Timothy W. Butler v. Department of the Army

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
TIMOTHY W. BUTLER,
Petitioner
v.
DEPARTMENT OF THE ARMY,
Respondent
______________________
2024-2337
______________________
Petition for review of the Merit Systems Protection
Board in No. DA-1221-19-0077-X-1.
______________________
Decided: June 4, 2025
______________________
T IMOTHY BUTLER, San Antonio, TX, pro se.
T ATE N ATHAN WALKER , Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent. Also represented by ELIZABETH
MARIE H OSFORD, P ATRICIA M. MCCARTHY , YAAKOV R OTH .
______________________
Before D YK, SCHALL , and CHEN, Circuit Judges.
Case: 24-2337 Document: 33 Page: 1 Filed: 06/04/2025

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BUTLER v. ARMY 2
P ER CURIAM .
Timothy W. Butler petitions pro se for review of a final
order of the Merit Systems Protection Board (“Board”) dis-
missing his petition for enforcement of the Board’s order
granting him back pay. We affirm.
I
On July 27, 2018, Mr. Butler was removed from his po-
sition as a Human Resources Assistant at the United
States Army Cadet Command at Texas A&M University in
Corpus Christi, Texas, for failure to follow policies and in-
structions and for his absence from work without authori-
zation. Mr. Butler appealed his removal to the Board,
which ordered the Army to “cancel [Mr. Butler’s] removal
and to restore [him] effective July 27, 2018,” and that he be
paid the “correct amount of back pay, interest on back pay,
and other benefits under the Office of Personnel Manage-
ment’s regulations, no later than 60 calendar days after the
date of th[e] [order].”1 Butler v. Dep’t of Army, No. DA-
1221-19-0077-W-1, at 11–12 ¶¶ 23–24 (M.S.P.B. Jan. 20,
2023) (“January Order”). Approximately six months later,
the Army had still not paid Mr. Butler his back pay, inter-
est, or other benefits. Mr. Butler thus filed a petition for
enforcement of the Board’s January Order. On July 18,
2023, the administrative judge (“AJ”) ordered the Army to
pay Mr. Butler any undisputed back wages. The Army,
1 After the Board issued its final decision, Mr. Butler
also filed motions for compensatory and consequential
damages. While the Board denied his motion for conse-
quential damages, it granted in part his motion for com-
pensatory damages. It awarded Mr. Butler $75,000, which
the Army paid.
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BUTLER v. ARMY 3
however, notified the Board that it could not calculate
Mr. Butler’s back pay because he had not provided dates
during which he was unable to work due to injury or illness
after his July 27, 2018, removal, as required by regulation.
See 5 C.F.R. § 550.805(c)(1) (requiring that, in calculating
back pay, the agency exclude, “[a]ny period during which
an employee was not ready, willing, and able to perform
his . . . duties because of an incapacitating illness or in-
jury”); White v. Dep’t of Army, No. 2007-3135, 2007 WL
2914536, at *3 (Fed. Cir. 2007).
The AJ’s July 18, 2023, initial decision was referred to
the Board for final decision. Upon referral, the Board’s
clerk ordered Mr. Butler to supply dates, between July 27,
2018, and February 7, 2023, when he was unable to work
and notified him that if he “fail[ed] to file [this infor-
mation], the Board may dismiss his petition for enforce-
ment.” S. App’x 15.2 Mr. Butler did not provide the
requested information. On July 17, 2024, the Board dis-
missed Mr. Butler’s petition for enforcement “[i]n light of
[his] failure to cooperate with the agency’s attempt to cal-
culate his back pay, and his failure to respond to the
Board’s order instructing him to provide the necessary in-
formation.” Butler v. Dep’t of Army, No. DA-1221-19-0077-
X-1, at 4 ¶ 10 (M.S.P.B. July 17, 2024).
Mr. Butler petitions for review. We have jurisdiction
under 28 U.S.C. § 1295(a)(9).3
2 “S. App’x” refers to the appendix filed with the gov-
ernment’s informal response brief.
3 In his Federal Circuit Rule 15(c) statement,
Mr. Butler alleged that he raised a “discrimination” claim
of whistleblowing before the Board. ECF No. 11 at 2. This
is not a mixed case, however, as whistleblowing is not one
of the categories of discrimination listed in
5 U.S.C. § 7702(a)(1)(B). Before the Board, Mr. Butler did
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BUTLER v. ARMY 4
II
This court must affirm a decision of the Board unless it
is “(1) arbitrary, capricious, an abuse of discretion, or oth-
erwise not in accordance with law; (2) obtained without
procedures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence.”
5 U.S.C. § 7703(c).
The Board’s decision dismissing Mr. Butler’s petition
for enforcement was supported by substantial evidence.
The Army reinstated Mr. Butler to his position and was at-
tempting to provide Mr. Butler with back pay. Mr. Butler
did not provide the necessary information to calculate this
back pay despite requests from the agency and an order by
the Board.
In his petition for review, Mr. Butler does not dispute
that he did not provide the requested information.
Mr. Butler explains, however, that he “was unable to reply”
because he did not “receiv[e] the information until [his]
[a]ccount was restored.” Pet’r’s Br. 2. It is not clear and
Mr. Butler does not explain what information he needed to
receive in order to provide the Army with dates he was un-
able to work. Moreover, he did not present this argument
to the Board in response to its order instructing Mr. Butler
to provide the necessary dates to the Army, so it is forfeited.
See Butler, No. DA-1221-19-0077-X-1, at 3–4 ¶ 7 (M.S.P.B.
July 17, 2024) (explaining Mr. Butler did “not respond[] to
[the Board’s] order or file[] any other submission”).
For the first time in his reply, Mr. Butler also argues
that “the [Army] received dates,” and, as evidence of this,
Mr. Butler attaches emails to his reply brief. He further
not allege any discrimination within the categories falling
under that statute. See England v. Off. of Pers. Mgmt.,
557 F. App’x 993, 995 (Fed. Cir. 2014) (nonprecedential).
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BUTLER v. ARMY 5
argues that he sent the Board dates as well, explaining
that he went to college through the “Vocational Rehabilita-
tion program” from 2019–2022. ECF No. 25-2 at 4; see also
Pet’r’s Memo. in Lieu of Oral Arg., ECF No. 31, at 2 ( “[M]y
incapacitation dates were given to the proper personnel but
not sent forward”). Mr. Butler does not explain how these
emails or the 2019–2022 college dates are responsive to the
request that he provide information concerning when, be-
tween July 27, 2018, and February 7, 2023, he was unable
to work due to incapacitating illness or injury, nor does he
identify how otherwise the Army received the requested in-
formation. In any event, this information is not part of the
record, and we cannot consider it.
Finally, Mr. Butler argues that the Army has contin-
ued to retaliate against him as a whistleblower. Whatever
claims Mr. Butler has in this respect are not part of the
present case.
We have considered Mr. Butler’s remaining arguments
and find them unpersuasive.
AFFIRMED
COSTS
No costs.
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