# Brian Kirkbride v. Department of Veterans Affairs

> Merit Systems Protection Board · June 11, 2026

URL: https://www.frixlaw.com/law-library/cases/11341794

## Case

- **Court:** Merit Systems Protection Board
- **Decided:** June 11, 2026
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11341794

## Opinion text

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

BRIAN KIRKBRIDE, DOCKET NUMBER
Appellant, AT-0752-22-0475-B-1

v.

DEPARTMENT OF VETERANS DATE: June 11, 2026
AFFAIRS,
Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Shane Robertson , Esquire, Dallas, Texas, for the appellant.

Dana Heck , Esquire, St. Petersburg, Florida, for the agency.

Teri Walker , Decatur, Georgia, 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 remand initial decision,
which dismissed his appeal challenging the agency’s cancellation of his
promotion for lack of jurisdiction. For the reasons discussed below, we GRANT
the appellant’s petition for review, VACATE the remand initial decision, FIND

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

that the Board has jurisdiction over this appeal, and REVERSE the agency’s
cancellation of the appellant’s promotion based on due process grounds.

BACKGROUND
The appellant, who is a GS-11 Biomedical Equipment Support Specialist
(BESS) in the agency’s Facilities Management Service (FMS), was selected for a
GS-12 Lead Biomedical Equipment Support Specialist (Lead BESS) position at
the Orlando Veterans Affairs Healthcare System (VAHS). Kirkbride v.
Department of Veterans Affairs, MSPB Docket No. AT-0752-22-0475-I-1, Initial
Appeal File (IAF), Tab 9 at 102, 127-28. After receiving notification that he had
been selected, the appellant confirmed to the agency’s Human Resources (HR)
Specialist that he accepted the promotion and he received an official job offer
from the agency with an effective date of November 7, 2021. Id. at 127-28; IAF,
Tab 21 at 7-8, Tab 28-1, Hearing Recording Pt. 1 (HR-1) (testimony of the
appellant). However, because several unsuccessful applicants for the Lead BESS
position complained of unfair hiring practices, the Associate Medical Center
Director directed the FMS Chief “to delay the effect[ive] date of the [appellant’s]
promotion action” pending the outcome of a fact-finding investigation. IAF,
Tab 9 at 113, 116-17. Nonetheless, no one within the agency instructed the HR
Specialist to delay the action, and he processed the promotion, and the appellant
reported for duty as the Lead BESS on November 8, 2021. Id. at 97, 102; IAF,
Tab 28-2, Hearing Recording Pt. 2 (testimony of the HR Specialist).
Subsequently, on January 13, 2022, the Associate Medical Center Director
learned that the appellant had “received his promotion both in title and in pay”
and directed the FMS Chief to “ensure that the promotion is set aside” and to
inform the appellant that “the promotion was in error.” IAF, Tab 9 at 95-96. The
FMS Chief then issued the appellant a letter explaining that his promotion was
processed in error and must be cancelled and advising him that he owed a debt to
the agency for the overpayment of salary. Id. at 94. The HR Specialist
3

subsequently processed the cancellation of the appellant’s promotion on or about
January 24, 2022. Id. at 45; IAF, Tab 21 at 17-18.
The appellant filed a Board appeal challenging the agency’s cancellation of
his promotion and, after holding a hearing, the administrative judge issued an
initial decision dismissing the appeal for lack of jurisdiction, finding that the
appellant did not prove that his promotion actually occurred or that he performed
in the position prior to the cancellation. IAF, Tab 30, Initial Decision at 10-14.
The appellant filed a petition for review, and on April 10, 2024, the Board issued
a remand order, finding that the appellant made a prima facie case of jurisdiction
because he proved that the promotion did actually occur and that he had
performed in the position for over 2 months prior to the cancellation. Kirkbride
v. Department of Veterans Affairs, MSPB Docket No. AT-0752-22-0475-I-1,
Remand Order, ¶ 16 (Apr. 10, 2024). The Board directed the administrative
judge to determine whether the agency met its burden of production to show that
the appellant’s promotion was contrary to law or regulation, and if it made such a
showing, to allow the appellant an opportunity to rebut the same. Id. After the
parties briefed these issues, the administrative judge issued a remand initial
decision dismissing the appeal for lack of jurisdiction, finding that the agency
established that the appellant’s promotion was an error contrary to law and that
the appellant failed to rebut the same. Kirkbride v. Department of Veterans
Affairs, MSPB Docket No. AT-0752-22-0475-B-1, Remand File, Tab 8, Remand
Initial Decision (RID) at 3-5.
The appellant has filed a petition for review of the remand initial decision,
arguing, among other things, that, pursuant to cases such as Simmons v.
Department of Housing and Urban Development, 120 M.S.P.R. 489 (2014), the
agency’s action is an appealable reduction in grade and pay because the alleged
error that caused the cancellation of the appellant’s promotion was not simply a
correction of a pay-setting error. Remand Petition for Review (RPFR) File, Tab 3
4

at 13-16. The agency has filed a response to the petition for review, and the
appellant has replied to the agency’s response. RPFR File, Tabs 5, 8.

DISCUSSION OF ARGUMENTS ON REVIEW
To establish Board jurisdiction over the cancellation of a promotion or
appointment, the appellant must show that (1) the promotion was approved by an
authorized official aware that he or she was making the promotion or
appointment; (2) the appellant took some action denoting acceptance of the
promotion or appointment; and (3) the promotion or appointment was not revoked
before the appellant performed in the position. Simmons, 120 M.S.P.R. 489, ¶ 4.
As established, the appellant demonstrated that the promotion actually occurred
and that he performed in the position for over 2 months prior to the agency’s
cancellation. Remand Order, ¶ 16. Further, it is undisputed that, by cancelling
the promotion, the appellant suffered a reduction in grade and pay. IAF, Tab 9
at 45.
The Board generally has jurisdiction to review an appeal of a reduction of
grade or pay. Simmons, 120 M.S.P.R. 489, ¶ 5. A reduction in grade or pay that
is to correct a classification error or pay setting error that is contrary to law or
regulation, however, is not appealable to the Board. Id.; 5 C.F.R.
§ 752.401(b)(15) (excluding from the list of appealable adverse actions under
chapter 75 “[r]eduction of an employee’s rate of basic pay from a rate that is
contrary to law or regulation”). Here, the administrative judge found that the
appellant’s promotion was in error because the appellant’s supervisor provided
him with resume assistance in violation of 5 U.S.C. § 2302(b)(6). RID at 3-4.
However, any error in this regard 2 does not divest the Board of jurisdiction over

2
The appellant also argues that the agency did not prove that his supervisor’s actions
violated 5 U.S.C. § 2302(b)(6) because his supervisor was not involved in the hiring
process, he provided only de minimis assistance to the appellant, and he did not intend
to provide the appellant with an advantage over any other candidate. RPFR File, Tab 3
at 17-24. Because we otherwise find that the Board has jurisdiction over this appeal,
we make no findings on the merits of the appellant’s argument.
5

this appeal. The agency selected the appellant for a position that was properly
graded as a GS-12 position, and the appellant performed GS-12 level work. IAF,
Tab 9 at 102, 131-43; HR-1 (testimony of the appellant); IAF, Tab 28-4, Hearing
Recording Pt. 4 (testimony of the appellant’s first-line supervisor). Any error in
promoting the appellant was in the hiring process, and the agency’s action to
correct such error by retroactively cancelling the appellant’s promotion and
placing him in a GS-11 position is an appealable reduction in grade and pay. This
conclusion is consistent with the Board’s holding in Simmons, finding that an
employee suffered an appealable adverse action when the agency determined that
it improperly used a noncompetitive hiring process to promote the employee and
demoted her to her previous grade after she had been performing in the higher-
graded position for months. Simmons, 120 M.S.P.R. 489, ¶¶ 2, 5. The Board
found that the agency’s action in Simmons was not simply the correction of an
employee’s rate of pay within the meaning of 5 C.F.R. § 752.401(b)(15) but
involved an error in the hiring process. Simmons, 120 M.S.P.R. 489, ¶ 5.
Accordingly, we find that the Board has jurisdiction over this appeal.
Before taking an appealable action that deprives a tenured Federal
employee of his property right in his employment, an agency must provide him
with minimum due process of law. Cleveland Board of Education v. Loudermill,
470 U.S. 532, 543-46 (1985). The essential requirements of due process are
notice and an opportunity to respond. Id. at 546; see 5 U.S.C. § 7513(b). It is
undisputed that the agency did not afford the appellant notice of the proposed
action or an opportunity to respond. IAF, Tab 9 at 45, 94. A due process
violation entitles an employee to a new and constitutionally correct proceeding,
and the agency may not demote the appellant unless and until he is afforded such
a proceeding. Ward v. U.S. Postal Service, 634 F.3d 1274, 1279 (Fed. Cir. 2011);
Lopes v. Department of the Navy, 116 M.S.P.R. 470, ¶ 13 (2011). Accordingly,
we reverse the agency’s action.
6

ORDER
We ORDER the agency to restore the appellant to the Lead Biomedical
Equipment Support Specialist position, GS-1601-12, effective November 7, 2021.
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 Office of Personnel
Management’s 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
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
7

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
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 3
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

3
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.
8

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
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.
9

(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
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.
10

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

(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. 4 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).

4
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.
11

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.
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.
12

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).
13

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11341794. Public record. Not legal advice.