UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

OTIS MILLER, JR.,

Appellant,

v.

DEPARTMENT OF THE NAVY,

Agency.

DOCKET NUMBER

AT-3443-11-0083-X-1

DATE: August 15, 2014

THIS FINAL ORDER IS NONPRECEDENTIAL1

Otis Miller, Jr., Pensacola, Florida, pro se.

Sandra J. Morris, Esquire, Pensacola, Florida, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Anne M. Wagner, Vice Chairman

Mark A. Robbins, Member

FINAL ORDER

¶1 On May 30, 2012, the administrative judge issued a recommendation that 

the Board find the agency in noncompliance with the Board’s February 16, 2012 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

Opinion and Order, and the matter was referred to the Board for consideration. 2 

MSPB Docket No. AT-3443-11-0083-I-1, Compliance Referral File (CRF), Tab 1; 

see 5 C.F.R. § 1201.183 (Jan. 1, 2012). In its Opinion and Order, the Board 

found that the appellant suffered an appealable reduction in grade when his 

position was converted from the National Security Personnel System (NSPS) to 

the General Schedule (GS), and he was not afforded minimum due process. 

Miller v. Department of the Navy, 117 M.S.P.R. 393, 395 (2012). Prior to the 

implementation of NSPS, the appellant was a GS-0343-12 Program Analyst. Id.

at 394. Under NSPS, his position was converted to a YA-0343-02 Program 

Analyst position, and he was subsequently reassigned to a YA-1750-02 

Instructional Systems Specialist position. Id. After NSPS was repealed, the 

agency converted the appellant’s position to a GS-1750-11 Instructional Systems 

Specialist. Id. The Board directed the agency to “restore the appellant to the 

GS-12 grade with no reduction in pay, effective September 26, 2010.” Id. at 395.

¶2 Subsequent to the Board’s Opinion and Order, the agency placed the 

appellant in a supervisory GS-12 position, rather than restoring him to the 

nonsupervisory GS-0343-12 Program Analyst position that the appellant held 

prior to his original conversion into the NSPS pay system. CRF, Tab 1 at 2. The 

administrative judge found that this action did not restore the appellant to the 

status quo ante that existed prior to the wrongful employment action, and that the 

agency had not established a strong overriding interest to support its decision to 

restore the appellant to a different GS-12 position. See id. at 4. Therefore, the 

administrative judge recommended that the agency comply with the Board’s 

Opinion and Order by restoring the appellant to his prior position of Program 

Analyst, GS-0343-12. See id. at 5-6. 

 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

¶3 On June 13, 2012, the agency submitted evidence that it had restored the 

appellant to the GS-0343-12 Program Analyst position that he encumbered 

immediately prior to the agency’s conversion to NSPS. CRF, Tab 3.

¶4 On June 20, 2012, the appellant responded to the agency’s submission, 

arguing that the position he encumbered prior to the implementation of NSPS no 

longer existed and that various duties previously assigned to that position had 

been reassigned to other positions. CRF, Tab 4. He further argued that restoring 

him to the Program Analyst position would cause undue interruption and 

administrative hardship within the agency and that it had created a hostile work 

environment because the employee he displaced from that position resented 

having to learn a new job. See id. Finally, the appellant argued that the agency 

could have reassigned him to a newly-created Program Analyst position instead of 

displacing an existing employee from the appellant’s previously-held position and 

that he believed that the agency’s refusal to do so constituted retaliation. See id. 

¶5 The agency responded on June 21, 2012, stating that the appellant’s former 

GS-0343-12 Program Analyst position did exist and attaching evidence indicating 

that the appellant had been returned to that position. CRF, Tab 5 at 2. The 

agency stated that the position to which the appellant was returned has the same 

position description as the position he previously held. Id. 3

 

¶6 After considering the evidence of compliance presented by the agency, we 

find that the agency has complied with the Board’s Opinion and Order. The 

Board ordered the agency to restore the appellant to the GS-12 grade with no 

reduction in pay, effective September 26, 2010. See Miller v. Department of the 

 3 On May 6, 2013, the agency filed a motion to dismiss, stating that appellant had 

retired from federal service on October 31, 2012, and arguing that the instant matter 

was therefore moot. CRF, Tab 7. We reject the agency’s argument that this case is 

now moot due to the appellant’s retirement. The Board has held that an appeal may be 

dismissed as moot only when the employee has received all of the relief he could have 

received if the matter had been adjudicated and he had prevailed. Haskins v. 

Department of the Navy, 106 M.S.P.R. 616, 624 (2007). Therefore, the mere fact of the 

appellant’s retirement does not cause this case to be moot. 
4

Navy, 117 M.S.P.R. 393, 395 (2012). In situations where the Board finds a 

personnel action unwarranted, the aim is to place the appellant as nearly as 

possible in the situation he would have been in had the wrongful personnel action 

not occurred. See Tubesing v. Department of Health & Human Services,

112 M.S.P.R. 393, ¶ 5 (2009). A return to the status quo ante requires that the 

agency place the appellant in a position with all the essential privileges of his 

previous position. Black v. Department of Justice, 85 M.S.P.R. 650, 653 (2000). 

However, the Board does not require perfect consistency with all aspects of an 

appellant’s pre- and post-personnel action positions. Id. Rather, the crucial 

determination is whether the actual duties and responsibilities of the position to 

which the appellant returned are either the same or substantially equivalent in 

scope and status to the duties and responsibilities of the position he originally 

held. Blackmer v. Department of Navy, 47 M.S.P.R. 624, 629 (1991). 

¶7 Here, the agency has produced Standard Form 50s and a position 

description indicating that the appellant was restored to the position of GS-0343-

12 Program Analyst effective September 26, 2010. CRF, Tabs 3 and 5. The new 

position has the same title, occupational series, pay plan, grade level, and location 

as the appellant’s prior position. Compare CRF Tab 5 at 10, with CRF, Tab 5 

at 11. In addition, the position description for the two positions has remained the 

same with only minor edits relating to the NSPS conversion. See CRF Tab 5 at 5, 

12-16. 

¶8 The appellant argues that certain functions of the position were reassigned 

to other positions prior to the termination of NSPS. CRF, Tab 4, at 4. 

Specifically, the appellant states that the F/A-18 IPT Lead position has now been 

reassigned to a GS-11 position. Id. In response, the agency denies that the F/A 

IPT Lead duties have been reassigned and asserts that the appellant is still 

responsible for these duties in his new position. CRF, Tab 5 at 5. The agency 

states that the position has evolved in the 3 years since the appellant held the 

position, and now includes management of a second platform. Id. Because the 
5

appellant has not presented evidence to establish that the position is no longer 

substantially equivalent to his prior position, and, in light of the evidence 

provided by the agency, we find that the appellant has been returned to the status

quo ante position he occupied prior to the agency’s unwarranted personnel action. 

¶9 As to the appellant’s argument that his return to the GS-12 Program Analyst 

position has created administrative hardship in the agency (CRF, Tab 4 at 4), we 

find that he is not in a position to assert hardship on behalf of the agency. 

Therefore, we reject this argument. 

¶10 In light of the agency’s evidence of compliance, 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)). 

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 the United States Court of Appeals for the 

Federal Circuit to review this final decision. You must submit your request to the 

court at the following address:
6

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 

attorneys who have expressed interest in providing pro bono representation for 

Merit Systems Protection Board appellants before the court. The Merit Systems
7

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