The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LANCE MCDERMOTT, DOCKET NUMBER
Appellant, SF-0752-13-0633-C-1
v.
UNITED STATES POSTAL SERVICE, DATE: April 25, 2024
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Lance McDermott , Seattle, Washington, pro se.
Steven B. Schwartzman , Esquire, Seattle, Washington, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
ORDER
¶1 The appellant has filed a petition for review of the compliance initial
decision, which granted his petition for enforcement. Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the administrative judge’s rulings during either
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the compliance initial decision, referring the petition for enforcement to
the Board’s Office of General Counsel for additional processing and issuance of a
final decision. See 5 C.F.R. § 1201.183(c).
BACKGROUND
¶2 At the time relevant to the appellant’s initial appeal, he was employed with
the agency as a maintenance mechanic. McDermott v. U.S. Postal Service, MSPB
Docket No. SF-0752-13-0633-I-1, Initial Appeal File (IAF), Tab 8 at 38.
Following his appeal of the agency’s May 30, 2013 decision to place him on
enforced leave, on April 28, 2015, an administrative judge issued an initial
decision sustaining the charge and the imposition of enforced leave, denying the
appellant’s affirmative defenses, and modifying the period of enforced leave.
IAF, Tab 52, Initial Decision (ID) at 9-26. Specifically, the initial decision
ordered the agency to, among other things, commence the enforced leave action
on June 7, 2013; to restore the annual leave the appellant used during the period
of May 30 to June 7, 2013; and to pay the appellant for the appropriate amount of
backpay, if any, with interest, no later than 60 calendar days after the date the
initial decision became final. ID at 25.
¶3 The appellant filed a petition for review, and, following a remand order
from the Board concerning certain unaddressed affirmative defenses,
McDermott v. U.S. Postal Service, MSPB Docket No. SF-0752-13-0633-I-1,
3
Remand Order (Oct. 13, 2015), the administrative judge issued a remand initial
decision, which denied the affirmative defenses at issue, McDermott v. U.S.
Postal Service, MSPB Docket No. SF-0752-13-0633-B-1, Remand Initial
Decision (Feb. 12, 2016) (RID); Remand File (RF), Tab 36. That decision
became the final decision of the Board on the merits of the appellant’s enforced
leave appeal after his petition for review was denied as untimely filed without
good cause shown. McDermott v. U.S. Postal Service, MSPB Docket No. SF-
0752-13-0633-B-1, Final Order at 1, 5 (Jan. 19, 2023). Accordingly, the
administrative judge’s original orders concerning the modified commencement
date of the enforced leave, the restoration of the appellant’s annual leave, and the
issuance of any relevant backpay with interest remained intact.
¶4 In the time between the April 28, 2015 initial decision and the time the
remand initial decision became final, the appellant retired. His last day in a pay
status with the agency was December 10, 2019. Thus, as of that date, he became
entitled to the value of his restored leave through the issuance of backpay.
¶5 On January 19, 2023, the appellant filed a petition for enforcement with the
Board. McDermott v. U.S. Postal Service, SF-0752-13-0633-C-1, Compliance
File (CF), Tab 1. In his petition for enforcement, he argued that the agency was
not in compliance with the administrative judge’s April 28, 2015 orders because it
did not: (1) pay him 30 days of back pay; (2) restore his 8 days’ worth of annual
leave; (3) place him on enforced leave consistent with agency and Office of
Personnel Management (OPM) regulations; or (4) give him written notice that it
had fully complied with the Board’s order. CF, Tab 1 at 5, Tab 6 at 6-7. After
developing the record, the administrative judge issued a compliance initial
decision 2 finding that the agency is obligated to restore and pay the appellant for
the 8-day annual leave period “as an undisputed amount.” CF, Tab 18,
Compliance Initial Decision (CID) at 5-7. He considered the agency’s argument
2
Because the administrative judge who issued the original and remand initial decisions
retired, a different administrative judge issued the compliance initial decision.
4
that the appellant refused to complete the requisite forms necessary for it to
process the annual leave restoration and backpay amount, but he explained that
the agency’s compliance was “not contingent” upon the appellant completing the
relevant forms. CID at 5. He concluded that the agency failed to comply with the
Board’s order to restore the appellant’s annual leave for the period of May 30 to
June 7, 2013, and to pay the appellant for the appropriate amount of backpay, if
any, with interest, as ordered in the Board’s April 28, 2015 initial decision. CID
at 7. Accordingly, he granted the appellant’s petition for enforcement.
Additionally, he again ordered the agency to provide evidence that it complied
with the order and to provide a narrative explanation of how it arrived at its
calculations, with an accounting of any deductions and any other adjustments.
CID at 7-8.
¶6 Consistent with Board practice, and as explained in the Office of the Clerk
of the Board’s June 8, 2023 order acknowledging the administrative judge’s
finding of noncompliance, the finding of noncompliance was assigned a new
docket number, MSPB Docket No. SF-0752-13-0633-X-1. McDermott v. U.S.
Postal Service, MSPB Docket No. SF-0752-13-0633-X-1, Compliance Referral
File (CRF), Tab 2. Evidence and argument regarding the finding of
noncompliance as it relates to the agency’s duty to comply are properly filed
under that docket number. Arguments regarding the scope of the administrative
judge’s finding of noncompliance and other arguments raised by the appellant on
review retain the SF-0752-13-0633-C-1 docket number.
¶7 The appellant has filed a petition for review purporting to challenge the
compliance initial decision. McDermott v. U.S. Postal Service, MSPB Docket
No. SF-0752-13-0633-C-1, Compliance Petition for Review (CPFR) File, Tab 2.
He also states that he has new evidence that will demonstrate error in the Board’s
initial and final decisions regarding the merits of the enforced leave action. Id.
at 5-8, 19; CPFR File, Tab 3. Additionally, the appellant requests that the Board
join the instant compliance proceeding with his other appeals concerning his
5
December 2019 separation from the agency. CPFR File, Tab 2 at 5. The agency
has responded to the appellant’s petition for review, to which the appellant has
replied. CPFR File, Tabs 5-6. 3
¶8 Around the same time as the appellant’s petition for review, the agency
filed a statement with the Board asserting that, by letters dated May 24, 2023, and
June 7, 2023, it sent the appellant checks representing backpay and interest,
respectively, and that it is therefore compliant with the Board’s orders. CRF,
Tab 1 at 4. The instant order concerns only the C-1 docket, which includes the
compliance initial decision and the appellant’s petition for review thereof.
DISCUSSION OF ARGUMENTS ON REVIEW
¶9 The agency bears the burden of proving that it has complied with a Board
order. Mercado v. Office of Personnel Management, 115 M.S.P.R. 65, ¶ 4 (2010).
Here, the parties do not dispute, and we otherwise agree with the administrative
judge, that, as of the date of the issuance of the compliance initial decision, the
agency did not demonstrate that it complied with the Board’s April 28, 2015 order
to restore the appellant’s annual leave and pay him any relevant backpay with
interest. Accordingly, we do not disturb that administrative judge’s finding in
this regard.
3
In the agency’s response to the appellant’s petition for review, it asserts that the
appellant’s filing of a petition for review and a supplemental pleading motioning for
leave to submit new evidence is improper because it was meant to circumvent the page
length limitation set forth in a June 9, 2023 notice from the Office of the Clerk of the
Board and the Board’s regulations. CPFR File, Tab 5. We discern no impropriety in
the appellant’s filing of a petition for review and motion to file new evidence and find
those filings to be consistent with the Board’s regulations. See 5 C.F.R. § 1201.114(h)
(providing that a petition for review is limited to 30 pages or 7500 words, whichever is
less); see 5 C.F.R. § 1201.114(a)(5) (explaining that any pleading other than a petition
for review, cross petition for review, response to a petition for review, and reply to a
response to a petition for review, will not be accepted unless the party files a motion
with and obtains leave form the Clerk of the Board). Regarding the appellant’s motion
to file new evidence, he has not shown the need for such evidence in this compliance
proceeding, and, accordingly, his motion is denied. See 5 C.F.R. § 1201.114(a)(5).
6
¶10 In his compliance petition for review, the appellant primarily discusses the
Board’s initial and final decisions concerning the underlying merits of his appeal
and the agency’s purported improper actions. 4 CPFR, File 2. The Board usually
will not consider new evidence and argument regarding the merits of a case
during a compliance proceeding, and we decline to do so here. See, e.g., Senyszyn
v. Department of the Treasury, 110 M.S.P.R. 437, ¶ 2 n.* (2009)); Henry v.
Department of Veterans Affairs, 108 M.S.P.R. 458, ¶ 13 (2008).
¶11 To the extent the appellant’s petition for review challenges any aspect of the
compliance initial decision, his challenges are without merit. For example, the
appellant appears to assert that the administrative judge did not consider all of his
allegations of noncompliance, such as his claim that the agency failed to provide
a statement of compliance as ordered in the April 28, 2015 initial decision on the
merits. CPFR File, Tab 2 at 5-6. However, the agency could only make such a
statement if it believed it was in compliance. Given its argument below that the
appellant refused to complete the requisite forms necessary for the issuance of
backpay, the agency was presumably aware that it was not in compliance with the
Board’s order. 5 We find that the compliance initial decision appropriately
addressed the only order at issue in these proceedings: the restoration of the
appellant’s annual leave for the relevant time period and any related backpay with
interest. The appellant’s petition for review does not provide any basis to disturb
the compliance initial decision.
4
The appellant also discusses his December 2019 separation from the agency, which is
not at issue in these compliance proceedings. CPFR File, Tab 2. As such, we do not
address those arguments here.
5
In any event, the administrative judge’s failure to make a specific finding regarding
the agency’s failure to provide a statement of compliance did not prejudice the
appellant’s substantive rights, as the administrative judge found the agency in
noncompliance and the noncompliance is being referred to the Board’s Office of
General Counsel to obtain compliance. Panter v. Department of the Air Force,
22 M.S.P.R. 281, 282 (1984) (stating that an adjudicatory error that is not prejudicial to
a party’s substantive rights provides no basis for reversal of an initial decision).
7
We deny the appellant’s request to join the instant appeal with other Board
appeals.
¶12 The appellant renews his request to join the instant compliance matter with
two other appeals relating to his December 2019 separation from the agency that
were pending at the time, McDermott v. U.S. Postal Service, MSPB Docket
Nos. SF-0752-20-0705-I-1, an involuntary disability retirement appeal, and SF-
0353-21-0159-I-1, a denial of restoration appeal. CPFR File, Tab 2 at 5. Below,
the administrative judge denied the appellant’s request as “not appropriate.” CF,
Tab 15 at 1. We also conclude that joinder is not appropriate here. We have
since issued final decisions in those other matters. McDermott v. U.S. Postal
Service, MSPB Docket No. SF-0353-21-0159-I-1, Final Order (Apr. 17, 2024);
McDermott v. U.S. Postal Service, MSPB Docket No. SF-0752-20-0705-I-1, Final
Order (Feb. 29, 2024). Thus, they are no longer pending before the Board.
Accordingly, we deny the appellant’s joinder request as moot.
We refer the administrative judge’s finding of noncompliance to the Board’s
Office of General Counsel.
¶13 As briefly explained above, following the administrative judge’s May 9,
2023 compliance initial decision finding the agency not in compliance, the agency
filed a statement with the Board on June 7, 2023, asserting that it sent the
appellant checks representing backpay and interest and that it is therefore
compliant with the Board’s orders. CRF, Tab 1 at 4. With this statement of
compliance, the agency included copies of the two letters it sent to the appellant
informing him that it issued him checks for the backpay and interest, photocopies
of the checks, and a copy of a backpay computation summary report
demonstrating how the interest was calculated. Id. at 6-11. In response, the
appellant has asserted, among other things, that the agency calculated the back
pay incorrectly, stating that the agency’s explanation of how it arrived at the
hours of restored annual leave “is not based on any of the [a]gency’s or OPM’s
[l]eave [r]estoration regulations or the official record.” CRF, Tab 3 at 7-8.
8
Specifically, he asserts he was entitled to 72 hours of restored annual leave, as
opposed to the 45.5 hours of annual leave restored by the agency. Id.
¶14 An agency’s assertion of compliance must be supported by relevant,
material, and credible evidence of compliance in the form of documentation or
affidavits. Cuevas v. U.S. Postal Service, 90 M.S.P.R. 391, ¶ 5 (2001). We have
reviewed the documents submitted by the agency and are unable to determine
based on the present record whether the appellant’s backpay and interest award is
correct and whether the agency is therefore compliant with the Board’s order.
Notably, the agency’s documentation does not include evidence, such as time and
attendance records, showing how much annual leave the appellant took between
May 30 and June 7, 2013, that he was entitled to have restored. Further, neither
the agency’s statement of compliance, nor its documentation in support thereof,
provides an explanation of the rate of pay it used to convert the appellant’s
restored annual leave to a monetary amount. Accordingly, we refer the
compliance matter to the Board’s Office of General Counsel for the agency to
submit additional evidence regarding its compliance. Given the nature of the
appellant’s arguments in response to the agency’s statement of compliance,
sufficient evidence of compliance should include the relevant time and attendance
records and a narrative explanation or additional documentary evidence of the
calculation of backpay. See 5 C.F.R. § 1201.183(a)(1)(i), (a)(6) (requiring an
agency to submit evidence of the relevant calculation and requiring that a
narrative statement explain in detail why the evidence of compliance satisfies the
requirements of the initial decision).
ORDER
¶15 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
submission of evidence and a narrative statement of compliance. The agency’s
9
submission shall demonstrate that it properly calculated the appellant’s backpay
according to the appropriate amount of restored annual leave and related interest.
The agency must serve all parties with copies of its submission.
¶16 The agency’s submission should be filed under the docket number assigned
to the compliance referral matter currently pending with the Board’s Office of
General Counsel, MSPB Docket No. SF-0752-13-0633-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 may also be made by electronic filing at the MSPB’s e-Appeal site
(http://e-appeal/mspb.gov) in accordance with the Board’s regulation at 5 C.F.R.
§ 1201.14.
¶17 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 he is satisfied with the agency’s actions
and dismiss the petition for enforcement.
¶18 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(a). 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).
10
¶19 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 this petition for enforcement, a final order shall be issued,
which shall be subject to judicial review.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.