The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SAUN C. ORTIZ, DOCKET NUMBER
Appellant, DE-0752-22-0062-I-1
v.
DEPARTMENT OF THE AIR FORCE, DATE: January 25, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Saun C. Ortiz, Syracuse, Utah, pro se.
Jason D. Marsh, Esquire, Hill Air Force Base, Utah, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
Member Leavitt dissents without an opinion.
FINAL ORDER
¶1 The appellant has filed a petition for review and the agency has filed a cross
petition for review of the initial decision, which affirmed the appellant’s removal
from Federal service. For the reasons discussed below, we GRANT the petition
for review, DENY the cross petition for review, and AFFIRM the initial decision
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
AS MODIFIED. We AFFIRM the following findings of the administrative judge:
(1) the agency proved one of two specifications of the disregard of directive
charge; (2) the agency failed to prove the unauthorized absence charge; and
(3) the appellant failed to prove his affirmative defenses. We REVERSE the
administrative judge’s finding that the agency proved the lack of candor charge,
we VACATE the administrative judge’s penalty analysis, and we ORDER the
agency to substitute a 7-day suspension in place of removal.
BACKGROUND
¶2 The appellant worked for the agency as a WG-10 Composite/Plastic
Fabricator until his removal from Federal service on November 16, 2021. Initial
Appeal File (IAF), Tab 4 at 10. The events surrounding the appellant’s removal
are as follows. On April 28, 2021, the appellant reported to the agency that his
daughter was exhibiting symptoms of COVID-19 and, on the next day, he
reported that his daughter had tested positive for COVID-19. IAF, Tab 19 at 38.
The agency’s occupational medicine department (OMS) instructed the appellant
to quarantine for 14 days and not to report to work. Id. On May 13, 2021,
the appellant reported to OMS that his wife tested positive for C OVID-19. Id.
OMS recommended that the appellant quarantine for an additional 14 days. Id.
The appellant reported to work on May 27, 2021. IAF, Tab 4 at 52. The
appellant later submitted to the agency photos of two COVID-19 home testing
kits, appearing to have positive results, with his wife and daughter’s na mes
written on the test cards. Id. at 17-22.
¶3 On June 10, 2021, the appellant’s supervisor received an email from the
appellant’s account stating that the sender was the appellant’s friend, the
appellant was incoherent due to medications he was taking, and that he was
requesting leave without pay for the day. IAF, Tab 4 at 44, Tab 19 at 21. The
actual email is not in the record. On the same day, the appellant’s second-level
supervisor requested that the police perform a wellness check at the appellant’s
3
address of record. IAF, Tab 4 at 42-45. The appellant was not at home but the
police spoke to the appellant’s wife. Id. After the wellness check, the appellant’s
second-level supervisor called the appellant’s wife. Id. at 41. During the call,
the appellant’s wife stated that her daughter had an exposure to COVID-19 at
school but that “[n]o other Covid incidents happened.” Id.; IAF, Tab 19 at 33.
¶4 The appellant was absent from work on various dates over the next 2 weeks.
To justify his absences, the appellant provided two medical notes from a
chiropractor. IAF, Tab 4 at 39-40. The first was dated June 14, 2021,
and excused the appellant from work on June 8 through 10, June 14, and
June 21, 2021. Id. at 39. The second note was dated June 22, 2021, and excused
the appellant from work on that day. Id. at 40. The appellant’s supervisor was
suspicious of the authenticity of the notes and called the medical office that
issued them. IAF, Tab 19 at 21-22, 43-45. According to memoranda written by
the appellant’s supervisor and another agency witness , an unidentified woman
answered the phone and claimed to have written the June 14 no te, but she stated
that she had not excused the appellant from work on June 21 and that he was not
seen in the office on that day. Id. at 22, 45. She also stated that she did not write
the June 22 note and that the appellant was not seen in the office on that day. Id.
One agency witness who listened to the phone call initially declared that the
woman who answered the phone was the appellant’s doctor, but he later asserted
that he did not know who answered the phone. Id. at 43; IAF, Tab 4 at 38.
¶5 On October 4, 2021, the agency proposed to remove the appellant based on
three charges: (1) lack of candor; (2) disregard of directive; and (3) unauthorized
absence. IAF, Tab 4 at 23-25. The deciding official sustained all the charges and
specifications and removed the appellant from Federal service effective
November 16, 2021. Id. at 11. The appellant filed a Board appeal and did not
request a hearing. IAF, Tab 1 at 1-2. The administrative judge issued an initial
decision based on the written record, which sustained the lack of candor and
disregard of directive charges, did not sustain the unauthorized absence charge,
4
denied the appellant’s affirmative defenses of disability discrimination under the
theories of disparate treatment and failure to accommodate, and upheld the
penalty of removal. IAF, Tab 22, Initial Decision (ID) at 12-31. The appellant
has filed a petition for review and the agency has filed a cross petition for review.
Petition for Review (PFR) File, Tabs 1, 3.
DISCUSSION OF ARGUMENTS ON REVIEW
¶6 On review, the appellant reasserts the same arguments that he raised before
the administrative judge and argues that he did not engage in the conduct as
alleged. PFR File, Tab 1 at 3-5. The agency asserts in its cross petition for
review that the administrative judge erred in not sustaining the unauthorized
absence charge. PFR File, Tab 3 at 12-14.
¶7 As a threshold matter, we address the two undated and unsigned witness
statements that the appellant attached to his petition for review. P FR File, Tab 1
at 6-7. The Board generally will not consider evidence submitted for the first
time with a petition for review absent a showing that it was unavailable before the
record was closed before the administrative judge despite the party’s due
diligence. Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 213-214 (1980). To
constitute new and material evidence, the information contained in t he
documents, not just the documents themselves, must have been unavailable
despite due diligence when the record closed. Grassell v. Department of
Transportation, 40 M.S.P.R. 554, 564 (1989); 5 C.F.R. § 1201.115(d). The
appellant has not shown that the information contained in the witness statements
was unavailable prior to the close of the record, and thus, we do not consider
them. We now address each of the three charges in turn.
The agency has not proved the lack of candor charge by preponderant evidence.
¶8 To prove a lack of candor charge, the agency must prove by p reponderant
evidence that the employee gave incorrect or incomplete statements and that
he did so knowingly. Fargnoli v. Department of Commerce, 123 M.S.P.R. 330,
5
¶¶ 16-17 (2016). Preponderant evidence is the degree of relevant evidence that a
reasonable person, considering the record as a whole, would accept as sufficient
to find that a contested fact is more likely to be true than untrue. 5 C.F.R.
§ 1201.4(q). The agency charged the appellant with three specifications of lack
of candor, as set forth below. IAF, Tab 4 at 23.
¶9 The first specification charged that the appellant lacked candor when he
told the agency that his wife and daughter tested positive for C OVID-19. Id. The
administrative judge found that the agency met its burden based on written
statements from three agency officials recounting a call with the appellant’s wife,
wherein she purportedly stated that her daughter had been exposed to COVID and
that there were no other “Covid incidents.” ID at 12-13. We find that the agency
has not presented sufficient evidence to meet its burden for this charge. First, the
statements from the appellant’s wife are recounted secondhand by agency
officials. Although hearsay evidence may constitute preponderant evidence, we
find that in this case, it does not. See Borninkhof v. Department of Justice,
5 M.S.P.R. 77, 87 (1981) (setting forth various factors that affect the weight to be
accorded to a hearsay statement, including, among others, the availability of the
person with firsthand knowledge to testify, whether the statement is sworn, the
agency’s explanation for failing to obtain a sworn statement, and whether the
declarant was a disinterested witness). At the time the appellant’s wife made the
statement, she was angry with the situation. IAF, Tab 4 at 41, Tab 18 at 16-17.
The appellant has also asserted that his wife was upset that the agency, which she
did not work for, asked her about her medical information. IAF, Tab 11 at 4.
The agency has not explained why it did not submit a sworn statement or
deposition testimony from the appellant’s wife affirming that she and her
daughter did not test positive for COVID-19. Second, the administrative judge
considered that the appellant’s testimony surrounding his wife’s COVID -19 test
was inconsistent, and therefore she found that the photos of the COVID-19 testing
kits were unreliable with nothing in the record to authenticate them. ID at 13.
6
However, the appellant’s statements that the administrative judge deemed to be
inconsistent come from notes that the appellant’s supervisor took of calls between
the two and the supervisor’s transcription of voicemails from the appellant. IAF,
Tab 4 at 47-52, Tab 19 at 20; ID at 9-10. The supervisor’s notes do not identify
which entries are transcribed voicemails and which are notes of telephone calls.
IAF, Tab 4 at 47-52. Accordingly, we are unable to determine which entries, if
any, reflect the appellant’s exact words. Although we acknowledge that the
statements, as recounted by the agency, are not entirely consistent, we find that as
a whole, the agency has presented insufficient evidence to prove by preponderant
evidence that the appellant’s statements regarding his wife and daughter testing
positive for COVID-19 were untruthful. We therefore do not sustain this
specification.
¶10 The second specification charges that the appellant altered a medical note
releasing him from duty on June 8-10 and June 14, 2021, to include an additional
date, June 21, 2021. Id. at 23. The appellant has admitted that he added the
June 21 date to the medical note and asserts that his doctor authorized him to do
so. IAF, Tab 20 at 5. The administrative judge sustained the charge based on
declarations from two agency witnesses attesting that, when they called the
medical office to verify the note, an unidentified woman answered the phone and
she claimed to be the person who signed the June 14 medical note, stated that the
note did not include the June 21 date when she signed it , and confirmed that the
appellant was not seen in the office on June 21 or 22. IAF, Tab 19 at 21-22, 43,
45. We give little weight to this hearsay evidence because the agency has not
identified who answered the phone or her position in the medical office.
See Borninkhof, 5 M.S.P.R. at 87. Further, the person who answered the phone
was incorrect when she stated that the appellant was not seen in the office on
June 22, 2021. The appellant’s doctor provided a signed statement confirming
that the appellant was seen in the office on that day. IAF, Tab 8 at 4. The agency
has not explained why it did not submit a sworn statement or deposition
7
testimony from the appellant’s doctor regarding the June 14 note. 2 We find that
the appellant’s explanation that his doctor authorized him to add June 21 to the
medical note is plausible given his excused absences before and after June 21,
and we note that there is no contrary evidence in the record . The agency’s
submission of unreliable hearsay evidence is insufficient to meet its burden of
proof as to this specification.
¶11 The administrative judge did not sustain the third specif ication regarding
alleged fabrication of a June 22 doctor’s note. ID at 16-17. The parties did not
challenge this finding on review and we find no error in it. Based on the
foregoing, the lack of candor charge is not sustained.
The agency proved the disregard of directive charge by preponderant evidence.
¶12 A charge of disregard of directive requires the agency to demonstrate that a
proper instruction was given and that the employee failed to follow it, without
regard to whether the failure was intentional or unintentional. See Hamilton v.
U.S. Postal Service, 71 M.S.P.R. 547, 555-56 (1996). The agency charged that,
on June 8 and 10, 2021, the appellant failed to properly request leave in
accordance with the procedures set forth in a March 1, 2021 memorandum.
IAF, Tab 4 at 23. The agency does not explain how the appellant failed to follow
the leave requesting procedures on June 8, 2021. 3 The administrative judge
addressed only June 10 in the initial decision, and she sustained the specification.
ID at 17-18. On this date, the appellant’s supervisor asserts that he received an
email from the appellant’s account stating that the sender was the appellant’s
2
The administrative judge issued a subpoena to the appellant’s doctor for “ [c]opies of
any and all ‘Authorizations for Absence’ records you, or anyone on your behalf, created
in June 2021 for [the appellant].” IAF, Tab 10. The agency did not file any responsive
documents before the administrative judge.
3
The agency’s close of record submission states that the appellant failed to report to
work on June 8, 2021. IAF, Tab 19 at 11. However, it does not state whether or not the
appellant requested leave on that day, and if he did, whether that request met the
requirements of the March 1 memorandum.
8
friend, that the appellant was incapacitated due to medication he was taking, and
that he was requesting leave without pay for the day. IAF, Tab 4 at 44, Tab 19
at 21. The email is not in the record but appears to be quoted in an unsigned and
undated police report that was prepared after the June 10 wellness check.
IAF, Tab 4 at 44-45. Assuming that the police report accurately quotes the email,
we find that its content complies with the requirements set forth in the March 1
memorandum in most respects except that it does not identify a call back number.
Id. at 44, 68. However, the March 1 memorandum prohibits emailed leave
requests and requires that the appellant, or a third party on the appellant’s behalf,
call the appellant’s supervisor within the first 2 hours of his shift if he is
requesting leave for the day. Id. at 68. There is no evidence that the appellant, or
anyone on his behalf, called his supervisor on June 10 to request leave.
Accordingly, the agency has proved this specification.
¶13 The administrative judge did not sustain the second specification charging
that the appellant abused drugs. ID at 18-19. The parties do not address this
specification on review and we find no error in the administrative judge’s finding.
When more than one event or factual specification supports a single charge, proof
of one or more, but not all, of the supporting specifications is sufficient to sustain
the charge. Burroughs v. Department of the Army, 918 F.2d 170, 172 (Fed. Cir.
1990). Accordingly, we sustain the charge of disregard of directive.
The agency has not proved the unauthorized absence charge.
¶14 The agency charged that the appellant’s leave from April 28 through
May 26, 2021, was unauthorized because the agency would not have approved the
absence had it been aware of the appellant’s untruthfulness about his family’s
health. IAF, Tab 4 at 23. The administrative judge did not sustain the charge
because she found that the leave was authorized by the agency. ID at 20. We
agree. In order to prove its charge, the agency must prove that the appellant gave
untruthful information, as charged in the specification. As stated in paragraph 9
above, the agency has failed to do so.
9
We affirm the administrative judge’s denial of the appellant’ s disability
discrimination affirmative defense.
¶15 The parties do not challenge the administrative judge’s findings as to the
denial of the appellant’s disability discrimination claims, and we find no material
error in them. ID at 21-27. 4 We therefore affirm the administrative judge’s
findings on this point.
The penalty of removal exceeds the bounds of reasonableness.
¶16 The parties do not challenge the administrative judge’s finding that a nexus
exists between the appellant’s misconduct and the efficiency of the service, and
we discern no error in it. ID at 28. When the Board sustains fewer than all of the
agency’s charges, the Board may mitigate to the maximum reasonable penalty as
long as the agency has not indicated either in its final decision or in the
proceedings before the Board that it desires that a lesser penalty be imposed for
fewer charges. Lachance v. Devall, 178 F.3d 1246, 1260 (Fed. Cir. 1999). There
is no such evidence in the record. The Board has identified several factors as
relevant in determining the appropriateness of a penalty. See Douglas v. Veterans
Administration, 5 M.S.P.R. 280, 305-06 (1981). The most important of these
factors is the nature and seriousness of the offense. Boo v. Department of
Homeland Security, 122 M.S.P.R. 100, ¶ 18 (2014). Among the considerations
included in this factor are the relationship of the offense to the employee’s duties,
position, and responsibilities, including whether the offense was intentional or
was frequently repeated. Id. The appellant worked for the agency for 6 years and
does not appear to have had any performance problems during that time.
IAF, Tab 4 at 10. The appellant did not hold a supervisory position. Id. The
appellant was previously reprimanded and served a 3-day suspension for failure
4
Since the issuance of the initial decision, the Board issued Pridgen v. Office of
Management & Budget, 2022 MSPB 31, which, among other things, addressed the
causation standard for proving discrimination on the basis of disability. 2022 MSPB
31, ¶¶ 39-40, 42. Given the finding the appellant’s disability was not a motivating
factor in the agency’s action, Pridgen does not affect the outcome of this matter.
10
to follow the agency’s leave procedures. IAF, Tab 4 at 61, 64, 69-70. We have
considered that on the date in question, the appellant made contact with the
agency to inform his supervisor that he would be absent, albeit not in the way in
which he was instructed. We have also considered the assertion that the appellant
was incoherent due to his disability. Id. at 44. The appellant has also stated that
he and his wife were having relationship troubles and he was experiencing pain
based on his disability. IAF, Tab 18 at 16-17, Tab 20 at 4-5. The agency’s table
of penalties recommends a 5-day suspension to removal for a third offense of
failure to request leave according to established procedures. IAF, Tab 4 at 104.
Given these factors, we find that the penalty of removal exceeds the bounds of
reasonableness and that a 7-day suspension is the maximum reasonable penalty.
ORDER
¶17 We ORDER the agency to cancel the removal and substitute a 7 -day
suspension. 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.
¶18 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.
¶19 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
11
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).
¶20 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).
¶21 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
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.
12
NOTICE OF APPEAL RIGHTS 5
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 appli cable 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 choice s 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).
5
Since the issuance of the initial decision in this matter, the Board may have up dated
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.
13
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 partic ular
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. ____ , 137 S. Ct. 1975 (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
14
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
(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
15
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. 6 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.
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
6
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.
16
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: /s/ for
Jennifer Everling
Acting 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.