                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     OTIS MILLER, JR.,                               DOCKET NUMBER
                    Appellant,                       AT-3443-11-0083-X-1

                  v.

     DEPARTMENT OF THE NAVY,                         DATE: August 15, 2014
                 Agency.




             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Otis Miller, Jr., Pensacola, Florida, pro se.

           Sandra J. Morris, Esquire, Pensacola, Florida, for the agency.


                                           BEFORE

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


                                       FINAL ORDER

¶1         On May 30, 2012, the administrative judge issued a recommendation that
     the Board find the agency in noncompliance with the Board’s February 16, 2012




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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     Opinion and Order, and the matter was referred to the Board for consideration. 2
     MSPB Docket No. AT-3443-11-0083-I-1, Compliance Referral File (CRF), Tab 1;
     see 5 C.F.R. § 1201.183 (Jan. 1, 2012).       In its Opinion and Order, the Board
     found that the appellant suffered an appealable reduction in grade when his
     position was converted from the National Security Personnel System (NSPS) to
     the General Schedule (GS), and he was not afforded minimum due process.
     Miller v. Department of the Navy, 117 M.S.P.R. 393, 395 (2012). Prior to the
     implementation of NSPS, the appellant was a GS-0343-12 Program Analyst. Id.
     at 394.   Under NSPS, his position was converted to a YA-0343-02 Program
     Analyst position, and he was subsequently reassigned to a YA-1750-02
     Instructional Systems Specialist position.     Id.   After NSPS was repealed, the
     agency converted the appellant’s position to a GS-1750-11 Instructional Systems
     Specialist. Id. The Board directed the agency to “restore the appellant to the
     GS-12 grade with no reduction in pay, effective September 26, 2010.” Id. at 395.
¶2         Subsequent to the Board’s Opinion and Order, the agency placed the
     appellant in a supervisory GS-12 position, rather than restoring him to the
     nonsupervisory GS-0343-12 Program Analyst position that the appellant held
     prior to his original conversion into the NSPS pay system. CRF, Tab 1 at 2. The
     administrative judge found that this action did not restore the appellant to the
     status quo ante that existed prior to the wrongful employment action, and that the
     agency had not established a strong overriding interest to support its decision to
     restore the appellant to a different GS-12 position. See id. at 4. Therefore, the
     administrative judge recommended that the agency comply with the Board’s
     Opinion and Order by restoring the appellant to his prior position of Program
     Analyst, GS-0343-12. See id. at 5-6.


     2
       Except as otherwise noted in this decision, we have applied the Board’s regulations
     that became effective November 13, 2012. We note, however, that the petition for
     enforcement in this case was filed before that date. The revisions to 5 C.F.R.
     § 1201.183 do not affect our consideration of the merits of this compliance proceeding.
                                                                                            3

¶3         On June 13, 2012, the agency submitted evidence that it had restored the
     appellant to the GS-0343-12 Program Analyst position that he encumbered
     immediately prior to the agency’s conversion to NSPS. CRF, Tab 3.
¶4         On June 20, 2012, the appellant responded to the agency’s submission,
     arguing that the position he encumbered prior to the implementation of NSPS no
     longer existed and that various duties previously assigned to that position had
     been reassigned to other positions. CRF, Tab 4. He further argued that restoring
     him to the Program Analyst position would cause undue interruption and
     administrative hardship within the agency and that it had created a hostile work
     environment because the employee he displaced from that position resented
     having to learn a new job. See id. Finally, the appellant argued that the agency
     could have reassigned him to a newly-created Program Analyst position instead of
     displacing an existing employee from the appellant’s previously-held position and
     that he believed that the agency’s refusal to do so constituted retaliation. See id.
¶5         The agency responded on June 21, 2012, stating that the appellant’s former
     GS-0343-12 Program Analyst position did exist and attaching evidence indicating
     that the appellant had been returned to that position.      CRF, Tab 5 at 2. The
     agency stated that the position to which the appellant was returned has the same
     position description as the position he previously held. Id. 3
¶6         After considering the evidence of compliance presented by the agency, we
     find that the agency has complied with the Board’s Opinion and Order.            The
     Board ordered the agency to restore the appellant to the GS-12 grade with no
     reduction in pay, effective September 26, 2010. See Miller v. Department of the

     3
       On May 6, 2013, the agency filed a motion to dismiss, stating that appellant had
     retired from federal service on October 31, 2012, and arguing that the instant matter
     was therefore moot. CRF, Tab 7. We reject the agency’s argument that this case is
     now moot due to the appellant’s retirement. The Board has held that an appeal may be
     dismissed as moot only when the employee has received all of the relief he could have
     received if the matter had been adjudicated and he had prevailed. Haskins v.
     Department of the Navy, 106 M.S.P.R. 616, 624 (2007). Therefore, the mere fact of the
     appellant’s retirement does not cause this case to be moot.
                                                                                        4

     Navy, 117 M.S.P.R. 393, 395 (2012).        In situations where the Board finds a
     personnel action unwarranted, the aim is to place the appellant as nearly as
     possible in the situation he would have been in had the wrongful personnel action
     not occurred.    See Tubesing v. Department of Health & Human Services,
     112 M.S.P.R. 393, ¶ 5 (2009). A return to the status quo ante requires that the
     agency place the appellant in a position with all the essential privileges of his
     previous position. Black v. Department of Justice, 85 M.S.P.R. 650, 653 (2000).
     However, the Board does not require perfect consistency with all aspects of an
     appellant’s pre- and post-personnel action positions.      Id.    Rather, the crucial
     determination is whether the actual duties and responsibilities of the position to
     which the appellant returned are either the same or substantially equivalent in
     scope and status to the duties and responsibilities of the position he originally
     held. Blackmer v. Department of Navy, 47 M.S.P.R. 624, 629 (1991).
¶7            Here, the agency has produced Standard Form 50s and a position
     description indicating that the appellant was restored to the position of GS-0343-
     12 Program Analyst effective September 26, 2010. CRF, Tabs 3 and 5. The new
     position has the same title, occupational series, pay plan, grade level, and location
     as the appellant’s prior position. Compare CRF Tab 5 at 10, with CRF, Tab 5
     at 11. In addition, the position description for the two positions has remained the
     same with only minor edits relating to the NSPS conversion. See CRF Tab 5 at 5,
     12-16.
¶8         The appellant argues that certain functions of the position were reassigned
     to other positions prior to the termination of NSPS.             CRF, Tab 4, at 4.
     Specifically, the appellant states that the F/A-18 IPT Lead position has now been
     reassigned to a GS-11 position. Id. In response, the agency denies that the F/A
     IPT Lead duties have been reassigned and asserts that the appellant is still
     responsible for these duties in his new position. CRF, Tab 5 at 5. The agency
     states that the position has evolved in the 3 years since the appellant held the
     position, and now includes management of a second platform. Id. Because the
                                                                                           5

      appellant has not presented evidence to establish that the position is no longer
      substantially equivalent to his prior position, and, in light of the evidence
      provided by the agency, we find that the appellant has been returned to the status
      quo ante position he occupied prior to the agency’s unwarranted personnel action.
¶9          As to the appellant’s argument that his return to the GS-12 Program Analyst
      position has created administrative hardship in the agency (CRF, Tab 4 at 4), we
      find that he is not in a position to assert hardship on behalf of the agency.
      Therefore, we reject this argument.
¶10         In light of the agency’s evidence of compliance, we find the 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)).

                        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
      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 the United States Court of Appeals for the
      Federal Circuit to review this final decision. You must submit your request to the
      court at the following address:
                                                                                  6

                              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 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
                                                                           7

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.
