The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOHN G. WILLIS, DOCKET NUMBER
Appellant, AT-0752-11-0867-B-1
v.
SOCIAL SECURITY DATE: August 19, 2014
ADMINISTRATION,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Marva Peace, Durham, North Carolina, for the appellant.
Ashley M. Johnson, Esquire, and Richard V. Blake, Esquire, Atlanta,
Georgia, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The agency has filed a petition for review of the remand initial decision,
which reversed the appellant’s reduction in grade. Generally, we grant petitions
such as this one only when: the initial decision contains erroneous findings of
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
judge’s rulings during either the course of the appeal or the initial decision were
not consistent with required procedures or involved an abuse of discretion, and
the resulting error affected the outcome of the case; or new and material evidence
or legal argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. See Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, and based on the following points and authorities, we conclude that the
petitioner has not established any basis under section 1201.115 for granting the
petition for review. Therefore, we DENY the petition for review and AFFIRM
the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
¶2 The agency reduced the appellant in grade from his position as a GS-08
Contact Representative (Service Representative) to that of a GS-05 Claims
Assistant for unacceptable performance using the procedures set forth in 5 U.S.C.
chapter 43. Willis v. Social Security Administration, MSPB Docket No.
AT-0752-11-0867-I-1 (I-1), Initial Appeal File (IAF) Tab 10, Subtabs 4k, 4m-4o.
In the appellant’s subsequent Board appeal, the administrative judge noted that
the agency submitted extensive evidence that would normally be sufficient to
meet its burden of proving that the appellant’s performance was unacceptable.
IAF, Tab 17, Initial Decision (ID) at 6-7. Nevertheless, because “the agency
failed to meet a chapter 43 statutory notice requirement[,]” the administrative
judge determined that the agency “was not entitled to rely on any of this evidence
for the purpose of establishing that the appellant’s performance was
unacceptable.” ID at 7. Specifically, the administrative judge found that the
agency’s notice of proposed reduction in grade failed to set forth any specific
instances of unacceptable performance, as required by 5 U.S.C.
§ 4303(b)(1)(A)(i). ID at 7-8; see IAF, Tab 10, at 101-03. The administrative
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judge further found that, even with respect to the generalized allegations in the
notice, the agency failed to set forth the critical elements of the appellant’s
position involved in each instance of unacceptable performance, as required by
5 U.S.C. § 4303(b)(1)(A)(ii). ID at 7-8; see I-1 File, Tab 10 at 101-03. Thus,
because 5 U.S.C. § 4303(c)(2)(B) mandates that the agency may only base such a
reduction in grade on the instances of unacceptable performance for which it
complied with the notice and other requirements of 5 U.S.C. § 4303, and the
administrative judge determined that the agency’s failure to honor those
requirements meant there were no such instances on which the agency could rely,
he concluded that the agency did not prove by substantial evidence that the
appellant failed to meet the established performance standards in one or more
critical elements of his position. ID at 8. The agency filed a petition for review.
I-1, Petition for Review (PFR) File, Tab 1. The appellant did not respond.
¶3 Because the Board has consistently found that the notice provisions of
5 U.S.C. § 4303(b)(1) are procedural, and therefore subject to a harmful error
analysis, e.g., Coltrane v. Department of the Army, 25 M.S.P.R. 397, 403 (1984),
we remanded the appeal to the regional office with instructions for the
administrative judge to allow the parties to submit additional evidence and
argument and to consider first whether the agency violated the appellant’s due
process rights and then, if not, to consider whether the same facts support a
finding of harmful error and to adjudicate the appeal on the merits if he found no
such error, Willis, MSPB Docket No. AT-0752-11-0867-I-1, Remand Order
(May 3, 2013). After affording the parties an opportunity to submit evidence and
argument on the issues of due process and harmful error, the administrative judge
found that the agency did not violate the appellant’s due process rights, either by
failing to provide a notice to which he could meaningfully respond or by
considering information that was not included in the agency’s proposal notice.
Willis v. Social Security Administration, MSPB Docket No. AT-0752-11-0867-B-
1 (B-1), Remand File, Tab 5, Remand Initial Decision (RID) at 6-17. On the
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issue of harmful error, the administrative judge identified two possible claims of
harmful error at issue in this appeal, namely that the agency committed harmful
procedural error: (1) under 5 U.S.C. § 4301(b)(1) by failing to provide the
appellant with the notice required by that section; and (2) under 5 U.S.C.
§ 4302(c)(2)(B) by basing its decision on instances of unacceptable performance
for which the agency failed to comply with the notice requirements of 5 U.S.C.
§ 4303. 2 RID at 18.
¶4 On the first of these claims, the administrative judge found that the
appellant failed to establish by preponderant evidence that the agency’s error in
not providing him with the notice required by 5 U.S.C. § 4303(b)(1) was likely to
have caused the agency to reach a different conclusion in the absence or cure of
the error. RID at 18. Specifically, the administrative judge found that the
appellant failed to establish that a proposal notice that complied with the notice
requirements of 5 U.S.C. § 4303(b)(1) would have allowed him to formulate a
response that may have convinced the deciding official to impose a lesser penalty.
RID at 18.
¶5 On the second claim of harmful error, the administrative judge found, as he
did in his first initial decision, ID at 7-8, that the agency failed to meet the notice
requirements set forth in 5 U.S.C. § 4303(b)(1) regarding any specific instances
of unacceptable performance; he found further that the deciding official credibly
testified that she wanted to follow the proper procedure in arriving at her decision
and that she was willing to follow the instructions provided to her regarding the
information she could consider in reaching that decision, RID at 19-20. Thus, the
administrative judge found that the appellant had established that it was likely
that the deciding official, “if properly informed that the statute limited her to
2
In his remand initial decision, the administrative judge again found that the appellant
failed to prove that the agency discriminated against him on the basis of his disability.
RID at 9-12. The appellant does not challenge this finding on review of the remand
initial decision, and we see no reason to disturb this finding.
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considering only those specific instances of unacceptable performance for which
the agency complied with the notice requirements of 5 U.S.C. § 4303, would
have determined that the evidence (which, as set forth above, included no specific
instances of unacceptable performance on which the agency was entitled to rely)
was insufficient to support a decision that the appellant’s performance failed to
meet the established performance standards of the critical elements of his
position.” RID at 21.
¶6 In its petition for review of the remand initial decision, the agency contends
that the administrative judge improperly interpreted and applied the harmful error
standard. B-1, Remand Petition for Review (RPFR) File, Tab 1 at 6, 22-32. It
argues that, rather than ask, as the administrative judge did, whether a different
decision would have been made if the deciding official had been properly
informed that she was prohibited by 5 U.S.C. § 4303(c)(2)(B) from basing her
decision on instances of unacceptable performance for which the agency failed to
provide statutorily sufficient notice, “the proper way to assess the likely effect of
the error would be to consider the probable outcome if the deciding official had
based her decision on a notice that was sufficient under the statute.” RPFR File,
Tab 1 at 25. Although the agency claims that the administrative judge’s analysis
“would ultimately lead to a finding of harmful procedural error in almost every
case involving facts questioning the sufficiency of an agency’s notice,” id., it
could also be said that the agency’s formulation would almost never result in a
finding of harmful error. Moreover, the agency’s argument that 5 U.S.C. § 4303
fails to address an agency’s duty to properly inform its deciding officials that the
statute limits them to considering only those specific instances of unacceptable
performance for which the agency gave proper notice, RPFR File, Tab 1 at 25 n.4,
does not establish that a deciding official is absolved of her responsibility to
follow the law in effecting an action under chapter 43 in the absence of such an
explicit iteration.
6
¶7 The cases cited by the agency in support of its arguments regarding harmful
error, see RPFR File, Tab 1 at 26-27, are distinguishable from the instant matter
in which the administrative judge observed that both the agency’s notice and
contemporaneous assessment of the appellant’s performance failed to have the
requisite specificity, RID at 10-12, and the appellant did not respond to the
agency’s proposed action. In each of the cases the agency cited, the Board either
found that the agency’s notice itself was statutorily sufficient or found a
redeeming factor that obviated the harm caused by the agency’s failure to provide
the required notice. For example, in Cranwill v. Department of Veterans Affairs,
52 M.S.P.R. 610, 614-15 (1992), the Board found that the agency’s notice was
sufficient in that it identified each of the files alleged to contain errors as well as
the type of error involved. Additionally, the appellant in that case filed a
response to the agency’s proposal in which he did not object to the lack of
specificity. Id. In Addison v. Department of Health & Human Services,
46 M.S.P.R. 261, 267 (1990), aff’d, 945 F.2d 1184 (Fed. Cir. 1991), the Board
found that the appellant’s performance improvement plan identified the specific
cases for which his performance was not acceptable. In Mouser v. Department of
Health & Human Services, 30 M.S.P.R. 619, 622-24 (1986), the agency’s
proposal cited 12 specific examples which were in and of themselves sufficient to
carry the agency’s burden of proof. Lastly, in Christenhusz v Department of the
Army, 28 M.S.P.R. 585, 586-87 (1985), the appellant’s contemporaneous
performance assessment cited specific instances of unsatisfactory performance
and the applicable critical elements. The record does not indicate that any of
these ameliorating circumstances are present in the instant matter. We therefore
agree with the administrative judge that the agency committed harmful procedural
error.
7
ORDER
¶8 Accordingly, we ORDER the agency to cancel the appellant’s reduction in
grade and to restore the appellant to the position of Contract Representative,
GS-0962-08, retroactive to April 25, 2010. 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.
¶9 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
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.
¶10 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
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).
¶11 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).
¶12 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
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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 out 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
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 TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request further review of this final decision.
Discrimination Claims: Administrative Review
You may request review of this final decision on your discrimination
claims by the Equal Employment Opportunity Commission (EEOC). See Title 5
of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you
submit your request 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
9
If you submit your request 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, NE
Suite 5SW12G
Washington, D.C. 20507
You should send your request to EEOC no later than 30 calendar days after
your receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.
Discrimination and Other Claims: Judicial Action
If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate United States
district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with
the district court no later than 30 calendar days after your receipt of this order. If
you have a representative in this case, and your representative receives this order
before you do, then you must file with the district court no later than 30 calendar
days after receipt by your representative. If you choose to file, be very careful to
file on time. 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. § 2000e5(f) and
29 U.S.C. § 794a.
Other Claims: Judicial Review
If you do not want to request review of this final decision concerning your
discrimination claims, but you do want to request review of the Board’s decision
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without regard to your discrimination claims, you may request review of this final
decision on the other issues in your appeal by the United States Court of Appeals
for the Federal Circuit. You must submit your request to the court at the
following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information 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, and 11.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.
DFAS CHECKLIST
INFORMATION REQUIRED BY DFAS IN
ORDER TO PROCESS PAYMENTS AGREED
UPON IN SETTLEMENT CASES OR AS
ORDERED BY THE MERIT SYSTEMS
PROTECTION BOARD
AS CHECKLIST: INFORMATION REQUIRED BY IN ORDER TO PROCESS PAYMENTS AGREED UPON IN SETTLEMENT
CASES
CIVILIAN PERSONNEL OFFICE MUST NOTIFY CIVILIAN PAYROLL
OFFICE VIA COMMAND LETTER WITH THE FOLLOWING:
1. Statement if Unemployment Benefits are to be deducted, with dollar amount, address
and POC to send.
2. Statement that employee was counseled concerning Health Benefits and TSP and the
election forms if necessary.
3. Statement concerning entitlement to overtime, night differential, shift premium,
Sunday Premium, etc, with number of hours and dates for each entitlement.
4. If Back Pay Settlement was prior to conversion to DCPS (Defense Civilian Pay
System), a statement certifying any lump sum payment with number of hours and
amount paid and/or any severance pay that was paid with dollar amount.
5. Statement if interest is payable with beginning date of accrual.
6. Corrected Time and Attendance if applicable.
ATTACHMENTS TO THE LETTER SHOULD BE AS FOLLOWS:
1. Copy of Settlement Agreement and/or the MSPB Order.
2. Corrected or cancelled SF 50's.
3. Election forms for Health Benefits and/or TSP if applicable.
4. Statement certified to be accurate by the employee which includes:
a. Outside earnings with copies of W2's or statement from employer.
b. Statement that employee was ready, willing and able to work during the period.
c. Statement of erroneous payments employee received such as; lump sum leave, severance
pay, VERA/VSIP, retirement annuity payments (if applicable) and if employee withdrew
Retirement Funds.
5. 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.
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-50's (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.