                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     ROBERT SPURLOCK,                                DOCKET NUMBER
                  Appellant,                         CH-0752-13-0272-C-1

                  v.

     DEPARTMENT OF THE AIR FORCE,                    DATE: May 12, 2016
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL *

           Robert Spurlock, Freeburg, Illinois, pro se.

           Kevin K. Spradling, Esquire, and Loren H. Duffy, Esquire, Scott Air Force
             Base, Illinois, 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 his petition for enforcement and found the agency in
     compliance with the Board’s order to cancel the appellant’s indefinite suspension.
     Generally, we grant petitions such as this one only when: the initial decision


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     contains erroneous findings of material fact; the initial decision is based on an
     erroneous interpretation of statute or regulation or the 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, 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).
¶2        The appellant filed a Board appeal challenging his indefinite suspension.
     Spurlock v. Department of the Air Force, MSPB Docket No. CH-0752-13-0272-1,
     Initial Appeal File (IAF), Tab 1. The administrative judge affirmed the indefinite
     suspension, but the Board reversed the initial decision, ordering the agency to
     cancel the action. See Spurlock v. Department of the Air Force, MSPB Docket
     No. CH-0752-13-0272-I-2, Final Order (May 1, 2015).
¶3        In July 2015, the appellant filed a petition for enforcement. Spurlock v.
     Department of the Air Force, MSPB Docket No. CH-0752-13-0272-C-1,
     Compliance File (CF), Tab 1. After the parties submitted argument and evidence,
     the administrative judge issued a compliance initial decision, finding the agency
     in compliance.    CF, Tab 13, Compliance Initial Decision (CID) at 1.           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 4.
¶4        When the Board reverses a personnel action, 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.    Vaughan    v.   Department    of
                                                                                      3

     Agriculture, 116 M.S.P.R. 319, ¶ 5 (2011). The agency bears the burden to prove
     compliance with the Board’s order. Id. 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.
¶5        Below, the agency provided a significant amount of evidence to prove that
     it had complied with the Board’s order to cancel the indefinite suspension. That
     evidence included, inter alia, detailed documentation of its back pay calculations.
     CF, Tab 3 at 10, Tab 9 at 6-15. Citing this and other evidence, the administrative
     judge concluded that the agency had met its burden of proving that it provided the
     appropriate amount of back pay and took all other necessary steps to cancel the
     appellant’s indefinite suspension. CID at 2-5.
¶6        On review, the appellant has simply alleged that he is “supremely confident
     that [the] back pay provided is not accurate.” CPFR File, Tab 1 at 4. However,
     this nonspecific and conclusory assertion, without any supportive evidence or
     explanation, is insufficient to rebut the agency’s evidence of compliance and
     provides no basis for disturbing the compliance initial decision.              See
     Vaughan, 116 M.S.P.R. 319, ¶ 5.
¶7        Aside from his nonspecific assertion that the back pay he received was
     inaccurate, the appellant presented argument and evidence that he was medically
     incapacitated from October 27-December 20, 2015. CPFR File, Tab 1 at 4-14.
     Because of that, the appellant requested “an extension to the Show Cause
     response” until January 15, 2016. Id. at 4. However, the appellant responded to
     the administrative judge’s final deadline before the start of his alleged medical
     incapacitation and without any indication that he needed additional time to
     respond further.     Compare CF, Tab 11 at 5-6 (setting a deadline of
     October 27, 2015, for the appellant to show why his petition should not be
     dismissed), with CF, Tab 12 (appellant’s response, dated October 21, 2015).
                                                                                 4

Therefore, it appears that the appellant’s alleged medical incapacitation had no
impact on the proceedings below.          In addition, the appellant had until
January 21, 2016, to file his petition for review. CID at 7. Accordingly, even if
the appellant was medically incapacitated, as he alleges, we discern no basis for
delaying the proceedings or providing any other relief. The timing of the medical
incapacitation almost entirely falls between the close of record below and the date
of the administrative judge’s decision.      Compare CPFR File, Tab 1 at 14
(evidence of medical incapacitation from October 27-December 20, 2015), with
CF, Tab 11 (administrative judge’s order, setting a final deadline of
October 27, 2015, for the appellant to respond during the proceedings below), and
CID at 1 (administrative judge’s compliance initial decision, dated December 17,
2015). Thus, we affirm the compliance initial decision denying the appellant’s
petition for enforcement.

                NOTICE TO THE APPELLANT REGARDING
                   YOUR FURTHER REVIEW RIGHTS
      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
                                                                                 5

                                   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.

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
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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.
