UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

SHELLI FINCH,

Appellant,

v.

DEPARTMENT OF VETERANS 

AFFAIRS,

Agency.

DOCKET NUMBER

DE-0752-12-0006-C-1

DATE: August 29, 2014

THIS FINAL ORDER IS NONPRECEDENTIAL1

Vernon R. Cook, Oacoma, South Dakota, for the appellant.

Aleksander D. Radich, Esquire, Cheyenne, Wyoming, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Anne M. Wagner, Vice Chairman

Mark A. Robbins, Member

FINAL ORDER

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

decision, which denied her petition for enforcement. Generally, we grant 

petitions such as this one only when: the initial decision contains erroneous 

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

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

interpretation of statute or regulation or the erroneous application of the law to 

the facts of the case; the 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, and based on the following 

points and authorities, 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 initial decision, which is now the 

Board’s final decision. 5 C.F.R. § 1201.113(b). 

BACKGROUND

¶2 Effective September 6, 2011, the agency removed the appellant from her 

position as a GS-6 Licensed Practical Nurse (LPN). MSPB Docket No. DE-0752-

12-0006-I-1 (0006-I-1), Initial Appeal File (IAF), Tab 4, Subtab 4a. The 

appellant filed a timely appeal. 0006-I-1, IAF, Tab 1. While that appeal was 

pending, the agency rescinded the removal action and moved to dismiss the 

appeal as moot. 2 Id., Tabs 12, 15. The appellant argued that the appeal was not 

 2 After rescinding the September 6 removal, the agency reissued a new proposal notice 

and removed the appellant for the second time, effective February 5, 2012. See MSPB

Docket No. DE-0752-12-0205-I-2 (0205-I-2), IAF, Tab 15, Initial Decision (0205-I-2 

ID) at 2-3. The appellant timely appealed the second removal. 0205-I-2 ID at 3. On 

March 8, 2012, the administrative judge joined the appellant’s two pending appeals, 

MSPB Docket Nos. DE-0752-12-0006-I-1 and DE-0752-12-0205-I-1, for adjudication. 

0006-I-1, IAF, Tab 23. On May 24, 2012, the joined appeals were dismissed without 

prejudice to refile, and were automatically refiled by the field office on June 29, 2012. 

0006-I-1 IAF, Tab 32 at 3; MSPB Docket No. DE-0752-12-0006-I-2 (0006-I-2), IAF, 

Tab 1, Initial Decision (0006-I-2 ID) at 3. On September 5, 2012, the administrative 

judge conducted a joint hearing of both appeals. 0006-I-2 ID at 1 n.1. The 

administrative judge issued separate initial decisions in the two appeals. 0006-I-2 ID; 

0205-I-2 ID.
3

moot because the agency had not returned her to the status quo ante because it

had failed to restore her to an LPN position, pay all her back pay, provide 

adequate documentation regarding the calculation of her back pay, properly 

restore her health benefits, and expunge all references to the removal from her 

personnel records. Id., Tabs 16, 18, 25. She also alleged discriminatory disparate 

treatment and retaliation for prior equal employment opportunity (EEO) activity. 

Id., Tab 18 at 10-20. 

¶3 On October 26, 2012, the administrative judge issued an initial decision 

finding that the agency: (1) had demonstrated a compelling reason for detailing 

the appellant out of her position of record; (2) submitted sufficient documentation 

showing that the appellant was paid the appropriate amount of back pay; and 

(3) processed the appellant’s request for restoration of health benefits in 

accordance with her election. 0006-I-2 ID at 5-9. However, the administrative 

judge found that the agency failed to expunge all references to the appellant’s 

termination from her Official Personnel File, and, accordingly, the appeal was not 

moot. 0006-I-2 ID at 9-10. As the appeal was not moot, the administrative judge 

proceeded to adjudicate the removal appeal and found that the agency had failed 

to provide the appellant minimal due process. 0006-I-2 ID at 10-13. The

administrative judge thus reversed the removal action and ordered the agency to 

cancel the removal, restore the appellant effective September 6, 2011, and 

provide her with all back pay and benefits.

3

 0006-I-2 ID at 17-18.

¶4 The appellant petitioned for review of the initial decision, arguing that the 

administrative judge erred in upholding the agency’s calculation of her back pay 

and restoration of her health benefits and failed to provide her with a fair hearing. 

0006-I-2, Petition for Review (PFR) File, Tab 1. The Board denied the 

appellant’s petition for review and forwarded her allegations of the agency’s

noncompliance pertaining to back pay and benefits to the field office for 

 3 The administrative judge also determined that the appellant had failed to prove the 

affirmative defense of reprisal for prior EEO activities. 0006-I-2 ID at 13-18.
4

adjudication as a petition for enforcement. Id., Tab 6 at 2; MSPB Docket No. 

DE-0752-12-0006-C-1 (C-1); Compliance Appeal File (CAF), Tab 1.

¶5 On December 5, 2013, the administrative judge denied the petition for 

enforcement, finding that the agency had appropriately handled the appellant’s 

premium back pay and restoration of health benefits. CAF, Tab 7, Compliance 

Initial Decision (CID) at 3-5.

¶6 On January 9, 2014, the appellant filed a “compliance petition for 

supplemental review and/or reconsideration” of MSPB Docket Numbers 

DE-0752-12-0006-I-1 and DE-0752-12-0205-I-14

. C-1, PFR File, Tab 1 at 1. 

The Office of the Clerk of the Board docketed the filing as a petition for review 

of the compliance initial decision in MSPB Docket No. DE-0752-12-0006-C-1. 

Id., Tab 2.

DISCUSSION OF ARGUMENTS ON REVIEW

¶7 In her petition for review, the appellant, among other things, attacks the 

compliance initial decision, arguing again that the agency: (1) improperly 

calculated her back pay; and (2) improperly reinstated her Federal Employee 

Health Benefits (FEHB) retroactively without consulting her. C-1, PFR File, Tab 

1 at 9-13. The rest of her compliance petition for review attacks the 

administrative judge’s handling of the hearing and the decisions on the merits of 

the two removal actions. Id. at 1-9, 13-16. However, the Board issued final 

orders on the merits of the adverse actions on September 9, and 13, 2013, and the 

appellant was advised of her appeal rights at that time. See 0205-I-2, PFR File, 

Tab 6; 0006-I-2, PFR File, Tab 6. It is well settled that an employee’s arguments 

on the merits of her case will not be considered by the Board in a petition for 

review of the denial of a petition for enforcement. Connor v. U.S. Postal Service, 

 4 In a September 9, 2013 final order, the Board affirmed the initial decision that 

mitigated the appellant’s second removal to a 30-day suspension. 0205-I-2, PFR File, 

Tab 6.
5

50 M.S.P.R. 389, 395 (1991); Nelson v. Veterans Administration, 27 M.S.P.R. 

133, 135 (1985). Accordingly, only the appellant’s arguments pertaining to the 

agency’s compliance with the October 12, 2012 initial decision and the 

September 13, 2013 final order will be considered here.

The agency properly determined the appellant’s back pay.

¶8 The appellant argues that the agency improperly calculated her premium 

back pay for Sundays and holidays by using an “arbitrary methodology” that 

failed to return her to the status quo ante, and that the administrative judge erred 

by affirming the agency’s calculations. C-1, PFR File, Tab 1 at 9-13. 

Specifically, she argues that the initial decision is contrary to law because: (1) it 

relies on case law pertaining to overtime back pay, which should not be applied to

premium back pay; and (2) it upholds a methodology that fails to compensate her 

in accordance with 5 C.F.R § 550.805(a)(1), which requires that the employee 

“shall be deemed to have performed service for the agency during the period 

covered by the corrective action.” Id. 

¶9 When the Board orders an agency action cancelled, the ultimate goal is to 

place, as nearly as possible, the appellant in the status quo ante; that is, the 

situation in which she would have been had the wrongful personnel action not 

occurred. Kerr v. National Endowment for the Arts, 726 F.2d 730, 733 (Fed. Cir.

1984); Owens v. Department of Transportation, 99 M.S.P.R. 377, ¶ 6 (2005). 

This obligation requires paying her all the back pay to which she is entitled under 

the Back Pay Act, including the pay, annual and holiday leave, allowances, or 

differentials plus interest she normally would have earned or received but for the 

wrongful personnel action. See Vidal v. U.S. Postal Service, 84 M.S.P.R. 395, 

¶ 10 (1999). It also generally includes the premium pay she would have received 

but for the action. Owens, 99 M.S.P.R. 377, ¶ 6. 

¶10 In the instant appeal, the record shows that the agency determined the 

premium pay due to the appellant by calculating the percentage of Sundays and 
6

holidays she worked for a 21⁄2-year period prior to the removal notice and then

using that percentage to extrapolate the premium pay she would have earned but 

for the removal. 0006-I-1, IAF, Tab 19 at 8. The administrative judge found this 

method was reasonable or workable, and consistent with Board precedent. CID at 

3-4; see House v. Department of the Army, 98 M.S.P.R. 530, ¶ 9 (2005).

¶11 Contrary to her argument, it is well settled that an appellant’s entitlement to 

premium back pay is computed using the same principles applied to overtime 

back pay. See House, 98 M.S.P.R. 530, ¶ 9; Blanchard v. Department of Justice,

40 M.S.P.R. 513, 515-16 (1989). Both overtime and premium back pay may be 

calculated, as the agency did here, by using the average premium hours worked 

by the employee prior to the removal to extrapolate the premium hours she would 

have worked but for the removal. See id. The Board will not nullify the method 

employed by the agency in calculating a back pay award absent 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); Vidal, 

84 M.S.P.R. 395, ¶ 12. We discern no error in the administrative judge’s finding 

that the agency applied a reasonable or workable method to determine the 

appellant’s premium back pay.

¶12 Next, the appellant argues that the agency’s methodology for calculating her 

premium back pay violates 5 C.F.R. § 550.805(a)(1) because it fails to 

compensate her as if she “performed service for the agency during the period 

covered by the corrective action.” C-1, PFR File, Tab 1 at 12-13. In determining 

the appropriate amount of premium back pay, however, the agency is not required 

to reconstruct the actual times the appellant would have worked. See Welber v. 

U.S. Postal Service, 72 M.S.P.R. 244, 246 n.2 (1996). The agency may use either 

of the methods discussed above for computing the premium pay that the appellant 

likely would have earned but for the wrongful personnel action. Id. In this case, 

the agency used an acceptable method when it calculated the appellant’s premium 

back pay based on her history of working premium assignments for the 21⁄2-year 
7

period before the removal. We discern no reason to find that this time period was 

unreasonable or unworkable. See Ball, 91 M.S.P.R. 364, ¶ 10; Vidal, 84 M.S.P.R. 

395, ¶ 12. Accordingly, we agree with the administrative judge that the agency’s 

calculation of premium back pay was reasonable or workable, and that the agency 

paid the appellant an appropriate amount of back pay. CID at 4. 

The agency properly reinstated the appellant’s health benefits.

¶13 The appellant next argues that the agency improperly retroactively 

reinstated her FEHB without consulting her, thereby depriving her of her 

statutory right to elect when to reinstate her FEHB. 5

 C-1, PFR File, Tab 1 at 

12-13. The administrative judge determined that the appellant made a valid 

election to retroactively reinstate her FEHB when, on January 3, 2012, she signed 

a Health Benefits Election Form, Standard Form (SF) 2809, indicating an 

effective date of September 6, 2011. CID at 4-5; see 0006-I-1, IAF, Tab 19 at 14.

¶14 On review, the appellant fails to present any evidence or argument to 

suggest that her signed SF-2809 should not be considered her valid election to 

have her FEHB retroactively restored. See C-1, PFR File, Tab 1 at 12-13. We 

therefore agree with the administrative judge that the appellant made a valid 

election to reinstate her FEHB effective September 6, 2011, and that the agency 

took the appropriate actions to effectuate this election. See CID at 4-5.

 5

The appellant’s petition for review also argues that she never elected to reinstate her 

FEHB during the period of November 28, 2011, through January 2-3, 2012, and that she 

was forced to pay for health benefits that were not in effect from November 28, 2011, 

through February 4, 2012. C-1, PFR File, Tab 1 at 12-13. However, she did not present 

these arguments in her petition for enforcement or at any time before the administrative 

judge. See 0006-I-2, PFR File, Tab 1 at 6-9; CAF, Tab 6 at 3. The Board will not 

consider an argument raised for the first time in a petition for review absent a showing 

that it is based on new and material evidence not previously available despite the 

party’s due diligence. Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271 

(1980). The appellant has not attempted to show that her new argument is based on new 

or material evidence not previously available. C-1, PFR File, Tab 1 at 12-13. 

Accordingly, the appellant’s new arguments will not be considered for the first time on 

review.
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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:

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
9

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:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board