Eric T Bryant v. Department of Veterans Affairs

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

2024 MSPB 16

Docket No. AT-0714-23-0137-I-1

Eric Terrell Bryant,

Appellant,

v.

Department of Veterans Affairs,

Agency.

November 18, 2024

Michael Fallings , Esquire, Austin, Texas, for the appellant.

Mary Sellers , Esquire, Montgomery, Alabama, for the agency.

Joy Warner , Esquire, Decatur, Georgia, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member

OPINION AND ORDER

¶1 The appellant has filed a petition for review of the initial decision, which

affirmed his removal under 38 U.S.C. § 714. For the reasons discussed below, we

GRANT the petition for review, REVERSE the initial decision, and DO NOT

SUSTAIN the appellant’s removal.

BACKGROUND

¶2 The appellant was employed as a Police Officer with the Veterans Health

Care System in Tuskegee, Alabama. Bryant v. Department of Veterans Affairs,

MSPB Docket No. AT-0714-20-0709-I-1, Initial Appeal File (0709-I-1 IAF),

2

Tab 5 at 59. On June 19, 2020, the agency proposed the appellant’s removal

pursuant to the Department of Veterans Affairs Accountability and Whistleblower

Protection Act of 2017 (DVA Accountability Act), Pub. L. No. 115-41, § 202(a),

131 Stat. 862, 869-73 (codified as amended at 38 U.S.C. § 714), based on the

charge of conduct unbecoming a Federal employee. 0709-I-1 IAF, Tab 5

at 47-50. In the proposal notice, the agency alleged that the appellant acted

improperly towards officers of a local police department when they attempted to

serve the appellant with a temporary protective order. Id. The appellant replied

to the proposal notice in writing and included with his reply a Douglas 1 factors

analysis supporting a penalty less than removal. Id. at 29-32. On July 9, 2020,

the deciding official issued a decision finding that the charge as set forth in the

proposal notice was supported by substantial evidence and imposing the

appellant’s removal effective July 17, 2020. Id. at 14, 20-23. Neither the

proposal notice nor the decision notice included a Douglas factors analysis, nor

1

In Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981), the Board

articulated a nonexhaustive list of factors relevant to the penalty determination in

adverse actions. Those factors include: (1) the nature and seriousness of the offense

and its relation to the employee’s duties, position, and responsibilities, including

whether the offense was intentional or technical or inadvertent, or was committed

maliciously or for gain, or was frequently repeated; (2) the employee’s job level and

type of employment, including supervisory or fiduciary role, contacts with the public,

and prominence of the position; (3) the employee’s past disciplinary record; (4) the

employee’s past work record, including length of service, performance on the job,

ability to get along with fellow workers, and dependability; (5) the effect of the offense

upon the employee’s ability to perform at a satisfactory level and its effect upon

supervisors’ confidence in the employee’s ability to perform assigned duties;

(6) consistency of the penalty with those imposed upon other employees for the same or

similar offenses; (7) consistency of the penalty with any applicable agency table of

penalties; (8) the notoriety of the offense or its impact upon the reputation of the

agency; (9) the clarity with which the employee was on notice of any rules that were

violated in committing the offense or had been warned about the conduct in question;

(10) potential for the employee’s rehabilitation; (11) mitigating circumstances

surrounding the offense, such as unusual job tensions, personality problems, mental

impairment, harassment, or bad faith, malice or provocation on the part of others

involved in the matter; and (12) the adequacy and effectiveness of alternative sanctions

to deter such conduct in the future by the employee or others.

3

was there any evidence that the proposing or the deciding officials otherwise

engaged in one. Id.

¶3 The appellant filed an appeal with the Board challenging his removal and

raising the affirmative defenses of reprisal for union activity and whistleblower

reprisal. 0709-I-1 IAF, Tab 1, Tab 22 at 2-4. After holding a hearing, an

administrative judge issued a January 22, 2021 initial decision sustaining the

charge and finding that the appellant failed to prove his affirmative defenses.

0709-I-1 IAF, Tab 25 at 2-11. Regarding the penalty of removal, the

administrative judge found that, pursuant to 38 U.S.C. § 714(d)(2)(B), the Board

lacked the authority to mitigate the penalty selected by the agency and that the

agency proved by substantial evidence that the appellant’s misconduct warranted

removal. Id. at 11. In making this finding, the administrative judge did not

address the Douglas factors.

¶4 After that initial decision became final because neither party filed a petition

for review with the Board, the appellant sought judicial review before the U.S.

Court of Appeals for the Federal Circuit (Federal Circuit). While that matter was

pending before the Federal Circuit, that court decided Rodriguez v. Department of

Veterans Affairs, wherein it found that the agency erred when it applied the

substantial evidence burden of proof, instead of preponderant evidence, to its

internal review of a disciplinary action taken under 38 U.S.C. § 714. Rodriguez

v. Department of Veterans Affairs, 8 F.4th 1290, 1296-1301 (Fed. Cir. 2021).

The same day it decided Rodriguez, the Federal Circuit also decided Connor v.

Department of Veterans Affairs, wherein it found that Ҥ 714 precludes the Board

only from mitigating the agency’s chosen penalty. It does not alter the penalty

review with respect to the Douglas factors.” Connor v. Department of Veterans

Affairs, 8 F.4th 1319, 1326 (Fed. Cir. 2021) (citation omitted) (emphasis in

original).

¶5 On February 24, 2022, the Federal Circuit issued a precedential decision

regarding the appellant’s removal and applied Rodriguez and Connor. Bryant v.

4

Department of Veterans Affairs, 26 F.4th 1344, 1347-48 (Fed. Cir. 2022). In its

decision in Bryant, the court found that the deciding official applied the incorrect

standard in sustaining the charged misconduct and that the deciding official and

the Board failed to apply the Douglas factors to the penalty analysis. Id.

Accordingly, the court vacated the administrative judge’s findings regarding the

removal action and remanded the appeal to the Board for further proceedings. 2

Id. at 1348.

¶6 The Board then remanded the appeal to the Atlanta Regional Office for

further adjudication by the administrative judge consistent with the Federal

Circuit’s decision. Bryant v. Department of Veterans Affairs , MSPB Docket

No. AT-0714-20-0709-M-1, Appeal File, Tab 3. The administrative judge issued

an initial decision remanding the matter to the agency for the deciding official to

determine “whether the evidence as to the charge against the appellant satisfies

the requisite preponderance-of-the-evidence standard of proof . . . and for the

application of the Douglas factors as provided in Connor.” Bryant v. Department

of Veterans Affairs, MSPB Docket No. AT-0714-20-0709-M-1, Initial Decision

at 4 (Nov. 7, 2022). Thereafter, on December 16, 2022, the deciding official

issued a new decision on the June 19, 2020 proposed removal, finding that the

charge was supported by preponderant evidence and including an analysis of the

Douglas factors supporting the penalty of removal. Bryant v. Department of

Veterans Affairs, MSPB Docket No. AT-0714-23-0137-I-1, Initial Appeal File

(0137 IAF), Tab 9 at 15-18, 20-27. The appellant’s removal remained effective

in July 2020. 3 Id. at 15, 29.

2

The Federal Circuit affirmed the administrative judge’s findings regarding the

appellant’s affirmative defense of whistleblower reprisal. Bryant, 26 F.4th at 1348.

3

The July 2020 decision notice stated that the appellant’s removal was effective

July 17, 2020. 0709-I-1 IAF, Tab 5 at 20. The December 16, 2022 removal decision

stated that the appellant’s removal was effective July 20, 2020. 0137 IAF, Tab 9 at 15.

We have not located any evidence in the record showing that the original date was

changed, and it appears that the July 20, 2020 date in the 2022 decision was a

typographical error.

5

¶7 The appellant filed an appeal of the new removal decision with the Board.

0137 IAF, Tab 1. He argued that the agency failed to establish by preponderant

evidence that he engaged in conduct unbecoming a police officer or that a nexus

exists between the alleged misconduct and the efficiency of the service. Id. at 16.

He also asserted that the agency failed to properly balance the Douglas factors.

Id. Finally, he contended that the agency violated his constitutional due process

rights in the new removal decision. Id.

¶8 After holding the appellant’s requested hearing on the new removal

decision, the administrative judge issued an initial decision affirming the removal

action. 0137 IAF, Tab 24, Initial Decision (ID). She found that the deciding

official properly considered the evidence as required under Rodriguez and the

applicable Douglas factors as required under Connor. ID at 3-7. Regarding the

agency’s burden of proof before the Board, she adopted all the findings regarding

the charge as set forth in the January 22, 2021 initial decision and again found

that the agency proved the misconduct before the Board by substantial evidence.

ID at 4. The initial decision did not address the appellant’s due process

argument. 4

¶9 The appellant has filed a petition for review. Petition for Review (PFR)

File, Tab 3. The agency has responded to the petition for review, and the

appellant has replied to the response. PFR File, Tabs 6-7.

ANALYSIS

The agency was the proper authority to reconsider the removal decision in the

first instance.

¶10 The Board’s remanding of the matter to the agency is consistent with the

approach articulated by the Federal Circuit in similar cases. In Connor, for

example, the court explained that, absent mitigation authority, if the Board

determines that the agency failed to consider the Douglas factors or if the

4

None of the agency’s filings below addressed the appellant’s due process arguments.

0137 IAF, Tabs 9, 18.

6

agency’s penalty is unreasonable, the Board must remand to the agency for a

redetermination of the penalty. Connor, 8 F.4th at 1326. Similarly, in Brenner v.

Department of Veterans Affairs, 990 F.3d 1313, 1325 (Fed. Cir. 2021), the court

explained that, because the Board cannot mitigate or independently set penalties

in actions taken under section 714, if the Board concludes that the agency’s

penalty determination is not supported by substantial evidence, then the Board

should remand to the agency for further proceedings.

The agency violated the appellant’s due process rights when it failed to provide

him with notice and an opportunity to respond to all of the aggravating factors

considered by the deciding official in determining the penalty.

¶11 In his petition for review, the appellant reiterates his argument from below

that the agency violated his due process rights when he was not afforded an

opportunity to respond to the new proposed removal in light of the different

burden of proof before the agency and the requirement that the agency consider

the Douglas factors. PFR File, Tab 3 at 12-13. It is well settled that a tenured

Federal employee, such as the appellant, has a property interest in continued

employment, and the Government cannot deprive him of that interest without due

process. Wilson v. Department of Homeland Security, 120 M.S.P.R. 686, ¶ 7

(2014), aff’d, 595 F. App’x 995 (Fed. Cir. 2015); Johnson v. Department of the

Navy, 62 M.S.P.R. 487, 490 (1994); see Cleveland Board of Education v.

Loudermill, 470 U.S. 532, 538 (1985); Dieter v. Department of Veterans Affairs,

2022 MSPB 32, ¶ 11 n.7. The essential requirements of due process are prior

notice of the charges against the employee and a meaningful opportunity to

respond to those charges. Loudermill, 470 U.S. at 546. As the Supreme Court

explained, the need for a meaningful opportunity for the employee to present his

side of the story is important for two reasons. First, an adverse action will often

involve factual disputes, and consideration of the employee’s response may

clarify such disputes. Stone v. Federal Deposit Insurance Corporation , 179 F.3d

1368, 1376 (Fed. Cir. 1999) (citing Loudermill, 470 U.S. at 543). Second,

7

“[e]ven where the facts are clear, the appropriateness or necessity of the

discharge may not be.” Id. (quoting Loudermill, 470 U.S. at 543). Thus, “the

employee’s response is essential not only to the issue of whether the allegations

are true, but also with regard to whether the level of penalty to be imposed is

appropriate.” Id.

¶12 The Federal Circuit has applied the due process requirement articulated in

Loudermill in cases such as Stone and Ward v. U.S. Postal Service, 634 F.3d 1274

(Fed. Cir. 2011). In those cases, the court held that a deciding official violates an

employee’s due process rights when he relies on new and material ex parte

information as a basis for his decisions on the merits of a proposed charge or the

penalty to be imposed. Ward, 634 F.3d at 1279-80; Stone, 179 F.3d at 1376-77;

Singh v. U.S. Postal Service, 2022 MSPB 15, ¶ 23. An employee’s due process

right to notice extends to both ex parte information provided to a deciding official

and information personally known to the deciding official if the information was

considered in reaching the decision and was not previously disclosed to the

appellant. Singh, 2022 MSPB 15, ¶ 23; Solis v. Department of Justice,

117 M.S.P.R. 458, ¶ 7 (2012). In addressing due process rights, the Board has

further explained that, when an agency intends to rely on aggravating factors as

the basis for the imposition of a penalty, such factors should be included in the

advance notice of adverse action so that the employee will have a fair opportunity

to respond to those factors before the agency’s deciding official. Solis,

117 M.S.P.R. 458, ¶ 7; Vena v. Department of Labor, 111 M.S.P.R. 165, ¶ 9

(2009); see Douglas v. Veterans Administration, 5 M.S.P.R. 280, 304 (1981). If

an employee has not been given notice of an aggravating factor supporting an

enhanced penalty, a constitutional due process violation may have occurred.

Ward, 634 F.3d at 1280; Solis, 117 M.S.P.R. 458, ¶ 7.

¶13 The Board has applied these due process requirements in adverse actions

taken under 5 U.S.C. chapter 75 and performance-based actions taken under

5 U.S.C. chapter 43. See, e.g., Mathis v. Department of State, 122 M.S.P.R. 507,

8

¶¶ 1, 6-16 (2015) (considering whether an agency provided an employee

constitutional due process in a removal proceeding under chapter 43); Silberman

v. Department of Labor, 116 M.S.P.R. 501, ¶¶ 2, 14 (2011) (reversing an adverse

action taken pursuant to chapter 75 when an agency violated an employee’s

constitutional due process rights). We discern no reason why the due process

requirements would not be equally applicable to actions taken under the DVA

Accountability Act, the legal authority cited by the agency in removing the

appellant. The Federal Circuit has recognized that the DVA Accountability Act

maintains due process protections for Federal employees. Sayers v. Department

of Veterans Affairs, 954 F.3d 1370, 1376-77 (Fed. Cir. 2020) (citing 163 Cong.

Rec. S3268, 3276, 3280 (daily ed. June 6, 2017) (remarks of Senators Tester,

Nelson, and Rubio)); see Brenner, 990 F.3d at 1324. In addition, the Board has

recognized that 38 U.S.C. § 714 cannot be considered in a vacuum and that it

must consider other legal authorities in interpreting the statute. Richardson v.

Department of Veterans Affairs, 2023 MSPB 1, ¶ 20.

¶14 Nonetheless, not all ex parte communications rise to the level of a due

process violation. Singh, 2022 MSPB 15, ¶ 23; Solis, 117 M.S.P.R. 458, ¶ 8; see

Ward, 634 F.3d at 1279; Stone, 179 F.3d at 1376-77. In Stone, the Federal

Circuit identified the following factors to be used to determine whether ex parte

information is new and material such that its consideration deprived an employee

of due process: (1) whether the ex parte information introduced cumulative, as

opposed to new, information; (2) whether the employee knew of the information

and had an opportunity to respond; and (3) whether the communication was “of

the type likely to result in undue pressure on the deciding official to rule in a

particular manner.” Stone, 179 F.3d at 1377; Singh, 2022 MSPB 15, ¶ 24. The

ultimate inquiry “is whether the ex parte communication is so substantial and so

likely to cause prejudice that no employee can fairly be required to be subjected

to a deprivation of property under such circumstances.” Stone, 179 F.3d at 1377;

Singh, 2022 MSPB 15, ¶ 24. A due process violation is not subject to the harmful

9

error test; instead, if a violation occurred, the employee is automatically entitled

to a new, constitutionally correct removal proceeding. Ward, 634 F.3d at 1279;

Stone, 179 F.3d at 1377; Solis, 117 M.S.P.R. 458, ¶ 8.

¶15 The June 19, 2020 notice of proposed removal and the July 9, 2020 decision

notice contained little explanation of the reasoning behind the imposition of the

penalty of removal. 5 0709-I-1 IAF, Tab 5 at 20-23, 47-48. The Federal Circuit

observed that the deciding official did not conduct a Douglas factors analysis of

the appropriateness of the penalty. Bryant, 26 F.4th at 1347. Only on remand

from the Federal Circuit and the Board did the agency provide a full penalty

analysis, including a Douglas factors worksheet, wherein the deciding official

explained what factors he considered to support the penalty of removal.

0137 IAF, Tab 9 at 15-18, 20-27. In response to the appellant’s argument that

this violated his due process rights because he was not afforded an opportunity to

respond to the penalty analysis, the agency stated that it simply followed the

Federal Circuit’s and the Board’s instructions to consider the Douglas factors and

that “no new evidence was considered.” PFR File, Tab 6 at 11. However, as

explained above, a deciding official’s consideration of information of which the

appellant was unaware constitutes an ex parte communication because the

employee is not on notice of the evidence relied on by the agency in imposing the

penalty. See Singh, 2022 MSPB 15, ¶ 23; Solis, 117 M.S.P.R. 458, ¶ 7. Because

the appellant was not provided notice of the information that the deciding official

would consider in selecting the penalty, we find that the deciding official

considered ex parte information when completing the Douglas factors worksheet

and issuing the new removal decision.

¶16 As discussed above, not all ex parte communications rise to the level of a

due process violation. Singh, 2022 MSPB 15, ¶ 23; Solis, 117 M.S.P.R. 458, ¶ 8;

5

We have not considered whether removal is the appropriate penalty for the alleged

misconduct. Our analysis is focused solely on whether the agency afforded the

appellant constitutionally mandated due process as required by the Supreme Court and

the Federal Circuit.

10

see Ward, 634 F.3d at 1279; Stone, 179 F.3d at 1376-77. Thus, we must now

consider whether the ex parte information in this appeal is so substantial and so

likely to cause prejudice to the appellant that he cannot fairly be subjected to a

deprivation of property under such circumstances. See Ward, 634 F.3d at 1279;

Stone, 179 F.3d at 1377; Singh, 2022 MSPB 15, ¶ 24. Applying the factors set

forth in Stone, we first consider whether the ex parte information constituted new

evidence or whether such evidence was merely cumulative. See Stone, 179 F.3d

at 1377. A deciding official does not commit a due process violation when he

considers ex parte information that merely “confirms or clarifies information

already contained in the record.” Blank v. Department of the Army, 247 F.3d

1225, 1229 (Fed. Cir. 2001); Grimes v. Department of Justice, 122 M.S.P.R. 36,

¶ 11 (2014). It is clear that the deciding official’s Douglas factor worksheet,

dated November 15, 2022, is entirely new and that such an analysis was never

provided to the appellant. 0137 IAF, Tab 9 at 20-27. However, some of the

information contained in the worksheet, as well as the new removal decision, was

included in the notice of proposed removal. Compare 0709-I-1 IAF, Tab 5

at 47-50, with 0137 IAF, Tab 9 at 15-18, 20-27. For instance, the proposal notice

discussed that the appellant’s 5 years of service, the nature and seriousness of the

offense, the appellant’s position as a police officer, and agency officials’ loss of

confidence in his ability to perform the duties of his position all played a role in

the ultimate penalty determination. 0709-I-1 IAF, Tab 5 at 47-48. Such

information as considered in the Douglas factors worksheet and the new removal

decision is therefore cumulative of information contained in the proposal notice

and does not constitute a due process violation. See Blank, 247 F.3d at 1229;

Grimes, 122 M.S.P.R. 36, ¶ 11.

¶17 However, the Douglas factors worksheet and the new removal decision also

include discussions of aggravating factors that were not included in the proposal

notice. For example, in the new removal decision, the deciding official explained

that he considered that the appellant’s actions could “potentially invite conflict”

11

between the agency’s police and the local municipal police due to the critical role

played by local police and the necessary interaction between the two police

departments. 0137 IAF, Tab 9 at 15. Although the proposal notice discussed that

local officers feared for their safety as a result of the appellant’s comments while

they were serving the protective order and they were subsequently “purposefully

kept away from” the clinic to which the appellant was assigned, this discussion

was limited to the appellant’s interactions with specific local officers, while the

deciding official’s statements relate to potential future conflict between the

agency’s police department and the local department as a whole. Compare

0709-I-1 IAF, Tab 5 at 48, with 0137 IAF, Tab 9 at 15. We find the deciding

official’s consideration of a potential future and broader conflict to be new

information and not cumulative of the discussion in the proposal notice.

¶18 Second, the deciding official considered in his Douglas factors worksheet

whether alternative sanctions would be sufficient to deter future misconduct, but

he concluded that no lesser penalty would be effective. 0137 IAF, Tab 9 at 26.

He considered this to be an aggravating factor. Id. This was not discussed,

however, in the proposal notice. 0709-I-1 IAF, Tab 5 at 47-50. It is, therefore,

new information. Similarly, the deciding official explained in the Douglas

factors worksheet that the penalty of removal was consistent with the agency’s

table of penalties, and that fact was an aggravating factor. 0137 IAF, Tab 9 at 24.

The proposal notice did not indicate that the agency intended to rely on the table

of penalties as an aggravating factor. 0709-I-1 IAF, Tab 5 at 47-50. Notably, the

appellant asserted in his June 30, 2020 reply to the proposal notice that he was

never provided with the agency’s table of penalties. Id. at 31. Thus, the agency’s

consideration of the removal’s consistency with the table of penalties as an

aggravating factor is new and not cumulative.

¶19 In sum, the deciding official considered at least three matters that

constituted new information about which the appellant was not informed prior to

12

his receipt of the new decision and accompanying Douglas factors checklist. This

strongly suggests a due process violation.

¶20 The second factor set forth in Stone for determining if a due process

violation occurred concerns whether the employee knew of the information and

had an opportunity to respond to it. Stone, 179 F.3d at 1377. Although the

appellant was aware of the Douglas factors as a means of analyzing the

appropriate penalty for an act of misconduct, he did not know which factors the

deciding official would rely on in determining the penalty. The Douglas factors

analysis that the appellant provided with his response to the earlier proposed

removal was thus made in a vacuum. 0709-I-1 IAF, Tab 5 at 29-32. The agency

did not provide the appellant with a Douglas factors analysis until over 2 years

later, after the administrative judge’s remand to the agency. 0137 IAF, Tab 9

at 20-27. Based on the foregoing, we find that the appellant did not know of the

ex parte information, nor did he have an opportunity to respond to it. This factor

also weighs in favor of finding a due process violation.

¶21 The third factor set forth in Stone concerns whether the ex parte

communications were “of the type likely to result in undue pressure on the

deciding official to rule in a particular manner.” Stone, 179 F.3d at 1377. Here,

there is no evidence in the record that the ex parte information resulted in undue

pressure on the deciding official to remove the appellant. Nonetheless, this

consideration is only one factor and not the ultimate inquiry. Ward, 634 F.3d

at 1280 n.2. Specifically, the Federal Circuit has acknowledged that this factor is

“less relevant” when the deciding official admits that the ex parte information

“influenced [the] determination.” Young v. Department of Housing and Urban

Development, 706 F.3d 1372, 1377 (Fed. Cir. 2013). Here, it is undisputed that

the ex parte information influenced the deciding official’s penalty decision

because he cited the information in the decision notice and the Douglas factors

checklist. Thus, we find this factor to be less relevant to the overall analysis than

the prior two Stone factors.

13

¶22 The appellant was entitled to “procedural fairness at each stage of the

removal proceedings,” not just upon review of the agency’s action. Young,

706 F.3d at 1377 (quoting Stone, 179 F.3d at 1376). Based on the foregoing, we

find that the deciding official’s consideration of the ex parte information set forth

above was so substantial and so likely to cause prejudice that the agency’s failure

to notify the appellant in advance of its consideration in the selection of the

penalty of removal and to provide him with an opportunity to respond to the

information violated his right to due process. 6 See Kolenc v. Department of

Health and Human Services, 120 M.S.P.R. 101, ¶¶ 18-22 (2013) (concluding that

the weight of evidence with regard to the first two Stone factors can outweigh the

third factor when the third factor is less relevant, resulting in a finding of a due

process violation). Accordingly, we reverse the initial decision and do not

sustain the appellant’s removal. The agency may not remove the appellant unless

and until he is afforded a new constitutionally correct removal procedure. 7 See

Ward, 634 F.3d at 1280; Stone, 179 F.3d at 1377; Gray v. Department of Defense,

116 M.S.P.R. 461, ¶ 12 (2011).

ORDER

¶23 We ORDER the agency to cancel the removal action and to restore the

appellant effective July 17, 2020. See Kerr v. National Endowment for the Arts ,

726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no later

than 20 days after the date of this decision.

¶24 We also ORDER the agency to pay the appellant the correct amount of back

pay, interest on back pay, and other benefits under the Office of Personnel

Management’s regulations, no later than 60 calendar days after the date of this

decision. We ORDER the appellant to cooperate in good faith in the agency’s

6

An agency may cure a potential due process violation based on the deciding official’s

knowledge of ex parte information by providing the appellant with notice of the

information and an opportunity to respond to the deciding official about it.

7

Because we are reversing the appellant’s removal on due process grounds, we do not

address his remaining arguments on review.

14

efforts to calculate the amount of back pay, interest, and benefits due, and to

provide all necessary information the agency requests to help it carry out the

Board’s Order. If there is a dispute about the amount of back pay, interest due,

and/or other benefits, we ORDER the agency to pay the appellant the undisputed

amount no later than 60 calendar days after the date of this decision.

¶25 We further ORDER the agency to tell the appellant promptly in writing

when it believes it has fully carried out the Board’s Order and to describe the

actions it took to carry out the Board’s Order. The appellant, if not notified,

should ask the agency about its progress. See 5 C.F.R. § 1201.181(b).

¶26 No later than 30 days after the agency tells the appellant that it has fully

carried out the Board’s Order, the appellant may file a petition for enforcement

with the office that issued the initial decision in this appeal if the appellant

believes that the agency did not fully carry out the Board’s Order. The petition

should contain specific reasons why the appellant believes that the agency has not

fully carried out the Board’s Order, and should include the dates and results of

any communications with the agency. 5 C.F.R. § 1201.182(a).

¶27 For agencies whose payroll is administered by either the National Finance

Center of the Department of Agriculture (NFC) or the Defense Finance and

Accounting Service (DFAS), two lists of the information and documentation

necessary to process payments and adjustments resulting from a Board decision

are attached. The agency is ORDERED to timely provide DFAS or NFC with all

documentation necessary to process payments and adjustments resulting from the

Board’s decision in accordance with the attached lists so that payment can be

made within the 60-day period set forth above.

¶28 This is the final decision of the Merit Systems Protection Board in this

appeal. Title 5 of the Code of Federal Regulations, section 1201.113 (5 C.F.R.

§ 1201.113).

15

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 (U.S.C.), sections 7701(g), 1221(g), 1214(g) or 3330c(b);

or 38 U.S.C. § 4324(c)(4). 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 OF APPEAL RIGHTS 8

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 applicable 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.

8

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.

16

(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:

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

17

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

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

18

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

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. 9 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

9

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.

19

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.

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 .

Gina K. Grippando

Clerk of the Board

Washington, D.C.

DEFENSE FINANCE AND ACCOUNTING SERVICE

Civilian Pay Operations

DFAS BACK PAY CHECKLIST

The following documentation is required by DFAS Civilian Pay to compute and pay back pay

pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following

checklist to ensure a request for payment of back pay is complete. Missing documentation may

substantially delay the processing of a back pay award. More information may be found at:

https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx.

NOTE: Attorneys’ fees or other non-wage payments (such as damages) are paid by

vendor pay, not DFAS Civilian Pay.

☐ 1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the

specific dates of the back pay period within the ticket comments.

Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket

comments as to why the documentation is not applicable:

☐ 2) Settlement agreement, administrative determination, arbitrator award, or order.

☐ 3) Signed and completed “Employee Statement Relative to Back Pay”.

☐ 4) All required SF50s (new, corrected, or canceled). ***Do not process online SF50s

until notified to do so by DFAS Civilian Pay.***

☐ 5) Certified timecards/corrected timecards. ***Do not process online timecards

until notified to do so by DFAS Civilian Pay.***

☐ 6) All relevant benefit election forms (e.g., TSP, FEHB, etc.).

☐ 7) Outside earnings documentation. Include record of all amounts earned by the

employee in a job undertaken during the back pay period to replace federal

employment. Documentation includes W-2 or 1099 statements, payroll

documents/records, etc. Also, include record of any unemployment earning

statements, workers’ compensation, CSRS/FERS retirement annuity payments,

refunds of CSRS/FERS employee premiums, or severance pay received by the

employee upon separation.

Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority

under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment

they may have received. The payroll office must collect the debt from the back pay award. The

annual leave will be restored to the employee. Annual leave that exceeds the annual leave

ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).

NATIONAL FINANCE CENTER CHECKLIST FOR BACK PAY CASES

Below is the information/documentation required by National Finance Center to process

payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by

the Merit Systems Protection Board, EEOC, and courts.

1. Initiate and submit AD-343 (Payroll/Action Request) with clear and concise information

describing what to do in accordance with decision.

2. The following information must be included on AD-343 for Restoration:

a. Employee name and social security number.

b. Detailed explanation of request.

c. Valid agency accounting.

d. Authorized signature (Table 63).

e. If interest is to be included.

f. Check mailing address.

g. Indicate if case is prior to conversion. Computations must be attached.

h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to be

collected (if applicable).

Attachments to AD-343

1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday

Premium, etc. with number of hours and dates for each entitlement (if applicable).

2. Copies of SF-50s (Personnel Actions) or list of salary adjustments/changes and amounts.

3. Outside earnings documentation statement from agency.

4. If employee received retirement annuity or unemployment, provide amount and address to

return monies.

5. Provide forms for FEGLI, FEHBA, or TSP deductions (if applicable).

6. If employee was unable to work during any or part of the period involved, certification of the

type of leave to be charged and number of hours.

7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual Leave

to be paid.

NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay Period and

required data in 1-7 above.

The following information must be included on AD-343 for Settlement Cases: (Lump Sum

Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.)

a. Must provide same data as in 2, a-g above.

b. Prior to conversion computation must be provided.

c. Lump Sum amount of Settlement, and if taxable or non-taxable.

If you have any questions or require clarification on the above, please contact NFC’s

Payroll/Personnel Operations at 504-255-4630.