Opinion

Carl Floyd v. United States Postal Service

Court: Merit Systems Protection Board
Filed: Feb 21, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.3%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

CARL STEVEN FLOYD, DOCKET NUMBER

Appellant, DC-0752-17-0662-C-1

UNITED STATES POSTAL SERVICE, DATE: February 21, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Carl Steven Floyd , Forestville, Maryland, pro se.

LaDonna L. Griffith-Lesesne , Esquire, Landover, Maryland, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

The agency has filed a petition for review of the compliance initial

decision, which granted in part the appellant’s petition for enforcement. For the

reasons discussed below, we GRANT the agency’s petition for review. We

AFFIRM the compliance initial decision AS MODIFIED to find that the agency is

in full compliance. We also DISMISS the petition for enforcement.

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

BACKGROUND

In a prior appeal, a Board administrative judge ordered the agency to

restore the appellant to his Customer Service Supervisor position, effective

December 31, 2015, to pay him the appropriate amount of back pay, with interest,

and to adjust benefits with appropriate credits and deductions in accordance with

the Office of Personnel Management (OPM) regulations. Floyd v. U.S. Postal

Service, MSPB Docket No. DC-0752-17-0662-I-1, Initial Decision at 2, 18-19

(June 20, 2018). The initial decision became final on July 25, 2018, when neither

party petitioned for review. Id. at 20.

The appellant filed a petition for enforcement, which the

administrative judge granted in part. Floyd v. U.S. Postal Service, MSPB Docket

No. DC-0752-17-0662-C-1, Compliance File, Tabs 1, 24, Initial Decision (ID)

at 4-10. The administrative judge found, among other things, that the agency was

in compliance with respect to its calculations of overtime back pay and its

decision to reduce the back pay award by the amount the appellant previously

received for terminal leave and health insurance premiums withholdings. 2

ID at 4-9. The administrative judge noted that the appellant did not challenge the

deduction for basic life insurance premiums; however, she found that the

appellant’s back pay award should be adjusted to account for “Post Retirement

Reduction” life insurance premiums and ordered the agency to reimburse him in

the amount of $144.84 per month, with interest, for the period of January 1, 2016,

to August 30, 2018. ID at 9-10.

The agency filed a petition for review, to which the appellant did not

respond. Petition for Review (PFR) File, Tab 1.

DISCUSSION OF ARGUMENTS ON REVIEW

On review, the agency asserts, among other things, that if it took the action

ordered in the compliance initial decision, the appellant would receive a windfall

Neither party challenges the administrative judge’s findings in this regard, and we

affirm them herein.

in the form of a double reimbursement. PFR File, Tab 1 at 5. The agency

explains that it was the responsibility of OPM to issue the appellant a refund of

his “Post Retirement No Reduction” life insurance premiums in the amount of

$4,634.88, and it was awaiting OPM’s action to bring it into compliance with the

Board’s order. Id. In support of its assertion, the agency submits, among other

things, a September 4, 2019 letter from OPM, which stated that the appellant will

receive a refund of his “Post Retirement No Reduction” life insurance premiums 3

in the amount of $4,634.88—the equivalent of monthly premiums of $144.84 for

the period of January 1, 2016, to August 30, 2018—and that interest is not

payable on the refund. 4 Id. at 9.

Because there existed a question as to whether the appellant had received

the refund of his post-retirement life insurance premiums, the Clerk of the Board

issued a Show Cause Order, which directed the appellant to indicate whether he

received $4,634.88 for the life insurance premiums at issue and whether his claim

for these benefits and/or interest remained outstanding. PFR File, Tab 5.

The appellant filed a response, to which the agency replied. PFR File, Tabs 9-10.

In his response, the appellant states that he received $4,634.88 from OPM on

September 12, 2019. PFR File, Tab 9 at 3. He did not indicate that he was still

pursuing this claim or seeking interest on this claim. The agency provided

documentation from OPM verifying the appellant’s receipt of this amount.

PFR File, Tab 10 at 7.

Based on the evidence submitted by the parties on review, and the absence

of any indication that the appellant is pursuing a claim of interest on the

post-retirement life insurance premiums, we find the agency in compliance and

Because the administrative judge and OPM utilized the same $144.84 monthly

premium amount and same total amount of $4,364.88, we need not resolve the

discrepancy between the different characterizations of these premiums.

The Board will consider evidence that constitutes a further explanation of the agency’s

efforts to comply with its orders. McDonough v. U.S. Postal Service, 60 M.S.P.R. 122,

125-26 (1993).

DISMISS the petition for enforcement. This is the final decision of the Merit

Systems Protection Board in this compliance proceeding. Title 5 of the Code of

Federal Regulations, section 1201.183(c)(1) (5 C.F.R. § 1201.183(c)(1)).

NOTICE OF APPEAL RIGHTS 5

The compliance initial decision, as supplemented by this Final Order,

constitutes the Board’s final decision in this matter. 5 C.F.R. § 1201.113. You

may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the

nature of your claims determines the time limit for seeking such review and the

appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the

following summary of available appeal rights, the Merit Systems Protection

Board does not provide legal advice on which option is most appropriate for your

situation and the rights described below do not represent a statement of how

courts will rule regarding which cases fall within their jurisdiction. If you wish

to seek review of this final decision, you should immediately review the law

applicable to your claims and carefully follow all filing time limits and

requirements. Failure to file within the applicable time limit may result in the

dismissal of your case by your chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general . As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit 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, 10, 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

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination . This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims —by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on

race, color, religion, sex, national origin, or a disabling condition, you may be

entitled to representation by a court-appointed lawyer and to waiver of any

requirement of prepayment of fees, costs, or other security. See 42 U.S.C.

§ 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012 . This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in section

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),

(B), (C), or (D),” then you may file a petition for judicial review either with the

U.S. Court of Appeals for the Federal Circuit or any court of appeals of

competent jurisdiction. 6 The court of appeals must receive your petition for

review within 60 days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the