The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CRAIG MOSLEY, DOCKET NUMBER
Appellant, AT-0752-13-3463-I-1
v.
DEPARTMENT OF THE ARMY, DATE: April 20, 2022
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Craig Mosley, Huntsville, Alabama, pro se.
David C. Points, Jr., Redstone Arsenal, Alabama, for the agency.
BEFORE
Raymond A. Limon, Vice Chair
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The agency has filed a petition for review of the initial decision, which
reversed the agency’s decision to furlough the appellant . For the reasons set forth
below, the agency’s petition for review is DISMISSED as untimely filed without
good cause shown. 5 C.F.R. § 1201.114(e), (g).
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
BACKGROUND
¶2 The appellant filed this appeal to contest the agency’s decision to furlough
him for fewer than 30 nonconsecutive days during the last quarter of the 2013
fiscal year. Initial Appeal File (IAF), Tab 1. Because no hearing was held, the
initial decision was based on the written record contained within the appellant’s
individual appeal file and the file associated with the individual appeals
consolidated under the caption In re: Redstone Arsenal, Group II v. Department
of the Army, MSPB Docket No. AT-0752-14-0217-I-1. Consolidated Appeal File
(CAF), Tab 1; IAF, Tab 3, Initial Decision (ID) at 1 -2. The record in this appeal
closed on June 29, 2016, and the initial decision was issued on July 21, 2016. ID
at 1-2. Therein, the administrative judge found that the agency failed to meet its
burden of proof that the appellant was not subject to any furlough exception, and
he reversed the furlough action. ID at 4. The administrative judge found that,
prior to the record’s close, the agency failed to offer any ev idence to rebut the
appellant’s claim that his position was exclusively funded through Foreign
Military Sales and thus fell within one of the agency’s furlough exceptions. Id.
¶3 On November 2, 2016, the agency filed this petition for review. 2 Petition
for Review (PFR) File, Tab 1. Therein, the agency representative asserts that he
did not know that the initial decision had been issued until the appellant sought
his assistance in implementing the Board’s order. Id. at 4. He further asserts
that, when he sought to access the initial decision using the Board’s e -Appeal
Online system, he “was asked the preliminary questions that are requested when
one initially is accessing a new furlough filer account as there is no MSPB
e-Appeal prior history of me having access to Appellant’s case file.” Id. at 4. He
also asserts that neither the initial decision that the appellant provided nor the
2
The administrative judge did not order interim relief to avoid a possible overpayment
resulting from the payment of back pay in case the Board affirmed the furlough action.
ID at 6. It was thus unnecessary for the agency to certify compliance with an interim
relief order in the petition for review. See 5 C.F.R. § 1201.116(a).
3
initial decision in the e-Appeal Online Repository referenced any “service of
process to me.” Id. at 5.
ANALYSIS
The petition for review is untimely filed, and the agency did not establish good
cause for the delay in filing.
¶4 A petition for review generally must be filed within 35 days after the date
that the initial decision was issued, or if the party filing the petition shows that
the initial decision was received more than 5 days after it was issued, within
30 days after the party received the initial decision. 5 C.F.R. § 1201.114(e). The
initial decision was issued on July 21, 2016, making its finality date August 25,
2016. ID at 1, 7. The agency’s petition for review was filed on November 2,
2016. PFR File, Tab 1 at 1. The record reflects that the agency did not request
an enlargement of time in which to file its petition. We thus find the agency’s
petition for review untimely filed by 69 days.
¶5 The Board will waive its filing deadline only upon a showing of good cause
for the delay in filing. 5 C.F.R. §§ 1201.12, 1201.114(g). To establish good
cause for the untimely filing of a petition for review, a party must establish the
exercise of due diligence or ordinary prudence under the particular circumstances
of the case. Alonzo v. Department of the Air Force, 4 M.S.P.R. 180, 184 (1980).
¶6 The e-Appeal Online Repository record for this appeal shows that the
agency representative, as an e-filer, filed the agency response to the consolidated
furlough appeal on September 10, 2014. CAF, Tab 2. Indeed, he references that
response in the petition for review. PFR File, Tab 1 at 5. On June 27, 2016, the
agency representative also filed as an e-filer a prehearing submission containing
the deciding official’s declaration. CAF, Tab 9. On June 28, 2016, a second
agency representative registered as an e-filer, stating, “I hereby register all
Agency Representatives in this case as e-filers.” CAF, Tab 14. The
administrative judge issued the initial decision on July 21, 2016. IAF, Tab 3.
The certificate of service for the initial decision states that the agency
4
representative filing this petition for review was served by electronic mail on
July 21, 2016. IAF, Tab 4. The agency representative was thus a registered
e‑filer for this appeal while it was pending before the administrative judge.
Otherwise, he would not have been able to file pleadings via the e -Appeal Online
system. 5 C.F.R. § 1201.14(e)(1).
¶7 As a registered e-filer in the Board’s e-Appeal Online system, the agency
representative had certain responsibilities. Registration as an e -filer constitutes
consent to accept electronic service of pleadings filed by other registered e -filers
and documents issued by the Board. Id. A registered e-filer must notify the
Board and other parties of any change in his email address. 5 C.F.R.
§ 1201.14(e)(6). He is also responsible for ensuring that email messages from the
Board are not blocked by any filters associated with his account. 5 C.F.R.
§ 1201.14(j)(2). Additionally, a registered e-filer must monitor case activity in
e-Appeal Online Repository to ensure that he has received all the documents
related to the cases for which he is registered. 5 C.F.R. § 1201.14(j)(3).
¶8 When the Board issues documents in a particular appeal, the e -filers for that
appeal receive email messages notifying them of the issuance and containing
links to the Repository where they may view and download the documents.
5 C.F.R. § 1201.14(j)(1). The Board will not normally serve paper copies of the
documents on e-filers. Id. Board documents served electronically on registered
e-filers are deemed received on the date of electronic submission. 5 C.F.R.
§ 1201.14(m)(2).
¶9 Nothing in the record shows that the agency representative withdrew from
his status as an e-filer. See 5 C.F.R. § 1201.14(e)(4). The record only shows that
an additional agency representative registered as an e-filer. CAF, Tab 14. If the
agency representative’s email address had changed, he would have been
responsible for informing the Board. Even if a system error occurred, it was
nevertheless his responsibility to monitor the Repository for filings pertaining to
5
this appeal. Accordingly, we find that the agency failed to show good cause for
the delay in filing, and we dismiss the petition for review as untimely filed. 3
Alternatively, the Board will not consider the agency’s newly submitted evidence.
¶10 The agency representative asserts that, after he received the initial decision,
he inquired with the Human Resources Director at the U.S. Army Aviation and
Missile Research, Development and Engineering Center (AMRDEC), as to
whether the appellant had been exempt from the furlough. PFR Fil e, Tab 1 at 5.
The Human Resources Director reiterated the agency’s position set forth in its
September 10, 2014 response that only those AMRDEC employees that met one
of 11 exemptions listed in the response were exempt from the furlough. Id.; CAF,
Tab 2 at 5-7. The agency representative thus submitted an affidavit from an
AMRDEC Human Resources Program Analyst, refuting the appellant’s contention
that his position was fully funded through Foreign Military Sales and thus exempt
from the furlough. PFR File, Tab 1 at 5, 7-9.
¶11 Under 5 C.F.R. § 1201.115(d), the Board generally will not consider
evidence submitted for the first time with the petition for review absent a showing
that it was unavailable before the record was closed despite the party’s due
diligence. Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980). To
constitute new evidence, the information contained in the documents, not just the
documents themselves, must have been unavailable despite due diligence when
the record closed. 5 C.F.R. § 1201.115(d). The affidavit in question was
executed on November 2, 2016, after the record closed in the proceeding before
the administrative judge. PFR File, Tab 1 at 8-9. The agency representative has
not explained why the agency failed to present such an affidavit before the record
closed, especially after the administrative judge called attention to the appellant’s
3
The agency representative also failed to submit with his petition for review a motion
for the Board to accept his filing as timely and/or to ask the Board to waive or set aside
the time limit and the accompanying affidavit or sworn statement. PFR File, Tab 2
at 1‑2; see 5 C.F.R. § 1201.114(g).
6
contention in the Order and Summary of Telephonic Prehearing/Close of the
Record Conference almost 2 weeks earlier. CAF, Tab 8 at 13 n.11. Absent a
showing that this information was unavailable to the agency despite due
diligence, we will not consider it.
¶12 Accordingly, we dismiss the petition for review as untimely filed without
good cause shown for the delay in filing. This is the final decision of the Merit
Systems Protection Board regarding the timeliness of the petition for review. The
initial decision remains the final decision of the Board regarding the merits of the
furlough appeal.
ORDER
¶13 We ORDER the agency to the agency to cancel the appellant’s furlough
effected during discontinuous days during the last quarter of FY 2013 ( i.e.,
effected during the months of July, August, and September 2013). 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.
¶14 We also ORDER the agency to pay the appellant the correct amoun t 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.
¶15 We further ORDER the agency to tell the appellant promptly in writing
when it believes it has fully carried out the Board’s Order an d 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).
7
¶16 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).
¶17 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.
8
NOTICE OF APPEAL RIGHTS 4
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
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:
4
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.
9
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. ____ , 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
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
10
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
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 Boar d’s
11
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. 5 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
Board neither endorses the services provided by any attorney nor war rants that
any attorney will accept representation in a given case.
5
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.
12
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.