UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

BARBARA R. KING,

Appellant,

v.

DEPARTMENT OF THE AIR FORCE,

Agency.

DOCKET NUMBER

DA-0752-09-0604-C-1

DATE: April 9, 2015

THIS ORDER IS NONPRECEDENTIAL1

Barbara R. King, San Antonio, Texas, pro se.

Lawrence Lynch, Joint Base San Antonio, Randoloph, Texas, for the 

agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

REMAND ORDER

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

decision, which found the agency not in compliance with the Board’s prior final 

order reversing the appellant’s reduction in grade and pay. For the reasons 

discussed below, we GRANT the agency’s petition for review IN PART, 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

REVERSE the compliance initial decision IN PART, and REMAND the case to 

the regional office for further adjudication in accordance with this Order. 

DISCUSSION OF ARGUMENTS ON REVIEW

¶2 In a remand initial decision dated October 3, 2012, the assigned 

administrative judge reversed the appellant’s reduction in grade and pay, and 

found that the appellant proved her affirmative defense of whistleblower reprisal. 

MSPB Docket No. DA-0752-09-0604-B-1, Remand Initial Decision (Oct. 3, 

2012). The administrative judge’s remand initial decision became the Board’s 

final order when neither party filed a petition for review. See 5 C.F.R. 

§ 1201.113. On December 18, 2012, the appellant filed a request for damages 

based upon the administrative judge’s order of corrective action, see MSPB 

Docket No. DA-0752-09-0604-P-1, Addendum Appeal File (AAF),

2 and during 

the pendency of that proceeding, the appellant raised allegations of agency 

noncompliance with the Board’s final order, see AAF, Tab 16. Following a 

hearing, the administrative judge found the agency not in compliance with the 

Board’s final order because, among other things, the agency did not adequately 

explain why it took certain steps in calculating the appellant’s back pay, it did not 

award her an additional $5,000 relocation bonus, and it did not demonstrate that it 

properly calculated her Federal Employees’ Retirement System (FERS) 

contributions and Thrift Savings Plan (TSP) contributions. 3

 CID at 5-7, 9.

 2 The administrative judge joined the appellant’s motion for damages and her petition 

for enforcement. AAF, Tab 55, Compliance Initial Decision (CID) at 1 n.1. For the 

purposes of clarity, we are SEVERING the joined appeals and addressing only the 

appellant’s petition for enforcement in this order. The agency’s petition for review of 

the administrative judge’s damages award remains pending and will be addressed in a 

separate order in MSPB Docket No. DA-0752-09-0604-P-1.

3 As explained below, after the appellant’s reduction in grade and pay, but prior to the 

administrative judge’s initial decision, the appellant transferred to a different position 

within the agency. The appellant does not allege that she has been improperly restored 

to a different position of employment following the reversal of the agency’s adverse 

action.
3

¶3 The agency has filed a petition for review arguing that it fully complied 

with the Board’s prior final order by properly calculating the appellant’s back 

pay, and retirement and TSP contributions. Compliance Petition for Review 

(CPFR) File, Tab 1. In support of its petition, the agency has supplied a 

declaration from an agency civilian pay analyst, which postdates the initial 

decision, further detailing the way in which it calculated the appellant’s back pay. 

Id. at 11-13. The appellant has filed a response in opposition to the petition for 

review challenging the agency’s reliance on the new declaration and also arguing

that the agency has failed to demonstrate that she has been restored to the status 

quo ante. CPFR File, Tab 3.

The agency has demonstrated that it properly calculated the appellant’s back pay 

through August 28, 2011.

¶4 We offer the following brief facts as background to the compliance issues 

addressed on petition for review. The agency reduced the appellant in grade and 

pay from a YA-02 Sexual Assault Prevention & Response Program Manager, to a 

GS-7, Step 10 Relocation Assistance Technician effective July 19, 2009.

4

 AAF, 

Tab 17 at 15. Both positions were in Texas. Id. The appellant applied for and 

received a transfer to a GS-11, Step 1 position in California effective October 11, 

2009, and 2 years later, she applied for and received another transfer to a GS-13, 

Step 1 position in Colorado effective August 28, 2011. Id. at 20, 46. At the time 

of the appellant’s July 2009 reduction in grade and pay, her annual salary

(including locality pay) was $79,762, and her annual salary thereafter did not 

match or exceed this amount until she accepted the GS-13 position in Colorado in 

August 2011. See id. at 15, 46.

¶5 In her compliance initial decision, the administrative judge found that the 

agency failed to adequately explain the manner in which it calculated the 

 4 At the time of her reduction in grade and pay, the appellant’s position was classified 

under the National Security Personnel System (NSPS). NSPS has since been abolished. 

See Arrington v. Department of the Navy, 117 M.S.P.R. 301, ¶¶ 2, 4 (2012).
4

appellant’s back pay. Specifically, the administrative judge found that the agency 

did not explain why it calculated the appellant’s back pay using the rate of pay 

for a GS-11, Step 10 position as opposed to that of a GS-12, Step 6 position, as 

sought by the appellant. CID at 4. In making this finding, the administrative 

judge explained that the base rate of pay for the appellant’s position when she 

was reduced in grade and pay was established by the now-abolished NSPS and 

that this base rate of pay, $69,278, was equivalent to the base pay rate of GS-12, 

Step 6 position as of 2009. CID at 5. The administrative judge found that the 

agency failed to explain why it used the lower base rate of pay for a GS-11, Step 

10 position, when calculating the appellant’s back pay. CID at 5-6.

¶6 On review, the agency has submitted a declaration from an agency civilian 

pay specialist, which explains that the agency used the 2009 Los Angeles rate of 

pay for a GS-11, Step 10 because that amount, $81,476 (including locality pay),

was the closest total salary to that of the appellant’s former salary, $79,762,

without going below this amount.

5

 The documents submitted by the agency on 

review reflect that, if the appellant were to be compensated at the 2009 GS-12, 

Step 6 salary level for the Los Angeles area, as suggested by the administrative 

judge, then the appellant’s total salary (including locality pay) would be $87,644, 

or almost $8,000 more than her total salary when the adverse action occurred in 

2009.

6

 CPFR File, Tab 1 at 16. Based upon this explanation, we find that the 

 5 Pursuant to agency policy, because the appellant transferred to the California position 

effective October 11, 2009, the agency used the 2009 GS pay scale for Los 

Angeles-Long Beach-Riverside, California to calculate her back pay between July 2009 

and August 2011. CPFR File, Tab 1 at 12.

6 The administrative judge did not have the benefit of this explanation below. 

Reviewing the documents submitted below in light of this explanation, we note that 

although the base rate of pay for the appellant’s position under NSPS was higher than 

under the GS scale, the locality pay the appellant received under the GS scale was 

greater. Compare AAF, Tab 17 at 15 (showing the appellant’s prior NSPS position had 

a base rate of $70,021 and locality pay of $9,705, for a total salary of $79,726), with id. 

at 21 (showing the appellant’s transfer to a GS-11, Step 10 position with a base rate of 

$64,403 and locality pay of $17,073, for a total salary of $81,476). Although the 
5

agency has adequately explained why it selected the 2009 Los Angeles locality 

GS-11, Step 10 rate of pay versus the GS-12, Step 6 rate to calculate the 

appellant’s back pay, and we find that the agency has demonstrated compliance 

with the Board’s final order regarding how it calculated the appellant’s back pay 

between July 19, 2009, and August 28, 2011.7

 Additionally, because we find that 

the agency correctly calculated the appellant’s back pay during this time, we find 

no reason to conclude that her FERS retirement contributions prior to August 28, 

2011, were improperly calculated.

¶7 Accordingly, we REVERSE the administrative judge’s finding that the

agency is not in compliance with the Board’s final order insofar as she concluded 

that the agency failed to adequately explain why it used the GS-11, Step 10 rate 

of pay in calculating the appellant’s back pay between July 2009 and August 

2011. Although we have reached this conclusion based on the explanation 

contained within the agency’s declaration, which was not presented to the 

administrative judge below, the Board has considered, in previous matters of 

compliance with a final Board order, a more complete explanation of an agency’s

compliance effort offered for the first time on review in the interest of ensuring 

that compliance has been effected. See McDonough v. U.S. Postal 

Service, 60 M.S.P.R. 122, 125-26 (1993). The appellant, moreover, has had an 

opportunity to respond to this information on review, see CPFR File, Tab 3, and 

we find no basis in the record to conclude that the agency erred in its back pay 

calculations prior to August 28, 2011.

 

appellant’s base rates of pay may have differed before and after her reduction in grade 

and pay because of the abolishment of NSPS, for the limited purpose of demonstrating 

that she received the correct amount of back pay, we find no error with the agency’s 

reliance on the GS-11, Step 10 rate of pay for the Los Angeles-Long Beach-Riverside, 

California locality.

7 The agency’s declaration further reflects that the appellant’s pay rate was increased 

effective January 2010, and that this pay rate was used to calculate her back pay 

through August 2011 because of a wage freeze effective January 2011. CPFR File, Tab 

1 at 12, 17-18.
6

The appellant has not demonstrated that she is entitled to an additional $5,000 

relocation bonus.

¶8 During the proceedings below, the appellant also alleged that the agency 

failed to pay her the full relocation bonus she would have received had she 

transferred to the California position in October 2009 without being reduced in 

grade and pay. AAF, Tab 1 at 6 (“a lateral transfer would [have] resulted in a 

$10,000 bonus versus the $5,000 bonus received due to taking the assignment as a 

promotion.”). The administrative judge determined that this $5,000 differential 

was part of the back pay award to which the appellant was entitled and that the 

agency was not in compliance with the Board’s final order by failing to award her 

this additional amount. CID at 9. On review, the agency submits that relocation 

bonuses are discretionary and that the appellant has failed to submit any evidence 

that she would have received an additional $5,000 relocation bonus had she not 

been reduced in grade and pay. CPFR File, Tab 1 at 8-9, 36-44.

¶9 Although the Board has held that a bonus awarded in the routine and 

ordinary course of employment may properly be considered part of a back pay

award, see, e.g., Coffey v. U.S. Postal Service, 77 M.S.P.R. 281, 285 (1998), we 

find no evidence in the record establishing the appellant’s per se entitlement to an

additional $5,000 relocation bonus under the facts of this case. On review, the 

agency has submitted the Department of Defense’s policy for the award of 

recruitment and relocation bonuses, which reflects that a relocation bonus of “up 

to 25 percent of basic pay may be offered to certain current employees who must 

relocate to accept a position in a different commuting area.” CPFR File, Tab 1 at 

39. The appellant, however, has submitted no evidence establishing a pattern of 

such awards, and we find no basis in the record to conclude that she would have 

received an additional $5,000 relocation bonus but for her wrongful reduction in 

grade and pay. We agree with the agency, moreover, that the appellant has not 

explained how she concluded that she would have received a $10,000 relocation 

bonus had she not been reduced in grade and pay, see CPFR File, Tab 1 at 9;
7

pursuant to the agency’s relocation bonus program, the appellant would have been 

eligible for a bonus of up to 25 percent of her basic pay, or approximately 

$16,100, see AAF, Tab 1 at 49. The appellant, however, has offered no 

explanation as to why she believes she would have been entitled to a $10,000

bonus, as opposed to either the $5,000 relocation bonus she received, or to any 

other, greater amount, up to $16,100.

¶10 We therefore REVERSE the administrative judge’s compliance initial 

decision insofar as it found the agency not in compliance based on the failure to 

award the appellant an additional $5,000 relocation bonus as part of her back pay 

award. See CID at 9.

We remand the petition for enforcement for further development of whether the 

appellant is currently at the correct step in her GS-13 position.

¶11 In addition to challenging the rate of pay used by the agency in calculating

her back pay award, the appellant has also alleged that she currently would be at a

higher step in her GS-13 position had the agency not taken the reduction in grade 

and pay in July 2009. CPFR File, Tab 3 at 6 (“[the appellant] should have 

entered into service as a GS-13 Step 4 versus a GS-13 Step 1 . . . her current GS13 level [should be changed] from a GS-13 Step 3 to a GS-13 Step 7.”). The 

administrative judge did not address whether the reversal of the appellant’s 

reduction in grade and pay had any effect on the appellant’s current step (and 

corresponding rate of pay), and we are unable to discern from the record whether 

the appellant would be at a higher step in her current GS-13 position had the 

reduction in grade and pay not occurred. See Joos v. Department of the 

Treasury, 79 M.S.P.R. 342, 348 (1998) (back pay includes all step increases that 

an employee would have received but for the wrongful act). We accordingly 

REMAND to the administrative judge for further development of the record on 

whether the appellant is currently at the same step had the reduction in grade and 
8

pay not occurred in 2009.

8

 See McDonough, 60 M.S.P.R. at 129. Additionally, 

because the appellant’s FERS retirement and TSP contributions between 

August 28, 2011, and the present could be affected if the appellant is entitled to 

be paid at a higher step (and corresponding higher rate of pay) between August 

28, 2011, and the present, we also REMAND to the administrative judge on 

whether the agency can demonstrate that the appellant has received the proper 

FERS retirement and TSP contributions during this time.

The administrative judge’s remaining findings of agency noncompliance are 

remanded for further development of the record.

¶12 Finally, the administrative judge found that the agency failed to 

demonstrate that it complied with the Federal Retirement Thrift Investment 

Board’s regulations concerning the processing of the appellant’s TSP 

contributions, and that it also failed to demonstrate that it removed all references 

to the reduction in grade and pay from her personnel file. CID at 7-8. The 

agency argues on review that it demonstrated compliance before the 

administrative judge below. CPFR File, Tab 1 at 6-7, 9. Based on the 

compliance issues identified above, which are being remanded to the 

administrative judge, the appellant’s personnel records and TSP contributions 

may also need to be further corrected or amended. We therefore also REMAND 

these issues to the administrative judge for further development of the issue of

agency compliance. On remand, the administrative judge may consider any 

 8 In remanding this issue, we recognize that this determination is complicated by the 

fact that the appellant’s position prior to her reduction in grade and pay was classified 

under NSPS, and that after she accepted the higher-level position in California, but 

before she transferred to Colorado, NSPS was abolished. The appellant argued below 

that prior to her conversion to NSPS, she held a GS-12 position but that, after NSPS 

was abolished, she was wrongly placed into a GS-11, Step 10 position. AAF, Tab 1 at 

6. While we find that the use of the rate of pay for the GS-11, Step 10 position was 

correct for the limited purposes of calculating the appellant’s back pay, we cannot 

discern from the record whether she would have been placed in a higher step upon her 

transfer to her current position in August 2011 had the 2009 reduction in grade and pay 

never been effected. Remand of this issue is therefore warranted.
9

additional information the agency has presented on petition for review, as well as 

any other evidence demonstrating its compliance with the Board’s prior final 

order. 

ORDER

For the reasons discussed above, we REMAND this case to the regional 

office for further adjudication in accordance with this Remand Order.

FOR THE BOARD:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board