UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

TRAVIS E. WILKES,

Appellant,

v.

DEPARTMENT OF VETERANS 

AFFAIRS,

Agency.

DOCKET NUMBER

DA-0432-11-0466-C-1

DATE: September 22, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL1

Daniel J. Gamino, Esquire, Oklahoma City, Oklahoma, for the appellant.

Joan M. Green, Esquire, Oklahoma City, Oklahoma, 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 following the Board’s 

reversal of his removal. Generally, we grant petitions such as this one only when: 

the initial decision contains erroneous findings of material fact; the initial 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

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 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. Except as expressly MODIFIED by this Final Order to supplement 

the analysis concerning the reinstatement of the appellant’s Thrift Savings Plan 

(TSP) account loan, we AFFIRM the compliance initial decision. 

BACKGROUND

¶2 The appellant filed a petition for enforcement of the Board’s Final Order in 

Wilkes v. Department of Veterans Affairs, MSPB Docket No. DA-0432-11-0466-

I-3, Final Order (Aug. 21, 2014), which ordered the agency to cancel his removal 

and retroactively restore him to duty, effective April 23, 2011,

2 with back pay and 

benefits. In his petition, the appellant alleged that the agency failed to comply 

with the Board’s order because it had not provided a complete written narrative 

account of the actions taken to restore him and because he had not been fully 

reinstated. Compliance File (CF), Tab 1 at 5. 

¶3 The administrative judge found that the agency adequately explained its 

back pay calculations and that the appellant’s claim for an additional $10,219.57 

was based on computation errors. CF, Tab 20, Compliance Initial Decision (CID) 

 2 The Board’s Final Order contained a typographical error and referred to the 

appellant’s effective restoration date as April 23, 2014. Wilkes v. Department of 

Veterans Affairs, MSPB Docket No. DA-0432-11-0466-I-3, Final Order (Aug. 21, 

2014). The appellant’s effective restoration date should be April 23, 2011. 
3

at 2-3. The administrative judge further found that the parties merely used 

different rounding methods to calculate the deductions for life insurance 

premiums and the agency’s rounding method favored the appellant by $24.65. 

CID at 3. The administrative judge also found that, to the extent that the agency 

erred by not providing a written narrative statement setting forth its back pay 

calculations, the error was harmless because the agency provided the appellant 

and his representative with a spreadsheet explaining the calculations and they had 

the opportunity to ask agency officials about the spreadsheet and the back pay 

calculations. Id. The administrative judge found that the agency was in 

compliance regarding the appellant’s TSP account because the agency could not 

change the distribution of funds in his account, but he could, by directly 

contacting the Federal Retirement Thrift Investment Board (FRTIB). CID at 3-4. 

The administrative judge also found that the appellant cited no regulation or rule 

requiring the agency to reimburse him for the tax consequences of a TSP loan 

converted to a withdrawal when he separated from service. CID at 4-5.

¶4 The appellant has filed a petition for review. Compliance Petition for 

Review (CPFR) File, Tab 1. The agency has filed an opposition to the appellant’s 

petition for review. CPFR File, Tab 3. 

DISCUSSION OF ARGUMENTS ON REVIEW

The agency provided the appellant with adequate notice of how it calculated his 

back pay award.

¶5 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 

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 
4

compliance by making specific, nonconclusory, and supported assertions of 

continued noncompliance. Id.

¶6 The appellant argues that the agency failed to comply with the relief order 

because it never provided a written narrative explaining how his back pay award 

was calculated. CPFR File, Tab 1 at 6-8, 10-11, 14-15. The Board ordered the 

agency to inform the appellant in writing of the actions taken to comply with the 

Board’s relief order. Wilkes v. Department of Veterans Affairs, MSPB Docket 

No. DA-0432-11-0466-I-3, Final Order, ¶ 11 (Aug. 21, 2014). The agency sent 

the appellant a letter dated October 9, 2014, informing him that it believed it was 

in full compliance. CF, Tab 8 at 23-25. The appellant argued that this letter was 

deficient because the agency had not provided affidavits or written documentation 

of transactions with other agencies, or the names and addresses of the person 

responsible for implementing the relief order. CF, Tab 9 at 4-5. On November 3, 

2014, the administrative judge issued an order summarizing the appellant’s 

continuing compliance concerns. CF, Tab 12. In that order, the administrative 

judge stated, among other things, “I am requiring the agency to afford the 

appellant a narrative explanation/accounting of how the back pay payment was 

calculated and what deductions [were] taken from it, including the dates of the 

back pay period.” Id. at 2. In response to this order, the agency filed an 

explanation on January 29, 2015. CF, Tab 15. 

¶7 We find that the agency provided adequate written notice concerning the 

implementation of the back pay award. A number of the compliance issues 

originally raised by the appellant concerning the back pay calculations were 

resolved through the exchange of letters, documentary evidence, telephone status 

conferences, and meetings. CID at 2. The appellant argues that the agency’s 

letter failed to comply with the Board’s order because it did not contain the name 

and address of the person responsible for compliance; however, the record 

contains a sworn statement from an agency employee attesting that he 

“coordinated and monitored” the appellant’s reinstatement. CF, Tab 10 at 8. The 
5

appellant’s own accounting firm was able to conduct a complete review of the 

agency’s back pay calculations based on the documentary evidence provided by 

the agency, without needing additional documents, narratives, or explanations. 

CF, Tab 9, Exhibit (Ex.) H. Based on the foregoing, we find the agency complied 

with the relief order by informing the appellant in writing of the actions taken to 

comply with the order.

¶8 In addition to the requirements in the relief order, the administrative judge 

ordered the agency to file a “narrative explanation” addressing its compliance 

with the back pay award. CF, Tab 12. An administrative judge has the 

discretionary authority to order the production of evidence. 5 C.F.R. 

§ 1201.41(b)(10). The Board will not find reversible error in a matter left to an 

administrative judge’s discretion absent an abuse of discretion. Cf. Vaughn v.

Department of the Treasury, 119 M.S.P.R. 605, ¶ 15 (2013). The administrative 

judge found that, to the extent that the appellant never received a narrative 

statement setting forth the back pay calculation, any such error was harmless 

because the agency provided a spreadsheet to explain the award and met with the 

appellant and his representative to answer questions. CID at 3. Having reviewed 

the record, we find no abuse of discretion in the administrative judge’s 

determination. Even if the agency failed to fully comply with this order to 

provide a narrative explanation of how the back pay payment was calculated, that 

error was not harmful because the record contains sufficient other evidence to 

enable the appellant to identify any compliance issues with the back pay award. 

He has not shown that he was harmed by not getting the same information 

concerning the back pay calculation in narrative form. See Russell v. Equal 

Employment Opportunity Commission, 110 M.S.P.R. 557, ¶ 15 (denying the 

petition for review based on alleged procedural errors by the administrative judge 

when the appellant failed to show how any of the purported errors prejudiced her 

substantive rights). 
6

¶9 On the day the record closed below, the agency filed a written explanation 

addressing the compliance issues that the appellant raised in his brief in support 

of the petition for enforcement. CF, Tab 19; see CF, Tab 17. The appellant 

claims that the agency’s explanation did not meet “the requirements of the law” 

and that, by accepting the agency’s submission on the day that the record closed, 

the administrative judge denied him an opportunity to review it and question the 

agency’s actions. CPFR File, Tab 1 at 14. Determining when to close the record 

is within an administrative judge’s sound discretion, but such discretion must 

comport with basic requirements of fairness and notice. Blackmer v. Department 

of the Navy, 52 M.S.P.R. 571, 574 (1992). The parties were on notice that the 

agency had until the close of the record to file a response. CF, Tab 16. The 

appellant neither objected to this notice when it was issued nor attempted to file a 

response to the agency’s submission during the month between the close of the 

record and the issuance of the compliance initial decision. The appellant’s failure 

to timely object to the administrative judge’s ruling precludes him from doing so 

on petition for review. See McCarthy v. International Boundary & Water 

Commission, 116 M.S.P.R. 594, ¶ 25 (2011) (finding that the appellant’s failure 

to timely object to rulings during the hearing precludes his doing so on petition 

for review), aff’d, 497 F. App’x 4 (Fed. Cir. 2012), cert. denied, 134 S. Ct. 386 

(2013). Moreover, the appellant was given multiple opportunities to rebut the 

agency’s compliance evidence below, and he now has had the opportunity to raise 

any outstanding compliance issues through his petition for review. The 

administrative judge did not abuse his discretion by determining that the record 

would close after the agency had one final opportunity to respond to the 

compliance issues that remained after considerable efforts by both parties to 

resolve those issues. CF, Tabs 9, 17. 
7

The appellant is not entitled to restoration of his TSP account loan under the 

Back Pay Act. 

¶10 The appellant argues that the agency is not in compliance because it has not 

reinstated a loan outstanding from his TSP account when he separated from 

service. CPFR File, Tab 1 at 9-14. The regulations implementing the Back Pay 

Act require that an agency correct errors affecting an employee’s TSP account 

consistent with the regulations prescribed by the FRTIB. Price v. U.S. Postal 

Service, 118 M.S.P.R. 222, ¶ 16 (2012) (citing 5 C.F.R. § 550.805(h)). In 

accordance with the FRTIB’s regulations, the appellant had the option to restore 

the amount withdrawn from his TSP account at the time of his separation and, in 

such a case, could elect to reinstate an outstanding loan that was treated as a 

taxable distribution. See Crazy Thunder-Collier v. Department of the 

Interior, 115 M.S.P.R. 82, ¶ 13 (2010) (citing 5 C.F.R. § 1605.13(d)-(e)). The 

option to restore withdrawn funds expires if the participant does not exercise the 

option by notifying the FRTIB within 90 days of his reinstatement. 5 C.F.R. 

§ 1605.13(d). The Board has found that this regulation does not obligate an 

agency to notify an employee of this option. Crazy Thunder-Collier, 115 

M.S.P.R. 82, ¶¶ 13-14 (stating that it was incumbent on the appellant to make 

inquiries if she wished to restore funds to her TSP account upon reinstatement). 

¶11 We agree with the administrative judge’s conclusion that the agency plays 

no role in reinstating the appellant’s TSP loan. CID at 4. To the extent that the 

administrative judge relied on the tax consequences of the TSP loan being 

converted to a withdrawal, an issue the appellant believes is irrelevant in his 

petition for review, CPFR File, Tab 1 at 13, we modify the initial decision. We 

reach the same conclusion as the administrative judge based on our finding in 

Crazy Thunder-Collier. Since an agency has no obligation to inform the 

employee of her right to reinstate a TSP loan, the appellant’s position that the 

agency had an obligation to reinstate his loan is untenable.
8

The agency cannot change the breakage calculated for the appellant’s makeup 

contributions.

¶12 The appellant appears to be arguing that the agency failed to comply 

with 5 C.F.R. § 1605.13 by not calculating the breakage on his TSP makeup 

contributions based on investment in the correct fund. CPFR File, Tab 1 at 7-8,

11, 13-15; see CF, Tab 9 at 28, Tab 18, Ex. D. Makeup contributions are 

contributions that should have been deducted from an employee’s basic pay or 

contributed by the agency on an earlier date but were not deducted or 

contributed. 5 C.F.R. § 1605.1. Breakage is the loss incurred or gain realized on 

makeup contributions. Id. Makeup contributions and the associated breakage are 

invested according to the employee’s contribution allocation on the posting 

date. 3

 5 C.F.R. § 1605.13(a)(3). Calculating breakage is based on the 

participant’s contribution allocation on file for the “as of” the date. 5 C.F.R. 

§ 1605.2(b). The “as of” date is the date the TSP contribution should have taken 

place. 5 C.F.R. § 1605.1(b). 

¶13 The appellant appears to be alleging that, at the time of his separation, he 

had a contribution allocation on file investing all of his contributions in the C 

Fund, and therefore his breakage should have been calculated based on an 

investment in that fund. CF, Tab 9 at 28, Tab 18, Ex. D. The agency states that it 

has been advised by the TSP and the Defense Finance and Accounting Service 

that the management of the appellant’s TSP account is a matter between the 

appellant and the TSP. CF, Tab 19 at 8. The appellant acknowledges that he 

received both makeup contributions and breakage. CPFR File, Tab 1 at 12. We 

agree with the administrative judge’s finding that the agency is in compliance 

with its TSP payment obligations under the applicable regulations. CID at 4. 

Calculating breakage is a function of the FRTIB/TSP, not a function of the 

employing agency. See 5 C.F.R. § 1605.2 (stating that “[t]he TSP” will calculate 

 3 Posting date means the date on which a transaction is credited or debited to a 

participant’s account. 5 C.F.R. § 1690.1. 
9

breakage on makeup contributions). The appellant’s remedy for errors in the 

breakage calculation is found in the procedures in 5 C.F.R. Part 1605, Subpart C. 

See 5 C.F.R. § 1605.21(a)(2)(iii). 

¶14 The appellant alleges that the “expert testimony” provided in the form of 

letters from an accounting firm explaining his financial losses was never 

addressed by the administrative judge. CPFR File, Tab 1 at 7. The 

administrative judge’s failure to mention all of the evidence of record does not 

mean that he did not consider it in reaching his decision. Marques v. Department 

of Health & Human Services, 22 M.S.P.R. 129, 132 (1984), aff’d, 776 F.2d 

1062 (Fed. Cir. 1985) (Table). Some of the compliance issues identified by the 

accounting firm were not included in the appellant’s brief in support of his 

petition for enforcement. The calculation of interest on the back pay award, 

deductions from the award for union dues, and the number of pay periods the 

appellant was paid after his reinstatement were identified as compliance issues by 

the accounting firm, but were not included in the appellant’s brief in support of 

his petition for enforcement. Compare CF, Tab 9, Exs. H, K, with CF, Tab 17. 

Each of the remaining issues identified by the accounting firm, including the back 

pay calculation, the deductions taken from the back pay award for health 

insurance, and the calculation of breakage, were addressed by the administrative 

judge in the initial decision and also have been considered and addressed on 

review. For the foregoing reasons, we find that the agency is in compliance with 

the relief order.

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

The initial decision, as supplemented by this Final Order, constitutes the 

Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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: 
10

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 an appeal to the 

United States Court of Appeals for the Federal Circuit, you may visit our website 

at http://www.mspb.gov/probono for information regarding pro bono 

representation for Merit Systems Protection Board appellants before the Federal 

Circuit. The Merit Systems Protection Board neither endorses the services
11

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