The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KENNETH L. MOORE, DOCKET NUMBER
Appellant, DE-0752-15-0552-C-1
v.
UNITED STATES POSTAL SERVICE, DATE: March 18, 2022
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Kenneth L. Moore, Colorado Springs, Colorado, pro se.
Alex Rivera, Esquire, Denver, Colorado, for the agency.
BEFORE
Raymond A. Limon, Vice Chair
Tristan L. Leavitt, Member
ORDER
¶1 The appellant has filed a petition for review of the compliance initial
decision, which denied his petition for enforcement for failing to show
noncompliance with the administrative judge’s order to cancel the appellant’s
removal, retroactively restore him to his position, pay him appropriate back pay,
and adjust his benefits. For the reasons discussed below, we GRANT the
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 administr ative 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
appellant’s compliance petition for review. We AFFIRM the compliance initial
decision as to the finding that the appellant is not entitled to back pay or the
restoration of additional annual leave, as MODIFIED to clarify the basis for the
agency’s annual leave calculations. However, we REVERSE the finding of
compliance as to the appellant’s Federal Employees’ Retirement System (FERS)
retirement account and ORDER the agency to file evidence of compliance within
45 days.
BACKGROUND
¶2 The appellant filed an appeal challenging his removal. Moore v. U.S.
Postal Service, MSPB Docket No. DE-0752-15-0552-I-1, Initial Appeal File
(IAF), Tab 1. The administrative judge reversed the appellant’s removal and
ordered the agency to retroactively restore him to his position, effective August 7,
2015, to pay him appropriate back pay, and to adjust his benefits. 2 IAF, Tab 19,
Initial Decision (ID) at 1, 3-4, 13-14. The initial decision became final on
December 30, 2015, after neither party filed a petition for review. ID at 16.
¶3 On December 3 and 14, 2015, the agency mailed the appellant letters
ordering him to return to duty. Moore v. U.S. Postal Service, MSPB Docket
No. DE-0752-15-0552-C-1, Compliance File (CF), Tab 5 at 11-15. Throughout
December 2015, the appellant’s supervisor also left him voicemail messages
ordering him to return to duty. Id. at 10. The appellant, however, did not report
and told the agency that he was not ready, willing, and able to work during the
back pay period due to his medical conditions. CF, Tab 5 at 137, Tab 10 at 16.
The agency notified him that if he was not ready, willing, and able to work, he
would not be entitled to back pay and that he would not receive any compensation
during that period, unless he used earned annual or sick leave. Id. He
nonetheless declined to buy back the annual leave that the agency had paid him
2
The Back Pay Act applies to the appellant because he is a preference-eligible veteran.
IAF, Tab 7 at 11; Moore v. U.S. Postal Service, 83 M.S.P.R. 533, ¶ 10 (1999).
3
upon his August 7, 2015 removal, or to use his sick leave. CF, Tab 1 at 33,
Tab 10 at 16.
¶4 On April 8, 2016, the appellant filed a petition for enforcement, alle ging
that the agency “took 152 hours of [his] annual leave,” rather than pay him back
pay, as ordered; did not reinstate him in December 2015; and failed to restore his
retirement account. CF, Tab 1 at 28-29, 33. The administrative judge issued an
initial decision denying the appellant’s petition for enforcement, finding that the
agency was in compliance with the reinstatement and back pay orders.
CF, Tab 13, Compliance Initial Decision (CID) at 1, 6. He found that the
appellant was not entitled to back pay because, upon his own admission, he was
not ready, willing, and able to work, and that the agency fulfilled its obligation to
reinstate him by instructing him to return to duty in December 2015. CID at 2-5.
He further found that the appellant did not have any annual leave to restore
because the agency had properly paid him for all of it upon his removal and he
declined to repay the money. CID at 5. Neither the administrative judge nor the
agency directly addressed the appellant’s claims concerning his retirement
benefits.
¶5 The appellant has filed a petition for review, to which the agency has
submitted a response. Compliance Petition for Review (CPFR) File, Tabs 1, 5.
The Clerk of the Board issued an order seeking evidence regarding the agency’s
recrediting of the appellant’s annual leave. CPFR File, Tab 6. The agency has
filed a response. CPFR File, Tab 7.
DISCUSSION OF ARGUMENTS ON REVIEW
¶6 The Board has jurisdiction to consider an appellant’s claim of agency
noncompliance with a Board order. Kerr v. National Endowment for the Arts,
726 F.2d 730, 733 (Fed. Cir. 1984). An agency bears the burden of proving its
compliance with a Board order. Pernell v. Department of Veterans Affairs,
118 M.S.P.R. 15, ¶ 7 (2012). The agency’s assertions of compliance must be
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supported by relevant, material, and credible evidence in the form of
documentation or affidavits. Id.
The appellant has shown no error in the administrative judge’s finding that the
agency fulfilled its back pay and reinstatement obligations.
¶7 The appellant continues to argue that the agency denied him back pay in
accordance with the administrative judge’s order. CPFR File, Tab 1 at 13. As
stated by the administrative judge, an appellant’s back pay award is predicated
upon him being ready, willing, and able to work during the back pay period. CID
at 4-5; see 5 C.F.R. § 550.805(c)(1) (specifying that a back pay award may not
include any period during which an employee was not ready, willing, and able to
perform his duties because of an incapacitating illness or injury). The agency
provided documentation, wherein the appellant admitted that he was not ready,
willing, and able to work during the period for which back pay was claimed. IAF,
Tab 10 at 16. The appellant’s own admissions and medical documentation further
substantiate the agency’s claim. CPFR File, Tab 1 at 2-4, 10; CF, Tab 1 at 9-13.
Although the appellant alleges that the agency improperly instructed him to sign a
back pay worksheet that he did not complete, he has not explained how this
affected his relief. CPFR File, Tab 1 at 7, 13. Therefore, this alleged error is not
a basis to grant review. See Forte v. Department of the Navy, 123 M.S.P.R. 124,
¶ 9 (2016) (explaining that an appellant seeking reversal of an adverse action
based on a procedural error must prove that the error was likely to have caused
the agency to reach a different conclusion than if there wer e no such error).
Thus, as the administrative judge correctly found, the appellant was not entitled
to back pay because he was not ready, willing, and able to work. CID at 5.
¶8 Moreover, the appellant’s challenge to the administrative judge’s finding
that the agency reinstated him in December 2015 does not provide a basis for
finding otherwise. CID at 2-4; CPFR File, Tab 1 at 4. The appellant claims that
he was not reinstated in December 2015, as he did not resume receiving pay stubs
until January 9, 2016. CPFR File, Tab 1 at 4. But, he does not rebut the agency’s
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argument and evidence that it cancelled the removal action; contacted him
multiple times, by letter and telephone in December 2015, ordering him to return
to duty in his position of record; and returned him to pay status in January 2016. 3
CF, Tab 1 at 42, Tab 5 at 10-15, 135. Thus, we agree with the administrative
judge that the agency reinstated the appellant. CID at 2-3; see Mann v. Veterans
Administration, 29 M.S.P.R. 271, 274-75 (1985) (finding that to be in compliance
with a Board order to reinstate an employee, an agency generally must return him
to his former position). Even if the appellant were not reinstated until he
received his January 9, 2016 pay stub, he has failed to show that he suffered any
loss of pay or benefits because he declined to return to work throughout January
2016. CPFR File, Tab 1 at 2-4, 10; CF, Tab 1 at 9-13.
The appellant has shown no error in the administrative judge’s finding that the
agency complied with its obligations as to his leave balances.
¶9 The appellant also continues to assert that the agency wrongfully took
“152 hours of annual leave,” and that he should not have to buy it back because
he never used or was paid for that leave. 4 CPFR File, Tab 1 at 2. In response to
the Clerk’s order, the agency clarified that the terminal leave payment issued to
the appellant on September 25, 2015, covered the entirety of the annual leave that
he had earned as of his August 7, 2015 removal, or 368.01 hours. CPFR File,
3
On January 28, 2016, the agency issued the appellant a new proposed removal related
to his failure to return to work in December 2015, as instructed. CF, Tab 1 at 4-8. The
appellant attached to his compliance petition for review the agency’s June 3, 2016
decision to rescind this subsequent proposed removal. CPFR File, Tab 1 at 6. He also
appears to dispute the merits of the subsequent removal. Id. at 7. We need not address
that matter here. As the administrative judge correctly stated, if the agency effects the
proposed removal or takes any other chapter 75 adverse action against the appellant, he
may wish to file a separate Board appeal challenging such action. CID at 4.
4
The appellant also alleges that the agency improperly placed him in leave without pay
status, instead of granting him sick leave, prior to the August 7, 2015 effective date of
his removal. CPFR File, Tab 1 at 2-4. We need not address this claim because the
Board’s authority to make an aggrieved employee whole under the Back Pay Act
extends only to the effective date of the reversed adverse action. Rittgers v.
Department of the Army, 123 M.S.P.R. 31, ¶ 8 (2015).
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Tab 7 at 6-7. The appellant was not entitled to the additional 152 hours he
references because those hours appear to represent advanced annual leave that he
had not yet earned as of his removal. Id.
¶10 Given that the appellant had been paid out for all 368.01 hours of earned
annual leave, he was required to reimburse the agency for that leave to have it
restored. Id. at 7; see O’Connell v. Department of the Navy, 73 M.S.P.R. 235,
237-40 (1997) (observing that an agency properly offset from an appellant’s back
pay award the cash value of the leave the agency paid out to him upon separation
and then recredited on his reinstatement); 5 C.F.R. § 550.805(e)(iv), (g)
(instructing an agency to deduct lump sum annual leave payments from a back
pay award and restore the leave to the employee). But, the appellant declined to
do so. CPFR File, Tab 1 at 2; CID at 5. As such, he had no earned annual leave
at the time of his separation, and he accrued no additional leave during the back
pay period because he was not ready, willing, and able to work, as explained
above. Accordingly, there was no annual leave with which to recredit him.
¶11 In addition, the agency advanced the appellant the correct number of leave
hours upon his reinstatement, although that balance has decreased as the appellant
has failed to earn this advanced leave. CPFR File, Tab 7 at 8; CF, Tab 1 at 39,
41-42. Therefore, we discern no error in the administrative judge’s finding that
the agency fulfilled its obligations regarding the appellant’s l eave balances.
The agency has not fully complied with the administrative judge’s order as to the
appellant’s FERS retirement contributions.
¶12 As argued below, the appellant contends on review that the agency has not
recredited him with his FERS retirement contributions because his leave and
earning statements show a balance of zero. CPFR File, Tab 1 at 13-15; CF, Tab 1
at 33. In support, he provided the final pay stub that he received before his
removal, from pay period 20 of 2015, which reflected a FERS retirement
contribution balance of $3,715.17. CF, Tab 1 at 39. He also submitted pay stubs
from after his reinstatement, which reflect a FERS retirement contribution
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balance of “.00.” Id. at 41-42. The appellant informed the agency that he did not
receive an annuity payment or voluntarily withdraw his retirement contributions
during the agency’s processing of his back pay. CF, Tab 10 at 18.
¶13 The agency has not disputed, or otherwise addressed, the appellant’s claims
as to the restoration of his FERS retirement contributions. CPFR File, Tabs 5, 7;
CF, Tabs 5, 10-11. Similarly, the administrative judge did not address this
allegation in the compliance initial decision. Thus, we find that the agency has
not complied with the administrative judge’s order. See Gallagher v. Department
of the Army, 59 M.S.P.R. 379, 384-85 (1993) (finding that the agency’s failure to
ensure that an appellant’s leave and earning stat ement accurately reflected his
retirement contributions constituted noncompliance with the back pay award
provision in a settlement agreement, even though the agency assured the appellant
and the Board that he had not lost his retirement contributions).
¶14 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 understa nd the evidence of
compliance and/or 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 and setting forth the appellant’s further appea l rights
and the right to attorney fees, if applicable.
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ORDER
¶15 We ORDER the agency to submit to the Clerk of the Board within 45 days
of the date of this decision satisfactory evidence of compliance with this decision.
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 must include proof of the amount of
FERS retirement contributions it restored to the appellant and how it arrived at
that figure, including an accounting of any credits or deductions following the
August 7, 2015 removal action. The agency must also provide evidence that the
appellant’s leave and earning statements accurately reflect his FERS retirement
contributions.
¶16 We ORDER the appellant to cooperate in good faith in the agency’s efforts
to determine the cumulative amount of his FERS retirement contributions and to
provide all necessary information the agency requests to help it carry out the
Board’s Order. The agency must serve all parties with copies of its submission.
¶17 The Board will assign a new docket number to this matter, DE -0752-15-
0552-X-1. All subsequent filings should refer to the new 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 may also be made by electronic filing at the MSPB’s e-Appeal site
(https://e-appeal.mspb.gov) in accordance with the Board’s regulation at 5 C.F.R.
§ 1201.14.
¶18 The appellant may respond to the agency’s evidence of com pliance 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 action
and dismiss the petition for enforcement.
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¶19 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
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).
¶20 This Order does not constitute a final order and is therefore not subject to
judicial review under 5 U.S.C. § 7703(a)(1). Upon final resolution of the
remaining issues in this petition for enforcement by the Board, a final order shall
be issued which shall be subject to judicial review.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.