                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     COLBERT ALLEN RITTGERS,                         DOCKET NUMBERS
                  Appellant,                         DA-0752-11-0212-X-1
                                                     DA-0752-12-0595-X-1
                  v.                                 DA-0752-11-0212-C-1
                                                     DA-0752-12-0595-C-1
     DEPARTMENT OF THE ARMY,
                 Agency.

                                                     DATE: September 1, 2016


             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Charles C. Smith, Esquire, Corpus Christi, Texas, for the appellant.

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


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         This compliance proceeding was initiated by the petitioner’s February 9,
     2015 petition for enforcement of the Board’s August 14, 2013 order. See Rittgers
     v. Department of the Army, MSPB Docket Nos. DA-0752-11-0212-B-1, DA-0752-
     12-0595-I-1, Final Order (Aug. 14, 2013).        On November 4, 2015, the Board

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     issued an Opinion and Order finding the agency did not fully comply with the
     Board’s August 14, 2013 order, which required the agency to cancel the
     appellant’s two indefinite suspensions and pay him the correct amount of back
     pay, interest on back pay, and other benefits. 2    Rittgers v. Department of the
     Army, 123 M.S.P.R. 31 (2015); MSPB Docket Nos. DA-0752-11-0212-X-1,
     DA-0752-12-0595-X-1, Compliance Referral File (CRF), Tab 4 at 6-9.            After
     fully considering the filings in this appeal, and based on the following points and
     authorities, we now find the agency in compliance with the Board’s August 14,
     2013 order.    Accordingly, we hereby DISMISS the appellant’s petition for
     enforcement, based on our finding that the agency is in compliance. 5 C.F.R.
     § 1201.114(e), (g).
¶2        In the Board’s November 4, 2015 Opinion and Order, the Board found the
     agency not in compliance because the agency failed to deduct the appropriate
     Thrift Savings Plan (TSP) contributions from the appellant’s back pay and remit
     the make-up contributions to the Federal Retirement Thrift Investment Board
     (FRTIB), and failed to calculate the appellant’s overtime back pay according to
     his overtime history. Rittgers, 123 M.S.P.R. 31, ¶¶ 11, 13-16. As a result, the
     Board ordered the agency to submit satisfactory evidence of compliance within 60
     days of the date of the order and provided the appellant with 20 days to respond
     to the agency’s submission. Id., ¶¶ 18-20.
¶3        On December 15, 2015, the agency filed its Second Compliance Statement
     with the Board, CRF, Tab 5, in which it asserted that it recalculated the
     appellant’s overtime back pay and worked with the FRTIB to ensure that his
     make-up contributions for his TSP were correct. Id. The agency further stated
     that, pursuant to its calculations, it initiated the TSP payment to the appellant in
     its payment system on November 23, 2015, and its back pay payment would be


     2
      For purposes of finality, the findings and analysis set forth within the Board’s
     November 4, 2015 Opinion and Order are hereby incorporated into this Final Order.
                                                                                           3

     entered into the payment system for the pay period ending on December 26, 2015.
     Id. at 6, 8.   The appellant did not file a response to the Second Compliance
     Statement. CRF, Tab 7.
¶4         Due to the lack of a response from the appellant, on March 2, 2016, the
     Board issued an order inquiring as to whether he intended to file a response. Id.
     On March 3, 2016, the agency filed a Third Compliance Statement. CRF, Tab 9.
     In this statement, the agency provided evidence showing that it made the
     back-pay payment to the appellant on February 29, 2016, and made the TSP
     payment on March 2, 2016. 3 Id. at 50, 258-59. The appellant did not response to
     either the Board’s order or the agency’s Third Compliance Statement.
¶5         Accordingly, because the agency provided evidence that it made the
     required back pay and TSP payments, and because the appellant did not provide
     any response to the agency’s statements, despite being ordered to do so at least
     once, we find that the agency is now in full compliance with the Board’s August
     14, 2013 order. Therefore, the Board finds that the agency is in compliance and
     dismisses 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,     sections     1201.183(c),      1201.113(c)       (5 C.F.R.
     § 1201.183(c); 5 C.F.R. § 1201.113(c)).

                      NOTICE TO THE APPELLANT REGARDING
                            YOUR RIGHT TO REQUEST
                           ATTORNEY FEES AND COSTS
           You may be entitled to be paid by the agency for your reasonable attorney
     fees and costs. To be paid, you must meet the requirements set out at title 5 of
     the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
     regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If

     3
       The Third Compliance Statement showed that the payments were made later than
     initially expected due to administrative issues arising in connection with the payments.
     CRF, Tab 9 at 5-7.
                                                                                    4

you believe you meet these requirements, you must file a motion for attorney fees
WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.                          You
must file your attorney fees motion with the office that issued the initial decision
on your appeal.

                  NOTICE TO THE APPELLANT REGARDING
                     YOUR FURTHER REVIEW RIGHTS
      You have the right to request review of this final decision by the U.S.
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 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 an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website
                                                                                 5

at   http://www.mspb.gov/probono      for     information   regarding   pro   bono
representation for Merit Systems Protection Board appellants before the Federal
Circuit.   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:                              ______________________________
                                            Jennifer Everling
                                            Acting Clerk of the Board
Washington, D.C.
