UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JESSE L. LANE,

Appellant,

v.

DEPARTMENT OF VETERANS 

AFFAIRS,

Agency.

DOCKET NUMBER

CH-0752-17-0530-X-1

DATE: May 18, 2023

THIS FINAL ORDER IS NONPRECEDENTIAL1

Jesse L. Lane, Carbondale, Illinois, pro se.

Gary Levine, Esquire, Hines, Illinois, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member2

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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 Member Leavitt’s name is included in decisions on which the three-member Board 

completed the voting process prior to his March 1, 2023 departure.
2

FINAL ORDER

¶1 On July 2, 2018, the administrative judge issued a compliance initial 

decision granting the appellant’s petition for enforcement and finding the agency 

in partial noncompliance with the January 29, 2018 initial decision, which 

reversed the appellant’s removal and ordered him reinstated with back pay and 

benefits. Lane v. Department of Veterans Affairs, MSPB Docket No. CH-0752-

17-0530-I-1, Initial Appeal File (IAF), Initial Decision (ID); Lane v. Department 

of Veterans Affairs, MSPB Docket No. CH-0752-17-0530-C-1, Compliance File 

(CF), Compliance Initial Decision (CID). For the reasons discussed below, we 

now find the agency in compliance and DISMISS the appellant’s petition for 

enforcement. 

DISCUSSION OF ARGUMENTS AND EVIDENCE ON COMPLIANCE

¶2 Effective July 27, 2017, the agency removed the appellant from his position 

as a GS-6 Licensed Practical Nurse on the basis of one charge of patient abuse. 

IAF, Tab 1 at 7. The appellant timely appealed his removal to the Board. Id. 

at 1-6. In a January 29, 2018 initial decision, the administrative judge reversed 

the removal and ordered the agency to retroactively restore the appellant to his 

position effective July 27, 2017, and to pay him all appropriate back pay and 

benefits. ID at 19-20. After neither party filed a petition for review by March 5, 

2018, the initial decision became the final decision of the Board. ID at 22; see 

5 C.F.R. § 1201.113. 

¶3 On May 21, 2018, the appellant filed a petition for enforcement of the 

initial decision asserting that he had not yet received any back pay. CF, Tab 1. 

The agency responded with evidence showing that, on February 4, 2018, it 

canceled the appellant’s removal and retroactively restored him effective July 27, 

2017. CF, Tab 3 at 5, 10. The agency stated that it had calculated the appropriate 

amount of back pay and benefits owed to the appellant and that it had submitted 

the corrected timecards and all documentation required to process the appellant’s 
3

back pay and benefits to the Defense Finance and Accounting Service (DFAS) in 

March 2018. Id. at 5-6.

¶4 On June 11, 2018, the appellant responded to the agency’s submission, 

asserting that he had still not received any back pay. CF, Tab 6 at 3. He also 

stated that, although he returned to work on March 5, 2018, he was restricted 

from working near a certain patient, despite being cleared of the charge of patient 

abuse, and felt “harassed and intimidated by coworkers and bosses.” Id. at 3-4. 

In addition, he argued that the agency was violating the Back Pay Act by failing 

to pay him attorney fees. Id. at 5. 

¶5 In a July 2, 2018 compliance initial decision, the administrative judge found 

that the agency was in partial noncompliance with the Board’s order because the 

appellant had not yet received the ordered back pay and interest. CID at 4. 

Although the agency blamed DFAS for the delay in paying the appellant, the 

administrative judge found that the agency itself was liable for the delay because 

it had chosen DFAS as its paying agent and had not established good cause for 

failing to complete the actions ordered by the Board. CID at 5. The 

administrative judge rejected the appellant’s allegations of noncompliance with 

respect to attorney fees, explaining that the Board’s final order did not award 

attorney fees and that the appellant never filed a motion for attorney fees, despite 

being notified of his opportunity to do so. Id. In addition, the administrative 

judge found that the appellant’s additional claims regarding his treatment at work

were outside the scope of the Board’s order. CID at 6. She found that the 

appellant’s removal had been canceled and he had been retroactively restored to 

his position and that the agency was therefore in compliance with that portion of 

the Board’s order. Id. In light of these findings, she granted the appellant’s 

petition for enforcement, in part, and again ordered the agency to pay the 

appellant back pay and interest. Id. She further ordered the agency to inform the 

appellant in writing of all actions taken to reach compliance, including the 

manner in which it calculated the back pay and interest. Id. Neither party filed a 
4

petition for review of the compliance initial decision, and the appellant’s petition 

for enforcement was referred to the Board for a final decision on issues of 

compliance pursuant to 5 C.F.R. § 1201.183(b)-(c). Lane v. Department of 

Veterans Affairs, MSPB Docket No. CH-0752-17-0530-X-1, Compliance Referral 

File (CRF), Tab 1. 

¶6 In an August 23, 2018 response to the Clerk of the Board’s order to submit 

evidence showing that it had complied with all actions identified in the 

compliance initial decision, the agency reiterated that it had canceled the 

appellant’s removal, retroactively restored him, and sent the documentation 

required to process the back pay award to DFAS. CRF, Tab 2 at 4. The agency 

further stated, however, that the payment of back pay to the appellant had been 

delayed because DFAS had to wait for a letter from the Office of Personnel 

Management (OPM) stating how much it was required to deduct from the 

appellant’s back pay award for his Federal Employees’ Retirement System 

(FERS) redeposit. CRF, Tab 2 at 4. The agency stated that “DFAS should now 

have all the necessary documentation to finalize the payment of back pay.” Id. 

The agency did not provide any explanation regarding how the back pay and 

interest would be calculated. On September 14, 2018, the appellant responded to 

the agency’s submission, asserting that he had not yet received any back pay. 

CRF, Tab 3 at 2-3.

¶7 On June 19, 2019, the Clerk of the Board directed the agency to file a 

detailed narrative explanation setting forth how it calculated the back pay and 

interest due to the appellant and to file evidence showing that it had paid the 

appellant those amounts. CRF, Tab 5. In response, the agency stated that it had 

determined that the appellant was entitled to $4,512.14 in gross back pay, which 

it derived by subtracting the appellant’s outside earnings during the back pay 

period ($17,584.32), the lump sum annual leave payout he received when he was 

removed ($900.06), and the refunded FERS contributions he received upon his 

removal ($8,574.84), which the agency repaid to OPM, from the total amount of 
5

gross earnings he would have earned during the back pay period ($31,571.36). 3 

CRF, Tab 6 at 4-5, 7-8. The agency further stated that the appellant was entitled 

to interest on the back pay in the amount of $180.58. Id. at 5, 7-8. Accordingly,

the agency stated that the appellant was entitled to a total gross back pay award of 

$4,692.72 ($4,512.14 + $180.58 = $4,692.72). Id. at 4-5. The agency provided 

evidence reflecting that it paid the appellant this gross back pay award minus 

appropriate deductions on September 21, 2018. Id. at 5, 7-8, 12. Because the 

agency combined the appellant’s back pay award with his earnings for the current 

pay period in the amount of $2,288.38, the leave and earnings statement reflects 

that he received net pay in the amount of $4,614.79, which is equivalent to the 

back pay award ($4,692.72) plus current earnings ($2,288.38) minus all 

appropriate deductions ($2,366.31). Id. Despite being notified of his opportunity 

to do so, CRF, Tab 5 at 2-3, the appellant did not respond to the agency’s 

submissions or dispute its assertions of compliance. 

¶8 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.4Vaughan, 116 M.S.P.R. 319, ¶ 5; 5 C.F.R. § 1201.183(d). An 

 

3

In a supplemental response, the agency affirmed that the appellant would have 

received $31,571.36 in gross earnings during the back pay period and acknowledged 

that its estimate in a prior submission that he would have earned $32,577.27 during the 

back pay period was incorrect. CRF, Tab 8 at 4-5; CF, Tab 3 at 14. The agency 

explained that the difference between the correct amount of $31,571.36 and the estimate 

of $32,577.27 resulted from calculation errors and adjustments to Sunday and Holiday 

pay. CRF, Tab 8 at 4-5, 9-20.

4 A preponderance of the evidence is the degree of relevant evidence that a reasonable 

person, considering the record as a whole, would accept as sufficient to find that a 

contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).
6

agency’s assertions of compliance must include a clear explanation of its 

compliance actions supported by documentary evidence. Vaughan, 116 M.S.P.R. 

319, ¶ 5. The appellant may rebut the agency’s evidence of compliance by 

making specific, nonconclusory, and supported assertions of continued 

noncompliance. Id.

¶9 As described above, in the compliance initial decision, the administrative 

judge found that the agency failed to establish that it had complied with its 

obligation to pay the appellant appropriate back pay with interest for the back pay 

period. CID. The agency’s submissions show that it has now reached full 

compliance with this obligation. In particular, as set forth above, the agency 

described how it determined that the appellant was entitled to a total back pay 

award of $4,692.72 and has provided evidence supporting these calculations and 

showing that the payment, minus appropriate deductions, has been paid to the 

appellant. As the appellant has not responded to the agency’s assertions and 

evidence of compliance, the Board assumes that he is satisfied. See Baumgartner 

v. Department of Housing and Urban Development, 111 M.S.P.R. 86, ¶ 9 (2009). 

¶10 In light of the foregoing, we find that the agency is now 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 OF APPEAL RIGHTS5

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By 

statute, the nature of your claims determines the time limit for seeking such 

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). 

Although we offer the following summary of available appeal rights, the Merit 

 

5

Since the issuance of the initial decision in this matter, the Board may have updated 

the notice of review rights included in final decisions. As indicated in the notice, the 

Board cannot advise which option is most appropriate in any matter.
7

Systems Protection Board does not provide legal advice on which option is most 

appropriate for your situation and the rights described below do not represent a 

statement of how courts will rule regarding which cases fall within their 

jurisdiction. If you wish to seek review of this final decision, you should 

immediately review the law applicable to your claims and carefully follow all 

filing time limits and requirements. Failure to file within the applicable time 

limit may result in the dismissal of your case by your chosen forum. 

Please read carefully each of the three main possible choices of review 

below to decide which one applies to your particular case. If you have questions 

about whether a particular forum is the appropriate one to review your case, you 

should contact that forum for more information. 

(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. 5 U.S.C. 

§ 7703(b)(1)(A). 

If you submit a petition for review to the U.S. Court of Appeals for the 

Federal Circuit, you must submit your petition to the court at the 

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

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 
8

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. 

(2) Judicial or EEOC review of cases involving a claim of 

discrimination. This option applies to you only if you have claimed that you 

were affected by an action that is appealable to the Board and that such action 

was based, in whole or in part, on unlawful discrimination. If so, you may obtain 

judicial review of this decision—including a disposition of your discrimination 

claims—by filing a civil action with an appropriate U.S. district court (not the 

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you 

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems 

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case, 

and your representative receives this decision before you do, then you must file 

with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on 

race, color, religion, sex, national origin, or a disabling condition, you may be 

entitled to representation by a court-appointed lawyer and to waiver of any 

requirement of prepayment of fees, costs, or other security. See 42 U.S.C. 

§ 2000e-5(f) and 29 U.S.C. § 794a. 

Contact information for U.S. district courts can be found at their respective 

websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

Alternatively, you may request review by the Equal Employment 

Opportunity Commission (EEOC) of your discrimination claims only, excluding 

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the 

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, 
9

and your representative receives this decision before you do, then you must file 

with the EEOC no later than 30 calendar days after your representative receives

this decision. 

If you submit a request for review to the EEOC by regular U.S. mail, the 

address of the EEOC is: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

P.O. Box 77960 

Washington, D.C. 20013 

If you submit a request for review to the EEOC via commercial delivery or 

by a method requiring a signature, it must be addressed to: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

131 M Street, N.E. 

Suite 5SW12G 

Washington, D.C. 20507 

(3) Judicial review pursuant to the Whistleblower Protection 

Enhancement Act of 2012. This option applies to you only if you have raised 

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or 

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). 

If so, and your judicial petition for review “raises no challenge to the Board’s 

disposition of allegations of a prohibited personnel practice described in section 

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), 

(B), (C), or (D),” then you may file a petition for judicial review either with the 

U.S. Court of Appeals for the Federal Circuit or any court of appeals of 

competent jurisdiction.6 The court of appeals must receive your petition for 

 

6

The original statutory provision that provided for judicial review of certain 

whistleblower claims by any court of appeals of competent jurisdiction expired on 

December 27, 2017. The All Circuit Review Act, signed into law by the President on 

July 7, 2018, permanently allows appellants to file petitions for judicial review of 

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals 
10

review within 60 days of the date of issuance of this decision. 5 U.S.C. 

§ 7703(b)(1)(B). 

If you submit a petition for judicial review to the U.S. Court of Appeals for 

the Federal Circuit, you must submit your petition to the court at the 

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

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 particula r 

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. 

 

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. 

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 

132 Stat. 1510.
11

Contact information for the courts of appeals can be found at their 

respective websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

FOR THE BOARD:

Washington, D.C.

 /s/ for 

Jennifer Everling

Acting Clerk of the Board