Travis E. Wilkes v. Department of Veterans Affairs

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
TRAVIS E. WILKES,
Petitioner
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent
______________________
2016-1220
______________________
Petition for review of the Merit Systems Protection
Board in No. DA-0432-11-0466-C-1.
______________________
Decided: April 8, 2016
______________________
T RAVIS E. WILKES , Norman, OK, pro se.
MATTHEW P AUL R OCHE, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, for respondent. Also represent-
ed by P ATRICIA M. MC CARTHY , ROBERT E. K IRSCHMAN, J R.,
BENAJMIN C. MIZER.
______________________
Before WALLACH , P LAGER , and HUGHES , Circuit Judges.

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WILKES v. DEP ’ T OF VETERANS AFFAIRS 2
Opinion for the court filed P ER CURIAM .
Concurring opinion filed by Circuit Judge WALLACH .
P ER CURIAM .
Petitioner Travis Wilkes appeals the final decision of
the Merit Systems Protection Board (“MSPB”) denying his
Petition for Enforcement of an MSPB order that reinstat-
ed his employment with the Department of Veterans
Affairs (“the VA”). See Wilkes v. Dep’t of Veterans Affairs,
DA–0432–11–0466–C–1, 2015 WL 5564671 (M.S.P.B.
Sept. 22, 2015); see Resp’t’s App. 115–17 (Petition for
Enforcement). Mr. Wilkes alleges that the VA did not
fully comply with the MSPB’s order because it failed to
provide certain benefits due to him under the Thrift
Savings Plan (“TSP”).1 Pet’r’s Br. 1–2. We affirm the
MSPB.
BACKGROUND
For almost twenty years, Mr. Wilkes worked as a
Psychology Technician with the VA. Resp’t’s App. 38. In
2011, the VA proposed to remove Mr. Wilkes for perfor-
mance reasons. Id. at 39–40. Before his removal took
effect, Mr. Wilkes retired. Id. at 69. When he retired, Mr.
1 The TSP “is a retirement savings and investment
plan for Federal employees and members of the uniformed
services.” See About the TSP, https://www.tsp.gov/Plan
Participation/AboutTheTSP/index.html (last visited Mar.
12, 2016). Employees, and under certain conditions the
employing Federal agency, may contribute to TSP ac-
counts. See id. A TSP participant may borrow money
from his or her TSP account while employed with the
Federal government, an action commonly known as a
loan. See Loans and Withdrawals, https://www.tsp.gov/
PlanParticipation/LoansAndWithdrawals/loans/index.
html (last visited Mar. 12, 2016).

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WILKES v. DEP ’ T OF VETERANS AFFAIRS 3
Wilkes had an outstanding TSP loan, which automatically
converted to a taxable distribution. Id. at 72.
Despite electing to retire, Mr. Wilkes challenged his
proposed removal from the VA. Mr. Wilkes ultimately
prevailed before the MSPB, which ordered the VA to
cancel his proposed removal and retroactively reinstate
him with back pay, interest, and benefits, including those
arising under the TSP. Id. at 62.
The VA took several steps to reinstate Mr. Wilkes and
restore his benefits. As for Mr. Wilkes’s TSP benefits, the
VA made matching contributions to his TSP account and
advised Mr. Wilkes that any questions regarding the
management of his account should be raised with the
Federal Retirement Thrift Investment Board (“FRTIB”),2
which administers the TSP. Id. at 110.
Mr. Wilkes subsequently filed the Petition for En-
forcement with the MSPB and argued that the VA failed
to fully comply with the MSPB’s order reinstating his
employment. Mr. Wilkes contended that the VA (1)
misallocated his TSP makeup contributions3 and associ-
2 “The FRTIB is an independent Government agen-
cy that is managed by five presidentially appointed board
members and an Executive Director who are required by
law to manage the TSP prudently and solely in the inter-
est of the participants and their beneficiaries.” See About
the TSP, https://www.tsp.gov/PlanParticipation/AboutThe
TSP/ index.html (last visited Mar. 12, 2016).
3 “Makeup contributions are employee contributions
that should have been deducted from a [TSP] participant’s
basic pay or employer contributions that should have been
charged to an employing agency on an earlier date, but
were not deducted or charged and, consequently, are
being deducted or charged currently.” 5 C.F.R. § 1605.1
(2015).

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WILKES v. DEP ’ T OF VETERANS AFFAIRS 4
ated breakage4 to the “G Fund” instead of the “C Fund,”5
and (2) failed to reimburse his TSP loan that had been
converted to a taxable withdrawal upon his retirement.
Id. at 121–22.
In an initial decision, Administrative Judge James
Kasic of the MSPB denied Mr. Wilkes’s Petition. The
Administrative Judge concluded that an unrebutted
affidavit from Kyle Inhofe, Chief of Human Resources at
the VA’s Oklahoma City Medical Center, explained that
the VA’s allocations to Mr. Wilkes’s TSP account “were
distributed to the ‘G Fund’ per an automatic setting that
[Mr. Wilkes] could change by contacting the [FRTIB], as
only he could implement such a change.” Id. at 29; see
also id. at 74–75 (Mr. Inhofe’s Affidavit). The Adminis-
trative Judge also found that the VA made the requisite
matching contributions to Mr. Wilkes’s TSP account. Id.
4 “Breakage means the loss incurred or the gain re-
alized on makeup or late contributions” and reflects “the
difference between the value of the shares of the applica-
ble investment fund(s) that would have been purchased
had the contribution been made” on the date on which the
contribution occurred “and the value of the shares of the
same investment fund(s) on the date the contribution is
posted to the account.” 5 C.F.R. § 1605.1.
5 A TSP participant may allocate contributions in
various TSP funds. The FRTIB manages the G Fund,
which “buys a nonmarketable U.S. Treasury security that
is guaranteed by the U.S. Government.” See Funds
Overview, https://www.tsp.gov/InvestmentFunds/FundsOv
erview/index.html (last visited Mar. 12, 2016). A private
firm manages the C Fund, which “is invested in a stock
index fund that fully replicates the Standard and Poor’s
500 . . . Index.” See id. A participant’s allocation prefer-
ences will dictate which funds receive the participant’s
TSP contributions. 5 C.F.R. § 1605.13(a)(3).

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WILKES v. DEP ’ T OF VETERANS AFFAIRS 5
at 29. And the Administrative Judge found that the VA
“did not play[] any role in the reinstatement of [Mr.
Wilkes]’s TSP loan.” Id. Taken together, the Administra-
tive Judge concluded that the VA fully complied with the
MSPB’s order reinstating Mr. Wilkes’s employment. Id.
Dissatisfied with the Administrative Judge’s initial
decision, Mr. Wilkes sought review from the MSPB, which
also denied his Petition. See Wilkes, 2015 WL 5564671, at
¶ 1. The MSPB found that the VA complied “with its TSP
payment obligations under the applicable regulations”
and that “the management of [Mr. Wilkes]’s TSP account
[(i.e., the allocation of his contributions to particular TSP
funds)] is a matter between [Mr. Wilkes] and the
[FRTIB].” Id. at ¶ 13 (citations omitted). The MSPB also
held that the VA “plays no role in reinstating [Mr.
Wilkes]’s TSP loan” and otherwise had no obligation to
inform Mr. Wilkes of his right to reinstate his TSP loan.
Id. at ¶ 11 (citing Crazy Thunder-Collier v. Dep’t of the
Interior, 2010 M.S.P.B. 202, at ¶ 13–14 (2010)).
Mr. Wilkes appeals. We have jurisdiction pursuant to
28 U.S.C. § 1295(a)(9) (2012).
D ISCUSSION
I. Standard of Review
In relevant part, we affirm the MSPB’s decision
unless it is “not in accordance with law.” 5 U.S.C.
§ 7703(c)(1) (2012). We review the MSPB’s legal determi-
nations de novo. Welshans v. U.S. Postal Serv., 550 F.3d
1100, 1102 (Fed. Cir. 2008). As the petitioner, Mr. Wilkes
“bears the burden of establishing error in the [MSPB’s]
decision.” Harris v. Dep’t of Veterans Affairs, 142 F.3d
1463, 1467 (Fed. Cir. 1998).

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WILKES v. DEP ’ T OF VETERANS AFFAIRS 6
II. Mr. Wilkes Abandoned His Argument that the VA
Misallocated Contributions to His TSP Account
In his opening brief, Mr. Wilkes contends that the
MSPB erred in holding that he could correct errors re-
garding TSP contributions because “[t]he MSPB used the
wrong set of facts to make [its] decision.” Pet’r’s Br. 1.
Mr. Wilkes alleges that the VA misallocated his TSP
makeup contributions and associated breakage to the G
Fund, rather than the C Fund. Id. at 2, 6.
After submitting his opening brief, Mr. Wilkes con-
tacted counsel for the Government to provide an update
on his case. Government counsel asserts that Mr. Wilkes
informed him that the FRTIB correctly “calculated the
breakage on [his] TSP makeup contributions based [on]
investment in the ‘C Fund.’” Resp’t’s App. 68. As a
result, Government counsel also asserts that Mr. Wilkes
informed him that “[he] would no longer be pursuing this
part of [his] appeal” and “would not object if [Government
counsel] explained this new development in the Govern-
ment’s informal brief.” Id. Counsel for the Government
memorialized this exchange in an email sent to Mr.
Wilkes and invited Mr. Wilkes to “contact [him] if [the]
description of [the] conversation is not accurate.” Id.
The record does not indicate that Mr. Wilkes objected
to the description of the conversation with Government
counsel, nor have we separately received any such objec-
tion from Mr. Wilkes. As a result, we conclude that Mr.
Wilkes has abandoned this aspect of his appeal.6
6 Even had Mr. Wilkes not abandoned this aspect of
his appeal, the law squarely supports the MSPB’s conclu-
sion that the VA does not manage his TSP contributions.
See 5 C.F.R. §§ 1605.2(a) (“The TSP will calculate break-
age on late contributions, makeup agency contributions,
and loan payments . . . .”), 1605.22(c)(2) (“For errors

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WILKES v. DEP ’ T OF VETERANS AFFAIRS 7
III. The MSPB Properly Concluded that the VA Has No
Obligation to Reinstate Mr. Wilkes’s TSP Loan
Mr. Wilkes alleges that the VA did not fully comply
with the MSPB’s order reinstating his employment be-
cause the agency did not reinstate his TSP loan, which
had been converted to a taxable withdrawal upon his
retirement. Pet’r’s Br. 2. The governing law does not
support Mr. Wilkes’s argument.
Mr. Wilkes, not the VA, had an obligation to seek re-
instatement of his TSP loan. The VA may correct errors
in Mr. Wilkes’s TSP account consistent with the FRTIB’s
regulations. See 5 C.F.R. § 550.805(h) (“Agencies must
correct errors that affect an employee’s [TSP] account
consistent with regulations prescribed by the [FRTIB].”).
The FRTIB’s regulations provide that, if an agency rein-
states a wrongfully separated TSP participant, the partic-
ipant must notify the TSP within ninety days of
reinstatement to restore any previously withdrawn
amount to the TSP account. See id. § 1605.13(d). During
the ninety day period, a participant “may also elect to
reinstate a loan which was previously declared to be a
taxable distribution.” § 1605.13(e). However, the regula-
tions do not require the TSP to automatically restore a
participant’s loan, nor do they require the agency to notify
involving an investment in the wrong fund of which a
participant or beneficiary has knowledge, he or she may
file a claim for breakage with the [FRTIB] or TSP record
keeper . . . [and] [t]he [FRTIB] or TSP record keeper must
promptly pay breakage for such errors.”), 1506.22(c)(3) (“If
a participant or beneficiary fails to file a claim for break-
age concerning an error involving an investment in the
wrong fund in a timely manner, the [FRTIB] or TSP
record keeper may nevertheless, in its sound discretion,
pay breakage for any such error that is brought to its
attention.”).

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WILKES v. DEP ’ T OF VETERANS AFFAIRS 8
the participant of the right to restore a TSP loan previous-
ly treated as a taxable distribution. See id. § 1605.13(d)–
(e); see also Crazy Thunder-Collier, 2010 M.S.P.B. 202, at
¶ 13 (explaining that § 1605.13 “does not state any agency
duty to provide notice of th[e] right” to reinstate a TSP
loan). Thus, because it was incumbent upon Mr. Wilkes
to contact the FRTIB to have his TSP loan reinstated, the
MSPB properly concluded that the VA had no obligation
to reinstate Mr. Wilkes’s TSP loan.
CONCLUSION
We have considered Mr. Wilkes’s remaining argu-
ments and find them unpersuasive.7 Accordingly, the
final decision of the Merit Systems Protection Board is
AFFIRMED
COSTS
Each party shall bear its own costs.
7 After the parties concluded briefing, Mr. Wilkes
filed a letter, which we treated as a motion, to supplement
his opening brief. See Pet’r’s Mot. to Supplement Opening
Br. Mr. Wilkes appended extra-record evidence to the
Motion. See id. at 3–4. The Government opposed the
Motion and, alternatively, argued that the extra-record
evidence does not alter the outcome of the appeal. Gov’t’s
Resp. to Ct.’s Letter 2–3. As a general proposition, the
court does not consider evidence that has not first been
considered by the trial forum (here, the MSPB), though in
some circumstances exceptions may be made. In this
case, nothing in Mr. Wilkes’s Motion alters the outcome of
the appeal.

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N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
TRAVIS E. WILKES,
Petitioner
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent
______________________
2016-1220
______________________
Petition for review of the Merit Systems Protection
Board in No. DA-0432-11-0466-C-1.
______________________
WALLACH , Circuit Judge, concurring.
I concur in the rationale employed and the result
reached by the majority. However, I write separately
because I disagree with the majority’s decision to accept
and consider extra-record evidence in this appeal.
After the parties concluded briefing, Mr. Wilkes filed
a letter, which we treated as a motion, to supplement his
opening brief. See generally Pet’r’s Mot. to Supplement
Opening Br. Mr. Wilkes appended evidence to the Motion
that was not before the MSPB when it denied his Petition
for Enforcement—namely, a letter from the FRTIB dis-
cussing his (1) TSP makeup contributions and associated
breakage and (2) TSP loan. See id. at 3–4. The court

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WILKES v. DEP’ T OF VETERAN AFFAIRS 2
invited a response from the Government, which opposed
the Motion and, alternatively, argued that the extra-
record evidence does not alter the outcome of the appeal.
See Gov’t’s Resp. to Ct.’s Letter 2–3. The majority agrees
with the Government that the extra-record evidence does
not alter the outcome of the appeal. Maj. Op. at 8 n.7.
Precedent required the court to deny Mr. Wilkes’s Mo-
tion. Mr. Wilkes did not present the extra-record evi-
dence to the Administrative Judge, and the majority errs
in accepting it for review. See Hernandez v. Dep’t of Air
Force, 498 F.3d 1328, 1333 (Fed. Cir. 2007) (“[N]either we,
nor the [MSPB], may consider in the first instance evi-
dence not presented to the [Administrative Judge].”); see
also Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 743
(1985) (“[T]he focal point for judicial review should be the
administrative record already in existence, not some new
record made initially in the reviewing court.” (quoting
Camp v. Pitts, 411 U.S. 138, 142 (1973))).
The “record rule” has exceptions, but Mr. Wilkes has
not alleged that the extra-record evidence meets any of
them. See Home Prods. Int’l, Inc. v. United States, 633
F.3d 1369, 1379 & n.12 (Fed. Cir. 2011) (explaining that a
record may be supplemented when, inter alia, the record
is inadequate or tainted by fraud); Borlem S.A.-
Empreedimentos Industriais v. United States, 913 F.2d
933, 939 (Fed. Cir. 1990) (explaining that a record may be
supplemented when the record contains an erroneous fact
later corrected by the agency that issued the decision
under review). And to the extent that the majority ac-
cepts the extra-record evidence for review and substan-
tively assesses it, the majority impermissibly weighs the
extra-record evidence against other facts on the record.
See Matsushita Elec. Indus. Co. v. United States, 750 F.2d
927, 936 (Fed. Cir. 1984).
Finally, Mr. Wilkes’s pro se status does not require us
to accept and consider the extra-record evidence. Alt-

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WILKES v. DEP ’ T OF VETERANS AFFAIRS 3
hough we must liberally construe Mr. Wilkes’s pleadings,
see, e.g., Hughes v. Rowe, 449 U.S. 5, 9–10 (1980), it is
another thing entirely to suspend the statutory record
requirements, 5 U.S.C. § 7703(c) (limiting this court’s
review of MSPB decisions to “the record”); Rockwell v.
Dep’t of Transp., 789 F.2d 908, 912 (Fed. Cir. 1986) (dis-
cussing same).
Although I ultimately agree with the majority that
the extra-record evidence does not affect the outcome of
the appeal, I would have denied Mr. Wilkes’s Motion and
not considered the extra-record evidence in his submis-
sion, given the pernicious nature of the lack of predictabil-
ity which may be engendered, even by this non-
precedential per curiam opinion.

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