                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     JENNIFER J. CHEN,                               DOCKET NUMBER
                    Appellant,                       SF-0353-13-0150-C-1

                  v.

     UNITED STATES POSTAL SERVICE,                   DATE: April 29, 2016
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           James L. Wright, Sacramento, California, for the appellant.

           Deborah C. Winslow, Esquire, San Francisco, California, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the compliance initial
     decision, which denied her petition for enforcement of the Board’s initial decision
     that ordered her restoration. Generally, we grant petitions such as this one only
     when: the initial decision contains erroneous findings of material fact; the initial
     decision is based on an erroneous interpretation of statute or regulation or 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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     erroneous application of the law to the facts of the case; the administrative
     judge’s rulings during either 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. See 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, and based on the following points and
     authorities, 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, which is now the
     Board’s final decision. 5 C.F.R. § 1201.113(b).

                                      BACKGROUND
¶2         On December 19, 2012, the appellant filed an appeal challenging the
     agency’s alleged denial of her restoration rights following a compensable injury.
     Chen v. U.S. Postal Service, MSPB Docket No. SF-0353-13-0150-I-1, Initial
     Appeal File (IAF), Tab 1 at 3. Prior to the Board’s issuance of an initial decision,
     the appellant retired on February 14, 2013. Compliance File (CF), Tab 10 at 7,
     20.   The appeal was dismissed without prejudice and later redocketed.          IAF,
     Tab 20, Initial Decision at 1-2.    On April 10, 2014, the administrative judge
     issued an initial decision finding that the agency had violated the appellant’s right
     to restoration as a partially recovered employee. Chen v. U.S. Postal Service,
     MSPB Docket No. SF-0353-13-0150-I-2, Appeal File (I-2 AF), Tab 17, Initial
     Decision (ID) at 5‑7. In the initial decision and subsequent Erratum Order, the
     administrative judge ordered the agency to restore the appellant to a position
     within her medical restrictions, for the period from October 20, 2011, through
                                                                                          3

     April 3, 2012, with back pay, interest, and benefits. 2 ID at 12; I-2 AF, Tab 20.
     The initial decision became final when neither party petitioned for review. ID
     at 13; see 5 C.F.R. § 1201.113.
¶3         The appellant filed a petition for enforcement of the initial decision and
     Erratum Order. CF, Tab 1 at 1. In her petition, the appellant alleged that the
     agency failed to comply with the initial decision because it had not provided a
     written explanation of its compliance actions and had not given her any back pay.
     Id.   The agency responded to the petition for enforcement by submitting a
     declaration and documentation from an Accounting Service Center Supervisor,
     which explained the agency’s compliance efforts. CF, Tab 10.
¶4         In a compliance initial decision, the administrative judge found that the
     agency proved compliance with the Board’s initial decision and denied the
     petition for enforcement. CF, Tab 19, Compliance Initial Decision (CID) at 1, 3. 3
     Specifically, he found that the agency’s submissions regarding compliance were
     explicit, thorough, and well supported. CID at 2. He further noted that the Board
     does not have the authority to award the appellant additional compensation for tax
     liabilities resulting from a taxable distribution from her Thrift Savings Plan (TSP)
     account. CID at 3.
¶5         The appellant has filed a petition for review.        Compliance Petition for
     Review (CPFR) File, Tab 1. The agency has filed a response. CPFR File, Tab 3.
     The Board has ordered the agency to file evidence regarding the amount of sick
     leave the appellant used during the back pay period, CPFR File, Tab 4, and the
     agency has replied to that order, CPFR File, Tab 6.




     2
      The administrative judge found, and the parties do not dispute, that the appellant was
     unable to work in any capacity after April 3, 2012. ID at 5 & n.1; IAF, Tab 1 at 4.
     3
       The administrative judge made a typographical error in stating that the back pay
     period was from October 20, 2012, through April 3, 2013, instead of from October 20,
     2011, through April 3, 2012. CID at 1.
                                                                                         4

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶6        When the Board finds that an appellant has been the victim of an unjustified
     or unwarranted personnel action, it orders that the appellant be placed, as nearly
     as possible, in the situation she would have been in had the personnel action not
     occurred. King v. Department of the Navy, 100 M.S.P.R. 116, ¶ 12 (2005), aff’d
     per curiam, 167 F. App’x 191 (Fed. Cir. 2006). The agency bears the burden to
     prove compliance with the Board’s order.              Vaughan v. Department of
     Agriculture, 116 M.S.P.R. 319, ¶ 5 (2011). An agency’s assertions of compliance
     must include a clear explanation of its compliance actions supported by
     documentary evidence. Id. The appellant may rebut the agency’s evidence of
     compliance by making specific, nonconclusory, and supported assertions of
     continued noncompliance. Id.
     The agency has demonstrated compliance regarding the appellant’s TSP account.
¶7        In her petition for review, the appellant makes several arguments regarding
     her TSP account. She first argues that the agency must show that it informed the
     TSP record keeper of her back pay award and that it requested the computation of
     interest so that the TSP could make the correct calculations and “compound
     [them] on a monthly basis.” CPFR File, Tab 1 at 4, 7. She further contends that
     the agency must show that it complied with regulations concerning lost earnings
     pursuant to 5 C.F.R. parts 1605 and 1609. 4 Id. at 7. Although it is unclear, we
     interpret her arguments to be that she was not fully compensated for lost earnings
     on her makeup TSP contributions.
¶8        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)). As explained in the FRTIB’s regulations, makeup

     4
      We do not address the appellant’s argument regarding 5 C.F.R. part 1609, a part which
     does not exist, and we are unable to ascertain if another part was intended.
                                                                                           5

     contributions are contributions that should have been deducted from an
     employee’s basic pay or contributed by the agency on an earlier date, but
     were not deducted or contributed.       5 C.F.R. § 1605.1.     Breakage is “the loss
     incurred or gain realized on makeup . . . contributions.” Id. Calculating breakage
     is a function of the TSP, not a function of the employing agency. See 5 C.F.R.
     § 1605.2(a) (stating that “[t]he TSP will calculate breakage on late contributions
     [and] makeup agency contributions”).         Thus, the agency cannot change the
     breakage calculated for the appellant’s makeup contributions. 5
¶9         Here, the agency has submitted evidence that it satisfied its obligation
     under 5 C.F.R. § 1605.13(c)(1) by forwarding its TSP adjustments to the TSP
     record keeper. The Accounting Supervisor’s declaration states that the agency
     forwarded the TSP adjustments to Serco, which the Supervisor identifies as “the
     agency responsible for calculating breakage.” CPFR File, Tab 3 at 10. Further,
     the agency submitted below a detailed history of the appellant’s breakage in her
     TSP payments and an explanation of how the TSP calculates breakage.                 CF,
     Tab 13. On review, the appellant does not specify how the breakage calculations
     were erroneous. The appellant’s remedy for errors in the breakage calculations is

     5
       We find that the three Board cases cited by the appellant do not support her argument
     that the agency improperly implemented her TSP relief. CPFR File, Tab 1 at 4-5; see
     Giove v. Office of Personnel Management, 106 M.S.P.R. 53 (2007); Shobert v.
     Department of the Air Force, 90 M.S.P.R. 262 (2001); and McKinley v. Department of
     the Interior, 73 M.S.P.R. 569 (1997). The relevant issue in Giove, 106 M.S.P.R. 53,
     ¶ 8, was whether or not the Board had jurisdiction over the appellant’s TSP claims,
     whereas here, the administrative judge already found that the Board has jurisdiction
     over the appellant’s TSP claims and addressed the merits of them. CID. The appellant
     appears to cite McKinley, 73 M.S.P.R. at 571‑72, to argue that the agency is required to
     calculate and forward makeup contributions to the TSP. CPFR File, Tab 1 at 4.
     However, as discussed below, she has not presented any evidence to refute the agency’s
     evidence that it did so. CF, Tab 10 at 10, Tabs 13, 18; CPFR File, Tab 3 at 10. Finally,
     we note that FRTIB regulations have changed since Shobert, 90 M.S.P.R. 262, ¶ 11,
     was issued, and an agency is no longer required to request a computation of interest and
     lost earning from FRTIB, as argued by the appellant. Bills v. Department of the
     Air Force, 122 M.S.P.R. 367, ¶ 9 n.2 (2015); see CPFR File, Tab 1 at 7. Instead, the
     current regulation governing an employing agency’s correction of TSP errors after a
     back pay award is 5 C.F.R. § 1605.13, which we analyze below.
                                                                                      6

      found in the procedures in 5 C.F.R. part 1605, subpart C. See 5 C.F.R. § 1605.22.
      These procedures do not provide authority for our review and, in light of our
      limited jurisdiction and our finding that the agency took all required actions, we
      cannot review TSP’s breakage calculations.        See Maddox v. Merit Systems
      Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985) (finding that the Board’s
      jurisdiction is limited to those matters over which it has been given jurisdiction
      by law, rule, or regulation).
¶10           Next, the appellant argues that the agency should reimburse her the amount
      of her defaulted TSP loan. CPFR File, Tab 1 at 6. However, because she already
      received a distribution of her TSP loan, reimbursement would place her in a better
      position than she would have been in had the wrongful personnel action not
      occurred.    Id. at 27.   The applicable regulations do not require an agency to
      restore funds withdrawn by the appellant.         Rittgers v. Department of the
      Army, 123 M.S.P.R. 31, ¶ 10 (2015); see 5 C.F.R. § 1605.13(d) (discussing when
      a participant may restore withdrawn funds pursuant to a back pay award).
¶11           The appellant, moreover, claims that the agency must compensate her for
      the taxes and penalties she incurred after she was unable to make loan payments
      during the back pay period, resulting in a taxable distribution of her TSP loan.
      CPFR File, Tab 1 at 6, 26-27. However, the Board has found that it lacks the
      authority to make an award of damages for taxes and other consequences of an
      agency action without the specific statutory authority to do so, which is lacking
      here.    Crazy Thunder ‑ Collier v. Department of the Interior, 115 M.S.P.R. 82,
      ¶ 15 (2010); see Harris v. Department of Agriculture, 53 M.S.P.R. 78, 82 (1992)
      (finding that the Board lacks the authority to order any remedy for the tax
      consequences of a back pay award), aff’d per curiam, 988 F.2d 130 (Fed. Cir.
      1993) (Table).
¶12           For these reasons, we find that the administrative judge correctly
      determined that the agency demonstrated compliance regarding the appellant’s
      TSP account.
                                                                                      7

      The agency properly restored the appellant’s annual leave balance.
¶13         The appellant contends that she is entitled to a recredit of 111.66 hours of
      annual leave under section 512.91 of the agency’s Employee and Labor Relations
      Manual (ELM). CPFR File, Tab 1 at 2-3.           The declaration of the Accounting
      Supervisor states that, as a bargaining unit employee, the maximum amount of
      annual leave that the appellant could carry over from year to year was 440 hours
      under ELM section 512.321. CPFR File, Tab 3 at 8-9, 30-31. The declaration
      further explains and refers to the agency’s evidence showing that the appellant
      was paid for a balance of 408 annual leave hours upon her retirement. Id. at 9,
      33.   The declaration asserts that, because the agency had already paid the
      appellant 408 hours of annual leave when she retired, it could restore only
      32 hours of annual leave.     Id. at 9.   The agency’s evidence shows that the
      appellant was paid for 32 hours of annual leave as part of her back pay award. Id.
      at 19, 21.
¶14         Although U.S. Postal Service employees who are eligible for veterans’
      preference are excepted from the maximum carryover amount limitation and
      may be credited uncapped annual leave, the appellant does not claim she is
      eligible for veterans’ preference. IAF, Tab 1 at 2; U.S. Postal Service, Employee
      and Labor Relations Manual 36, § 436.1 (Sept. 2013), available at http://about.
      usps.com/manuals/elm/elmarch.htm;          see       Davis v.     U.S.      Postal
      Service, 64 M.S.P.R. 652, 660‑61 (1994) (reaffirming the holding that
      preference-eligible employees of the U.S. Postal Service were entitled to the
      restoration of an unlimited amount of annual leave under the Back Pay Act); see,
      e.g., Hawkins v. U.S. Postal Service, 56 M.S.P.R. 633, 638‑40 (1993) (finding
      that a preference‑eligible employee of the U.S. Postal Service was entitled to the
      restoration of annual leave in excess of the maximum carryover limit).        The
      appellant’s reliance on ELM section 512.9, outlining the agency’s policy on
      recrediting annual leave, is misplaced. CPFR File, Tab 1 at 3. This provision
                                                                                       8

      does not affect the agency’s maximum carryover amount limitation under
      section 512.321. Id. at 10; CPFR File, Tab 3 at 30-31. Thus, we find that the
      appellant has failed to rebut the agency’s evidence of compliance showing that it
      restored the maximum amount of annual leave to which she was eligible.
      The agency properly restored the appellant’s sick leave balance.
¶15        The appellant asserts that she should have been paid for the 72 hours of sick
      leave that she used during the back pay period. CPFR File, Tab 1 at 2, 14, 19‑21.
      The Accounting Supervisor’s declaration states that the agency credited the
      appellant’s sick leave balance at retirement with 64 hours of restored sick leave
      and 40 hours of earned sick leave. CPFR File, Tab 3 at 9-10. The declaration
      further maintains that, when the appellant retired, her unused sick leave balance
      was forwarded to the Office of Personnel Management for retirement
      calculations. Id. at 10. In response to the Board’s Show Cause Order, CPFR File,
      Tab 4, the agency has submitted further documentation that establishes the
      appellant used 64 hours of sick leave during the back pay period instead of
      72 hours, as she contends, CPFR File, Tab 6 at 7-11, 13-15.        The additional
      8 hours claimed by the appellant was, in fact, holiday pay. Id. at 7, 13. The
      appellant has not responded to the agency’s new evidence, which we find shows
      that the agency restored the proper amount of sick leave.
¶16        Accordingly, we conclude that the appellant has not provided a reason to
      disturb the administrative judge’s compliance initial decision denying her petition
      for enforcement.
                                                                                   9

                 NOTICE TO THE APPELLANT REGARDING
                    YOUR FURTHER REVIEW RIGHTS 6
      You have the right to request further review of this final decision.

Discrimination Claims: Administrative Review
      You may request review of this final decision on your discrimination
claims by the Equal Employment Opportunity Commission (EEOC). See title 5
of the U.S. Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you submit your
request 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 your request 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, NE
                                  Suite 5SW12G
                            Washington, D.C. 20507

      You should send your request to EEOC no later than 30 calendar days after
your receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.




6
  The administrative judge failed to inform the appellant of her mixed-case right to
appeal from the compliance initial decision on her discrimination claims to the Equal
Employment Opportunity Commission and/or the U.S. District Court. This was error,
but it does not constitute reversible error, because we notify the appellant of her
mixed-case appeal rights in this Final Order. See Grimes v. U.S. Postal Service,
39 M.S.P.R. 183, 186-87 (1988).
                                                                                10

Discrimination and Other Claims: Judicial Action
        If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate U.S. district court.
See 5 U.S.C. § 7703(b)(2). You must file your civil action with the district court
no later than 30 calendar days after your receipt of this order. If you have a
representative in this case, and your representative receives this order before you
do, then you must file with the district court no later than 30 calendar days after
receipt by your representative. If you choose to file, be very careful to file on
time.    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.




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