UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

KEVIN M. TORGERSEN,

Appellant,

v.

DEPARTMENT OF THE ARMY,

Agency.

DOCKET NUMBER

PH-0752-22-0072-C-1

DATE: March 27, 2024

THIS ORDER IS NONPRECEDENTIAL1

Kevin M. Torgersen, Marshfield, Massachusetts, pro se.

Matthew J Harris, Esquire, Concord, Massachusetts, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

ORDER

This matter is before the Board on the appellant’s petition for review of the

compliance initial decision, which denied his petition for enforcement of the

Board’s final decision reversing his removal. For the reasons set forth below, we

GRANT the appellant’s petition for review, REVERSE the compliance initial

decision, FIND the agency in noncompliance with the final decision on 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 A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
merits, and ORDER the agency to submit satisfactory evidence of compliance

with the Board’s order.

BACKGROUND

On April 16, 2021, the agency removed the appellant from his position as a

Survey Technician with the U.S. Army Corps of Engineers (USACE) for medical

inability to perform the essential duties of his position. Torgersen v. Department

of the Army, MSPB Docket No. PH-0752-22-0072-I-1, Initial Appeal File,

Tab 92, Initial Decision (ID) at 2, 7. On May 23, 2022, the administrative judge

issued an initial decision finding that the agency failed to establish that the

appellant was medically unable to perform the duties of his Survey Technician

position and ordered the agency to cancel the removal and retroactively restore

the appellant, effective April 16, 2021. ID at 13, 21. It also ordered the agency

to pay the appellant the appropriate amount of back pay with interest and to

adjust benefits with appropriate credits and deductions. ID at 21. Neither party

petitioned for review of the initial decision, which became final on June 27, 2022.

ID at 23.

On September 11, 2022, the appellant filed a petition for enforcement.

Torgersen v. Department of the Army, MSPB Docket No. PH-0752-22-0072-C-1,

Compliance File (CF), Tab 1. He did not dispute that the agency restored him to

his former position, but he argued that: (1) the agency had not paid any of the

back pay owed to him; (2) the agency informed him that it did not intend to

include any overtime or differential pay in the back pay award, while failing to

provide him with the records necessary for determining the proper calculation of

any overtime or differential pay; and (3) the agency failed to restore his sick

leave balances. Id. at 4-7. He further argued that he was entitled to overtime that

he earned while working as a Material Handler with the Department of Veterans

Affairs (DVA), from January 30 to July 16, 2022, when he was restored to his

2
position at USACE, but that the agency intended to deduct these earnings from its

back pay award. Id. at 6; CF, Tab 6 at 38. 

In its responses, the agency admitted that it had not provided the appellant

with his back pay and sick leave because the Defense Finance Accounting Service

(DFAS) had not yet processed it. CF, Tab 3. It explained that the situation was

complicated by the appellant’s dual employment at the USACE (retroactively)

and DVA, but that “a reasonable schedule for full compliance would have back

pay processed no later than November 5, 2022.” Id. at 4, 8-9, 35-36, Tab 30 at 4.

It argued that the Board should deny the appellant’s petition for enforcement

because it had acted in good faith by submitting a back pay Remedy Ticket to

DFAS the day after the appellant provided the agency with the necessary

information. CF, Tab 3 at 4. On January 24, 2023, the agency provided an

update that DVA, working in conjunction with the agency and DFAS, had

cancelled the appellant’s appointment, resulting in a debt owed by the appellant

for his earnings at DVA that would have been offset by his back pay award from

the agency. CF, Tab 31 at 4, Tab 35 at 4-5. However, because the appellant

appealed that debt, DFAS could not process his back pay until the debt appeal

was resolved. CF, Tab 35 at 4-5. 

On February 28, 2023, the administrative judge issued a compliance initial

decision denying the appellant’s petition for enforcement without prejudice. CF,

Tab 37, Compliance Initial Decision (CID) at 5.2 Specifically, he found that the

agency, while not in technical compliance with the Board’s final decision, had

acted in good faith to process the appellant’s back pay and benefits adjustments.

CID at 4. He reasoned that DFAS was an entity separate and apart from the

agency—over which the agency had no control—and that the situation was

complicated by the ramifications of the appellant’s dual employment. Id. 

2

 The administrative judge ruled that the appellant’s petition for enforcement was

denied “at this time.” 

3
The appellant has filed a timely petition for review of the compliance

initial decision requesting that the Board order the agency to pay the undisputed

amount of back pay owed to him, along with interest and penalties, and restore

his sick leave. Compliance Petition for Review (CPFR) File, Tab 1 at 5. He also

argued that the administrative judge failed to address his arguments concerning

overtime or rule on his motion to compel the agency’s production of documents

relevant to the same. Id. at 7-10; CF, Tab 11, Tab 25. The agency has responded

in opposition to the petition for review, CPFR File, Tab 3, and the appellant has

replied, CPFR File, Tab 6.3

ANALYSIS

The agency is ordered to submit evidence demonstrating that it properly

calculated the appellant’s overtime and differential pay hours and submitted its

calculations to DFAS.

An agency bears the burden of proving its compliance with a final Board

order, and compliance must be supported by relevant, material, and credible

evidence in the form of documentation or affidavits. See New v. Department of

Veterans Affairs, 106 M.S.P.R. 217, ¶ 6 (2007), aff’d per curiam, 293 F. App’x

779 (Fed. Cir. 2008). Satisfactory evidence of compliance with a back pay order

must include an explanation of how the agency arrived at its figures, evidence of

the compliance actions that the party has completed, along with a reasonable

schedule for full compliance. 5 C.F.R. § 1201.183(a)(1). DFAS is responsible

for calculating and paying the appellant based on information provided to it by

the agency. Walker v. Department of the Army, 90 M.S.P.R. 136, ¶ 15 (2001).

The agency’s submissions must show that it provided DFAS with pertinent

3

 The appellant has also requested that the Board accommodate his disability by

allowing him extra time to submit pleadings as well as the ability to amend or revise

previously submitted pleadings as needed. CPFR File, Tab 1 at 4-5. The Board

subsequently granted the appellant an extension of time to file his reply to the

appellant’s response to the petition for review. CPFR File, Tabs 4-6; see 5 C.F.R.

§ 1201.144(f). We will consider future motions by the appellant in accordance with our

regulations.

4
information about the appellant necessary for this calculation. Walker,

90 M.S.P.R. 136, ¶ 15; see 5 C.F.R. § 550.805; see also ID at 31 (DFAS Back

Pay Checklist).

Here, the administrative judge did not expressly address whether the

agency submitted credible evidence in the form of documentation or affidavits

that it provided DFAS with the pertinent information necessary for the back pay

calculation. The agency produced evidence that it submitted a back pay Remedy

Ticket to DFAS on August 10, 2022. CPFR File, Tab 3 at 23; CF, Tab 9 at 46-59,

75-78, 90. However, there is an unresolved factual dispute as to whether the

information that the agency provided to DFAS reflected the proper overtime and

differential pay hours.4 

The agency submitted to DFAS timecards certified by the appellant on

August 9, 2022, reflecting that the appellant would have worked 40 hours of basic

pay per week at USACE. CF, Tab 3 at 34, 36, Tab 9 at 46-60. On August 28,

2022, after the agency had submitted the certified timecards to DFAS, the

appellant emailed the agency representative to request copies of his Survey Crew

Chief’s timecards and travel assignments for the purposes of determining any

overtime or shift differentials that the appellant may have also worked during the

relevant period. CF, Tab 9 at 79. The agency denied the appellant’s request on

the basis that the appellant had already certified his timecards—which it had

already supplied to DFAS—and that there was “no legal authority” for it to

provide the requested timecards or travel assignments. Id. at 80. 

In his petition for enforcement, the appellant raised the issue of his

possible entitlement to overtime or shift differentials and the agency’s refusal to

provide him with the information necessary for determining the same. CF, Tab 1

4

 It is unclear whether the appellant asserts potential entitlement to travel expenses.

CPFR File, Tab 1 at 10. In any event, incidental expenses such as per diem and travel

expenses are not covered by the phrase “pay, allowances or differentials” under either

the Back Pay Act, 5 U.S.C. § 5596(b)(1)(A), or its implementing regulations, found at

5 C.F.R. § 550.805. See Campbell v. U.S. Postal Service, 75 M.S.P.R. 273, 278 (1997).

5
at 5-6, Tab 12 at 9-10. He submitted a discovery request for his Survey Crew

Chief’s timecards and travel assignments, CF, Tab 11, and moved to compel the

agency to produce the requested documentation, CF, Tab 25. On review, the

appellant states correctly that the administrative judge did not address his

arguments concerning overtime or rule on his motion to compel. CPFR File,

Tab 1 at 6-7. In response, the agency has argued, among other things, that any

dispute about the inclusion of overtime in his back pay was premature because it

was still being adjudicated by DFAS. CPFR File, Tab 3 at 27; CF, Tab 29. 

We disagree with the agency’s position that any dispute about overtime was

premature. Per the agency’s own assertion, it submitted to DFAS that the

appellant would have earned 40 hours of basic pay per week at the USACE. CF,

Tab 3 at 34, 36. Whether the agency has proven that it complied with the Board’s

back pay order by supplying DFAS with the correct information is ripe for

adjudication. See 5 CFR § 550.805(a)(2). 

When the Board reverses a personnel action, it orders that the appellant be

placed, as nearly as possible, in the same situation he would have been in had the

wrongful personnel action not occurred. Rittgers v. Department of the Army,

123 M.S.P.R. 31, ¶ 13 (2015). Overtime back pay may be computed based on

either the appellant’s own overtime history or the average overtime hours worked

by similarly situated employees during the relevant time period. Id. Although

the appellant is not entitled to receive a windfall, he is entitled to be restored to

the status quo ante, and the agency must use the method of computation most

likely to achieve this goal. Id. The Board will not nullify the method employed

by the agency in calculating overtime back pay in the absence of a showing that

the method was unreasonable or unworkable, id., but the agency bears the

ultimate burden of proving its compliance with a Board order, New, 106 M.S.P.R.

217, ¶ 6.

Moreover, where there is no regulatory right to discovery in compliance

cases, the Board may require the presentation of evidence when it is necessary to

6
determine whether an agency has complied with its decision. Williams v.

Department of the Navy, 43 M.S.P.R. 114, 116-17 (1990). In this case, the

agency has not presented clear and understandable argument and evidence that its

determination, that the appellant would not have worked overtime or differential

time, was accurate. See Tubesing v. Department of Health and Human Services,

112 M.S.P.R. 393, ¶ 17 (2009) (stating that an agency’s assertion of compliance

must include a clear explanation of its compliance actions supported by credible

evidence and understandable documentary evidence). Considering the lack of

probative evidence in the record on the overtime and differential pay issue, we

find that there is a genuine issue of fact requiring the production of evidence. We

order the agency to submit evidence and argument demonstrating that it properly

calculated the appellant’s overtime hours for April 16, 2021, through July 17,

2022, and that its submission to DFAS reflects that calculation. The agency’s

submission shall include the records for similarly situated individual(s) during the

period in question regardless of whether it used this method of computation. 5 

The appellant has also asserted that he is entitled to the 16.5 hours of

overtime pay that he earned at DVA. CPFR File, Tab 1; CF, Tab 9 at 31-35,

42-47. The agency has explained to the appellant that it could not speak to how

DFAS would treat the overtime hours that he earned at DVA, and it has argued

that the issue is premature. CF, Tab 9 at 42; CPFR File, Tab 3 at 27 n.9. We find

it appropriate to resolve this issue and provide clarity to the parties. 

Pursuant to 5 U.S.C. § 5596(b)(1)(A), an agency must deduct from a back

pay award any amount an appellant earned from employment obtained as a

replacement for his position during the period the corrected personnel action was

in effect. LaBatte v. Department of the Air Force, 58 M.S.P.R. 586, 595 (1993);

5 C.F.R. § 550.805(e)(1). To establish that replacement earnings received during

the period that an employee was improperly removed from his position should be

5

 We disagree with the agency’s position that the Privacy Act bars it from supplying this

evidence. CF, Tab 29 at 11-13. 

7
viewed as “moonlight” employment, and thus not deductible from a back pay

award, the employee must show that he could or would have worked at the

interim employment had the removal not occurred. Weber v. Department of

Justice, 88 M.S.P.R. 345, ¶ 11 (2001). We find that the appellant’s full-time

position as a Materials Handler at DVA was replacement employment—not

moonlight employment—and, thus, all earnings from this position are deductible.

CF, Tab 6 at 38.

The agency is ordered to submit evidence demonstrating full compliance with the

Board’s order.

Furthermore, we find that the agency’s continued technical noncompliance

with the Board’s order warrants an outcome different than that of the compliance

initial decision. The compliance initial decision was issued in accordance with

the Board’s regulation at 5 C.F.R. § 1201.183(4), which provides that, if a judge

finds that there has been a good faith effort to take all actions required to be in

compliance with the final decision, he will state those findings in a decision,

which will be subject to the procedures for petitions for review. However, an

agency’s good faith attempts to comply do not preclude enforcement indefinitely:

the Board is required to ensure that an agency substantively complies with its

decision. See generally Kerr v. National Endowment for the Arts, 726 F.2d 730

(Fed. Cir. 1984) (denying the agency’s motion to dismiss because only a finding

of full compliance could render the case moot and remanding the compliance

issue to the Board). As of yet, the agency has not informed the Board that it has

achieved full compliance with the initial decision, despite the instruction in the

compliance initial decision to do so. CID at 4. 

Moreover, the Board has held that the agency is responsible for ensuring

that its agent, DFAS, satisfies the agency’s obligations. See Tichenor v.

Department of the Army, 84 M.S.P.R. 386, ¶ 8 (1999). The administrative judge

appeared to rely on the following assertion of the agency representative as set

forth in the agency’s January 24, 2023, pleading: “[i]t is the [a]gency’s []

8
understanding that DFAS cannot offset [the appellant’s] VA debt from his back

pay until his separate debt appeal is resolved, and that DFAS will not be able to

complete processing [t]he appellant’s back pay until it can offset the VA debt.”

CID at 3-5; CF, Tab 35 at 5. The agency provides the same explanation for its

failure to restore the appellant’s sick leave balances. CPFR File, Tab 3 at 26 n.8.6

However, the agency representative’s explanation is not evidence, and it is not

satisfactory. Absent any evidence that DFAS has refused to comply with

instruction by the agency to issue payment for back pay and restore sick leave

balances, we disagree with the administrative judge’s conclusion that the agency

has no control over DFAS. CID at 4; see King v. Department of the Navy,

130 F.3d 1031, 1034 (Fed. Cir. 1997); Tichenor, 84 M.S.P.R. 386, ¶ 8. 

Lastly, the appellant requests both interest on his back pay and that the

Board assess daily penalties on the agency for its noncompliance. CPFR File,

Tab 1 at 11. To address the appellant’s concern about interest on his back pay

award, we note that the agency must pay the appellant interest on his back pay in

accordance with the Back Pay Act to be in compliance with the Board’s order.

5 U.S.C. § 5596(b)(2); 5 C.F.R. § 550.806; see ID at 21. The agency’s

submission demonstrating compliance must explain how it calculated the interest

on the back pay award. Antunes v. U.S. Postal Service, 61 M.S.P.R. 408, 410

(1994); 5 C.F.R. § 1201.183(a)(1)(i). 

Concerning the appellant’s request for daily penalties, the Board generally

does not award damages or monetary sanctions against a party for failure to

comply with any order, including an order directing the payment of back pay.

Cunningham v. Department of Veterans Affairs, 91 M.S.P.R. 523, ¶ 3 (2002);

Doiron v. U.S. Postal Service, 68 M.S.P.R. 170, 173 (1995). However, the

6

 The agency further notes that it has approved advanced sick leave for the appellant

and would do so again if requested by the appellant. CPFR File, Tab 3 at 26 n.8; CF,

Tab 3 at 38-39, Tab 30 at 5. However, as the appellant is entitled to an official

restoration of his sick leave balances, we find that the agency’s promises to act in good

faith are insufficient to show compliance with the Board’s order. See Walker,

90 M.S.P.R. 136, ¶ 27. 

9
Board’s authority to impose sanctions as a means of enforcing compliance

includes the authority to order that the responsible agency official “shall not be

entitled to receive payment for service as an employee during any period that the

order has not been complied with.” 5 U.S.C. § 1204(e)(2)(A). Sanctions should

be imposed only when the agency has failed to exercise basic due diligence

expected of it in complying with an order or has exhibited negligence or bad faith

in its efforts to so comply. Peck v. Office of Personnel Management, 35 M.S.P.R.

175, 178 (1987); 5 C.F.R. § 1201.43. 

We recognize that the issuance of a debt owed by the appellant in the

amount of $10,076.08, which should be completely offset by a back pay award,

has nonetheless created a stressful situation for the appellant. 7 CF, Tab 31 at 4,

Tab 36. We also recognize that the agency’s alleged inability to rectify this

“debt” and satisfy its other obligations has been ongoing for some time—and

without sufficient explanation. CF, Tab 35 at 5; CPFR File, Tab 3. We therefore

find the agency in noncompliance with the final decision reversing the appellant’s

removal.

Because we have found the agency in noncompliance, the agency is being

directed to file evidence of compliance with the Clerk of the Board, and the

appellant will be afforded the opportunity to respond to that evidence. The

appellant’s petition for enforcement will be referred to the Board’s Office of

General Counsel, and, depending on the nature of the submissions, an attorney

with the Office of General Counsel may contact the parties to further discuss the

compliance process. The parties are required to cooperate with that individual in

good faith. Because the purpose of the proceeding is to obtain compliance, when

appropriate, an Office of General Counsel attorney or paralegal may engage in ex

parte communications to, among other things, better understand the evidence of

compliance and any objections to that evidence. Thereafter, the Board will issue

7

 Notably, to the appellant’s understandable objection, the debt letter issued to him on

October 22, 2022, notifies him that interest and additional penalties at a rate of up to

6% could be imposed on his “debt.” CPFR File, Tab 1 at 11; CF, Tab 31 at 4, 6. 

10
a final decision fully addressing the appellant’s petition for review of the

compliance initial decision8 and setting forth the appellant’s further appeal rights

and the right to attorney fees, if applicable.

ORDER

We ORDER the agency to submit to the Clerk of the Board within 20 days

of the date of this Order satisfactory evidence of compliance. This evidence shall

adhere to the requirements set forth in 5 C.F.R. § 1201.183(a)(6)(i), including

submission of evidence and a narrative statement of compliance. The agency

must serve all parties with copies of its submission.

The agency’s submission shall demonstrate, among all other requirements,

that it properly calculated the appellant’s overtime and differential pay hours

back pay and submitted its calculations to DFAS. The agency’s submission shall

include the records for similarly situated individual(s) during the period in

question regardless of whether it used this information in its overtime

computation.9 

8 The subsequent decision may incorporate the analysis and findings set forth in this

Order.

9

 The fact that a dispute remains about overtime and differential pay shall not delay the

agency from immediately paying the appellant the undisputed amount and producing

evidence of such payment. See Russo v. U.S. Postal Service, 107 M.S.P.R. 296, ¶ 15

(2007).

11
The agency’s submission should be filed under the new docket number

assigned to this compliance referral matter, MSPB Docket No. PH-0752-22-

0072-X-1. All subsequent filings should refer to the compliance referral docket

number set forth above and should be faxed to (202) 653–7130 or mailed to the

following address:

Clerk of the Board

U.S. Merit Systems Protection Board

1615 M Street, N.W.

Washington, D.C. 20419

Submissions also may be made by electronic filing at the Board’s e-Appeal site

(https://e-appeal.mspb.gov) in accordance with its regulation at 5 C.F.R.

§ 1201.14.

The appellant may respond to the agency’s evidence of compliance within

20 days of the date of service of the agency’s submission. 5 C.F.R.

§ 1201.183(a)(8). If the appellant does not respond to the agency’s evidence of

compliance, the Board may assume that he is satisfied with the agency’s actions

and dismiss the petition for enforcement.

The agency is reminded that, if it fails to provide adequate evidence of

compliance, the responsible agency official and the agency’s representative may

be required to appear before the General Counsel of the Merit Systems Protection

Board to show cause why the Board should not impose sanctions for the agency’s

noncompliance in this case. 5 C.F.R. § 1201.183(c). The Board’s authority to

impose sanctions includes the authority to order that the responsible agency

official “shall not be entitled to receive payment for service as an employee

during any period that the order has not been complied with.” 5 U.S.C.

§ 1204(e)(2)(A).

12
This Order does not constitute a final order and therefore is not subject to

judicial review under 5 U.S.C. § 7703(a)(1). Upon the Board’s final resolution of

the remaining issues in the petition for enforcement, a final order shall be issued,

which then shall be subject to judicial review.

FOR THE BOARD: ______________________________

Gina K. Grippando

Clerk of the Board

Washington, D.C.

13