                            UNITED STATES OF AMERICA
                         MERIT SYSTEMS PROTECTION BOARD


     CORAZON MCDONALD,                               DOCKET NUMBER
                 Appellant,                          DA-0752-12-0344-C-1

                    v.

     DEPARTMENT OF THE ARMY,                         DATE: August 5, 2014
                 Agency.



                  THIS FINAL ORDER IS NONPRECEDENTIAL *

              Corazon McDonald, San Antonio, Texas, pro se.

              Joseph P. Kinlin, Esquire, Fort Sam Houston, Texas, for the agency.


                                           BEFORE

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


                                       FINAL ORDER

¶1            The appellant has filed a petition for review of the compliance initial
     decision, which denied the appellant’s petition for enforcement of a final Board
     order.     Generally, we grant petitions such as this one only when:        the initial
     decision contains erroneous findings of material fact; the initial decision is based


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     on an erroneous interpretation of statute or regulation or the erroneous application
     of the law to the facts of the case; the 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 initial decision,
     which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2        In a nonprecedential final Order dated April 26, 2013, the Board ordered the
     agency to cancel the appellant’s removal and restore her with appropriate back
     pay and benefits, and it forwarded her allegations of noncompliance to the
     regional office for adjudication as a petition for enforcement.       McDonald v.
     Department of the Army, MSPB Docket No. DA-0752-12-0344-I-1, Final Order
     at 3-4 (Apr. 26, 2013).    After affording the parties the opportunity to submit
     evidence and argument concerning compliance, the administrative judge found
     that the agency had taken all reasonable actions towards compliance but the
     appellant has failed to cooperate with the agency’s efforts. He therefore denied
     the petition for enforcement.
¶3        On review, the appellant reiterates the same arguments she made below and
     it is apparent that she misunderstands the remedy that we ordered. When the
     Board reverses a removal action, the employee is entitled to be placed back into
     the position from which she was wrongfully removed. The Board does not have
     the authority to direct the agency to place the appellant in a different position of
     her choice. See Herrin v. Department of the Air Force, 95 M.S.P.R. 536, ¶ 8
     (2004) (an appellant’s entitlement upon reversal of a personnel action is to be
                                                                                      3

     returned to the status quo ante, not to be placed in a better position than the one
     in which she would have been if that action had not occurred). The appellant is
     not required to return to duty if she would prefer not to return to the agency, but
     she is only entitled to back pay during the time she was ready, willing, and able
     to work for the agency.
¶4        When an agency calculates back pay, the Back Pay Act and the Office of
     Personnel Management’s regulations require it to take certain deductions from
     gross back pay. The agency is specifically required to deduct the amount of any
     outside earnings that the appellant may have earned from its calculation of the
     appellant’s   back    pay     award.      5 U.S.C.   § 5596(b)(1)(A)(i);   5 C.F.R.
     § 550.805(e)(1).     Thus, the agency needs documentation concerning the
     appellant’s earnings, or it cannot calculate her back pay in a way that complies
     with the law. The appellant’s refusal to provide the agency with the information
     it has requested means that the agency cannot calculate her back pay award.
     Therefore, we find that the administrative judge correctly denied the appellant’s
     petition for enforcement.

                     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
                                                                                  4

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 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.
