Betty P. Sinclair v. Department of the Air Force ( 2015 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BETTY P. SINCLAIR, DOCKET NUMBER
Appellant, AT-0752-12-0278-X-1
v.
DEPARTMENT OF THE AIR FORCE, DATE: June 5, 2015
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Betty P. Sinclair, Macon, Georgia, pro se.
Jonathan Lee Simpson, Robins Air Force Base, Georgia, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 On August 29, 2013, the administrative judge issued a compliance initial
decision finding the agency in partial noncompliance with her May 2012 initial
decision that became the Board’s final decision on June 27, 2012, and the matter
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
was referred to the Board for further consideration. 2 MSPB Docket No. AT-0752-
12-0278-X-1, Compliance Referral File (CRF), Tab 1. For the reasons explained
below, we now find the agency in compliance and DISMISS the petition for
enforcement.
¶2 In the initial appeal underlying the compliance matters, the Board had
reversed the agency’s action removing the appellant from her position of Sheet
Metal Mechanic (WG-10), at Robins Air Force Base, Georgia, and retroactively
restored her effective January 6, 2012. MSPB Docket No. AT-0752-12-0278-I-1,
Tab 13, Initial Decision at 6. The Board also had ordered the agency to pay the
appellant the appropriate amount of back pay, with interest, and to adjust benefits
with appropriate credits and deductions. Id.
¶3 The administrative judge’s second compliance initial decision (CID) 3 found
that the agency did not meet its burden regarding the Board’s back pay order, and
therefore ordered the agency to do the following: (1) state whether the cost of
health benefits for the period from January 6-14, 2012, was withheld from any
back pay award to the appellant; (2) state if the appellant was paid during the
notice of removal period; and (3) if payment for health benefits was withheld
from any back pay award during the relevant time period, to provide proof to the
Board. MSPB Docket No. AT-0752-12-0278-C-2, Tab 11, CID. The CID also
notified the parties that further processing of the case would be conducted in
accordance with 5 C.F.R. § 1201.183(c)(1), evidence and argument should be
filed with the Board in Washington, D.C., and provided the mail and electronic
addresses for such submissions.
2
Except as otherwise noted in this decision, we have applied the Board’s regulations
that became effective November 13, 2012. We note that the initial adverse action
appeal underlying this case was issued 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
This order is the second compliance matter raised by the appellant related to this
removal action by the agency. The first was dismissed by the administrative judge after
the parties reached a settlement. MSPB Docket No. AT-0752-12-0278-C-1.
3
¶4 In response, 4 the agency submitted a statement asserting that: (1) the cost
of health benefits for the period from January 6-14, 2012, was not withheld from
the back pay award because the appellant had opted to terminate coverage and
re-enroll within 60 days; (2) the agency did not pay the appellant during the
notice of removal period because she was in a leave without pay (LWOP) status
from January 1 until her removal on January 6, 2012; and (3) the appellant’s debt
for health benefits was “not due to any time [periods] regarding the
termination . . . or reinstatement but all occurred [there]after.” CRF, Tab 3.
¶5 The Board issued another order on March 4, 2015, directing the agency to
provide a clear explanation of any debts charged to the appellant for the period
from July 30, 2011, to May 18, 2013. CRF, Tab 5. The agency submitted
supporting documentation and additional arguments in response. CRF, Tab 6.
The agency stated that the appellant’s debt for unpaid health premiums was
incurred due to periods in which she was in a LWOP and an absent without leave
status for enough time to place her below the income threshold for deduction of
Federal Employee Health Benefits. Id. at 4-5. The agency asserted that, because
it was unable to deduct health care premiums for these periods, a debt resulted.
Id. at 5-6. The agency explained that there were two periods in which this
occurred: between July 30, 2011, and January 6, 2012 (the date of the appellant’s
removal); and between May 23, 2012 (the date of the appellant’s return to duty),
and May 18, 2013. Id. The agency further stated that the appellant had elected to
terminate her health benefits during the period between her removal and return to
duty. Id. The agency, moreover, submitted documentation of the pay periods in
which this debt was incurred. Id. at 30-32.
¶6 The appellant responded on April 4, 2015, requesting that the Board issue a
cease and desist order preventing the agency from collecting any debts from July
4
The agency’s response was due in November 2013 but was filed in July 2015, over 7
months late. CRF, Tab 3.
4
2011 to the present. CRF, Tab 7 at 4. The appellant alleged that the debt caused
her a financial hardship and that the agency was assessing the debt in a retaliatory
manner. Id. at 5-6.
¶7 After thoroughly reviewing the record, we find that the agency has
complied with the Board’s orders by its having explained the amounts of back pay
and debts assessed against the appellant. We deny the appellant’s request that the
Board issue a cease and desist order and find that her claim, that the agency’s
actions were retaliatory, lacks merit. In light of the agency’s evidence, 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 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
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
5
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 appeal to
the Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. 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.