UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD

MARIA THERESA BOUCHE R, Appellant,

v.
UNITED STATES POSTAL SERVICE, Agency. DOCKET NUMBER AT

- 0752

- 10

- 0453

- X

- 1

DATE: August 22, 2014



### THIS FINAL ORDER IS NONPRECEDENTIAL 1

Maria Theresa Boucher
, Huntsville, Alabama, pro se.

James M. Allen , Esquire, Memphis, Tennessee, for the agency.

BEFORE
Susan Tsui Grundmann, Chairman Anne M. Wagner, Vice Chairman Mark A. Robbins, Member

FINAL ORDER ¶1 The administra tive judge issued a compliance i nitial d ecision finding the agency in noncomp liance with the March 22, 2013 initial d ecision. For the reasons discussed below, we find the agency in complian ce and DISMISS the petition for enforcement.

1 A nonprecedential order is one that the Bo ard has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Boar d and administrative judges are not require d to follow or distinguish them in any future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 signific antly contributing to the Board’ s case law. See 5 C.F.R. § 1201.117 (c).2

DISCUSSION OF ARGUME NTS AND EVIDENCE ON COMPLIANCE ¶2 On November 15, 2012, the Board issued its final decision mitigating the appellant’s removal to a 90

- day suspension. Boucher v. U.S. Postal Service
, 118 M.S.P.R. 640 (2012) . The Board ordered the agency to pay the appellant the correct amount of back pay, interest on back pay, and other benefits under the Back Pay Act and/or Postal Service Regulations, as appropriate. Id . at 13. ¶3 The appellant filed a petition for enforce ment on January 22, 2013, contending that the agency failed to pay her back pay, interest, and other benefits under the Back Pay Act and/or Postal Service Regulations, as appropriate. MSPB
Docket No. AT

- 0752

- 10

- 0453

- C

- 2, Compliance File (CF), Tab 1 at 1. On
March 22, 2013, the administra tive judge issued a compliance initial d ecision finding that the agency had failed to pay the appropriate amount of back pay and interest, and therefore was in noncompliance. CF, Initial Decision, Tab 4 at 2. ¶4 When the B oard finds a personnel action unwarranted or not sustainable, it orders that the appellant be placed, as nearly as possible, in the situation she
would have been had the wrongful personnel action not occurred. House v. Department of the Army
, 98 M.S.P.R. 530 , ¶ 9 (2005). The agency bears the burden to prove its compliance with a Board order. An agency’s assertions of compliance must include a clear explanation of its compli ance actions supported by documentary evidence. Vaughan v. Department of Agriculture
, 116 M.S.P.R.
319 , ¶ 5 (2011). The appellant may rebut the agency’s evidence of compli ance by making “specific, nonconclusory, and supported assertions of continued noncompliance.” Brown v. Office of Personnel Management
, 113 M.S.P.R. 325 , ¶ 5 (2010). ¶5 On J uly 5, 2013, and July 9, 2013, the agency filed evidence of compliance
, including calculations explaining the appellant’s back pay and interest, and a cancelled check representing payment of interest. MSPB Docket No. AT

- 0752

- 10

- 0453

- X

- 1, Compliance Referr al File (CRF), Tabs 3 and 4. The appellant
did not respond, although the Board advised her that she could respond to the3

agency’s evidence of compliance within 20 calendar days of the date of service of the agency ’s submissions. CRF, Tab 2 at 3

- 4

. ¶6 Beca use the appellant did not respond to the agency’s evidence of compliance, nor dispute that she received appropriate back pay and interest , we assume she is satisfied, find the agency 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 TO THE APPELL ANT REGARDING YOUR RIGHT TO REQUES T ATTORNEY FEES AND CO STS You may be entitled to be paid by the agency for your reasonable attorney fees and costs. To be paid, you must meet the requirements set out at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The regulations may be found at 5 C.F.R. §§ 1201.201 , 1201.202, and 1201.203. If you believe you meet these requirements, you must file a motion for attorney fees
WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You must file your attorney fees motion with the office tha t issu ed the initial decision

on your appeal.

NOTICE TO THE APPELL ANT 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 yo ur
reques t 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 ord er. See 5 U.S.C. § 7703 (b)(1)(A) (as rev. eff. Dec. 27,4

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 co ntained 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 inter est in providing pro bono representation for Merit Systems Protection Board appellants before the court. The Merit Systems Protection Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation i n a given case.

FOR THE BOARD:

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