UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

STEVEN MICHAEL 

NOPPENBERGER,

Appellant,

v.

UNITED STATES POSTAL SERVICE,

Agency.

DOCKET NUMBER

PH-0752-11-0216-X-1

DATE: August 12, 2014

THIS FINAL ORDER IS NONPRECEDENTIAL1

Steven Michael Noppenberger, Westminster, Maryland, pro se.

Norma B. Hutcheson, Esquire, Landover, Maryland, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Anne M. Wagner, Vice Chairman

Mark A. Robbins, Member

FINAL ORDER

¶1 The administrative judge issued a recommended decision that the Board 

find, under the Board’s regulations in effect at that time, the agency in partial 

compliance with the June 21, 2011 initial decision, and referred the matter to the 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

Board for consideration. 2 See 5 C.F.R. § 1201.183 (Jan. 1, 2012). For the 

reasons discussed below, we 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)). 

DISCUSSION OF ARGUMENTS AND EVIDENCE OF COMPLIANCE

¶2 On June 21, 2011, the administrative judge issued an initial decision 

ordering the agency to cancel the appellant’s removal and pay him appropriate 

back pay, interest, and benefits. See MSPB Docket No. PH-0752-11-0216-I-1, 

Initial Appeal File, Tab 28, Initial Decision (ID) at 1-2. The initial decision 

became final on July 26, 2011, after neither party petitioned for review. See ID. 

¶3 On September 27, 2011, the appellant filed a petition for enforcement, and 

the administrative judge found the agency in partial compliance with the initial 

decision. The administrative judge found that the agency had paid the 

appropriate amount of back pay, with interest. MSPB Docket No. PH-0752-0216-

C-1, Compliance File, Tab 14, Compliance Initial Decision (CID) at 6. The 

administrative judge ordered the agency to process the appellant’s election of 

thrift savings plan (TSP) coverage during the back pay period, including his 1% 

and appropriate matching contributions; “take all necessary steps” within its 

power to reactivate repayment of the loan he had taken from his TSP account 

prior to the canceled removal; and process his election of federal employee health

benefits (FEHB) coverage, including dental and vision coverage, and correct any 

duplicate billing for premiums. CID at 8.

¶4 On December 22, 2011, the agency submitted evidence that it had made the 

required 1% deposit and matching contributions to the appellant’s TSP account. 

 2 Except as otherwise noted in this decision, we have applied the Board’s regulations 

that became effective November 13, 2012. We note, however, that the petition for 

enforcement in this case was filed before that date. The revisions to 5 C.F.R. 

§ 1201.183 do not affect our consideration of the merits of this compliance proceeding.
3

Compliance Referral File (CRF), Tab 5 at 5, 12-13. The agency also stated that it 

had restored the appellant’s dental and vision insurance and had made appropriate 

deductions. Id. at 6, 14-15. Finally, the agency explained that the appellant had 

taken out a loan against his TSP account prior to his canceled removal and was 

required to repay it through biweekly TSP contribution deductions from his 

salary; but that he defaulted on the repayment when he was placed in non-pay 

status and failed to notify the Federal Retirement Thrift Investment Board 

(FRTIB) of his non-pay status. Id. at 6. The FRTIB therefore deemed his loan to 

be a taxable distribution, which carries certain penalties and does not permit the 

employee to repay the loan through salary deductions. Id. at 6, 18. The agency 

stated that it had no involvement in the appellant’s attempts to reactivate 

repayment of his loan and that such attempts were exclusively between the 

appellant, the FRTIB, and the Internal Revenue Service. Id. at 7.

¶5 On December 22, 2011, the appellant responded. 3

 He acknowledged that 

the agency had restored his dental and vision benefits but stated that BENEFEDS, 

which administers federal employee health benefits, informed him that his 

benefits had been activated as though he were a new employee, and therefore he 

might have a gap in coverage. CRF, Tab 6 at 4. He provided two letters from 

BENEFEDS that concerned premiums owed but that did not address his coverage. 

Id. at 7-8. The appellant agreed that the agency had probably deposited the 

required funds in his TSP account. Id. at 4. Finally, the appellant contended that 

the agency was not in compliance with respect to his TSP loan because upon his 

return to work in July 2011 (following the initial decision in this appeal), “the 

TSP loan was taken out till the Agency took an action that notified the TSP that 

he was in a non pay status and they were successful in ending his employment.” 

 3 The appellant also filed a response on December 9, 2011, that solely concerned issues 

raised in his second petition for enforcement, MSPB Docket No. PH-0752-11-0216-C-2. 

See CRF, Tab 3. His second petition for enforcement was separately adjudicated and 

denied on January 30, 2012. Accordingly, we have not considered his December 9, 

2011 response. 
4

Id. Although his statements are unclear, it appears the appellant contends that the 

agency deliberately obstructed his efforts to reactivate repayment of his loan 

because it did not wish to acknowledge that it “wrongfully terminated” him. 

¶6 Due to the length of time that had passed between the above submissions 

and the Board’s consideration of them, on June 2, 2014, the Board issued an order 

requiring both parties to submit statements updating their positions. CRF, Tab 9 

at 1. The agency stated that its December 22, 2011 submission was accurate with 

respect to resolving issues from the instant compliance proceeding. CRF, Tab 11 

at 4. The agency also noted that it had subsequently removed the appellant and 

that his petition for review was pending before the Board. Id. The appellant did 

not respond either to the Board’s order or to the agency’s submission.

¶7 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 

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). 

¶8 The agency asserted that it is in compliance, as explained above. The 

appellant originally objected to the agency’s evidence with regard to his FEHB 

benefits and the reactivation of his TSP loan repayment. However, when the 

agency reiterated its compliance statements, the appellant failed to respond. Nor 

did he respond to the Board’s express order instructing him to state whether his 

arguments remain the same since his December 22, 2011 filing, although the 

Board informed him that failure to respond might cause the Board to assume he 
5

was satisfied and dismiss his petition for enforcement. See CRF, Tab 9 at 2.

Accordingly, in view of the agency’s detailed explanations and the appellant’s 

failure to respond, we assume he is satisfied, find the agency in compliance, and 

dismiss the petition for enforcement.

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 

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 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).
6

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 

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:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board