UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

DANIEL REMBERT,

Appellant,

v.

DEPARTMENT OF VETERANS 

AFFAIRS,

Agency.

DOCKET NUMBER

AT-1221-19-0723-X-1

DATE: May 25, 2023

THIS FINAL ORDER IS NONPRECEDENTIAL1

Daniel Rembert, Columbia, South Carolina, pro se.

Lucille P. Smith, Columbia, South Carolina, for the agency.

Sophia E. Haynes, Esquire, Decatur, Georgia, 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1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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.
2

FINAL ORDER

¶1 On March 2, 2021, the administrative judge issued a compliance initial 

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

in noncompliance with a settlement agreement that had been filed with the Board 

for enforcement purposes at the request of the parties. Rembert v. Department of 

Veterans Affairs, MSPB Docket No. AT-1221-19-0723-C-1, Compliance File 

(CF), Tab 6, Compliance Initial Decision (CID); Rembert v. Department of 

Veterans Affairs, MSPB Docket No. AT-1221-19-0723-W-3, Initial Appeal File 

(IAF), Tab 17, Initial Decision. For the reasons discussed below, we now find the 

agency in compliance and DISMISS the petition for enforcement. 

DISCUSSION OF ARGUMENTS AND EVIDENCE ON COMPLIANCE

¶2 On November 9, 2020, the appellant and the agency executed a Settlement 

Agreement (Agreement) in MSPB Docket No. AT-1221-19-0723-W-3, which was 

entered into the record for enforcement purposes. CID at 1; see IAF, Tab 16. 

Pursuant to the Agreement, the agency promised, in pertinent part, to restore 100 

hours of annual leave to the appellant within 45 days of the execution of the 

Agreement. CID at 1-2. Thus, the deadline for the agency to restore the 

appellant’s leave was December 24, 2020. CID at 2. 

¶3 On January 26, 2021, the appellant filed a petition for enforcement of the 

Agreement asserting that the agency had not restored the 100 hours of annual 

leave as agreed. CF, Tab 1 at 3, Tab 4 at 3, Tab 5 at 3. The appellant further 

represented that because of the agency’s delay, he would “be over the limit of 240 

hours [of accrued annual leave] by year[’]s end and would effectively lose the 

benefit of using the 100 hours in the agenc[y’s] use or lose procedures.” CF, 

Tab 4 at 3. Accordingly, the appellant requested specific performance of the 

agency’s promise to restore the 100 hours of annual leave; an order directing the 

agency to waive its policy requiring the forfeiture of leave exceeding 240 hours at 

the close of the 2021 leave year; and $5,000 in liquidated damages as a sanction.
3

Id. The agency responded with evidence showing that on December 16, 2020, it 

had submitted a ticket to the Defense Finance and Accounting Service (DFAS), 

which is the entity that processes payroll and leave accounting for the agency, but 

conceded that the leave had not been restored within the time frame specified 

under the settlement agreement. CID at 2.

¶4 In the March 2, 2021 compliance initial decision, the administrative judge 

found the agency to be noncompliant with the Agreement. CID at 3-4. 

Accordingly, the administrative judge ordered the agency to restore 100 hours of 

annual leave to the appellant’s leave account not later than 20 days after the 

compliance initial decision became final. 3 CID at 4, 6. The administrative judge 

further ordered that “[t]he restored leave at issue shall not expire in less time than 

it would have done had the agency timely processed the restoration of this leave 

in accordance with the terms of the Agreement. In other words, the appellant 

shall have no less time to actually use this restored leave than he would have had 

if the agency had properly processed the action as required within the 

Agreement.” CID at 5. The administrative judge, however, declined to award the 

appellant the requested liquidated damages “because no such term for liquidated 

damages is present within the Agreement, and such funds would exceed status 

quo ante relief.” CID at 4 (footnote omitted). 

¶5 Neither party filed a petition for review of the compliance initial decision , 

and the agency filed a statement asserting that it had taken the actions specified in 

the compliance initial decision. Rembert v. Department of Veterans Affairs, 

 

3

The compliance initial decision’s reference to the decision becoming final, and 

corresponding provision of judicial appeal rights, were incorrect. Pursuant to 5 C.F.R. 

§ 1201.183(a)(4), only compliance initial decisions that find compliance will become 

final in the absence of any petition for review by the parties. Compliance initial 

decisions that find non-compliance—as this one did—do not become final regardless of 

whether a petition for review is filed. Rather, if no petition for review is filed, the 

findings of compliance become final, i.e., unchallengeable by the parties, while the 

issues of compliance are referred automatically to the Board for a final decision. 

5 C.F.R. § 1201.183(a)(5), (b). Judicial appeal rights do not attach until the Board 

issues such a final decision. 5 C.F.R. 1201.183(c)(2).
4

MSPB Docket No. AT-1221-19-0723-X-1, Compliance Referral File (CRF), 

Tab 1. Thus, the appellant’s petition for enforcement was referred to the Board 

for a final decision on issues of compliance pursuant to 5 C.F.R. 

§ 1201.183(b)-(c). CRF, Tab 2. In its Acknowledgement Order, the Office of the 

Clerk of the Board notified the appellant of his right to respond to the agency’s 

submission and informed him that if he did not respond to the submission within 

20 days of service, then the Board may assume that he is satisfied and dismiss the 

petition for enforcement. CRF, Tab 2 at 3. The appellant did not respond to the 

agency’s May 12, 2021 submission. 

¶6 “The Board will enforce a settlement agreement that has been entered into 

the record in the same manner as a final Board decision or order.” Burke v. 

Department of Veterans Affairs, 121 M.S.P.R. 299, ¶ 8 (2014). When the 

appellant alleges the agency has breached a settlement agreement, the agency 

must respond by producing relevant, material evidence of its compliance or 

showing good cause for noncompliance. Id. However, the appellant ultimately 

bears the burden of proving the agency’s breach by a preponderance of the 

evidence.4Id. 

¶7 In its May 12, 2021 statement of compliance, the agency asserts that DFAS 

restored 100 hours of annual leave to the appellant’s leave account effective 

May 3, 2021. CRF, Tab 1 at 4. The agency attached a completed ticket from 

DFAS dated May 3, 2021, stating, in pertinent part, “The leave has been restored 

to the employee [the appellant].” CRF, Tab 1 at 9. The Board determines that 

the agency’s submission shows that it is now in compliance with the requirement 

that it restore 100 hours of annual leave to the appellant. 5 Since the appellant has 

 

4 A preponderance of the evidence is “[t]he degree of relevant evidence that a 

reasonable person, considering the record as a whole, would accept as sufficient to find 

that a contested fact is more likely to be true than untrue.” 5 C.F.R. § 1201.4(q). 

5 However, the Board rejects the agency’s claim that the obligation to restore 

appellant’s leave in accordance with the settlement agreement rests with the Defense 

Finance and Accounting Service (DFAS) rather than with the agency. See CRF, Tab 1 
5

not responded to the agency’s assertions and evidence of compliance, the Board 

assumes he is satisfied. See Baumgartner v. Department of Housing and Urban 

Development, 111 M.S.P.R. 86, ¶ 9 (2009). 

¶8 The agency’s submission did not address whether it had complied with the

administrative judge’s order that the agency waive the 240-hour leave ceiling at 

the close of the 2021 leave year to allow the appellant the same amount of time to 

“use this [100 hours of] restored leave . . . he would have had if the agency had 

properly processed the action.” CID at 5. As it may not become clear until the 

close of the leave year whether the appellant has accrued leave in excess of 240 

hours, the Board does not rule on that issue now. If the appellant accrues leave in 

excess of 240 hours at the close of the leave year, and the agency does not afford 

him the amount of time he would originally have had to use the leave had the 

leave been timely restored—as ordered by the compliance initial decision—the 

appellant may file another petition for enforcement at that time.

¶9 Based upon the foregoing, we find that the agency is in compliance at this 

time 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)). 

 

at 4. DFAS processes payroll, leave, and other accounting actions on behalf of the 

agency, and acts as the agency’s agent when it does so. The agency entered into the 

settlement agreement and the obligations it contracted for—and any penalties for 

non-compliance—rest entirely with the agency. The agency is responsible for ensuring 

that its agent, DFAS, satisfies the agency’s obligations in a timely fashion. See 

Tichenor v. Department of the Army, 84 M.S.P.R. 386, ¶ 8 (1999) (rejecting agency’s 

argument that severance pay withheld by DFAS was not the result of the agency’s 

action, on the ground that the agency used DFAS as its paying agent).
6

NOTICE OF APPEAL RIGHTS6

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 carefully follow all 

filing time limits and requirements. Failure to file within the appli cable 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 

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: 

 

6

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

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. 

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 

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 
8

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 

(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
9

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.7 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. 

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. 

 

7

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 judicial 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.
10

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