                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     ERIC WILLIAMS,                                  DOCKET NUMBER
                         Appellant,                  AT-3443-06-0118-X-2

                  v.

     DEPARTMENT OF THE AIR FORCE,                    DATE: December 16, 2014
                 Agency.




             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Eric Williams, North Charleston, South Carolina, pro se.

           Jonathan Lee Simpson, Robins Air Force Base, Georgia, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The administrative judge issued a compliance initial decision finding the
     agency noncompliant with the Board’s October 26, 2012 Final Order in the
     underlying appeals, MSPB Docket No. AT-3443-06-0118-B-1 and MSPB Docket
     No. AT-3443-06-0118-C-2. For the reasons discussed below, we now find 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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 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

     agency in compliance and 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)).

         DISCUSSION OF ARGUMENTS AND EVIDENCE ON COMPLIANCE
¶2        On October 26, 2012, the Board issued a Final Order in MSPB Docket
     No. AT-3443-06-0118-B-1        and   MSPB   Docket    No.   AT-3443-06-0118-C-2,
     requiring the agency to pay the appellant lost wages (with interest), benefits, and
     liquidated damages resulting from its willful violation of his Veterans
     Employment Opportunities Act rights. Williams v. Department of the Air Force,
     MSPB Docket No. AT-3443-06-0118-B-1, Nonprecedential Final Order at 4-5
     (Oct. 26, 2012) (B-1 Final Order). On January 3, 2013, the appellant petitioned
     for enforcement, contending that the agency failed to comply with this order.
     MSPB Docket No. AT-3443-06-0118-C-3, Compliance File (CF), Tab 1.               The
     appellant noted that the agency had failed to pay or explain its position regarding
     the following issues: military leave, annual leave, sick leave, overtime pay, back
     pay (lost wages), retirement fund, liquidated damages, and the provision of a
     Standard Form (SF) 50. 2 See CF, Tab 10, Compliance Initial Decision (CID) at 2.
     The administrative judge granted the appellant’s petition for enforcement, found
     that the agency failed to provide proof of compliance on these issues and ordered
     it to do so within 20 days of its order. CID at 3-5. The administrative judge also
     ordered the agency to provide the name of the agency official responsible for
     compliance, pursuant to 5 U.S.C. § 1204(a)(2) and 5 C.F.R. § 1201.183(a)(5).
     CID at 5. The agency did neither.




     2
       The appellant originally contended that the agency failed to provide an SF-15, but
     later stated that he meant to challenge the failure to provide an SF-50. MSPB Docket
     No. AT-3443-06-0118-X-2, Compliance Referral File (CRF), Tab 13 at 1.
                                                                                        3

¶3         On July 8, 2014, the Board issued an order to show cause, instructing the
     agency to file evidence of compliance.        CRF, Tab 8.     The agency and the
     individual the Board selected as the responsible agency official (in the absence of
     any designation by the agency) filed responses on July 29 and 31, 2014,
     respectively. CRF, Tabs 11-12. The appellant filed his response on August 5,
     2014. CRF, Tab 13. On September 9, 2014, the Board issued an order requiring
     the agency to submit additional information. CRF, Tab 15. Both parties filed
     timely responses.     CRF, Tabs 17-19.     As explained below, we now find the
     agency compliant on all issues, decline to impose sanctions, and change the
     designation of the responsible agency official in accordance with the agency’s
     request.
     Standard

¶4         When the Board finds a personnel action unwarranted or not sustainable, it
     orders that the appellant be placed, as nearly as possible, in the situation he would
     have been in, had the wrongful personnel action not occurred.              House v.
     Department of the Army, 98 M.S.P.R. 530, ¶ 9 (2005). The agency bears the
     burden to prove its compliance with a Board order. An agency’s assertions of
     compliance must include a clear explanation of its compliance actions supported
     by documentary evidence. Vaughan v. Department of Agriculture, 116 M.S.P.R.
     319, ¶ 5 (2011). The appellant may rebut the agency’s evidence of compliance by
     making “specific, nonconclusory, and supported assertions of continued
     noncompliance.” Brown v. Office of Personnel Management, 113 M.S.P.R. 325, ¶
     5 (2010).
     Back Pay/Lost Wages

¶5         The Board’s previous orders found the appellant entitled to lost wages, with
     interest, from November 14, 2005 (the date of his unlawful nonselection), to
     March 11, 2009 (the date he declined the agency’s offer to place him in the
     position at issue).    MSPB Docket No. AT-3443-06-0118-B-1, Remand File,
                                                                                      4

     Tab 20, Initial Decision (B-1 ID) at 3-4, 6; Williams v. Department of the Air
     Force, 116 M.S.P.R. 245, ¶ 17 (2011); B-1 Final Order at 3-4.         The agency
     submitted evidence that it paid the appellant a gross amount of $107,921.99 in
     lost wages for this period, less deductions, and including $13,420.47 in interest.
     CRF, Tab 11 at 5, 9, 58. The agency’s calculations included the promotions the
     administrative judge found the appellant would have earned. Id. at 6; see B-1 ID
     at 4-6. The appellant did not dispute the agency’s calculations. Accordingly, we
     find the agency in compliance with respect to lost wages and interest thereon.
     Annual and Sick Leave

¶6        The agency stated that it paid the appellant a lump sum of $12,758.16 for
     annual leave he accrued and credited his retirement records to reflect that he
     earned 248 hours of sick leave. CRF, Tab 17 at 4. The agency explained its
     annual and sick leave calculations in a prior submission. CRF, Tab 11 at 5-6.
     The appellant did not dispute the agency’s calculations nor its statement that it
     paid him and updated his records. Accordingly, we find the agency in compliance
     as to the appellant’s annual and sick leave.
     Liquidated Damages

¶7        The agency stated that it paid the appellant a lump sum of $65,749.91 as
     liquidated damages from April 15, 2008 (the date of agency’s willful violation of
     the Board’s order to reconstruct the selection process), to March 11, 2009 (the
     date the appellant declined placement in the position). CRF, Tab 11 at 6; B-1
     Final Order at 4. The appellant did not dispute the agency’s calculations or its
     statement that it had paid him this amount. Accordingly, we find the agency in
     compliance regarding the liquidated damages.
     Military Leave

¶8        The appellant asserted that the agency owes him military leave pay for the
     time he served on active duty between 2005 and 2009. CRF, Tab 19 at 1-2. He
     stated that, in each year, he would have taken military leave rather than another
                                                                                             5

      type of leave. CRF, Tab 18 at 1. The agency contended that the appellant should
      not be paid for military leave because he did not actually use such leave, and
      employees are not compensated for unused military leave. CRF, Tab 17 at 5.
¶9          Military leave is intended to permit an employee to serve his military duty
      without loss of pay or time at his civilian position, up to 15 work days per
      calendar year. See 5 U.S.C. § 6323(a)(1). The appellant has not pointed to any
      actual loss of pay or time due to his military service between November 14, 2005,
      and March 11, 2009; nor could he, as he did not actually work at the agency
      during that time period, and his lost wages and benefits entitlements are based on
      a reconstruction of events. 3 The agency reconstructed the relevant time period
      without charging him military leave or annual leave in lieu of military leave and
      paid him for his unused annual leave. If he were now paid for military leave, he
      would receive a windfall because he, in effect, would receive double payment.
      Accordingly, we find the agency in compliance on this issue.
      Retirement Fund (Thrift Savings Plan)

¶10         The agency stated that it worked with the appellant to process his Thrift
      Savings Plan (TSP) elections and catch-up contributions and deposited the
      required amounts.     CRF, Tab 11 at 5.        The appellant did not dispute these
      statements. Accordingly, we find the agency in compliance with respect to the
      appellant’s TSP account.
      Overtime Pay and Awards

¶11         The appellant contended that the agency failed to pay him overtime or
      awards during the back pay (lost wages) period. CRF, Tab 13 at 1-2. The agency

      3
        In an earlier submission, the appellant asserted that he was entitled to military leave
      pay because the agency withheld his military pay from his lost wages award. CRF,
      Tab 14 at 1. The documents he submitted do not support this claim; however, it is
      unclear what part, if any, of the interim earnings withholding derives from his military
      pay. See id. at 3-4. The appellant therefore has not made “specific, nonconclusory, and
      supported assertions” sufficient to rebut the agency’s evidence of compliance. See
      Brown, 113 M.S.P.R. 325, ¶ 5.
                                                                                      6

      submitted evidence that employees in the position to which the appellant should
      have been appointed did not routinely work overtime; indeed, during the period at
      issue, only two employees worked overtime, and each on only one occasion.
      CRF, Tab 17 at 4-5. The agency asserted that it was therefore extremely unlikely
      that the appellant would have worked overtime.       Id.   The appellant did not
      challenge this assertion but contended that he should have received a notable
      achievement award because some employees in the position at issue received such
      awards. CRF, Tab 19 at 2; see CRF, Tab 17 at 5.
¶12        We disagree. Notable achievement and performance-based time off awards
      (which the agency states were given some employees), unlike overtime or night
      work, are highly variable and depend on the individual’s performance. Because
      the appellant never actually worked in the position at issue, or in any other
      position with the agency, it is purely speculative to assume he would have earned
      a notable achievement or time off award.     Moreover, even if we required the
      agency to grant him the average of the awards given to other employees, as is
      commonly done when calculating overtime, he would derive no monetary benefit.
      Notable achievement and time off awards are not cash awards, nor can they be
      converted to cash. See 5 C.F.R. § 451.104(f) (a time off award “shall not be
      converted to a cash payment under any circumstances”). We therefore find the
      agency in compliance on this issue.
      SF-50

¶13        The appellant stated that the agency failed to provide him an SF-50 showing
      that he resigned his employment on March 9, 2011. CRF, Tab 19 at 2. The
      agency’s submissions indicate that it generated such an SF-50, although it did not
      submit a copy to the Board.     See CRF, Tab 11 at 42.       Because there is no
      indication that the agency failed to create the appropriate paperwork, we find the
      agency compliant on this issue. The appellant should be able to obtain a copy of
      all of his SF-50s, including the resignation SF-50, through the agency’s Human
                                                                                         7

      Resources office and/or from the Employee Personnel Page.            See Employee
      Personnel Page, https://www.nfc.usda.gov/epps/eplogin.aspx. If the appellant is
      unable to obtain the desired SF-50 from these sources and has reason to believe
      the agency, in fact, failed to create one, he may file another petition for
      enforcement on this issue.
      Sanctions

¶14        On July 8, 2014, we ordered the agency to show cause why we should not
      impose sanctions, including an order that the responsible agency official not
      receive pay, for the agency’s failure to submit any evidence of compliance as of
      that date. CRF, Tab 8 at 2. We noted that the agency had failed to respond, not
      only to the compliance initial decision, but to a subsequent order expressly
      requiring it to submit evidence of compliance. Id.
¶15        In response to the show cause order, the agency submitted the evidence of
      compliance discussed above and asserted that it had been substantially compliant
      well before the show cause order but had neglected to provide the relevant
      information to the Board. CRF, Tab 11 at 4. As explained above, we agree that
      the agency is now in compliance on all issues. We therefore decline to impose
      sanctions against either the agency or the responsible agency official. See Martin
      v. Department of Justice, 99 M.S.P.R. 59, ¶ 16 (2005) (The Board has held that
      the purpose of sanctions under 5 U.S.C. § 1204(e)(2)(A) is to obtain compliance
      and that, once compliance is achieved, sanctions are inappropriate), aff’d, 188 F.
      App’x   994   (Fed.   Cir.   2006);   see   also   Smith   v.   Department   of   the
      Army, 72 M.S.P.R. 676, 679 (1996) (same).
      Responsible Agency Official

¶16        In the absence of any designation of a responsible agency official (despite
      multiple orders to submit such person’s name to the Board), the Board identified
      John W. Snodgrass, Executive Director, Air Force Personnel Center, as the
      responsible agency official pursuant to 5 U.S.C. § 1204(a)(2) and (e)(2)(A).
                                                                                        8

      CRF, Tab 8 at 2. Mr. Snodgrass filed a submission stating that he was not the
      appropriate official, CRF, Tab 12, and the agency identified Anthony Baumann,
      Director of Contracting, Air Force Sustainment Command, a member of the
      Senior Executive Service, as the appropriate official, CRF, Tab 11 at 7.        We
      accept the agency’s designation and will amend our records to note that
      Mr. Baumann, not Mr. Snodgrass, is the responsible agency official in this matter.
      For the reasons discussed above, we decline to impose sanctions against
      Mr. Baumann.
¶17        This is the final decision of the Merit Systems Protection Board in this
      compliance proceeding.

                      NOTICE TO THE APPELLANT REGARDING
                         YOUR FURTHER REVIEW RIGHTS
            You have the right to request review of this final decision by the United
      States Court of Appeals for the Federal Circuit. You must submit your request to
      the court at the following address:
                                United States Court of Appeals
                                    for the Federal Circuit
                                  717 Madison Place, N.W.
                                   Washington, DC 20439

            The court must receive your request for review no later than 60 calendar
      days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
      27, 2012). If you choose to file, be very careful to file on time. The court has
      held that normally it does not have the authority to waive this statutory deadline
      and that filings that do not comply with the deadline must be dismissed. See
      Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
            If you need further information about your right to appeal this decision to
      court, you should refer to the federal law that gives you this right. It is found in
      Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
      Dec. 27, 2012). You may read this law as well as other sections of the United
                                                                                9

States     Code,   at   our   website,   http://www.mspb.gov/appeals/uscode/htm.
Additional information 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, and 11.
         If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.




FOR THE BOARD:                            ______________________________
                                          William D. Spencer
                                          Clerk of the Board
Washington, D.C.
