Maria Theresa Boucher v. United States Postal Service ( 2014 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARIA THERESA BOUCHER, DOCKET NUMBER
Appellant, AT-0752-10-0453-X-1
v.
UNITED STATES POSTAL SERVICE, DATE: August 22, 2014
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Maria Theresa Boucher, Huntsville, Alabama, pro se.
James M. Allen, Esquire, Memphis, Tennessee, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The administrative judge issued a compliance initial decision finding the
agency in noncompliance with the March 22, 2013 initial decision. For the
reasons discussed below, we find the agency in compliance and DISMISS the
petition for enforcement.
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
DISCUSSION OF ARGUMENTS AND EVIDENCE ON COMPLIANCE
¶2 On November 15, 2012, the Board issued its final decision mitigating the
appellant’s removal to a 90-day suspension. Boucher v. U.S. Postal Service,
118 M.S.P.R. 640 (2012). The Board ordered the agency to pay the appellant the
correct amount of back pay, interest on back pay, and other benefits under the
Back Pay Act and/or Postal Service Regulations, as appropriate. Id. at 13.
¶3 The appellant filed a petition for enforcement on January 22, 2013,
contending that the agency failed to pay her back pay, interest, and other benefits
under the Back Pay Act and/or Postal Service Regulations, as appropriate. MSPB
Docket No. AT-0752-10-0453-C-2, Compliance File (CF), Tab 1 at 1. On
March 22, 2013, the administrative judge issued a compliance initial decision
finding that the agency had failed to pay the appropriate amount of back pay and
interest, and therefore was in noncompliance. CF, Initial Decision, Tab 4 at 2.
¶4 When the Board finds a personnel action unwarranted or not sustainable, it
orders that the appellant be placed, as nearly as possible, in the situation she
would have been had the wrongful personnel action not occurred. House v.
Department of the Army, 98 M.S.P.R. 530, ¶ 9 (2005). The agency bears the
burden to prove its compliance with a Board order. An agency’s assertions of
compliance must include a clear explanation of its compliance actions supported
by documentary evidence. Vaughan v. Department of Agriculture, 116 M.S.P.R.
319, ¶ 5 (2011). The appellant may rebut the agency’s evidence of compliance by
making “specific, nonconclusory, and supported assertions of continued
noncompliance.” Brown v. Office of Personnel Management, 113 M.S.P.R. 325,
¶ 5 (2010).
¶5 On July 5, 2013, and July 9, 2013, the agency filed evidence of compliance,
including calculations explaining the appellant’s back pay and interest, and a
cancelled check representing payment of interest. MSPB Docket No. AT-0752-
10-0453-X-1, Compliance Referral File (CRF), Tabs 3 and 4. The appellant
did not respond, although the Board advised her that she could respond to the
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agency’s evidence of compliance within 20 calendar days of the date of service of
the agency’s submissions. CRF, Tab 2 at 3-4.
¶6 Because the appellant did not respond to the agency’s evidence of
compliance, nor dispute that she received appropriate back pay and interest, we
assume she is satisfied, 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 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,
4
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
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.