UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

2015 MSPB 25

Docket No. DA-0752-13-0170-X-1

Felicia A. Bills,

Appellant,

v.

Department of the Air Force,

Agency.

February 27, 2015

Anthony W. Walluk, Esquire, San Antonio, Texas, for the appellant.

Charles R. Vaith, Esquire, Randolph Air Force Base, Texas, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Anne M. Wagner, Vice Chairman

Mark A. Robbins, Member

OPINION AND ORDER

¶1 The administrative judge issued a compliance initial decision finding the 

agency in noncompliance with the administrative judge’s August 1, 2013 initial 

decision in MSPB Docket No. DA-0752-10-0251-I-1, which became the Board’s 

final decision in the appellant’s removal appeal on September 5, 2013, when 

neither party filed a petition for review. MSPB Docket No. DA-0752-10-0251-C1 (C-1), Compliance Initial Decision (CID) (Aug. 18, 2014). The August 1, 2013

final decision required the agency to cancel the appellant’s removal, restore her 

to the status quo ante, and pay her appropriate back pay and benefits. MSPB 

Docket No. DA-0752-10-0251-I-1 (I-1), Initial Decision (ID) at 17 (Aug. 1, 
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2013). The administrative judge held that the agency failed to demonstrate 

compliance because it did not provide the appellant the opportunity to make an

election of health care benefits under 5 U.S.C. § 8908(a), and did not comply 

with the Federal Retirement Thrift Investment Board’s (FRTIB’s) regulations 

regarding back pay awards. For the reasons discussed below, we now find the 

agency in compliance with the final order.

BACKGROUND

¶2 On September 11, 2012, the agency proposed to remove the appellant for: 

(1) making a false accusation; (2) engaging in unprofessional conduct; and 

(3) carelessness in the performance of her duties. I-1, Initial Appeal File (IAF), 

Tab 1 at 8. On December 12, 2012, the agency issued a final decision sustaining 

the proposed removal, effective the same day. Id. at 18.

¶3 The appellant timely appealed her removal to the Board. On August 1, 

2013, the administrative judge issued an initial decision reversing the removal, 

finding that the agency failed to prove any of its charges by preponderant 

evidence. ID at 1-17. The administrative judge ordered the agency to cancel the 

removal action, retroactively restore the appellant to her position, and pay her 

back pay with interest and benefits in accordance with the regulations of the

Office of Personnel Management (OPM). ID at 17.

¶4 On December 13, 2013, the appellant timely filed a petition for 

enforcement. C-1, Compliance File (CF), Tab 1. She alleged that the agency 

failed to: (1) pay the interest on her back pay; (2) either reimburse her for the 

amounts withheld for health insurance premiums during the period of the removal 

or pay her for the amounts she paid for continuation of insurance coverage during 

the removal period; (3) pay the interest on the amounts she withdrew from the 

Thrift Savings Plan (TSP) and Federal Employees’ Retirement System (FERS); 

and (4) reimburse her for the penalty and interest she will be required to pay for 

the early withdrawal of amounts from the TSP and FERS. Id. 
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¶5 On January 8, 2014, the agency responded to the petition for enforcement. 

It asserted that, with the exception of the interest on the back pay, it was in full 

compliance with the Board’s final decision. CF, Tab 3. The agency supported its 

claim with documentary evidence showing that the removal was canceled, the 

appellant was returned to her former position and paid back pay, and $1,540.44 

was withheld from the back pay for retroactive health insurance benefits. Id. 

Regarding the amount withheld from the back pay for health insurance, the 

agency claimed that the appellant should contact her health insurance company to 

request reimbursement for any premiums paid during the back pay period or 

should assign to the agency her right to collect an overpayment for the insurance. 

Id. As to the claim for reimbursement for interest and penalties resulting from 

the withdrawal of amounts from the TSP and FERS accounts, the agency argued it 

should not be responsible for these funds. Id. 

¶6 In reply to the agency’s submission, the appellant confirmed that she had 

been paid the appropriate amount of back pay but claimed that she was not able to 

comprehend the documentation provided by the agency. CF, Tab 5. She also 

repeated her assertion that the agency should pay her for the penalties accrued 

and interest lost stemming from her early withdrawal of her TSP and FERS funds 

and stated that she had still not had been paid interest on her back pay. Id. The 

administrative judge then held telephonic conferences with the parties’ 

representatives to discuss the outstanding compliance issues. CF, Tabs 7, 13. 

Following these conferences, the parties made final submissions to the 

administrative judge regarding the outstanding compliance issues. CF, Tabs

14-15. 

¶7 On August 18, 2014, the administrative judge issued a compliance initial 

decision granting the appellant’s petition for enforcement. CID. In the decision, 

the administrative judge found that the agency was not in compliance with the 

Board’s order because it failed to demonstrate that it afforded the appellant an 

opportunity to make an election of health benefits pursuant to 5 U.S.C. § 8908(a) 
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and failed to show that it complied with FRTIB’s regulations regarding the 

appellant’s TSP account.1

 CID at 5, 8. Pursuant to her decision, the 

administrative judge ordered the agency to: (1) furnish documentary evidence to 

show that the appellant was afforded the opportunity to elect retroactive health 

insurance pursuant to 5 U.S.C. § 8908 and evidence of her election; and 

(2) furnish documentary evidence to show compliance with OPM’s regulations 

relating to the appellant’s TSP contributions. CID at 10. On September 22, 

2014, the agency submitted its Response Regarding Compliance to the Board, in 

which it asserted that it had complied with the administrative judge’s August 18, 

2014 compliance initial decision. MSPB Docket No. DA-0752-13-0170-X-1, 

Compliance Referral File (CRF), Tab 1. The petitioner did not file any reply.

ANALYSIS

The agency is in compliance with the Board’s final decision regarding the 

appellant’s health insurance benefits.

¶8 The agency’s response provided documentary evidence showing that on 

September 9, 2014, the appellant was afforded the opportunity to elect retroactive 

health insurance. CRF, Tab 1 at 62. The agency’s response further showed that 

on September 17, 2014, the appellant declined to elect retroactive health 

insurance. Id. at 60-62. Thus, we find that the agency has fulfilled its obligation 

under 5 U.S.C. § 8908, and find the agency in compliance with the August 1, 

2013 final decision with respect to the appellant’s health benefits. 

 

1 The administrative judge further held that the agency complied with the Board’s order 

to pay the appellant back pay and interest, did not have to pay interest on the amounts 

the appellant would have contributed to the TSP or retirement accounts, and was not 

required to pay for any tax consequences that resulted from the appellant’s withdrawal 

of her FERS and TSP contributions. CID. We agree with these findings and will not 

address these aspects of the compliance initial decision any further.
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The agency is in compliance with the Board’s final decision with regard to the 

appellant’s TSP contributions.

¶9 The agency’s response also provided documentary evidence showing that 

on September 9, 2014, the appellant was afforded the opportunity to submit 

missed contributions to her TSP account. CRF, Tab 1 at 62. However, the 

appellant declined to elect to submit any make-up contributions. Id. As a result, 

the agency has fulfilled its obligations under the current governing TSP 

regulations. 2

 See 5 C.F.R. § 1605.13(c). Therefore, we find that the agency is 

now in full compliance with the Board’s order concerning the appellant’s TSP 

contributions. 

¶10 Accordingly, the Board finds that the agency is now in full compliance 

with the Board’s August 1, 2013 final decision and DISMISSES the petition for 

enforcement. This is the final decision of the Merit Systems Protection Board in 

 

2 In the compliance initial decision, the administrative judge incorrectly imposed two 

additional requirements on the agency to show compliance. The administrative judge 

required the agency to inform the TSP record keeper of the back pay award and to show 

that it requested FRTIB to provide a computation of interest and lost earnings in accord 

with the applicable regulations. CID at 8. The administrative judge’s authority for 

these requirements was based on Shobert v. Department of the Air Force, 90 M.S.P.R. 

262, ¶ 11 (2001), which in turn derived the requirements from the then-current 

governing regulations, 5 C.F.R. §§ 1606.3 (2001) and 1606.11 (2001). However, the 

authority of 5 C.F.R. Part 1606 expired on August 31, 2003. See Various Changes to 

the Thrift Savings Plan, 70 Fed. Reg. 21290, 21291 (April 25, 2005). At that time, the 

governing authority for all TSP contributions from back pay awards became 5 C.F.R. 

Part 1605. 70 Fed. Reg. at 21291. Under 5 C.F.R. § 1605.13, the agency is now no 

longer required to request a computation of interest and lost earnings from FRTIB, and 

only needs to notify the TSP record keeper of the back pay award if there are employee 

make-up contributions. 5 C.F.R. § 1605.13(c). Therefore, the portion of the

compliance initial decision requiring the agency to inform the TSP record keeper of the 

back pay award and to show that it requested FRTIB to provide a computation of 

interest and lost earnings is hereby VACATED, and Shobert is OVERRULED to the 

extent that it requires agencies to comply with 5 C.F.R. §§ 1606.3 (2001) and 1606.11 

(2001).
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this appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) 

(5 C.F.R. § 1201.113(c)).

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 
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attorneys who have expressed interest 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 in a given case. 

FOR THE BOARD:

______________________________

William D. Spencer

Clerk of the Board

Washington, D.C.