RICHARD ERICKSON, Aрpellant, v. UNITED STATES POSTAL SERVICE, Agency.
DOCKET NUMBERS AT-3443-07-0016-X-1 AT-3443-07-0016-C-2
UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD
DATE: March 20, 2025
THIS FINAL ORDER IS NONPRECEDENTIAL
Sherry Streicker, Esquire, Roderick Eves, Esquire, and Theresa M. Gegen, Esquire, St. Louis, Missouri, for the agency.
BEFORE
Henry J. Kerner, Vice Chairman
Cathy A. Harris, Member
FINAL ORDER
In a December 10, 2021 compliance initial decision, the administrative judge found the agency in partial noncompliance with the Board‘s December 31, 2013 Opinion and Order, which granted the appellant‘s request for corrective action under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA)
DISCUSSION OF ARGUMENTS AND EVIDENCE ON COMPLIANCE
In April 2000, the agency removed the appellant, who had been absent from work for lengthy periods while serving on active duty with the U.S. Army National Guard Reserve, for excessive use of military leave. Erickson, 120 M.S.P.R. 468, ¶ 2. After his removal, he re-enlisted with the National Guard and remained on active duty until December 31, 2005. Id.
In 2006, the appellant appealed his removal to the Board, arguing that the agency violated the nondiscrimination provision of USERRA,
In the December 31, 2013 Opinion and Order, the Board denied the agency‘s petition for review and affirmed the remand initial decision. Erickson, 120 M.S.P.R. 468, ¶ 1. In relevant part, the Board agreed with the administrative judge that the appellant was entitled to reinstatement as a remedy for agency‘s violation of
On March 1, 2019, the appellant filed a petition for enforcement of the Board‘s Opinion and Order. Erickson v. U.S. Postal Service, MSPB Docket No. AT-3443-07-0016-C-1, Compliance File (C-1 CF), Tab 1. The agency responded, in relevant part, that it had reinstated the appellant effective April 14, 2000; calculated his back pay and benefits for each year from 2000 through 2015; and
In the December 10, 2021 compliance initial decision, the administrative judge found that the agency had complied with its obligation to cancel the appellant‘s removal, retroactively reinstate him, and properly calculate the total amount of pay he would have received during the back pay period from April 14, 2001, through January 22, 2015.3 CID at 4-7. However, he found the agency remained in noncompliance to the extent it: (1) failеd to properly pay the appellant for the military leave to which he would have been entitled while on active duty from April 14, 2000, to September 29, 2001; (2) improperly offset from the appellant‘s lost wages the amount he received in Basic Allowance for Subsistence (BAS), Basic Allowance for Housing (BAH), and combat pay while serving on active duty in the military; (3) improperly denied him back pay based on insufficient evidence regarding his outside earnings or mitigation efforts for certain periods; (4) failed to properly restore his sick and annual leave hours; and (5) failed to properly restore his Thrift Savings Plan (TSP) account. CID at 5-15. The administrative judge ordered the agency to pay the appellant the proper amount of
On January 21, 2022, the Board issued an acknowledgment order advising the parties that, as neither party had filed any submission within the applicable time period, the administrative judge‘s finding of noncompliance had become final. Erickson v. U.S. Postal Service, MSPB Docket No. AT-3443-07-0016-X-1, Compliance Referral File (CRF), Tab 1 at 1-2. The acknowledgment order further advised that the Board would render a final decision on the issues of compliance and directed the agency to submit evidence showing that it had complied with all actions identified in the compliance initial decision. Id. at 3. On February 7, 2022, the agency notified the Board that it had taken initial steps towards compliance but that additional time was required due to the complexity of the back pay award and the long time period at issue. CRF, Tab 2.
On March 21, 2022, over two months past the January 14, 2022 deadline for filing a petition for review, the apрellant petitioned the Board for review of the compliance initial decision, and the agency subsequently filed a cross petition for review. Erickson v. U.S. Postal Service, MSPB Docket No. AT-3443-07-0016-C-2, Compliance Petition for Review File, Tabs 1, 4. In a March 3, 2023 Order, the Board dismissed the appellant‘s petition for review as untimely filed and held that, in the absence of a timely petition for review, it had no basis to consider the agency‘s cross petition for review. Erickson v. U.S. Postal Service, MSPB Docket No. AT-3443-07-0016-C-2, Order (Mar. 3, 2023). As the administrative judge‘s finding of partial noncompliance thus remained final, the Board ordered the agency to comply with the outstanding compliance obligations identified in the compliance initial decision and to submit in the compliance referral matter, MSPB Docket No.
On May 2 and 15, 2023, the agency submitted compliance reports reflecting that it recalculated the appellant‘s back pay award pursuant to the compliance initial decision. CRF, Tabs 6-7. The agency stated and provided evidence showing that it had determined the appellant was entitled to an additional $142,019.09 in gross back pay and that it paid him $67,254.46 ($142,019.09 minus $74,764.63 in deductions for retirement, social security, Medicare, Federal tax, and TSP contributions) by check dated March 29, 2023. CRF, Tab 6 at 2-4, 9-61, 96-97. The agency also stated and provided evidence showing that it determined the appellant was entitled to $119,591.56 in interest on the additional back pay payment, which it calculated using the Back Pay Calculator on the Office of Personnel Management (OPM) website. Id. at 7, 62-93. Additionally, the agency stated and provided evidence showing that it restored to the appellant 2,454 hours of annual leave and 1,267.71 hours of sick leave; restored his TSP contributions at a rate of 6% and provided the full agency matching and automatic (1%) contributions; paid him $2,984.93 ($4,706.78 gross pay minus $1,721.85 in deductions) for 2 fiscal years (240 hours) of military leave by check dated April 25, 2023; and paid him $8,452.29 in interest on the military leave payment by check dated May 4, 2023. CRF, Tab 6 at 5-6, 100-101, 105, Tab 7.
In a response dated June 2, 2023, the appellant argued that the agency remained in noncompliance based on various errors in its calculation of his back pay award.4 CRF, Tab 8. The appellant stated that it was unfair he was only
In a February 12, 2024 Order, the Board allowed the appellant additional time to respond to the agency‘s prior submissions and noted that the Board does not construe depositing or cashing a check for back pay as evidence that an appellant agrees with the agency‘s calculations.5 CRF, Tab 11 at 3. The Board further ordered the agency to provide additional explanation and evidence regarding its compliance. Id. at 3-5. The Board informed the appellant that he could respond to the agency‘s compliance submission within 30 days of service and that, if he did not respond, the Board might assume he was satisfied and dismiss his petition for enforcement. Id. at 5.
After seeking and obtaining an extension of time to respond, CRF, Tabs 13-14, the agency responded to the Board‘s February 12, 2024 Order on April 15 and May 20, 2024. CRF, Tabs 15, 17. The agency provided extensive additional information with detailed narrative responses and argued that it had complied with all outstanding compliance obligations. CRF, Tabs 15, 17. The appellant did not respond to the agency‘s submissions.
On January 10, 2025, the Bоard issued an Order directing the agency to provide specific additional information and evidence regarding the amounts of military pay it offset from the appellant‘s lost wages, proof that the $119,591.56 interest payment had been issued to the appellant, and additional details regarding its compliance with its TSP restoration obligations. CRF, Tab 18 at 3-4. The
ANALYSIS
When 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. Vaughan v. Department of Agriculture, 116 M.S.P.R. 319, ¶ 5 (2011); King v. Department of the Navy, 100 M.S.P.R. 116, ¶ 12 (2005), aff‘d per curiam, 167 F. App‘x 191 (Fed. Cir. 2006). The agency bears the burden to prove compliance with the Board‘s order by a preponderance of the evidence.6 Vaughan, 116 M.S.P.R. 319, ¶ 5;
As described above, the administrative judge found that the agency made several errors in its calculation and payment of the appellant‘s back pay award and ordered the agency recalculate the award, provide him the correct back pay and benefits with interest, and to provide him an explanation of its calculations. For the reasons that follow, we find that the agency has corrected these issues and is nоw in compliance.
Pay for Military Leave
The administrative judge found that, although the agency correctly determined that the appellant was not entitled to lost wages prior to September 30,
In its compliance submission, the agency stated and provided evidence showing that it issued the appellant a check for 30 days (240 hours) of military leave for fiscal years 2000 and 2001 on April 25, 2023, in the net amount of $2,984.93 (gross payment of $4,706.78 minus deductions for his retirement, social security, Medicare, Federal tax, and TSP contributions). CRF, Tab 7 at 5, 7-8. The agency explainеd that it calculated the gross total payment using the hourly rates the appellant would have earned during the relevant periods, which were determined and submitted during the earlier compliance proceeding before the administrative judge. Id. at 5 (citing C-1 CF, Tab 26 at 22). In a supplemental compliance submission, the agency explained that it calculated the military leave payment at an hourly rate of $19.4577 for 80 hours in fiscal year 2000 based on the appellant‘s hourly rate in pay period 20 of that year ($19.4577 x 80 hours = $1,556.46) and at a rate of $19.6885 for 160 hours in fiscal year 2001 based on his hourly rate in pay periods 19 (one week), 20 (two weeks), and 21 (one week) ($19.6885 x 160 hours = $3,150.16), resulting in the total gross payment of $4,706.78. CRF, Tab 15 at 4-6, 19-20. The agency also submitted evidence showing that it paid the appellant $8,452.29 in interest on the military leave payment by check dated May 4, 2023. CRF, Tab 7 at 14-22.
In response, the appellant argued that the agency underpaid him for his military leave because he was entitled to a higher hourly rate, more than 15 days of military leave per year, and to military leave pay for 1999. CRF, Tab 8 at 3-5. He also appeared to argue that the interest on the military pay should have been
As an initial matter, the appellant‘s argument that he is entitled to military leave for fiscal year 1999 is beyond the scope of the current proceeding. As described above, the administrative judge found that the appellant was entitled to pay for military leave only for the period from April 14, 2000, to September 29, 2001. CID at 6-7. Because the Board found that the appellant failed to show good cause for his untimely filed petition for review of the compliance initial decision, the administrative judge‘s findings became final, and the Board will not revisit his determination about the period for which the appellant must be pаid for military leave now.
The appellant‘s challenges to the hourly rate the agency used to calculate his military leave pay are likewise beyond the scope of this proceeding. In the compliance initial decision, the administrative judge found that the agency proved by preponderant evidence that its calculation of the amount the appellant would have earned during the back pay period was correct. CID at 6-7. In relevant part, this calculation included the agency‘s determination that the appellant‘s hourly rate of pay would have been $19.46 from September 9 through November 18, 2000, and $19.69 from November 19, 2000, through November 16, 2001.7 C-1 CF, Tab 26 at 22. Using these figures, the agency determined that the appellant was entitled to a total gross payment of $4,706.78 for the 240 hours of military leave he would have been entitled to in fiscal years 2000 and 2001, which represented an average of $19.61 per hour. CRF, Tab 7, Tab 15 at 4-6. As the administrative judge‘s
The appellant further argues that he should have received more than 15 days of military leave per year for “law enforcement duty” and/or because he had a “certain number of years” of service. CRF, Tab 8 at 5. Pursuant to ELM section 517.41, full-time agency employees are entitled to 15 calendar days (120 hours) of military leave per fiscal year. Nothing in the ELM provides for additional hours of military leave for individuals with a particular number of years of service. We note that ELM section 517.72 provides for 176 hours of military leаve per fiscal year if the military leave is requested for “law enforcement purposes.” Here, however, there is no indication that the appellant‘s military service during fiscal years 2000 and 2001 was for “law enforcement purposes“; rather, the military orders in the record reflect that he was ordered to “active duty for special work (ADSW)” for the period October 1, 1999, through September 29, 2001. C-1 CF, Tab 21 at 153. Accordingly, we find no merit to his argument that he was entitled to more than 15 days of military leave per fiscal year and conclude that the agency properly paid him for the military leave he would have been entitled to in fiscal years 2000 and 2001.
Finally, the appellant argues that the agency miscalculated the interest on military leave payment by applying the incorrect interest rate and stopping interest accrual on April 25, 2023. CRF, Tab 8 at 4. The agency submitted evidence showing that it used OPM‘s Back Pay Calculator and its preloaded quarterly interest rates, which are provided by the Internal Revenue Service (IRS), to calculate the interest owed on the $4,706.78 military leave payment beginning on September 9, 2000, and accruing through April 25, 2023. CRF, Tab 7 at 15-22; see OPM Back Pay Calculator, Help Guide, https://www.opm.gov/policy-data-
For the above reasons, we find the agency in compliance with its obligation to pay the appellant for military leave he would have been entitled to for the period of April 14, 2000, through September 29, 2001, and interest on that amount.
Improper Offsets and Denials based on Insufficient Evidence
The administrative judge additionally found the agency failed to correctly calculate the back pay due to the appellant because it (1) improperly offset from the back pay award the appellant‘s receipt of BAS, BAH, and combat pay in 2001-2004, 2009, 2010, and 2012 through January 2015; and (2) improperly denied the appellant back pay based on insufficient evidence regarding his earnings or mitigation efforts from January 1 to December 31, 2006; January 1 to May 14, 2007; September 28, 2007, to January 27, 2008; November to December 2010; and January 1 to December 31, 2011. CID at 8-11.
The agency asserts that it has recalculated the appellant‘s back pay award without offsetting his receipt of BAS, BAH, or combat pay, or excluding periods for which it believed there was incomplete evidence regarding mitigation and attempts to mitigate. CRF, Tabs 6, 17, 19. In support, the agency provided
Following a careful review of the record, we are satisfied that the agency has complied with its obligation to calculate the appellant‘s outside earnings offset without including any BAS, BAH, or combat pay, or excluding any periods for insufficient evidence. The evidence reflects that, for years 2001-2002, 2006, and 2008-2015, the agency offset only the appellant‘s base pay or gross taxable income, which do not include BAH, BAS, or combat pay. See Armed Forces’ Tax Guide, Internal Revenue Service Publication 3 at 7,
The agency further demonstrated that the appellant was entitled to $119,591.56 in interest on the additional back pay payment and that it paid him this amount by check dated April 13, 2023. CRF, Tab 6 at 7, 62-93, Tab 19 at 51-61. The agency‘s evidence reflects that it utilized the OPM Back Pay Calculator and properly calculated the interest through March 29, 2023, less than 30 days before issuance of the payment. See
Sick and Annual Leave
The administrative judge also found that the agency failed to demonstrate compliance with its obligation to restore to the appellant the annual leave he would have earned during the periods he was not performing active duty military service from September 30, 2001, to January 22, 2015, and the sick leave he would have earned for the entire period. CID at 13-14.
In its May 2023 compliance submission, the agency stated and provided evidence showing that it had adjusted the appellant‘s sick leave balance from 4 hours to 1,272.71 hours and that it adjusted his annual leave balance from 176 hours to 2,630 hours. CRF, Tab 6 at 5, 100-01. The agency stated that the appellant arguably received an “overpayment” of annual leave because the compliance initial decision only required the agency to restore annual leave for the periods he was not on active duty in the military, but “such adjustments are automatically performed as a result of the back pay process at the Postal Service.” Id. at 6 n.1. In response, the appellant generally disagreed with the agency‘s annual and sick leave calculations, stating “[t]here seems to be a huge discrepancy
In its April 2024 supplemental compliance submission, the agency explained that employees earn 4 hours of sick leave for every 80 hours they were paid during a leave year. CRF, Tab 15 at 7-10. The agency set forth the number of hours the appellant worked during each year of the back pay period and then divided that number by 80 to ascertain the number of 80-hour increments (“leave incremеnts“) he worked for each leave year. Id. After performing this calculation for each leave year, the agency determined that the appellant was entitled to 4 hours of sick leave for 314 leave increments of back pay period, which totaled 1,256 hours of sick leave. Id. at 9-10. The agency also credited the appellant with 12.71 hours of sick leave that he had already earned prior to his separation in 2000, resulting in a total restoration of 1,267.71 hours of sick leave. Id. The appellant did not respond.
We find that the agency has demonstrated compliance with its obligation to calculate and restore to the appellant the hours of sick leave he would have earned at the agency from September 30, 2001, to January 22, 2015. As described above, the agency has properly restored to the appellant 4 hours of sick leave for every 80 hours he would have worked during this period and credited him with the sick leave he had aсcrued prior to his separation, for a total restoration of 1,267.71 hours of sick leave. In addition, the appellant did not respond to the agency‘s April 2024 submission describing its sick leave restoration calculations, and we therefore assume he is satisfied. See Baumgartner, 111 M.S.P.R. 86, ¶ 9.
We additionally find that the agency is in compliance with its obligation to restore the appellant‘s annual leave. Although the agency did not provide a narrative explanation detailing its calculations, it is evident that the agency restored far more hours of annual leave to the appellant than it was required to. As noted above, the agency was only required to restore to the appellant the annual leave he would have earned during the periods he was not serving on active duty in the military, which was only several years of the nearly 14-year back pay period.
TSP Account
Before the administrative judge, the agency argued that the appellant was not entitled to any restored TSP benefit because TSP was available in the military, the appellant did not contribute to his TSP while in the military, and it would be speculative to assume the appellant would have contributed had he been employed by the agency. C-1 CF, Tab 26 at 45-46. The administrative judge found, however, that the agency presented no evidence that active-duty service members received a comparable benefit during the back pay period and that the appellant was entitled to a presumption in his favor in light of the purpose of USERRA. CID at 14-15. Accordingly, the administrative judge concluded that the agenсy had not satisfied its compliance obligations with regard to TSP contributions and ordered it to do so. CID at 14-15.
Pursuant to the Federal Retirement Thrift Investment Board (FRTIB) regulations, the employing agency must give a reinstated employee who would have been eligible to contribute to his TSP account but for the erroneous separation the opportunity to submit a new contribution election for purposes of makeup contributions or to reinstate the contribution election he had on file at the time of his separation for makeup contributions.
In its Mаy 2023 compliance submission, the agency asserted that it restored the appellant‘s TSP contributions pursuant to his prior TSP election of 6% full agency matching. CRF, Tab 6 at 6. In support, the agency provided a Back Pay Report reflecting deductions of 6% from each pay period of the back pay period, resulting in a total of $35,754.76 deducted from his March 29, 2023 back pay check for “TSP Regular.” Id. at 9-97. The appellant responded that his TSP “was not contributed properly” and that he “sent multiple documents to the Agency specifically explaining the amount to contribute in order to get max savings on taxes, and, to also increase what the agency would have to contribute to as well, but they refused.” CRF, Tab 8 at 4.
In its April 2024 supplemental compliance submission, the agency provided evidence showing that the appellant requested by TSP Election Form TSP-1 dated February 28, 2022, a Roth (After-Tax) TSP contribution of a $550 per pay period for the back pay period. CRF, Tab 15 at 11, 38. However, as agency counsel informed him by letter dated March 25, 2022, this election could not be implemented because the Roth option was not available before June 2, 2012, and his election of $550 per pay period exceeded the contribution limits for 2001-2005 and the total back pay owed to him. Id. at 36. The letter further informed him that
In its final compliance submission in January 2025, the agency stated and provided an affidavit from a Lead Systems Accountant in Payroll Services confirming that the proper amount of TSP contributions was credited and reported to the TSP agency. CRF, Tab 19 at 7, 10-11. The Lead Systems Accountant explained that the appellant‘s elected TSP contribution amount, along with the agency‘s matching and 1% automatic contributions, were transmitted to the TSP agency on the transmission date for his back pay award on April 14, 2023. Id. at 10. She further explained that, as reflected on the payroll journal, the deductions were sent on a pay period by pay period basis for every individual pay period during the back pay timeframe so that the TSP agency could process the retroactive breakage calculations as if the monies had been received at that time. Id. at 11; see id. at 12-50 (pay roll journal). She attеsted that, once the agency transmits the retroactive TSP contributions, “any and all breakage calculations are then performed solely by the TSP agency” and that “any inquiries regarding how and when these calculations were performed would need to be directed to the current TSP provider.” Id. She concluded that the agency followed proper procedures in restoring the appellant‘s TSP account. Id. The appellant again did not respond to the agency‘s submission.
Based on the above-discussed evidence and explanation provided by the agency, we find that it is in compliance with its obligation to restore the appellant‘s TSP account. Although the appellant argued in response to the agency‘s first
CONCLUSION
In light of the foregoing, we find that the agency is now in compliance with the outstanding compliance obligations identified in the compliance initial decision and dismiss the petition for enforcement and the petition for review. This is the final decision of the Merit Systems Protection Board in these compliance proceedings. Title 5 of the Code of Federal Regulations, section 1201.183(c)(1) (
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NOTICE OF APPEAL RIGHTS12
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(1) Judicial review in general. As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision.
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If you submit a petition for judicial review to the U.S. Court of Appeals for thе Federal Circuit, you must submit your petition to the court at the following address:
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717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal Circuit 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, 10, and 11.
If you are interested in securing pro bono representation for an appeal to the U.S. 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 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case.
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FOR THE BOARD:
Gina K. Grippando
Clerk of the Board
Washington, D.C.