UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

2015 MSPB 59

Docket No. DA-0752-11-0212-C-1

 DA-0752-12-0595-C-11

Colbert Allen Rittgers,

Appellant,

v.

Department of the Army,

Agency.

November 4, 2015

Charles C. Smith, Esquire, Corpus Christi, Texas, pro se.

Alex Lopez, Esquire, and Kenneth M. Muir, Esquire, Corpus Christi, 

Texas, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

OPINION AND ORDER

¶1 This matter is before the Board on the appellant’s petition for review of the 

compliance initial decision, which found the agency partially in compliance with 

the Board’s final order. For the reasons set forth below, we GRANT the 

appellant’s petition for review. We AFFIRM the compliance initial decision’s 

 

1 The administrative judge issued an erratum correcting the docket numbers on the first 

page of the compliance initial decision. Rittgers v. Department of the Army, MSPB 

Docket No. DA-0752-11-0212-C-1, Compliance File, Tab 10. 
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finding that the agency is not in compliance concerning restoration of annual 

leave and contributions to the appellant’s Thrift Savings Plan (TSP) account. We 

MODIFY the compliance initial decision to address the agency’s argument that 

the appellant was not entitled to TSP contributions for the 6-month periods 

following each of his in-service withdrawals. We REVERSE the compliance 

initial decision’s finding that the method the agency used to calculate the 

appellant’s overtime back pay is in compliance with the Board’s final order. 

BACKGROUND

¶2 The appellant filed a petition for enforcement of the Board’s final order in 

Rittgers v. Department of the Army, MSPB Docket Nos. DA-0752-11-0212-B-1 

and DA-0752-12-0595-I-1, which ordered the agency to cancel two indefinite 

suspensions and pay him the correct amount of back pay, interest on back pay, 

and other benefits. Rittgers v. Department of the Army, MSPB Docket No. 

DA-0752-11-0212-C-1, Compliance File (CF), Tab 1. The appellant alleged that 

the agency failed to comply with this final order by not fully restoring his annual 

leave, failing to make the appropriate contributions to his TSP account, and 

erroneously calculating his overtime back pay. CF, Tab 5. During the 

compliance proceedings, the agency acknowledged that it failed to properly 

process the appellant’s TSP contributions. CF, Tab 4 at 4-6. The agency 

proposed to remedy the error by giving the appellant a lump sum payment of 

$8,613.33, which the agency stated was “an accurate approximation of the 

amount owed due to its failure to process the TSP elections.” Id. at 6. The 

agency asserted that, because the appellant is no longer an employee, no 

contributions can be made into his TSP account, and a lump sum payment is the 

only method available to address the TSP contribution portion of the appellant’s 

back pay award. CF, Tab 6 at 5-6. 

¶3 In her compliance initial decision, the administrative judge found that the 

agency was in compliance with the final order regarding the appellant’s overtime 
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back pay. CF, Tab 8, Compliance Initial Decision (CID) at 5-7. The 

administrative judge found that the agency was not in compliance with the 

Board’s final order regarding payment to the appellant for annual leave and 

contributions to his TSP account. CID at 4-5, 7-10. The agency has filed a 

statement of compliance pursuant to 5 C.F.R. § 1201.183(a)(6)(i), which is being 

processed under MSPB Docket Nos. DA-0752-11-0212-X-1 and DA-0752-12-

0595-X-1. 

¶4 The appellant has filed a petition for review of the compliance initial 

decision, arguing that he had insufficient time to respond to new evidence and 

arguments filed by the agency, the administrative judge failed to address whether 

the contributions to his TSP account should include contributions for the 6-month 

periods following two in-service withdrawals, and the administrative judge erred 

in finding that the agency applied an appropriate method for calculating his 

overtime back pay. Compliance Petition for Review (CPFR) File, Tab 2. The 

agency has filed an opposition to the appellant’s petition for review, but has not 

filed a petition for review. CPFR File, Tab 3. The appellant has filed a reply to 

the agency’s opposition. CPFR File, Tab 5. 

ANALYSIS

The administrative judge did not abuse her discretion in determining when to 

close the record. 

¶5 As a preliminary matter, the appellant notes that he did not have adequate 

time to respond to the agency’s new evidence and arguments, which he received 

1 day prior to the record closing. CPFR File, Tab 2 at 5. Determining when to 

close the record is within an administrative judge’s sound discretion, but such 

discretion must comport with basic requirements of fairness and notice. 

Blackmer v. Department of the Navy, 52 M.S.P.R. 571, 574 (1992). The parties 

were on notice that the agency had until the close of the record to file new 

evidence and arguments. CF, Tab 3. The appellant did not object to the order 

establishing the timeframes for filing evidence, nor did he request additional time 
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to prepare a response to the agency’s new evidence. The appellant’s failure to 

timely object to the administrative judge’s order or to file an extension request 

below precludes him from doing so on petition for review. See Tarpley v. U.S. 

Postal Service, 37 M.S.P.R. 579, 581 (1988) (finding that the appellant’s failure 

to timely object to the administrative judge’s rulings on witnesses precluded his 

doing so on petition for review). 

¶6 Evidence and argument can be accepted after the record closes in rebuttal 

to new evidence or argument submitted by the other party just before the record 

closed. 5 C.F.R. § 1201.59(c)(2). It does not appear that the appellant attempted 

to file any additional evidence or argument in rebuttal to the agency’s March 12, 

2015 pleading. Moreover, the appellant now has had the opportunity to address 

the agency’s new evidence and argument through his petition for review, CPFR 

File, Tab 2 at 6, and we have addressed those arguments in this order. Thus, we 

find that the appellant was not prejudiced by receiving the agency’s pleading 

1 day prior to the record closing. 

The appellant was not entitled to contribute to his TSP account during the 

6-month periods following his in-service withdrawals, and his back pay award 

should have been calculated accordingly. 

¶7 The regulations implementing the Back Pay Act require that an agency 

correct errors affecting an employee’s TSP account consistent with the 

regulations prescribed by the Federal Retirement Thrift Investment Board 

(FRTIB). Price v. U.S. Postal Service, 118 M.S.P.R. 222, ¶ 16 (2012) 

(citing 5 C.F.R. § 550.805(h)). The appellant received financial hardship inservice withdrawals from his TSP account on August 18, 2010, and February 25, 

2011. CF, Tab 6, Exhibits (Exs.) 28-29. A participant who obtains a financial 

hardship in-service withdrawal may not contribute to the TSP for a period of 

6 months after the withdrawal is processed. 5 C.F.R. § 1650.33(b). The agency 

stated that based on this regulation it overestimated the amount of the make-up 

contributions due to the appellant. CF, Tab 6 at 6. 
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¶8 The appellant contends that the administrative judge did not explicitly state 

whether, in calculating the appellant’s TSP contributions, the agency should 

include contributions during the 6-month periods following his withdrawals. 

CPFR, Tab 2 at 6. Concerning the first withdrawal, the appellant argues that he 

would not have withdrawn the funds from his TSP account but for the agency 

placing him on administrative leave prior to his indefinite suspension and the 

corresponding loss of overtime pay. Id. The placement of the appellant on paid 

administrative leave prior to his indefinite suspension is not an appealable action. 

See LaMell v. Armed Forces Retirement Home, 104 M.S.P.R. 413, ¶ 7 (2007). 

The Board’s authority to make an aggrieved employee whole under the Back Pay 

Act extends back only to the effective date of the reversed adverse action. 

Mattern v. Department of the Treasury, 291 F.3d 1366, 1370-71 (Fed. Cir. 2002). 

The Board has no authority to order that the appellant’s back pay award include 

contributions to his TSP account for the 6-month period following his first 

in-service hardship withdrawal, which occurred prior to the effective date of his 

first indefinite suspension. 

¶9 The second withdrawal occurred after the effective date of the first 

indefinite suspension. CF, Tab 6, Exs. 28-29. The negative consequences of this 

second withdrawal could be related to the appellant’s indefinite suspension and 

could represent damages. See Giove v. Office of Personnel 

Management, 106 M.S.P.R. 53, ¶ 9 (2007). However, the instant appeal does not 

fall into one of the limited categories of cases in which the Board is authorized to 

award damages. 5 C.F.R. § 1201.202(b)-(d). The appellant has not identified any 

provision in the Back Pay Act or the FRTIB’s regulations that would permit the 

Board to award this type of damages. Therefore, we find that he is not entitled to 

an order requiring contributions to his TSP account for the 6-month period

following his second in-service hardship withdrawal. 
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The appellant is not entitled to restoration of the funds he withdrew from his 

TSP account.

¶10 The appellant also argues that the administrative judge failed to address 

properly whether the agency was required to restore the funds he withdrew from 

his TSP account. CPFR File, Tab 2 at 10. The appellant cites 5 C.F.R. 

§ 1605.13(d) for the proposition that the agency was required to restore the 

$47,945.67 that he withdrew. Id. In accordance with the FRTIB’s regulations, 

employees who are separated from service are entitled to restore funds withdrawn 

from their TSP accounts at the time of their separations. 5 C.F.R. § 1605.13(d). 

The appellant’s withdrawals were financial hardship in-service withdrawals. 

CPFR File, Tab 2 at 6, Tab 5 at 5-6. Because the appellant’s withdrawals were 

in-service and not withdrawals upon separation, he was not entitled to restore the 

withdrawn funds. 5 C.F.R. § 1605.13(d). Even if this regulation was applicable, 

it allows an employee to restore withdrawn funds, but does not require any action 

by the agency. Id.; see Crazy Thunder-Collier v. Department of the 

Interior, 115 M.S.P.R. 82, ¶ 13 (2010). 

¶11 Although the appellant is not entitled to restore the withdrawn funds or to 

make TSP contributions for the 6-month periods following his withdrawals, we 

affirm the administrative judge’s finding that the agency has not demonstrated 

that it is in compliance with the Board’s final order regarding the appellant’s TSP 

contributions. The agency has the burden of proving its compliance with a Board 

final decision with the support of relevant, material, and credible evidence. 

Gondek v. Department of the Army, 107 M.S.P.R. 292, ¶ 4 (2007). The agency 

admits it failed to deduct the appropriate TSP contributions from the appellant’s 

back pay and remit the make-up contributions to the FRTIB. CID at 7-10. Based 

on our review, we find that the agency has not presented any additional evidence 

in the petition for review proceedings that proves it is in compliance regarding 

the appellant’s TSP contributions. 
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The appellant is not entitled to overtime back pay for the periods of 

administrative leave prior to his indefinite suspensions. 

¶12 The appellant also argues that his back pay award should have included 

back pay for overtime that he would have worked during two periods of 

administrative leave prior to his two indefinite suspensions. CPFR File, Tab 2 

at 9. Although the Back Pay Act is designed as a make-whole remedial statute, it 

is not without limits. Mattern, 291 F.3d at 1370. Placing the appellant on 

administrative leave prior to his indefinite suspensions was not an adverse action 

and is not remediable by the Board under the Back Pay Act. Id. The Board lacks 

jurisdiction to award back pay for pay enhancements such as overtime pay lost 

during periods of administrative leave preceding an appealable action. See 

Harris v. U.S. Postal Service, 89 M.S.P.R. 208, ¶ 4 (2001). Therefore, we find 

that the appellant is not entitled to overtime back pay for the two periods of 

administrative leave that preceded his indefinite suspensions. 

The agency should have calculated the appellant’s overtime back pay according 

to his overtime history. 

¶13 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. Vaughan v. Department of 

Agriculture, 116 M.S.P.R. 319, ¶ 5 (2011). 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. 

Russo v. U.S. Postal Service, 107 M.S.P.R. 296, ¶ 11 (2007). 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. Edwards v. Department of Justice, 90 M.S.P.R. 537, ¶ 11 

(2002). 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. Ball v. U.S. Postal Service, 91 M.S.P.R. 364, ¶ 10, 

aff’d, 53 F. App’x 910 (Fed. Cir. 2002). The Board has rejected the use of the 
8

average overtime hours worked by similarly situated employees for computing 

overtime back pay where an appellant’s own overtime history would most nearly 

place the appellant in the status quo ante. See, e.g., Brady v. Department of the 

Navy, 55 M.S.P.R. 693, 696-97 (1992). 

¶14 The agency calculated the appellant’s overtime back pay by averaging the 

overtime worked by employees in the same directorate, who held the same 

position at the same grade level as the appellant, for every pay period from 2010 

through October 2012. CF, Tab 4, Ex. 3. The appellant argues that he worked 

considerably more overtime than these similarly situated employees. CF, Tab 5 

at 7. To support his argument, the appellant provided a summary of the overtime 

he worked each pay period for the 3 years and 8 months immediately preceding 

his placement on administrative leave prior to his first indefinite suspension. CF, 

Tab 5, Ex. C. 

¶15 Here, as in Brady, the appellant’s work history demonstrates that he 

worked substantial amounts of overtime in the period immediately preceding his 

indefinite suspensions, and worked significantly more overtime than similarly 

situated employees. Comparing the evidence of the appellant’s overtime history 

with that of the overtime worked for similarly situated employees, the appellant’s 

overtime history is the method more likely to place him in the status quo ante. 

Compare CF, Tab 4, Ex. 3, with CPFR File, Tab 2 at 12-53. 

¶16 The agency argues that overtime varies from month-to-month and 

year-to-year depending on budget and workload. CF, Tab 6 at 7. Such a

statement, without supporting evidence, is insufficient to justify ignoring the 

appellant’s overtime work history. See Brady, 55 M.S.P.R. at 697. The agency 

has not presented any evidence that the conditions during the periods of time that 

the appellant was indefinitely suspended varied in some way that would justify 

ignoring his overtime history in calculating his overtime back pay. Thus, the 

method the agency used to calculate the appellant’s overtime back pay was not 
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the one most likely to return the appellant to the status quo ante, and the agency 

must recalculate it based on the appellant’s overtime history. 

¶17 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 a final decision fully addressing the appellant’s petition for review of the 

compliance initial decision2 and setting forth the appellant’s further appeal rights 

and the right to attorney fees, if applicable. 

ORDER

¶18 We ORDER the agency to submit to the Clerk of the Board within 60 days

of the date of this Opinion and 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’s submission shall demonstrate that it properly 

calculated the appellant’s overtime back pay according to his overtime history, 

correctly calculated the appellant’s TSP make-up contributions, and contacted the 

FRTIB so that it can calculate the accurate breakage on the appellant’s make-up 

 

2 The subsequent decision may incorporate the analysis and findings set forth in this 

Opinion and Order. 
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contributions as required by 5 C.F.R. § 1605.2. The agency must serve all parties 

with copies of its submission. 

¶19 The agency’s submission should be filed in the compliance referral matter 

currently pending with the Board’s Office of General Counsel under MSPB 

Docket No. DA-0752-11-0212-X-1 pursuant to 5 C.F.R. § 1201.108(a)(6)(i). 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. 

¶20 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. 

¶21 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(a). 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). 

¶22 This Opinion and 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 
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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:

______________________________

William D. Spencer

Clerk of the Board

Washington, D.C.