cross petition for
review. 3 CPFR File, Tab 13. The agency has filed a response to the cross
petition for review. CPFR File, Tab 17.
3
On January 20, 2017, the appellant submitted a motion for an enlargement of time to
reply to the agency’s response to her cross petition for review. CPFR File, Tab 20.
Because the regulations do not provide for such a reply, we deny the motion. 5 C.F.R.
§ 1201.114(a).
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DISCUSSION OF ARGUMENTS ON REVIEW
We modify the compliance initial decision to correct the dates for the appellant’s
receipt of interim relief and OWCP benefits.
¶6 On review, the agency agrees with the administrative judge’s reasoning in
the compliance initial decision but asserts that the administrative judge
incorrectly identified the dates in the two relevant periods of time. CPFR File,
Tab 2 at 4. Specifically, the agency contends that Period One—during which the
appellant received both OWCP benefits and interim relief payments —should be
identified as January 2 through December 14, 2013 (as opposed to January 13
through December 13, 2013). Id. at 5-6. The agency asserts that the appellant
was reinstated effective January 2, 2013, and provides a Standard Form 50 for
support. CF, Tab 3 at 18-21, 28. The agency also asserts that the appellant was
receiving OWCP benefits when she was reinstated and th at she continued to
receive those benefits through December 14, 2013. CPFR File, Tab 2 at 6; CF,
Tab 3 at 12. The agency contends, therefore, that the correct timeframe for
Period Two—during which the appellant received interim relief but not OWCP
benefits—is from December 15, 2013 (as opposed to December 14, 2013),
through July 9, 2014. CPFR File, Tab 2 at 7. The agency requests that the dates
be corrected so that DFAS may properly complete the calculation for recoupment
of any debt owed to the Federal Government by the appellant for Period One. Id.
at 8.
¶7 We find that the agency has provided sufficient evidence to establish that
the administrative judge incorrectly identified the first relevant period of time,
during which the appellant improperly received both interim relief payments and
OWCP benefits, and that the appellant has not challenged these dates.
Accordingly, the correct dates for Period One are January 2 through
December 14, 2013. Consequently, Period Two, during which the appellant
properly received only interim relief benefits, is December 15, 2013, through
July 9, 2014.
5
The administrative judge correctly found that the appellant received interim relief
funds to which she is not entitled.
¶8 It is undisputed that, during Period One the appellant received interim relief
payments while receiving OWCP benefits that resulted in an overpayment. In her
cross petition for review, the appellant contends that there is no legal authorit y
for repaying this alleged debt. CPFR File, Tab 13 at 9. She also argues that
repayment under 5 U.S.C. § 8116(a)(1) is not required because her interim relief
payments were not “in return for services performed,” as required by the statute,
because she was on administrative leave due to the undue disruption
determination. She therefore argues that her debt should be canceled. Id. at 6,
9-11. We find these arguments unpersuasive.
¶9 If an appellant is receiving OWCP compensation when the initial decision is
issued, interim relief generally should not be ordered because it could result in
the agency’s paying funds in violation of 5 U.S.C. § 8116(a). 4 Davis v.
Department of Justice, 61 M.S.P.R. 92, 95-96, aff’d, 43 F.3d 1485 (Fed. Cir.
1994) (Table). Further, when the relief provided is to return the appellant to
work and the agency instead makes an undue disruption determination and
decides not to return the appellant to work under 5 U.S.C. § 7701(b)(2)(A)(ii)(II),
the agency nevertheless is required to pay her during the interim relief period
under 5 U.S.C. § 7701(b)(2)(B). Davis, 61 M.S.P.R. at 95. The Board has held
that an appellant’s receiving pay under these circumstances is contrary to
5 U.S.C. § 8116(a). Id. Accordingly, we agree with the administrative judge’s
findings that the appellant received funds to which she is not entitled during
Period One.
¶10 Concerning the appellant’s apparent challenge to the agency’s undue
disruption determination, we agree with the administrative judge that the Board
4
Section 8116(a) provides, in pertinent part, that “[w]hile an employee is receiving
[OWCP] compensation . . . he may not receive salary, pay, or remuneration of any type
from the United States, except . . . in return for service actually performed . . . . ”
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lacks jurisdiction over whether the agency acted appropriately in that regard.
CID at 4-5; see King v. Jerome, 42 F.3d 1371, 1374-75 (Fed. Cir. 1994). In any
event, as the administrative judge properly found, the Board cannot order
payments in violation of 5 U.S.C. § 8116(a). CID at 4; see Davis, 61 M.S.P.R.
at 95. Moreover, to the extent the appellant requests that the Board waive the
debt as against equity and good conscience, she has not identified—and we are
not aware of—any authority under which the Board may do so. Accordingly, we
deny the appellant’s cross petition for review.
¶11 Because we are affirming the compliance initial decision that found the
agency in partial noncompliance, the agency is 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 a ny objections to
that evidence. Thereafter, the Board will issue a final decision fully addressing
the petition for review of the compliance initial decision and setting forth the
appellant’s further appeal rights and the right to attorney fees, if applic able. 5
ORDER
¶12 We ORDER the agency to submit to the Clerk of the Board within 60 days
of the date of this 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
5
The subsequent decision may incorporate the analysis and findings set forth in this
Order.
7
submitting evidence and a narrative statement of compliance. The agency’s
submission shall demonstrate, as set forth above and in the compliance initial
decision, that it stopped any efforts to recoup interim relief payments made to the
appellant during the period from December 15, 2013, through July 9, 2014, and
that it provided DFAS with a copy of this Order with instructions not to seek any
recoupment of interim relief payments for that time period. The agency must
serve all parties with copies of its submission.
¶13 The agency’s submission should be filed under the new docket number
assigned to this compliance referral matter, MSPB Docket No. AT-0752-11-
0263-X-1. 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.
¶14 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 she is satisfied with the agency’s actions
and dismiss the petition for enforcement.
¶15 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(c). The Board’s authority to
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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).
¶16 This 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 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: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.