UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

BRUCE C. MARSHALL,

Appellant,

v.

DEPARTMENT OF VETERANS 

AFFAIRS,

Agency.

DOCKET NUMBER

AT-0752-18-0096-X-1

DATE: May 31, 2023

THIS FINAL ORDER IS NONPRECEDENTIAL1

Bruce C. Marshall, Cordova, Tennessee, pro se.

W. Robert Boulware, Montgomery, Alabama, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member2

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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 Member Leavitt’s name is included in decisions on which the three-member Board 

completed the voting process prior to his March 1, 2023 departure.
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FINAL ORDER

¶1 On September 6, 2019, the administrative judge issued a compliance initial 

decision granting the appellant’s petition for enforcement and finding the agency 

not in compliance with the Board’s October 12, 2018 final decision in the 

underlying appeal. Marshall v. Department of Veterans Affairs, MSPB Docket 

No. AT-0752-18-0096-C-1, Compliance File (CF), Tab 16, Compliance Initial 

Decision (CID); Marshall v. Department of Veterans Affairs, MSPB Docket 

No. AT-0752-18-0096-I-1, Initial Appeal File, Tab 24, Initial Decision (ID). For 

the reasons discussed below, we find the agency in compliance and DISMISS the 

petition for enforcement. 

DISCUSSION OF ARGUMENTS AND EVIDENCE ON COMPLIANCE

¶2 On September 27, 2017, the appellant appealed to the Board, alleging that 

his January 3, 2017 retirement from the agency was involuntary due to material 

misinformation provided to him by the agency. IAF, Tab 1, Tab 5 at 4. On 

October 12, 2018, the administrative judge issued an initial decision finding that 

the agency constructively removed the appellant and reversed the agency’s action. 

ID. The administrative judge ordered the agency to cancel the appellant’s 

retirement and retroactively restore him, effective January 3, 2017; and to pay the 

appellant the appropriate amount of back pay, with interest, as well as adjust the 

appellant’s benefits with appropriate credits and deductions. ID at 8-9. That 

initial decision became the final decision of the Board on November 16, 2018, 

after neither party petitioned the full Board for review. ID at 10-11.

¶3 On January 31, 2019, the appellant filed a petition for enforcement of the 

Board’s order, alleging that, upon restoration, the agency placed him in a 

secretary position, which was not the position he previously held when employed 

by the agency. CF, Tab 1 at 2-3. The appellant further alleged that the agency 

had failed to provide him with the required back pay, interest, and benefits. Id. 

On September 6, 2019, the administrative judge issued a compliance initial 
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decision granting the petition for enforcement because the agency failed to prove 

that the position to which it assigned the appellant was sufficient to restore his 

employment to the status quo ante and failed to demonstrate it had paid the 

appellant his back pay, interest, and benefits. CID at 4. The administrative judge 

ordered the agency to: (1) explain why the appellant’s new position was correct, 

including in its response a detailed narrative explaining the process it used to 

determine the appropriate position for the appellant; (2) pay the appellant the 

appropriate amount of back pay and interest, or, if the agency was waiting on the 

Defense Finance Accounting Service (DFAS) to determine the amount of back 

pay owed, explain its efforts thus far to calculate the back pay owed to the 

appellant; and (3) submit the name, title, grade, and address of the agency official 

charged with complying with the Board’s order. CID at 4-6. 

¶4 On September 13, 2019, the agency filed a statement of compliance 

pursuant to 5 C.F.R. § 1201.183(a)(6)(i) providing the identity of the agency 

official charged with compliance. Marshall v. Department of Veterans Affairs, 

MSPB Docket No. AT-0752-18-0096-X-1, Compliance Referral File (CRF), 

Tab 1. On September 26, 2019, the agency submitted an additional pleading 

stating that the appellant had been transferred to a Human Resources Assistant 

position and that the agency understood the appellant to be satisfied with the new 

position. CRF, Tab 2 at 4. The agency further explained that it was waiting for 

DFAS to finish processing its request for the appellant’s back pay and interest for 

the year 2017 and included a summary of its efforts to have DFAS complete the 

process. Id. at 4-5. The agency also noted that DFAS had processed the 

appellant’s back pay and interest for 2018 but did not provide any evidence as to 

whether these funds had yet been paid to the appellant. Id.

¶5 On July 30, 2020, the Clerk of the Board issued an order stating that, since 

the agency’s September 26, 2019 submission, neither party had yet to make any 

further submission regarding compliance. CRF, Tab 4 at 2-3. The Clerk of the 

Board directed the agency to submit a statement explaining whether it had paid 
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the appellant all back pay and interest owed, including in its submission a full 

accounting of the funds, along with a narrative explanation of the methodology 

used to determine the amount of back pay and interest. Id. The Clerk of the 

Board’s order further directed the agency to include in its statement a narrative 

explanation as to why the appellant’s new position constitutes restoration in 

compliance with the Board’s order. Id. 

¶6 On August 20, 2020, the agency responded to the Clerk of the Board’s 

July 30, 2020 order. CRF, Tab 5. The agency stated that the appellant had been 

paid all back pay owed to him. Id. at 4. The agency also reasserted that the 

appellant had been reassigned to a Human Resources Services position effective 

June 24, 2019, and it was the agency’s understanding that the appellant was 

satisfied in the new position. Id. 

¶7 On April 21, 2021, the Clerk of the Board issued an order stating that, since 

the agency’s August 20, 2020 submission, the appellant had not filed any 

response indicating whether he agreed with the agency’s statements regarding 

compliance. CRF, Tab 6 at 2. The Clerk of the Board directed the appellant to 

file a response within 21 days of the date of the order explaining whether he 

agreed with the agency’s assertion that it was in full compliance. Id. The Clerk 

of the Board further stated that, if the appellant did not respond within the 21 -day 

period, the Board would presume the appellant was satisfied and dismiss the 

petition for enforcement. Id. The appellant did not respond to the April 21, 2021 

order. 

ANALYSIS

¶8 When the Board finds a personnel action unwarranted or not sustainable, 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. 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 
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compliance must include a clear explanation of its compliance 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 

compliance by making “specific, nonconclusory, and supported assertions of 

continued noncompliance.” Brown v. Office of Personnel Management, 

113 M.S.P.R. 325, ¶ 5 (2010).

¶9 The agency’s outstanding compliance issues were its obligations to: 

(1) restore the appellant, effective January 3, 2017; and (2) pay the appellant the 

appropriate amount of back pay, with interest, and adjust the appellant’s benefits 

with appropriate credits and deductions. On September 26, 2019, and August 20, 

2020, the agency informed the Board that it had restored the appellant to a 

position he considered satisfactory and paid him all back pay and benefits owed. 

CRF, Tab 2 at 4-5, Tab 5 at 4. The appellant was provided two opportunities to 

respond to the agency’s assertions of compliance, but did not respond on either 

occasion. Accordingly, we assume he is satisfied. See Baumgartner v. 

Department of Housing and Urban Development, 111 M.S.P.R. 86, ¶ 9 (2009). 

¶10 Given the agency’s assertions that it has fully restored the appellant and 

provided him with all back pay and benefits owed and appellant’s failure to 

respond, we find that the agency is now 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(b) (5 C.F.R. § 1201.183(b)).

NOTICE TO THE APPELLANT REGARDING

YOUR RIGHT TO REQUEST

ATTORNEY FEES AND COSTS

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 
6

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 that issued the initial decision 

on your appeal.

NOTICE OF APPEAL RIGHTS3

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By 

statute, the nature of your claims determines the time limit for seeking such 

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). 

Although we offer the following summary of available appeal rights, the Merit 

Systems Protection Board does not provide legal advice on which option is most 

appropriate for your situation and the rights described below do not represent a 

statement of how courts will rule regarding which cases fall within their 

jurisdiction. If you wish to seek review of this final decision, you should 

immediately review the law applicable to your claims and c arefully follow all 

filing time limits and requirements. Failure to file within the applicable time 

limit may result in the dismissal of your case by your chosen forum. 

Please read carefully each of the three main possible choices of review 

below to decide which one applies to your particular case. If you have questions 

about whether a particular forum is the appropriate one to review your case, you 

should contact that forum for more information. 

(1) Judicial review in general. As a general rule, an appellant seeking 

judicial review of a final Board order must file a petition for review with the U.S. 

Court of Appeals for the Federal Circuit, which must be received by the court 

 

3

Since the issuance of the initial decision in this matter, the Board may have updated 

the notice of review rights included in final decisions. As indicated in the notice, the 

Board cannot advise which option is most appropriate in any matter.
7

within 60 calendar days of the date of issuance of this decision. 5 U.S.C. 

§ 7703(b)(1)(A). 

If you submit a petition for review to the U.S. Court of Appeals for the 

Federal Circuit, you must submit your petition to the court at the 

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W.

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal 

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of partic ular 

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, 10, and 11. 

If you are interested in securing pro bono representation for an appeal to 

the U.S. 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 

Board neither endorses the services provided by any attorney nor warrants that 

any attorney will accept representation in a given case. 

(2) Judicial or EEOC review of cases involving a claim of 

discrimination. This option applies to you only if you have claimed that you 

were affected by an action that is appealable to the Board and that such action 

was based, in whole or in part, on unlawful discrimination. If so, you may obtain 

judicial review of this decision—including a disposition of your discrimination 

claims—by filing a civil action with an appropriate U.S. district court (not the 

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you 

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems 

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case, 

and your representative receives this decision before you do, then you must file 
8

with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on 

race, color, religion, sex, national origin, or a disabling condition, you may be 

entitled to representation by a court-appointed lawyer and to waiver of any 

requirement of prepayment of fees, costs, or other security. See 42 U.S.C. 

§ 2000e-5(f) and 29 U.S.C. § 794a. 

Contact information for U.S. district courts can be found at their respective 

websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

Alternatively, you may request review by the Equal Employment 

Opportunity Commission (EEOC) of your discrimination claims only, excluding 

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the 

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, 

and your representative receives this decision before you do, then you must file 

with the EEOC no later than 30 calendar days after your representative receives

this decision. 

If you submit a request for review to the EEOC by regular U.S. mail, the 

address of the EEOC is: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

P.O. Box 77960 

Washington, D.C. 20013 

If you submit a request for review to the EEOC via commercial delivery or 

by a method requiring a signature, it must be addressed to: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

131 M Street, N.E. 

Suite 5SW12G 

Washington, D.C. 20507 
9

(3) Judicial review pursuant to the Whistleblower Protection 

Enhancement Act of 2012. This option applies to you only if you have raised 

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or 

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). 

If so, and your judicial petition for review “raises no challenge to the Board’s 

disposition of allegations of a prohibited personnel practice described in section 

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), 

(B), (C), or (D),” then you may file a petition for judicial review either with the 

U.S. Court of Appeals for the Federal Circuit or any court of appeals of 

competent jurisdiction.4 The court of appeals must receive your petition for 

review within 60 days of the date of issuance of this decision. 5 U.S.C. 

§ 7703(b)(1)(B). 

If you submit a petition for judicial review to the U.S. Court of Appeals for 

the Federal Circuit, you must submit your petition to the court at the 

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W.

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal 

Circuit 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, 10, and 11. 

 

4

The original statutory provision that provided for judicial review of certain 

whistleblower claims by any court of appeals of competent jurisdiction expired on 

December 27, 2017. The All Circuit Review Act, signed into law by the President on 

July 7, 2018, permanently allows appellants to file petitions for judic ial review of 

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals 

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. 

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 

132 Stat. 1510. 
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If you are interested in securing pro bono representation for an appeal to 

the U.S. 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 

Board neither endorses the services provided by any attorney nor warrants that 

any attorney will accept representation in a given case. 

Contact information for the courts of appeals can be found at their 

respective websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

FOR THE BOARD:

Washington, D.C.

 /s/ for 

Jennifer Everling

Acting Clerk of the Board