UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

ROBERT SPURLOCK,

Appellant,

v.

DEPARTMENT OF THE AIR FORCE,

Agency.

DOCKET NUMBER

CH-0752-13-0272-C-1

DATE: May 12, 2016

THIS FINAL ORDER IS NONPRECEDENTIAL*

Robert Spurlock, Freeburg, Illinois, pro se.

Kevin K. Spradling, Esquire, and Loren H. Duffy, Esquire, Scott Air Force 

Base, Illinois, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

FINAL ORDER

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

decision, which denied his petition for enforcement and found the agency in 

compliance with the Board’s order to cancel the appellant’s indefinite suspension. 

Generally, we grant petitions such as this one only when: the initial decision 

 * A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

contains erroneous findings of material fact; the initial decision is based on an 

erroneous interpretation of statute or regulation or the erroneous application of 

the law to the facts of the case; the administrative judge’s rulings during either 

the course of the appeal or the initial decision were not consistent with required 

procedures or involved an abuse of discretion, and the resulting error affected the 

outcome of the case; or new and material evidence or legal argument is available 

that, despite the petitioner’s due diligence, was not available when the record 

closed. See title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. 

§ 1201.115). After fully considering the filings in this appeal, we conclude that 

the petitioner has not established any basis under section 1201.115 for granting 

the petition for review. Therefore, we DENY the petition for review and 

AFFIRM the compliance initial decision, which is now the Board’s final 

decision. 5 C.F.R. § 1201.113(b). 

¶2 The appellant filed a Board appeal challenging his indefinite suspension. 

Spurlock v. Department of the Air Force, MSPB Docket No. CH-0752-13-0272-1, 

Initial Appeal File (IAF), Tab 1. The administrative judge affirmed the indefinite 

suspension, but the Board reversed the initial decision, ordering the agency to 

cancel the action. See Spurlock v. Department of the Air Force, MSPB Docket 

No. CH-0752-13-0272-I-2, Final Order (May 1, 2015). 

¶3 In July 2015, the appellant filed a petition for enforcement. Spurlock v. 

Department of the Air Force, MSPB Docket No. CH-0752-13-0272-C-1, 

Compliance File (CF), Tab 1. After the parties submitted argument and evidence, 

the administrative judge issued a compliance initial decision, finding the agency 

in compliance. CF, Tab 13, Compliance Initial Decision (CID) at 1. The 

appellant has filed a petition for review. Compliance Petition for Review (CPFR) 

File, Tab 1. The agency has filed a response. CPFR File, Tab 4.

¶4 When the Board reverses a personnel action, it orders that the appellant be 

placed, as nearly as possible, in the situation he would have been in had the 

wrongful personnel action not occurred. Vaughan v. Department of 
3

Agriculture, 116 M.S.P.R. 319, ¶ 5 (2011). The agency bears the burden to prove 

compliance with the Board’s order. Id. An agency’s assertions of compliance 

must include a clear explanation of its compliance actions supported by 

documentary evidence. Id. The appellant may rebut the agency’s evidence of 

compliance by making specific, nonconclusory, and supported assertions of 

continued noncompliance. Id.

¶5 Below, the agency provided a significant amount of evidence to prove that 

it had complied with the Board’s order to cancel the indefinite suspension. That 

evidence included, inter alia, detailed documentation of its back pay calculations. 

CF, Tab 3 at 10, Tab 9 at 6-15. Citing this and other evidence, the administrative 

judge concluded that the agency had met its burden of proving that it provided the 

appropriate amount of back pay and took all other necessary steps to cancel the 

appellant’s indefinite suspension. CID at 2-5. 

¶6 On review, the appellant has simply alleged that he is “supremely confident 

that [the] back pay provided is not accurate.” CPFR File, Tab 1 at 4. However, 

this nonspecific and conclusory assertion, without any supportive evidence or 

explanation, is insufficient to rebut the agency’s evidence of compliance and 

provides no basis for disturbing the compliance initial decision. See 

Vaughan, 116 M.S.P.R. 319, ¶ 5.

¶7 Aside from his nonspecific assertion that the back pay he received was 

inaccurate, the appellant presented argument and evidence that he was medically 

incapacitated from October 27-December 20, 2015. CPFR File, Tab 1 at 4-14. 

Because of that, the appellant requested “an extension to the Show Cause 

response” until January 15, 2016. Id. at 4. However, the appellant responded to 

the administrative judge’s final deadline before the start of his alleged medical 

incapacitation and without any indication that he needed additional time to 

respond further. Compare CF, Tab 11 at 5-6 (setting a deadline of 

October 27, 2015, for the appellant to show why his petition should not be 

dismissed), with CF, Tab 12 (appellant’s response, dated October 21, 2015). 
4

Therefore, it appears that the appellant’s alleged medical incapacitation had no 

impact on the proceedings below. In addition, the appellant had until 

January 21, 2016, to file his petition for review. CID at 7. Accordingly, even if 

the appellant was medically incapacitated, as he alleges, we discern no basis for 

delaying the proceedings or providing any other relief. The timing of the medical 

incapacitation almost entirely falls between the close of record below and the date 

of the administrative judge’s decision. Compare CPFR File, Tab 1 at 14 

(evidence of medical incapacitation from October 27-December 20, 2015), with 

CF, Tab 11 (administrative judge’s order, setting a final deadline of 

October 27, 2015, for the appellant to respond during the proceedings below), and 

CID at 1 (administrative judge’s compliance initial decision, dated December 17, 

2015). Thus, we affirm the compliance initial decision denying the appellant’s 

petition for enforcement.

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request further review of this final decision.

Discrimination Claims: Administrative Review

You may request review of this final decision on your discrimination 

claims by the Equal Employment Opportunity Commission (EEOC). See title 5 

of the U.S. Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you submit your 

request 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 your request 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, NE
5

Suite 5SW12G

Washington, D.C. 20507

You should send your request to EEOC no later than 30 calendar days after 

your receipt of this order. If you have a representative in this case, and your 

representative receives this order before you do, then you must file with EEOC no 

later than 30 calendar days after receipt by your representative. If you choose to 

file, be very careful to file on time.

Discrimination and Other Claims: Judicial Action

If you do not request EEOC to review this final decision on your 

discrimination claims, you may file a civil action against the agency on both your 

discrimination claims and your other claims in an appropriate U.S. district court. 

See 5 U.S.C. § 7703(b)(2). You must file your civil action with the district court 

no later than 30 calendar days after your receipt of this order. If you have a 

representative in this case, and your representative receives this order before you 

do, then you must file with the district court no later than 30 calendar days after 

receipt by your representative. If you choose to file, be very careful to file on 

time. 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 
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prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) 

and 29 U.S.C. § 794a.

FOR THE BOARD:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board