                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD
                                       2015 MSPB 59

                             Docket No. DA-0752-11-0212-C-1
                                        DA-0752-12-0595-C-1 1

                                  Colbert Allen Rittgers,
                                         Appellant,
                                              v.
                                 Department of the Army,
                                           Agency.
                                      November 4, 2015

           Charles C. Smith, Esquire, Corpus Christi, Texas, pro se.

           Alex Lopez, Esquire, and Kenneth M. Muir, Esquire, Corpus Christi,
             Texas, for the agency.

                                          BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member



                                  OPINION AND ORDER

¶1         This matter is before the Board on the appellant’s petition for review of the
     compliance initial decision, which found the agency partially in compliance with
     the Board’s final order.     For the reasons set forth below, we GRANT the
     appellant’s petition for review. We AFFIRM the compliance initial decision’s



     1
      The administrative judge issued an erratum correcting the docket numbers on the first
     page of the compliance initial decision. Rittgers v. Department of the Army, MSPB
     Docket No. DA-0752-11-0212-C-1, Compliance File, Tab 10.
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     finding that the agency is not in compliance concerning restoration of annual
     leave and contributions to the appellant’s Thrift Savings Plan (TSP) account. We
     MODIFY the compliance initial decision to address the agency’s argument that
     the appellant was not entitled to TSP contributions for the 6-month periods
     following each of his in-service withdrawals.     We REVERSE the compliance
     initial decision’s finding that the method the agency used to calculate the
     appellant’s overtime back pay is in compliance with the Board’s final order.

                                     BACKGROUND
¶2         The appellant filed a petition for enforcement of the Board’s final order in
     Rittgers v. Department of the Army, MSPB Docket Nos. DA-0752-11-0212-B-1
     and DA-0752-12-0595-I-1, which ordered the agency to cancel two indefinite
     suspensions and pay him the correct amount of back pay, interest on back pay,
     and other benefits.   Rittgers v. Department of the Army, MSPB Docket No.
     DA-0752-11-0212-C-1, Compliance File (CF), Tab 1. The appellant alleged that
     the agency failed to comply with this final order by not fully restoring his annual
     leave, failing to make the appropriate contributions to his TSP account, and
     erroneously calculating his overtime back pay.         CF, Tab 5.      During the
     compliance proceedings, the agency acknowledged that it failed to properly
     process the appellant’s TSP contributions.      CF, Tab 4 at 4-6.     The agency
     proposed to remedy the error by giving the appellant a lump sum payment of
     $8,613.33, which the agency stated was “an accurate approximation of the
     amount owed due to its failure to process the TSP elections.”       Id. at 6.   The
     agency asserted that, because the appellant is no longer an employee, no
     contributions can be made into his TSP account, and a lump sum payment is the
     only method available to address the TSP contribution portion of the appellant’s
     back pay award. CF, Tab 6 at 5-6.
¶3         In her compliance initial decision, the administrative judge found that the
     agency was in compliance with the final order regarding the appellant’s overtime
                                                                                      3

     back pay.     CF, Tab 8, Compliance Initial Decision (CID) at 5-7.             The
     administrative judge found that the agency was not in compliance with the
     Board’s final order regarding payment to the appellant for annual leave and
     contributions to his TSP account.    CID at 4-5, 7-10.    The agency has filed a
     statement of compliance pursuant to 5 C.F.R. § 1201.183(a)(6)(i), which is being
     processed under MSPB Docket Nos. DA-0752-11-0212-X-1 and DA-0752-12-
     0595-X-1.
¶4         The appellant has filed a petition for review of the compliance initial
     decision, arguing that he had insufficient time to respond to new evidence and
     arguments filed by the agency, the administrative judge failed to address whether
     the contributions to his TSP account should include contributions for the 6-month
     periods following two in-service withdrawals, and the administrative judge erred
     in finding that the agency applied an appropriate method for calculating his
     overtime back pay. Compliance Petition for Review (CPFR) File, Tab 2. The
     agency has filed an opposition to the appellant’s petition for review, but has not
     filed a petition for review. CPFR File, Tab 3. The appellant has filed a reply to
     the agency’s opposition. CPFR File, Tab 5.

                                         ANALYSIS
     The administrative judge did not abuse her discretion in determining when to
     close the record.
¶5         As a preliminary matter, the appellant notes that he did not have adequate
     time to respond to the agency’s new evidence and arguments, which he received
     1 day prior to the record closing. CPFR File, Tab 2 at 5. Determining when to
     close the record is within an administrative judge’s sound discretion, but such
     discretion must comport with basic requirements of fairness and notice.
     Blackmer v. Department of the Navy, 52 M.S.P.R. 571, 574 (1992). The parties
     were on notice that the agency had until the close of the record to file new
     evidence and arguments. CF, Tab 3. The appellant did not object to the order
     establishing the timeframes for filing evidence, nor did he request additional time
                                                                                     4

     to prepare a response to the agency’s new evidence. The appellant’s failure to
     timely object to the administrative judge’s order or to file an extension request
     below precludes him from doing so on petition for review. See Tarpley v. U.S.
     Postal Service, 37 M.S.P.R. 579, 581 (1988) (finding that the appellant’s failure
     to timely object to the administrative judge’s rulings on witnesses precluded his
     doing so on petition for review).
¶6         Evidence and argument can be accepted after the record closes in rebuttal
     to new evidence or argument submitted by the other party just before the record
     closed. 5 C.F.R. § 1201.59(c)(2). It does not appear that the appellant attempted
     to file any additional evidence or argument in rebuttal to the agency’s March 12,
     2015 pleading. Moreover, the appellant now has had the opportunity to address
     the agency’s new evidence and argument through his petition for review, CPFR
     File, Tab 2 at 6, and we have addressed those arguments in this order. Thus, we
     find that the appellant was not prejudiced by receiving the agency’s pleading
     1 day prior to the record closing.
     The appellant was not entitled to contribute to his TSP account during the
     6-month periods following his in-service withdrawals, and his back pay award
     should have been calculated accordingly.
¶7         The regulations implementing the Back Pay Act require that an agency
     correct errors affecting an employee’s TSP account consistent with the
     regulations prescribed by the Federal Retirement Thrift Investment Board
     (FRTIB).     Price v. U.S. Postal Service, 118 M.S.P.R. 222, ¶ 16 (2012)
     (citing 5 C.F.R. § 550.805(h)).      The appellant received financial hardship in-
     service withdrawals from his TSP account on August 18, 2010, and February 25,
     2011. CF, Tab 6, Exhibits (Exs.) 28-29. A participant who obtains a financial
     hardship in-service withdrawal may not contribute to the TSP for a period of
     6 months after the withdrawal is processed. 5 C.F.R. § 1650.33(b). The agency
     stated that based on this regulation it overestimated the amount of the make-up
     contributions due to the appellant. CF, Tab 6 at 6.
                                                                                        5

¶8           The appellant contends that the administrative judge did not explicitly state
     whether, in calculating the appellant’s TSP contributions, the agency should
     include contributions during the 6-month periods following his withdrawals.
     CPFR, Tab 2 at 6. Concerning the first withdrawal, the appellant argues that he
     would not have withdrawn the funds from his TSP account but for the agency
     placing him on administrative leave prior to his indefinite suspension and the
     corresponding loss of overtime pay. Id. The placement of the appellant on paid
     administrative leave prior to his indefinite suspension is not an appealable action.
     See LaMell v. Armed Forces Retirement Home, 104 M.S.P.R. 413, ¶ 7 (2007).
     The Board’s authority to make an aggrieved employee whole under the Back Pay
     Act extends back only to the effective date of the reversed adverse action.
     Mattern v. Department of the Treasury, 291 F.3d 1366, 1370-71 (Fed. Cir. 2002).
     The Board has no authority to order that the appellant’s back pay award include
     contributions to his TSP account for the 6-month period following his first
     in-service hardship withdrawal, which occurred prior to the effective date of his
     first indefinite suspension.
¶9           The second withdrawal occurred after the effective date of the first
     indefinite suspension. CF, Tab 6, Exs. 28-29. The negative consequences of this
     second withdrawal could be related to the appellant’s indefinite suspension and
     could     represent    damages.        See   Giove     v.   Office   of   Personnel
     Management, 106 M.S.P.R. 53, ¶ 9 (2007). However, the instant appeal does not
     fall into one of the limited categories of cases in which the Board is authorized to
     award damages. 5 C.F.R. § 1201.202(b)-(d). The appellant has not identified any
     provision in the Back Pay Act or the FRTIB’s regulations that would permit the
     Board to award this type of damages. Therefore, we find that he is not entitled to
     an order requiring contributions to his TSP account for the 6-month period
     following his second in-service hardship withdrawal.
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      The appellant is not entitled to restoration of the funds he withdrew from his
      TSP account.
¶10         The appellant also argues that the administrative judge failed to address
      properly whether the agency was required to restore the funds he withdrew from
      his TSP account.      CPFR File, Tab 2 at 10.       The appellant cites 5 C.F.R.
      § 1605.13(d) for the proposition that the agency was required to restore the
      $47,945.67 that he withdrew. Id. In accordance with the FRTIB’s regulations,
      employees who are separated from service are entitled to restore funds withdrawn
      from their TSP accounts at the time of their separations. 5 C.F.R. § 1605.13(d).
      The appellant’s withdrawals were financial hardship in-service withdrawals.
      CPFR File, Tab 2 at 6, Tab 5 at 5-6. Because the appellant’s withdrawals were
      in-service and not withdrawals upon separation, he was not entitled to restore the
      withdrawn funds. 5 C.F.R. § 1605.13(d). Even if this regulation was applicable,
      it allows an employee to restore withdrawn funds, but does not require any action
      by the agency.       Id.; see Crazy Thunder-Collier v. Department of the
      Interior, 115 M.S.P.R. 82, ¶ 13 (2010).
¶11         Although the appellant is not entitled to restore the withdrawn funds or to
      make TSP contributions for the 6-month periods following his withdrawals, we
      affirm the administrative judge’s finding that the agency has not demonstrated
      that it is in compliance with the Board’s final order regarding the appellant’s TSP
      contributions. The agency has the burden of proving its compliance with a Board
      final decision with the support of relevant, material, and credible evidence.
      Gondek v. Department of the Army, 107 M.S.P.R. 292, ¶ 4 (2007). The agency
      admits it failed to deduct the appropriate TSP contributions from the appellant’s
      back pay and remit the make-up contributions to the FRTIB. CID at 7-10. Based
      on our review, we find that the agency has not presented any additional evidence
      in the petition for review proceedings that proves it is in compliance regarding
      the appellant’s TSP contributions.
                                                                                          7

      The appellant is not entitled to overtime back pay for the periods of
      administrative leave prior to his indefinite suspensions.
¶12         The appellant also argues that his back pay award should have included
      back pay for overtime that he would have worked during two periods of
      administrative leave prior to his two indefinite suspensions. CPFR File, Tab 2
      at 9. Although the Back Pay Act is designed as a make-whole remedial statute, it
      is not without limits.    Mattern, 291 F.3d at 1370.     Placing the appellant on
      administrative leave prior to his indefinite suspensions was not an adverse action
      and is not remediable by the Board under the Back Pay Act. Id. The Board lacks
      jurisdiction to award back pay for pay enhancements such as overtime pay lost
      during periods of administrative leave preceding an appealable action.             See
      Harris v. U.S. Postal Service, 89 M.S.P.R. 208, ¶ 4 (2001). Therefore, we find
      that the appellant is not entitled to overtime back pay for the two periods of
      administrative leave that preceded his indefinite suspensions.
      The agency should have calculated the appellant’s overtime back pay according
      to his overtime history.
¶13         When the Board reverses a personnel action, it orders that the appellant be
      placed, as nearly as possible, in the same situation he would have been in had the
      wrongful    personnel    action   not   occurred.   Vaughan      v.   Department    of
      Agriculture, 116 M.S.P.R. 319, ¶ 5 (2011). Overtime back pay may be computed
      based on either the appellant’s own overtime history or the average overtime
      hours worked by similarly situated employees during the relevant time period.
      Russo v. U.S. Postal Service, 107 M.S.P.R. 296, ¶ 11 (2007).           Although the
      appellant is not entitled to receive a windfall, he is entitled to be restored to the
      status quo ante, and the agency must use the method of computation most likely
      to achieve this goal. Edwards v. Department of Justice, 90 M.S.P.R. 537, ¶ 11
      (2002).    The Board will not nullify the method employed by the agency in
      calculating overtime back pay in the absence of a showing that the method was
      unreasonable or unworkable. Ball v. U.S. Postal Service, 91 M.S.P.R. 364, ¶ 10,
      aff’d, 53 F. App’x 910 (Fed. Cir. 2002). The Board has rejected the use of the
                                                                                       8

      average overtime hours worked by similarly situated employees for computing
      overtime back pay where an appellant’s own overtime history would most nearly
      place the appellant in the status quo ante. See, e.g., Brady v. Department of the
      Navy, 55 M.S.P.R. 693, 696-97 (1992).
¶14         The agency calculated the appellant’s overtime back pay by averaging the
      overtime worked by employees in the same directorate, who held the same
      position at the same grade level as the appellant, for every pay period from 2010
      through October 2012. CF, Tab 4, Ex. 3. The appellant argues that he worked
      considerably more overtime than these similarly situated employees. CF, Tab 5
      at 7. To support his argument, the appellant provided a summary of the overtime
      he worked each pay period for the 3 years and 8 months immediately preceding
      his placement on administrative leave prior to his first indefinite suspension. CF,
      Tab 5, Ex. C.
¶15         Here, as in Brady, the appellant’s work history demonstrates that he
      worked substantial amounts of overtime in the period immediately preceding his
      indefinite suspensions, and worked significantly more overtime than similarly
      situated employees. Comparing the evidence of the appellant’s overtime history
      with that of the overtime worked for similarly situated employees, the appellant’s
      overtime history is the method more likely to place him in the status quo ante.
      Compare CF, Tab 4, Ex. 3, with CPFR File, Tab 2 at 12-53.
¶16         The agency argues that overtime varies from month-to-month and
      year-to-year depending on budget and workload.         CF, Tab 6 at 7.     Such a
      statement, without supporting evidence, is insufficient to justify ignoring the
      appellant’s overtime work history. See Brady, 55 M.S.P.R. at 697. The agency
      has not presented any evidence that the conditions during the periods of time that
      the appellant was indefinitely suspended varied in some way that would justify
      ignoring his overtime history in calculating his overtime back pay. Thus, the
      method the agency used to calculate the appellant’s overtime back pay was not
                                                                                          9

      the one most likely to return the appellant to the status quo ante, and the agency
      must recalculate it based on the appellant’s overtime history.
¶17         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 understand the evidence
      of compliance and 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 2 and setting forth the appellant’s further appeal rights
      and the right to attorney fees, if applicable.

                                               ORDER
¶18         We ORDER the agency to submit to the Clerk of the Board within 60 days
      of the date of this Opinion and 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 submission shall demonstrate that it properly
      calculated the appellant’s overtime back pay according to his overtime history,
      correctly calculated the appellant’s TSP make-up contributions, and contacted the
      FRTIB so that it can calculate the accurate breakage on the appellant’s make-up


      2
       The subsequent decision may incorporate the analysis and findings set forth in this
      Opinion and Order.
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      contributions as required by 5 C.F.R. § 1605.2. The agency must serve all parties
      with copies of its submission.
¶19         The agency’s submission should be filed in the compliance referral matter
      currently pending with the Board’s Office of General Counsel under MSPB
      Docket No. DA-0752-11-0212-X-1 pursuant to 5 C.F.R. § 1201.108(a)(6)(i). 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.
¶20         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.
¶21         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).
¶22         This Opinion and 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
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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:


______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.
