The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RONALD WIESNER, DOCKET NUMBER
Appellant, DA-0432-25-0118-I-1
v.
DEPARTMENT OF HOMELAND DATE: June 8, 2026
SECURITY,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Amanda J. Moreno , Esquire, Houston, Texas, for the appellant.
Jennifer N. Milan , Esquire, and Thomas A. Behe , Esquire, Houston, Texas,
for the agency.
BEFORE
Henry J. Kerner, Vice Chairman
James J. Woodruff II, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed his removal for unacceptable performance under 5 U.S.C. chapter 43.
For the reasons discussed below, we GRANT the appellant’s petition for review,
REVERSE the initial decision’s findings concerning the removal action, AFFIRM
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
the initial decision’s findings regarding the discrimination affirmative defense,
and ORDER the agency to reinstate the appellant to his former position.
BACKGROUND
The appellant began working for the agency as a GS-13 Investigative
Program Specialist (Polygraph Examiner) in or around October 2020. Initial
Appeal File (IAF), Tab 9 at 4. His job duties included completing polygraph
examinations of applicants for Customs and Border Protection law enforcement
positions. IAF, Tab 34 at 16. The potential results of a polygraph examination
are no significant response (NSR), significant response (SR), no
opinion-countermeasures (NO-CM), and no opinion (NO). Id. at 19. NSR is a
passed polygraph and SR is a failed polygraph. Id. According to the appellant’s
supervisor, a NO-CM result is when there is atypical physiology consistent with
an attempt to manipulate polygraph data. Id. A NO opinion is when the data
does not support a NSR, SR, or NO-CM decision. Id. NSR, SR, and NO-CM are
conclusive results and NO is inconclusive. Id. at 20. According to the
appellant’s supervisor, NO opinions typically require a retest but there are other
reasons besides NO opinions that can trigger a retest. Id.
The appellant received successful performance ratings for fiscal years
2021-2023. IAF, Tab 22 at 8-13. On March 4, 2024, the appellant’s supervisor
sent an email identifying deficiencies in the appellant’s performance. IAF, Tab 5
at 99-101. In relevant part, he asserted that the appellant’s NO rate was 30%,
more than double the national average and 12 points higher than the Team Central
Texas average of 18%. Id. at 101. On June 11, 2024, the agency notified the
appellant that he was being placed on an Employee Proficiency Plan (EPP)
because he was deficient in the core competency area of “professionalism.” Id.
at 86-91. The EPP described the appellant’s deficient performance in the
following areas: (1) he failed to timely submit cases within agency guidelines on
no less than six occasions; (2) the length of his post-test interview for applicants
3
was unnecessarily prolonged on three occasions; and (3) his NO rate of 26%
exceeded the 18% average rate of the CAD [Credibility Assessment Division] and
Team Central Texas over the past 9 months. Id. at 89-90. The improvement
period was to run from July 15 through August 13, 2024, but was extended
through September 4, 2024, based on the appellant’s use of sick leave during the
EPP period. Id. at 39, 90.
During the EPP, the appellant’s supervisor and other managers repeatedly
requested that the appellant conference in a supervisor to his polygraph
examinations for guidance and observation. Id. at 44-48, 53-66. The appellant
did not comply with these requests, stating on at least one occasion that the EPP
was retaliatory. 2 Id. at 46. On September 20, 2024, the appellant’s supervisor
proposed his removal from Federal service for unacceptable performance. Id.
at 27-31. The proposal stated that, at the completion of the EPP period, his NO
rate remained at 25%, which was 8% above the average rates of Team Central
Texas and CAD. Id. at 28. The proposal stated that the areas of timely
submission of assessments and conducting appropriate length post-tests, i.e.,
subelements 1 and 2 of the EPP, were “not able to be addressed appropriately”
during the performance period. Id.
The appellant did not reply to the proposed removal. Id. at 22. The agency
sustained the proposal, and the appellant’s removal was effective November 22,
2024. Id. at 24-26; IAF, Tab 9 at 4. This appeal followed. IAF, Tab 1. The
administrative judge issued an initial decision on the written record. IAF,
Tab 36, Initial Decision (ID). She concluded that the agency met each element of
its chapter 43 case by substantial evidence and that the appellant failed to prove
his affirmative defense of disability discrimination. The appellant has filed a
petition for review, and the agency has filed a response. Petition for Review
(PFR) File, Tabs 4, 6. On review, the appellant reasserts the same arguments that
2
The appellant did not explicitly raise a reprisal affirmative defense before the
administrative judge or on review.
4
he raised before the administrative judge and states that the agency failed to
prove its case by substantial evidence. PFR File, Tab 4 at 9-31.
DISCUSSION OF ARGUMENTS ON REVIEW
An agency may remove an employee for unacceptable performance under
5 U.S.C. § 4303 when it proves the following by substantial evidence: (1) the
Office of Personnel Management approved the agency’s performance appraisal
system and any significant changes thereto; (2) the agency communicated to the
appellant the performance standards and critical elements of his position; (3) the
appellant’s performance standards are valid under 5 U.S.C. § 4302(c)(1); (4) the
appellant’s performance during the appraisal period was unacceptable in one or
more critical elements; (5) the agency warned the appellant of the inadequacies of
his performance during the appraisal period and gave him an adequate
opportunity to demonstrate acceptable performance; and (6) after an adequate
improvement period, the appellant’s performance remained unacceptable in one
or more of the critical elements. Lee v. Department of Veterans Affairs,
2022 MSPB 11, ¶ 15. We disagree with the administrative judge’s finding that
the agency proved its performance standards are valid, ID at 6-8, as discussed
below. We therefore reverse the appellant’s removal.
Performance standards must, to the maximum extent feasible, permit the
accurate appraisal of performance based on objective criteria. 5 U.S.C.
§ 4302(c)(1); Guillebeau v. Department of the Navy, 362 F.3d 1329, 1335-36
(Fed. Cir. 2004). Standards must be specific enough to provide an employee with
a firm benchmark toward which to aim his performance and must be sufficiently
precise to invoke general consensus as to their meaning and content. Zepeda v.
Nuclear Regulatory Commission, 2024 MSPB 14, ¶ 22. Facially invalid standards
may be cured through subsequent communications to the employee. Zepeda,
2024 MSPB 14, ¶ 11; Dancy v. Department of the Navy, 55 M.S.P.R. 331, 335
(1992). Performance standards are not valid, however, if they do not set forth the
5
minimum level of performance that an employee must achieve to avoid removal
for unacceptable performance under chapter 43. Jackson-Francis v. Office of
Government Ethics, 103 M.S.P.R. 183, ¶ 8 (2006).
In this case, the agency’s performance appraisal system has two levels—
successful and unacceptable. IAF, Tab 22 at 8-13. The performance plan
explains that expectations are met in the critical element of professionalism as
follows:
Effective application of job knowledge and technical skills.
Examples include written and oral communications, leadership,
planning and organization, analytical skills and problem solving.
Performs duties in a professional manner, interacting with fellow
workers and members of the public in a courteous and respectful
manner even in the face of provocation or adversity.
IAF, Tab 5 at 115, Tab 22 at 12. The general standard is supplemented by the
fiscal year (FY) 2024 Performance Plan Guide. IAF, Tab 5 at 148-51. That
document contains numerous metrics to be considered in evaluating performance.
For example, a “general . . . expectation[]” of a polygraph examiner is to test 150
applicants or approximately 177 exams per year with a retest rate of
approximately 20% or less. Id. at 148. A polygraph examiner “exceed[s]
expectations” by testing 165 applicants or approximately 192 exams per year with
a retest rate of approximately 20% or less. 3 Id. The guide also provides metrics
for non-concur rates, administrative returns, and elicitation of reportable
information. Id. at 151. Each category has four statistical levels, which translate
to excellent, satisfactory, improvement needed, and unsatisfactory performance.
Id. The guide suggests that a polygraph examiner must receive a satisfactory or
above in non-concur rates and reportable information rates to receive a successful
performance rating. Id. at 148. The guide does not explain the difference
between improvement needed and unsatisfactory and how those categories
3
Although the performance plan guide contains different metrics under “expectations”
and “exceeding expectations,” the performance appraisal system has only two levels,
successful and unacceptable. IAF, Tab 5 at 115, 148.
6
translate to the successful and unacceptable performance levels. Most relevant to
this appeal, the guide states that a polygraph examiner must have “high
conclusive call examination rates.” Id. “High conclusive call examination rates”
is not defined or quantified in the document. Id. at 148-51. The agency
acknowledges as much. However, it asserts that its communications to the
appellant throughout the EPP period clarify the standard. IAF, Tab 34 at 20; see
Zepeda, 2024 MSPB 14, ¶ 11.
On March 4, 2024, the appellant’s supervisor sent the appellant an email
stating the following: “As of March 4, 2024, your no opinion rate for FY 24 is
30%. This is more than double the CAD national average of 14% and 12% higher
than our team average of 18%.” IAF, Tab 5 at 101. The August 2024 EPP stated
that, to achieve acceptable performance criteria in the core competency area of
professionalism, the appellant was required to have “minimal NO results.” Id.
at 35. The document stated that the appellant’s NO rate of 26% “exceeds the 18%
average rate of CAD and Team Central Texas over the past nine months.” Id.
at 35-36. It furthered stated, “No opinion results can happen but a no opinion rate
of 26% over the last nine months is excessive.” Id. at 35.
Considering all of the evidence, we conclude that the agency did not prove
that its performance standard, as it relates to the NO rate, is valid. Although the
agency appears to assert that the appellant was required to meet the average NO
rate for CAD and/or Team Central Texas, those two rates can differ, as evidenced
by the agency’s communications. E.g., IAF, Tab 5 at 101. Further, the
appellant’s supervisor attested that the appellant’s average NO rate changed daily
based on the number of polygraphs that he conducted. IAF, Tab 34 at 21. By
implication, the Team Central Texas and the CAD national average, also changed
daily. Throughout the course of the EPP and this litigation, the agency identified
various NO rates that the appellant was expected to adhere to. IAF, Tab 5 at 28
(stating, in the September 2024 proposed removal, that the average NO rate for
CAD and Team Central Texas was 17%), 35-36 (stating, in the July 2024 EPP,
7
that the NO rate for CAD and Team Central Texas was 18% for the preceding
9 months), 101 (stating, in March 2024, that the CAD national NO rate was 14%
and the Team Central Texas rate was 18%); Tab 34 at 41 (stating that the CAD
national NO rate was 16-18%), 52 (suggesting that the NO rate cannot exceed
20%), 55 (stating that the CAD NO rate was 16-18%).
The agency also has not explained whether the appellant was required to
meet the average, fall below it, or something else. The appellant’s supervisor
stated in a declaration that polygraph examiners must “maintain the average of
the Texas team of Polygraph Examiners.” IAF, Tab 34 at 20. The Director of
CAD explained in a declaration that “we expect examiners to be very close to the
overall average.” Id. at 41. “Very close” is not defined. See Cranwill v.
Department of Veterans Affairs, 52 M.S.P.R. 610, 616 (1992) (explaining that the
agency must provide a firm benchmark, not an elusive goal that the agency may
find the employee met or failed to meet at its pleasure). We have further
considered the appellant’s assertion that some NO results are out of his control,
PFR File, Tab 4 at 13, 25, which is corroborated by the CAD Director, IAF,
Tab 34 at 41 (“a high No Opinion rate does not always reflect poor
performance”).
The agency’s reliance on a different metric, the retest rate, to clarify the
NO rate does not require a different result. Regarding the retest rate, the
agency’s performance plan requires, to achieve successful performance, that a
polygraph examiner have a retest rate of “approximately 20% or less.” IAF,
Tab 5 at 148. To the extent the agency suggests that the retest rate and the NO
rate are “synonymous,” and the appellant was therefore required to have an NO
rate under 20%, IAF, Tab 34 at 52, that adds yet another level of uncertainty to
interpreting the NO rate. To the extent the agency suggests that the appellant’s
retest rate exceeded 20% and is therefore an independent basis for removal under
chapter 43, neither the EPP nor the proposed removal state as much. IAF, Tab 5
at 27-37; see 5 U.S.C. § 4303(b)(1)(A)(i) (stating that an employee is entitled to
8
30 days’ advance written notice of the proposed action which identifies specific
instances of unacceptable performance). For these reasons, we find that the retest
rate is of little value in determining whether the agency provided a firm
benchmark toward which the appellant could aim his performance regarding his
NO rate.
The agency controlled how it drafted the EPP and notice of proposed
removal. The evidence it submitted was confusing and, at times, conflicting. We
therefore conclude that it failed to prove by substantial evidence the validity of
its performance standard as it relates to the NO rate. Because we find that the
agency’s performance standards are not valid, we cannot evaluate whether the
agency properly took action against the appellant for unacceptable
performance. 4, 5 Neal v. Defense Logistics Agency, 72 M.S.P.R. 158, 161 (1996).
We therefore reverse the appellant’s removal.
ORDER
We ORDER the agency to cancel the appellant’s removal and to restore
him retroactive to November 22, 2024. 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.
We also ORDER the agency to pay the appellant the correct amount of
back pay, interest on back pay, and other benefits under the Back Pay Act and/or
Postal Service regulations, as appropriate, 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 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
4
Because the agency did not make findings on subelements 1 and 2 identified in the
EPP, IAF, Tab 5 at 27-29, we need not consider whether those performance measures
are valid.
5
The appellant’s petition for review does not establish a basis to disturb the
administrative judge’s finding that he failed to prove his affirmative defense of
disability discrimination, and we therefore affirm her findings. ID at 17-23.
9
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.
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 of the actions it has
taken 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).
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 on 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).
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.
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 forth at title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
10
you believe you meet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
NOTICE OF APPEAL RIGHTS 6
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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.
(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
6
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.
11
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
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
12
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
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
13
(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. 7 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
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.
7
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.
14
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 .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
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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).
16
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.