Rodney M. Walls v. United States Postal Service ( 2014 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RODNEY M. WALLS, DOCKET NUMBER
Appellant, PH-0752-11-0287-X-1
v.
UNITED STATES POSTAL SERVICE, DATE: August 12, 2014
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Debra A. D’Agostino, Esquire, Washington, D.C., for the appellant.
Jeannette L. Bisson, Esquire, Landover, Maryland, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 On December 6, 2011, the administrative judge issued a recommendation
that the Board find, under the Board’s regulations in effect at that time, the
agency in noncompliance with the administrative judge’s August 1, 2011 initial
decision that became the Board’s Final Order on September 5, 2011. MSPB
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
Docket No. PH-0752-11-0287-I-1, Initial Appeal File, Tab 16. The matter was
referred to the Board for consideration. 2 See 5 C.F.R. § 1201.183 (Jan. 1, 2012).
The administrative judge found that the agency did not comply with the Board’s
final decision regarding back pay and benefits. MSPB Docket No. PH-0752-11-
0287-X-1, Compliance Referral File (CRF), Tab 1.
¶2 The agency submitted a response to the Board’s acknowledgment order on
December 20, 2011, which stated that he was restored to his previous position on
November 14, 2011, and that the appellant had received $16,183.54 in gross back
pay on December 9, 2011. See id. The agency stated that the appellant was
scheduled to receive an additional $4,548.75 in his December 23, 2011 paycheck.
CRF, Tab 3. The appellant responded on January 9, 2012, stating that the agency
calculated his back pay incorrectly, in that it paid him .21 percent interest rather
than 4 percent interest, as set forth in the Office of Personnel Management’s
directive. CRF, Tab 6.
¶3 On May 21, 2012, the agency submitted a narrative response with attached
documentation, asserting that the appellant received a total of $10.81 in interest
on the $17,493.17 in back pay. CRF, Tab 9. In calculating the interest, the
agency followed the provisions of the Postal Service’s employee and labor
relations manual (ELM), which was .21 percent. See id., Exhibit 2. The
appellant did not respond to the agency’s submission.
¶4 In Driscoll v. U.S. Postal Service, the Board held that, “in computing
interest on back pay for a non-preference eligible employee of the U.S. Postal
Service, the provisions of the Postal Service’s [ELM] apply.” 113 M.S.P.R. 565,
569 (2010). Section 436.73(a)(1)(b) of the ELM provides that, for a
nonpreference eligible employee, the correct interest rate on a back pay award is
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.
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the Federal Judgment Rate. The ELM also provides that the interest rate to be
used “is the rate in effect 7 days prior to the date of the award.” The means of
computing the Federal Judgment Rate is codified at 28 U.S.C. § 1961. Id. Here,
the administrative judge issued an initial decision on August 1, 2011. On 7 days
prior to August 1, 2011, the rate was .21 percent. Accordingly, we find that the
agency correctly used the interest rate set forth in its ELM to calculate the
interest on the appellant’s back pay.
¶5 In light of the agency’s evidence of compliance, and the appellant’s failure
to respond, 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 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:
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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
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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.