Kevin Torgersen v. Department of the Army ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KEVIN M. TORGERSEN, DOCKET NUMBER
Appellant, PH-0752-22-0072-C-1
v.
DEPARTMENT OF THE ARMY, DATE: March 27, 2024
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Kevin M. Torgersen , Marshfield, Massachusetts, pro se.
Matthew J Harris , Esquire, Concord, Massachusetts, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
ORDER
This matter is before the Board on the appellant’s petition for review of the
compliance initial decision, which denied his petition for enforcement of the
Board’s final decision reversing his removal. For the reasons set forth below, we
GRANT the appellant’s petition for review, REVERSE the compliance initial
decision, FIND the agency in noncompliance with the final decision on the
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
merits, and ORDER the agency to submit satisfactory evidence of compliance
with the Board’s order.
BACKGROUND
On April 16, 2021, the agency removed the appellant from his position as a
Survey Technician with the U.S. Army Corps of Engineers (USACE) for medical
inability to perform the essential duties of his position. Torgersen v. Department
of the Army, MSPB Docket No. PH-0752-22-0072-I-1, Initial Appeal File,
Tab 92, Initial Decision (ID) at 2, 7. On May 23, 2022, the administrative judge
issued an initial decision finding that the agency failed to establish that the
appellant was medically unable to perform the duties of his Survey Technician
position and ordered the agency to cancel the removal and retroactively restore
the appellant, effective April 16, 2021. ID at 13, 21. It also 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 at 21. Neither party
petitioned for review of the initial decision, which became final on June 27, 2022.
ID at 23.
On September 11, 2022, the appellant filed a petition for enforcement.
Torgersen v. Department of the Army, MSPB Docket No. PH-0752-22-0072-C-1,
Compliance File (CF), Tab 1. He did not dispute that the agency restored him to
his former position, but he argued that: (1) the agency had not paid any of the
back pay owed to him; (2) the agency informed him that it did not intend to
include any overtime or differential pay in the back pay award, while failing to
provide him with the records necessary for determining the proper calculation of
any overtime or differential pay; and (3) the agency failed to restore his sick
leave balances. Id. at 4-7. He further argued that he was entitled to overtime that
he earned while working as a Material Handler with the Department of Veterans
Affairs (DVA), from January 30 to July 16, 2022, when he was restored to his
3
position at USACE, but that the agency intended to deduct these earnings from its
back pay award. Id. at 6; CF, Tab 6 at 38.
In its responses, the agency admitted that it had not provided the appellant
with his back pay and sick leave because the Defense Finance Accounting Service
(DFAS) had not yet processed it. CF, Tab 3. It explained that the situation was
complicated by the appellant’s dual employment at the USACE (retroactively)
and DVA, but that “a reasonable schedule for full compliance would have back
pay processed no later than November 5, 2022.” Id. at 4, 8-9, 35-36, Tab 30 at 4.
It argued that the Board should deny the appellant’s petition for enforcement
because it had acted in good faith by submitting a back pay Remedy Ticket to
DFAS the day after the appellant provided the agency with the necessary
information. CF, Tab 3 at 4. On January 24, 2023, the agency provided an
update that DVA, working in conjunction with the agency and DFAS, had
cancelled the appellant’s appointment, resulting in a debt owed by the appellant
for his earnings at DVA that would have been offset by his back pay award from
the agency. CF, Tab 31 at 4, Tab 35 at 4-5. However, because the appellant
appealed that debt, DFAS could not process his back pay until the debt appeal
was resolved. CF, Tab 35 at 4-5.
On February 28, 2023, the administrative judge issued a compliance initial
decision denying the appellant’s petition for enforcement without prejudice. CF,
Tab 37, Compliance Initial Decision (CID) at 5. 2 Specifically, he found that the
agency, while not in technical compliance with the Board’s final decision, had
acted in good faith to process the appellant’s back pay and benefits adjustments.
CID at 4. He reasoned that DFAS was an entity separate and apart from the
agency—over which the agency had no control—and that the situation was
complicated by the ramifications of the appellant’s dual employment. Id.2
The administrative judge ruled that the appellant’s petition for enforcement was
denied “at this time.”
4
The appellant has filed a timely petition for review of the compliance
initial decision requesting that the Board order the agency to pay the undisputed
amount of back pay owed to him, along with interest and penalties, and restore
his sick leave. Compliance Petition for Review (CPFR) File, Tab 1 at 5. He also
argued that the administrative judge failed to address his arguments concerning
overtime or rule on his motion to compel the agency’s production of documents
relevant to the same. Id. at 7-10; CF, Tab 11, Tab 25. The agency has responded
in opposition to the petition for review, CPFR File, Tab 3, and the appellant has
replied, CPFR File, Tab 6. 3
ANALYSIS
The agency is ordered to submit evidence demonstrating that it properly
calculated the appellant’s overtime and differential pay hours and submitted its
calculations to DFAS.
An agency bears the burden of proving its compliance with a final Board
order, and compliance must be supported by relevant, material, and credible
evidence in the form of documentation or affidavits. See New v. Department of
Veterans Affairs, 106 M.S.P.R. 217, ¶ 6 (2007), aff’d per curiam, 293 F. App’x
779 (Fed. Cir. 2008). Satisfactory evidence of compliance with a back pay order
must include an explanation of how the agency arrived at its figures, evidence of
the compliance actions that the party has completed, along with a reasonable
schedule for full compliance. 5 C.F.R. § 1201.183(a)(1). DFAS is responsible
for calculating and paying the appellant based on information provided to it by
the agency. Walker v. Department of the Army, 90 M.S.P.R. 136, ¶ 15 (2001).
The agency’s submissions must show that it provided DFAS with pertinent
3
The appellant has also requested that the Board accommodate his disability by
allowing him extra time to submit pleadings as well as the ability to amend or revise
previously submitted pleadings as needed. CPFR File, Tab 1 at 4-5. The Board
subsequently granted the appellant an extension of time to file his reply to the
appellant’s response to the petition for review. CPFR File, Tabs 4-6; see 5 C.F.R.
§ 1201.144(f). We will consider future motions by the appellant in accordance with our
regulations.
5
information about the appellant necessary for this calculation. Walker,
90 M.S.P.R. 136, ¶ 15; see 5 C.F.R. § 550.805; see also ID at 31 (DFAS Back
Pay Checklist).
Here, the administrative judge did not expressly address whether the
agency submitted credible evidence in the form of documentation or affidavits
that it provided DFAS with the pertinent information necessary for the back pay
calculation. The agency produced evidence that it submitted a back pay Remedy
Ticket to DFAS on August 10, 2022. CPFR File, Tab 3 at 23; CF, Tab 9 at 46-59,
75-78, 90. However, there is an unresolved factual dispute as to whether the
information that the agency provided to DFAS reflected the proper overtime and
differential pay hours. 4
The agency submitted to DFAS timecards certified by the appellant on
August 9, 2022, reflecting that the appellant would have worked 40 hours of basic
pay per week at USACE. CF, Tab 3 at 34, 36, Tab 9 at 46-60. On August 28,
2022, after the agency had submitted the certified timecards to DFAS, the
appellant emailed the agency representative to request copies of his Survey Crew
Chief’s timecards and travel assignments for the purposes of determining any
overtime or shift differentials that the appellant may have also worked during the
relevant period. CF, Tab 9 at 79. The agency denied the appellant’s request on
the basis that the appellant had already certified his timecards—which it had
already supplied to DFAS—and that there was “no legal authority” for it to
provide the requested timecards or travel assignments. Id. at 80.
In his petition for enforcement, the appellant raised the issue of his
possible entitlement to overtime or shift differentials and the agency’s refusal to
provide him with the information necessary for determining the same. CF, Tab 1
4
It is unclear whether the appellant asserts potential entitlement to travel expenses.
CPFR File, Tab 1 at 10. In any event, incidental expenses such as per diem and travel
expenses are not covered by the phrase “pay, allowances or differentials” under either
the Back Pay Act, 5 U.S.C. § 5596(b)(1)(A), or its implementing regulations, found at
5 C.F.R. § 550.805. See Campbell v. U.S. Postal Service, 75 M.S.P.R. 273, 278 (1997).
6
at 5-6, Tab 12 at 9-10. He submitted a discovery request for his Survey Crew
Chief’s timecards and travel assignments, CF, Tab 11, and moved to compel the
agency to produce the requested documentation, CF, Tab 25. On review, the
appellant states correctly that the administrative judge did not address his
arguments concerning overtime or rule on his motion to compel. CPFR File,
Tab 1 at 6-7. In response, the agency has argued, among other things, that any
dispute about the inclusion of overtime in his back pay was premature because it
was still being adjudicated by DFAS. CPFR File, Tab 3 at 27; CF, Tab 29.
We disagree with the agency’s position that any dispute about overtime was
premature. Per the agency’s own assertion, it submitted to DFAS that the
appellant would have earned 40 hours of basic pay per week at the USACE. CF,
Tab 3 at 34, 36. Whether the agency has proven that it complied with the Board’s
back pay order by supplying DFAS with the correct information is ripe for
adjudication. See 5 CFR § 550.805(a)(2).
When the Board reverses a personnel action, it orders that the appellant be
placed, as nearly as possible, in the same situation he would have been in had the
wrongful personnel action not occurred. Rittgers v. Department of the Army,
123 M.S.P.R. 31, ¶ 13 (2015). Overtime back pay may be computed based on
either the appellant’s own overtime history or the average overtime hours worked
by similarly situated employees during the relevant time period. Id. Although
the appellant is not entitled to receive a windfall, he is entitled to be restored to
the status quo ante, and the agency must use the method of computation most
likely to achieve this goal. Id. The Board will not nullify the method employed
by the agency in calculating overtime back pay in the absence of a showing that
the method was unreasonable or unworkable, id., but the agency bears the
ultimate burden of proving its compliance with a Board order, New, 106 M.S.P.R.
217, ¶ 6.
Moreover, where there is no regulatory right to discovery in compliance
cases, the Board may require the presentation of evidence when it is necessary to
7
determine whether an agency has complied with its decision. Williams v.
Department of the Navy, 43 M.S.P.R. 114, 116-17 (1990). In this case, the
agency has not presented clear and understandable argument and evidence that its
determination, that the appellant would not have worked overtime or differential
time, was accurate. See Tubesing v. Department of Health and Human Services ,
112 M.S.P.R. 393, ¶ 17 (2009) (stating that an agency’s assertion of compliance
must include a clear explanation of its compliance actions supported by credible
evidence and understandable documentary evidence). Considering the lack of
probative evidence in the record on the overtime and differential pay issue, we
find that there is a genuine issue of fact requiring the production of evidence. We
order the agency to submit evidence and argument demonstrating that it properly
calculated the appellant’s overtime hours for April 16, 2021, through July 17,
2022, and that its submission to DFAS reflects that calculation. The agency’s
submission shall include the records for similarly situated individual(s) during the
period in question regardless of whether it used this method of computation. 5
The appellant has also asserted that he is entitled to the 16.5 hours of
overtime pay that he earned at DVA. CPFR File, Tab 1; CF, Tab 9 at 31-35,
42-47. The agency has explained to the appellant that it could not speak to how
DFAS would treat the overtime hours that he earned at DVA, and it has argued
that the issue is premature. CF, Tab 9 at 42; CPFR File, Tab 3 at 27 n.9. We find
it appropriate to resolve this issue and provide clarity to the parties.
Pursuant to 5 U.S.C. § 5596(b)(1)(A), an agency must deduct from a back
pay award any amount an appellant earned from employment obtained as a
replacement for his position during the period the corrected personnel action was
in effect. LaBatte v. Department of the Air Force, 58 M.S.P.R. 586, 595 (1993);
5 C.F.R. § 550.805(e)(1). To establish that replacement earnings received during
the period that an employee was improperly removed from his position should be
5
We disagree with the agency’s position that the Privacy Act bars it from supplying this
evidence. CF, Tab 29 at 11-13.
8
viewed as “moonlight” employment, and thus not deductible from a back pay
award, the employee must show that he could or would have worked at the
interim employment had the removal not occurred. Weber v. Department of
Justice, 88 M.S.P.R. 345, ¶ 11 (2001). We find that the appellant’s full-time
position as a Materials Handler at DVA was replacement employment—not
moonlight employment—and, thus, all earnings from this position are deductible.
CF, Tab 6 at 38.
The agency is ordered to submit evidence demonstrating full compliance with the
Board’s order.
Furthermore, we find that the agency’s continued technical noncompliance
with the Board’s order warrants an outcome different than that of the compliance
initial decision. The compliance initial decision was issued in accordance with
the Board’s regulation at 5 C.F.R. § 1201.183(4), which provides that, if a judge
finds that there has been a good faith effort to take all actions required to be in
compliance with the final decision, he will state those findings in a decision,
which will be subject to the procedures for petitions for review. However, an
agency’s good faith attempts to comply do not preclude enforcement indefinitely:
the Board is required to ensure that an agency substantively complies with its
decision. See generally Kerr v. National Endowment for the Arts, 726 F.2d 730(Fed. Cir. 1984) (denying the agency’s motion to dismiss because only a finding
of full compliance could render the case moot and remanding the compliance
issue to the Board). As of yet, the agency has not informed the Board that it has
achieved full compliance with the initial decision, despite the instruction in the
compliance initial decision to do so. CID at 4.
Moreover, the Board has held that the agency is responsible for ensuring
that its agent, DFAS, satisfies the agency’s obligations. See Tichenor v.
Department of the Army, 84 M.S.P.R. 386, ¶ 8 (1999). The administrative judge
appeared to rely on the following assertion of the agency representative as set
forth in the agency’s January 24, 2023, pleading: “[i]t is the [a]gency’s []
9
understanding that DFAS cannot offset [the appellant’s] VA debt from his back
pay until his separate debt appeal is resolved, and that DFAS will not be able to
complete processing [t]he appellant’s back pay until it can offset the VA debt.”
CID at 3-5; CF, Tab 35 at 5. The agency provides the same explanation for its
failure to restore the appellant’s sick leave balances. CPFR File, Tab 3 at 26 n.8. 6
However, the agency representative’s explanation is not evidence, and it is not
satisfactory. Absent any evidence that DFAS has refused to comply with
instruction by the agency to issue payment for back pay and restore sick leave
balances, we disagree with the administrative judge’s conclusion that the agency
has no control over DFAS. CID at 4; see King v. Department of the Navy,
130 F.3d 1031, 1034 (Fed. Cir. 1997); Tichenor, 84 M.S.P.R. 386, ¶ 8.
Lastly, the appellant requests both interest on his back pay and that the
Board assess daily penalties on the agency for its noncompliance. CPFR File,
Tab 1 at 11. To address the appellant’s concern about interest on his back pay
award, we note that the agency must pay the appellant interest on his back pay in
accordance with the Back Pay Act to be in compliance with the Board’s order.
5 U.S.C. § 5596(b)(2); 5 C.F.R. § 550.806; see ID at 21. The agency’s
submission demonstrating compliance must explain how it calculated the interest
on the back pay award. Antunes v. U.S. Postal Service, 61 M.S.P.R. 408, 410
(1994); 5 C.F.R. § 1201.183(a)(1)(i).
Concerning the appellant’s request for daily penalties, the Board generally
does not award damages or monetary sanctions against a party for failure to
comply with any order, including an order directing the payment of back pay.
Cunningham v. Department of Veterans Affairs , 91 M.S.P.R. 523, ¶ 3 (2002);
Doiron v. U.S. Postal Service, 68 M.S.P.R. 170, 173 (1995). However, the
6
The agency further notes that it has approved advanced sick leave for the appellant
and would do so again if requested by the appellant. CPFR File, Tab 3 at 26 n.8; CF,
Tab 3 at 38-39, Tab 30 at 5. However, as the appellant is entitled to an official
restoration of his sick leave balances, we find that the agency’s promises to act in good
faith are insufficient to show compliance with the Board’s order. See Walker,
90 M.S.P.R. 136, ¶ 27.
10
Board’s authority to impose sanctions as a means of enforcing compliance
includes the authority to order that the responsible agency official “shall not be
entitled to receive payment for service as an employee during any period that the
order has not been complied with.” 5 U.S.C. § 1204(e)(2)(A). Sanctions should
be imposed only when the agency has failed to exercise basic due diligence
expected of it in complying with an order or has exhibited negligence or bad faith
in its efforts to so comply. Peck v. Office of Personnel Management, 35 M.S.P.R.
175, 178 (1987); 5 C.F.R. § 1201.43.
We recognize that the issuance of a debt owed by the appellant in the
amount of $10,076.08, which should be completely offset by a back pay award,
has nonetheless created a stressful situation for the appellant. 7 CF, Tab 31 at 4,
Tab 36. We also recognize that the agency’s alleged inability to rectify this
“debt” and satisfy its other obligations has been ongoing for some time—and
without sufficient explanation. CF, Tab 35 at 5; CPFR File, Tab 3. We therefore
find the agency in noncompliance with the final decision reversing the appellant’s
removal.
Because we have found the agency in noncompliance, the agency is being
directed to file evidence of compliance with the Clerk of the Board, and the
appellant will be afforded the opportunity to respond to that evidence. The
appellant’s petition for enforcement will be referred to the Board’s Office of
General Counsel, and, depending on the nature of the submissions, an attorney
with the Office of General Counsel may contact the parties to further discuss the
compliance process. The parties are required to cooperate with that individual in
good faith. Because the purpose of the proceeding is to obtain compliance, when
appropriate, an Office of General Counsel attorney or paralegal may engage in ex
parte communications to, among other things, better understand the evidence of
compliance and any objections to that evidence. Thereafter, the Board will issue
7
Notably, to the appellant’s understandable objection, the debt letter issued to him on
October 22, 2022, notifies him that interest and additional penalties at a rate of up to
6% could be imposed on his “debt.” CPFR File, Tab 1 at 11; CF, Tab 31 at 4, 6.
11
a final decision fully addressing the appellant’s petition for review of the
compliance initial decision 8 and setting forth the appellant’s further appeal rights
and the right to attorney fees, if applicable.
ORDER
We ORDER the agency to submit to the Clerk of the Board within 20 days
of the date of this Order satisfactory evidence of compliance. This evidence shall
adhere to the requirements set forth in 5 C.F.R. § 1201.183(a)(6)(i), including
submission of evidence and a narrative statement of compliance. The agency
must serve all parties with copies of its submission.
The agency’s submission shall demonstrate, among all other requirements,
that it properly calculated the appellant’s overtime and differential pay hours
back pay and submitted its calculations to DFAS. The agency’s submission shall
include the records for similarly situated individual(s) during the period in
question regardless of whether it used this information in its overtime
computation. 9
8
The subsequent decision may incorporate the analysis and findings set forth in this
Order.
9
The fact that a dispute remains about overtime and differential pay shall not delay the
agency from immediately paying the appellant the undisputed amount and producing
evidence of such payment. See Russo v. U.S. Postal Service , 107 M.S.P.R. 296, ¶ 15
(2007).
12
The agency’s submission should be filed under the new docket number
assigned to this compliance referral matter, MSPB Docket No. PH-0752-22-
0072-X-1. All subsequent filings should refer to the compliance referral docket
number set forth above and should be faxed to (202) 653–7130 or mailed to the
following address:
Clerk of the Board
U.S. Merit Systems Protection Board
1615 M Street, N.W.
Washington, D.C. 20419
Submissions also may be made by electronic filing at the Board’s e-Appeal site
(https://e-appeal.mspb.gov) in accordance with its regulation at 5 C.F.R.
§ 1201.14.
The appellant may respond to the agency’s evidence of compliance within
20 days of the date of service of the agency’s submission. 5 C.F.R.
§ 1201.183(a)(8). If the appellant does not respond to the agency’s evidence of
compliance, the Board may assume that he is satisfied with the agency’s actions
and dismiss the petition for enforcement.
The agency is reminded that, if it fails to provide adequate evidence of
compliance, the responsible agency official and the agency’s representative may
be required to appear before the General Counsel of the Merit Systems Protection
Board to show cause why the Board should not impose sanctions for the agency’s
noncompliance in this case. 5 C.F.R. § 1201.183(c). The Board’s authority to
impose sanctions includes the authority to order that the responsible agency
official “shall not be entitled to receive payment for service as an employee
during any period that the order has not been complied with.” 5 U.S.C.
§ 1204(e)(2)(A).
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This Order does not constitute a final order and therefore is not subject to
judicial review under 5 U.S.C. § 7703(a)(1). Upon the Board’s final resolution of
the remaining issues in the petition for enforcement, a final order shall be issued,
which then shall be subject to judicial review.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.