UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD

ROBERT SPURLOCK, Appellant,

v.
DEPARTMENT OF THE AI R FORCE, Agency. DOCKET NUMBER CH

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DATE: May 12, 2016



### THIS FINAL ORDER IS NONPRECEDENTIAL *

Robert Spurlock , Freeburg, Illinois, pro se. Kevin K. Spradling , Esquire, and L oren 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* A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future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 t o 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 t itle 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 grantin g 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

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- 1 , Initial Appeal File (IAF), Tab 1. The administrative jud ge 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

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- 2, Final Order (May 1, 2015). ¶3 In July 2015, the a ppellant filed a petition for enforcement. Spurlock v. Department of the Air Force , MSPB Docket No. CH

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- 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 t he 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 of3

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 actio ns 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 admin istrative 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 simp ly 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 evi dence 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 appella nt 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

Therefor e, 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 decis ion. 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 be low), 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 APPELL ANT REGARDING YOUR FURTHER REVIEW RIGHT S 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 Stree t, NE5

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 m ust 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 y our 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 disab ling condition, you may be entitled to representation by a court

- appointed lawyer and to waiver of any requirement of6

prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e

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and 29 U.S.C. § 794a

.

FOR THE BOARD:

Washington, D.C. ______________________________ William D. Spencer Clerk of the Board