The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DAVID B. WHITE, DOCKET NUMBER
Appellant, DA-3330-15-0044-P-2
v.
DEPARTMENT OF VETERANS DATE: February 24, 2023
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
David B. White, San Antonio, Texas, pro se.
Jeffrey Lee Linhart, and Thomas Herpin, Esquire, Houston, Texas,
for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the damages initial decision
that granted, in part, his motion for damages arising from his successful appeal
filed under the Veterans Employment Opportunities Act of 1998 (VEOA). For
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
the following reasons, we GRANT the appellant’s petition for review and
AFFIRM the initial decision AS MODIFIED by this Final Order, awarding the
appellant compensation for any lost wages and benefits.
BACKGROUND
¶2 The appellant, a preference-eligible veteran, timely applied for the positions
of full-time and part-time Housekeeping Aid, both of which were open only to
preference-eligible veterans. White v. Department of Veterans Affairs, MSPB
Docket No. DA-4324-15-0044-I-1, Initial Appeal File (IAF), Tab 6, Subtabs 4b,
4d, 4f, 4l-4m. In June 2014, the agency informed the appellant that he was
ineligible for the positions. Id., Subtab 4a at 2, Subtab 4c at 2. The appellant
submitted proof of his eligibility before the vacancy announcements closed ;
however, due to a possible “administrative oversight,” the human resources (HR)
specialist did not change the appellant’s eligibility status, and the agency did not
consider or select him for either position. White v. Department of Veterans
Affairs, MSPB Docket No. DA-4324-15-0045-I-1, Initial Appeal File, Tab 20,
Hearing Compact Disc (HCD) (testimony of the HR specialist). After the
vacancy announcements closed on September 30, 2014, the HR specialist
reviewed the appellant’s application materials again and determined that he was
eligible for the positions. Id. Thus, on or about October 29, 2014, the agency
notified the appellant that he had been tentatively selected for the full-time
Housekeeping Aid position. IAF, Tab 10 at 5. The appellant did not accept the
offer, and, on December 31, 2014, the agency rescinded it. IAF, Tab 16 at 4.
¶3 The appellant filed Board appeals alleging that the agency violated his
veterans’ preference rights, MSPB Docket No. DA-3330-15-0044-I-1, and
discriminated against him in violation of the Uniformed Services Employment
and Reemployment Rights Act of 1994 (USERRA), MSPB Docket No. DA-4324-
15-0045-I-1. For the purposes of adjudication, the administrative judge joined
the USERRA and VEOA appeals. IAF, Tab 21. In an April 13, 2015 initial
3
decision, the administrative judge found that the agency violated the appellant’s
veterans’ preference rights when it failed to reassess his eligibility for the
Housekeeping Aid positions after he timely submitted documentation
demonstrating that he was a preference-eligible veteran. IAF, Tab 23, Initial
Decision (ID). 2 Thus, the administrative judge granted corrective action under
VEOA, ordering the agency to reconstruct the hiring process. ID at 12-13. The
initial decision became the Board’s final decision in the VEOA appeal. 3
¶4 Thereafter, the appellant filed a petition for enforcement arguing that the
agency had failed to comply with the Board’s order to reconstruct the hiring
process. White v. Department of Veterans Affairs, MSPB Docket No. DA-4324-
15-0044-C-1, Compliance File (CF), Tab 1. The administrative judge found that,
although the agency had not reconstructed the selection process as orde red, it was
in material compliance with the Board’s instructions because it had conceded that
the appellant would have been selected for the positions but for the veterans’
preference violation and had offered him appointment to both positions. CF,
Tab 16, Compliance Initial Decision (CID) at 3. Thus, the administrative judge
dismissed the appellant’s petition for enforcement as moot. CID at 4. The
appellant filed a petition for review, and the Board affirmed the administrative
judge’s determination that the agency was in material compliance with the
Board’s order. White v. Department of Veterans Affairs, MSPB Docket No. DA-
4324-15-0044-C-1, Final Order, ¶ 8 (June 20, 2016).
2
The April 13, 2015 initial decision listed only MSPB Docket No. DA-4324-15-0045-I-
1 in the case caption but also applied to MSPB Docket No. DA-4324-15-0044-I-1.
3
The administrative judge dismissed the USERRA claim for lack of jurisdiction or, in
the alternative, for failure to establish a USERRA violation. ID at 11 -12. The
appellant filed a petition for review of the initial decision, challenging only the
administrative judge’s findings regarding his USERRA claim, and the Board affirmed
the initial decision as modified to find that the appellant established jurisdiction over
his USERRA appeal but failed to prove a USERRA violation. White v. Department of
Veterans Affairs, MSPB Docket No. DA-4324-15-0045-I-1, Final Order (Sept. 17,
2015). The Board severed the USERRA and VEOA appeals to allow them to proceed
independently. Id., ¶ 2 n.2.
4
¶5 The appellant also filed motions for back pay, benefits, and liquidated
damages based on the agency’s violation of his veterans’ preference rights. White
v. Department of Veterans Affairs, MSPB Docket No. DA-3330-15-0044-P-1,
Damages File, Tabs 1-2, 4. The administrative judge dismissed the damages
appeal without prejudice pending a decision on the appellant’s petition for review
of the compliance initial decision. White v. Department of Veterans Affairs,
MSPB Docket No. DA-3330-15-0044-P-1, Initial Decision (Mar. 16, 2016). On
June 10, 2016, the damages appeal was automatically refiled. White v.
Department of Veterans Affairs, MSPB Docket No. DA-3330-15-0044-P-2,
Refiled Damages File (RDF), Tabs 1-2. In the damages initial decision, the
administrative judge found that the appellant was entitled to lost wages or
benefits, but not both, for the period from September 30, 2014 (when the vacancy
announcements closed) to December 31, 2014 (when the agency rescinded the
October 29, 2014 tentative job offer), and granted the appellant lost wages for
that period. RDF, Tab 8, Damages Initial Decision (DID) at 5-7. The
administrative judge denied the appellant’s request for liquidated damages,
finding that the agency did not willfully violate his veterans’ preference rights,
and denied his request for other supplemental damages. DID at 7-9.
¶6 The appellant has filed a petition for review of the damages initial decision,
arguing that he is entitled to more back pay than awarded by the administrative
judge, as well as benefits and liquidated damages. Petition for Review (PFR)
File, Tab 1. 4 The agency has not submitted a response to the appellant’s petition
for review.
4
In addition to challenging the findings in the damages initial decision, the appellant
raises several arguments regarding the agency’s compliance with the Board’s order.
PFR File, Tab 1 at 4-5. However, the compliance matter was fully adjudicated and is
no longer before the Board. See White v. Department of Veterans Affairs, MSPB
Docket No. DA-4324-15-0044-C-1, Final Order, ¶ 8 (June 20, 2016). Therefore, we
have not considered the appellant’s arguments on review regarding compliance.
5
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant is entitled to back pay and benefits incurred as a result of the
veterans’ preference violation.
¶7 Under VEOA, if the Board determines that an agency has violated an
appellant’s veterans’ preference rights, it “shall . . . award compensation for any
loss of wages or benefits suffered by the individual by reason of the violation
involved.” 5 U.S.C. § 3330c(a). After the administrative judge issued the
damages initial decision in this matter, the Board issued a precedential decisi on
holding that a successful appellant in a VEOA appeal is entitled to compensation
for lost wages and benefits incurred as a result of the veterans’ preference
violation pursuant to 5 U.S.C. § 3330c(a). Weed v. Social Security
Administration, 124 M.S.P.R. 71, ¶ 20 (2016), aff’d, 711 F. App’x 624 (Fed. Cir.
2017). Therefore, we modify the damages initial decision to find that the
appellant is entitled to lost wages and benefits 5 resulting from the agency’s
veterans’ preference violation, rather than lost wages only.
The appellant is entitled to lost wages and benefits for the period from
September 30 to December 31, 2014.
¶8 When, as here, a prevailing party in a VEOA appeal was not selected for a
position because of the agency’s veterans’ preference violation, he “is entitled to
lost wages or benefits pursuant to § 3330c from the [ ] selection date that violated
his veterans’ preference rights until such time as he is placed in the position at
issue or declines the position at issue.” Marshall v. Department of Health
& Human Services, 587 F.3d 1310, 1317-18 (Fed. Cir. 2009). As noted above,
5
The VEOA statute does not define the term “benefits.” Weed, 124 M.S.P.R. 71, ¶ 21;
see, e.g., 5 U.S.C. §§ 3330a-3330c. However, the term “benefit” is defined broadly in
USERRA to include “privileges of employment,” such as, among other things, rights
and benefits under a pension plan, awards, and bonuses. 38 U.S.C. § 4303(2); Weed,
124 M.S.P.R. 71, ¶ 21. Because Congress enacted USERRA before it enacted VEOA
and because they are similar remedial statutes, the Board construes the term “benefit” to
have the same meaning in the two statutes. Weed, 124 M.S.P.R. 71, ¶ 21. Accordingly,
we find that the appellant is entitled “benefits” as that term is defined at
38 U.S.C. § 4303(2).
6
the administrative judge determined that the appellant was entitled to receive lost
wages or benefits for the period from September 30, 2014, the date on which the
vacancy announcements closed, until December 31, 2014, the date on which the
agency rescinded its offer based on missing documentation. DID at 6-7. The
administrative judge explained that the appellant’s failure to act in a timely
manner in response to the October 29, 2014 job offer was an effective declination
of the offer. DID at 6-7. On review, the appellant contends that he should
receive lost wages and benefits through January 2016, when the agency conceded
that he would have been selected but for the veterans’ preference violation. PFR
File, Tab 1 at 7. He further argues that he “never turn[ed] down a legitimate job
offer but was in talks with the agency to get back pay and lost benefits.” Id.
¶9 It is undisputed that the agency offered the full-time Housekeeping Aid
position on October 29, 2014, with a projected start date of November 17, 2014,
pending completion of the pre-employment process. IAF, Tab 10 at 5. The
agency informed the appellant that he needed to accept the tentative offer within
3 days and that the agency would interpret his failure to accept within 3 days as a
declination of the offer. Id. The appellant did not accept the job offer, but
instead requested information on what his income would b e after applying the
offset for his disability retirement benefits. 6 HCD (testimony of the HR
specialist). On December 31, 2014, the agency rescinded the tentative job offer
“based on missing [Federal Employees Retirement System] Disability Retirement
documents required to determine offset calculation.” IAF, Tab 16 at 4.
¶10 The appellant’s arguments on review that he did not turn down a legitimate
job offer and that he is entitled to lost wages and benefits through January 2016
are unpersuasive. The October 29, 2014 tentative job offer specifically advised
6
When a Federal Employees Retirement System annuitant, such as the appellant, is
reemployed, the annuity continues, and the amount of annuity that applies to the period
of reemployment is offset from the reemployed annuitant’s salary. 5 U.S.C. § 8468(a);
Garza v. Department of the Navy, 119 M.S.P.R. 91, ¶ 9 (2012).
7
the appellant that his failure to accept the offer within 3 days would be construed
as a declination of the offer; nonetheless, the agency kept the position open for
approximately 60 days. IAF, Tab 10 at 5, Tab 16 at 4. Although the appellant
wanted specific information regarding his prospective income prior to accepting
the offer, the onus was on him to provide to the agency in a timely manner the
documentation necessary to make such a calculation. However, he failed to
submit the documentation to the HR specialist until January 2015. HCD
(testimony of the HR specialist). Therefore, we find no basis to disturb the
administrative judge’s determination that the appellant’s failure to act in a timely
manner in response to the October 29, 2014 job offer constituted an effective
declination of the job offer and that the award period ended on the date the
agency rescinded the offer. DID at 6-7. Although the appellant believes that he
should be entitled to lost wages and benefits through January 2016, when the
agency conceded that he would have been selected for the positions at issue, the
Board has expressly rejected this approach. Weed, 124 M.S.P.R. 71, ¶ 20 n.4
(rejecting the appellant’s contention that he was entitled to lost wages and
benefits through the date the agency conceded that he would have been entitled to
the positions at issue but for the veterans’ preference violation and finding
instead that the award period ended on the date the appellant declined the
agency’s job offer); see Marshall, 587 F.3d at 1317-18.
¶11 As noted above, the appellant is entitled to lost wages and benefits pursuant
to section 3330c from the selection date that violated his veterans’ preference
rights until he either is placed in, or declines, the position at issue. Marshall,
587 F.3d at 1317-18. The parties do not challenge, and we discern no basis to
disturb, the administrative judge’s finding that September 30, 2014 —the date on
which the vacancy announcements closed—is the appropriate start date of the
award period. Furthermore, for the reasons discussed above, we agree with the
administrative judge that December 31, 2014—the date the agency rescinded the
tentative offer—is an appropriate end date. DID at 6-7. Accordingly, we find
8
that the appellant is entitled to lost wages and benefits for the period from
September 30 to December 31, 2014.
The appellant is not entitled to liquidated damages.
¶12 When, as here, a prevailing party in a VEOA appeal is entitled to lost wages
and benefits pursuant to section 3330c(a), the Board also must award him
liquidated damages in an amount equal to the back pay if the agency’s violation
of his veterans’ preference rights is found to be willful. 5 U.S.C. § 3330c(a).
The administrative judge determined that the agency did not willfully violate the
appellant’s veterans’ preference rights when it failed to reassess his eligibility for
the Housekeeping Aid positions after he timely submitted documentation
demonstrating his eligibility. DID at 8. She further determined that the agency
did not willfully violate the appellant’s veterans’ preference rights when it failed
to reconstruct the selection process pursuant to the Board’s order. DID at 9.
Thus, the administrative judge concluded that the appellant was not entitled to
liquidated damages pursuant to section 3330c(a). On review, the appellant
challenges only the administrative judge’s finding that the agency did not
willfully violate his veterans’ preference rights when it failed to reconstruct the
hiring process. PFR File, Tab 1 at 4, 7.
¶13 A violation is willful under 5 U.S.C. § 3330c(a) when the agency either
knew or showed reckless disregard for whether its conduct was prohibited. Weed,
124 M.S.P.R. 71, ¶ 9. Reconstructing the selection process may be an appropriate
remedy in a VEOA appeal when it is unknown whether a veteran would have been
selected for a position. Id. However, reconstruction is not required when it is
clear that the agency would have selected the veteran absent the VEOA violation.
Id. Here, as noted by the administrative judge, the agency concede d that it would
have selected the appellant for either the part-time or full-time Housekeeping Aid
positions absent the veterans’ preference violation and subsequently offered the
appellant both positions. DID at 8-9. Therefore, we find no basis to disturb the
administrative judge’s finding that the agency had a good faith belief that it was
9
not necessary to reconstruct the selection process and that the agency did not
willfully violate the appellant’s veterans’ preference rights when it failed to
reconstruct the selection process pursuant to the Board’s order. DID at 9.
Accordingly, we agree with the administrative judge that the appellant is not
entitled to liquidated damages.
ORDER
¶14 We ORDER the agency to pay the appellant lost wages and benefits for the
period from September 30, 2014, to December 31, 2014. See Kerr v. National
Endowment for the Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency must
complete this action no later than 60 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 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).
¶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 in 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 This is the final decision of the Merit Systems Protection Board i n this
appeal. Title 5 of the Code of Federal Regulation, section 1201.113(c) 5 C.F.R.
§ 1201.113(c).
10
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.), section 3330c(b). The regulations may be
found at 5 C.F.R. §§ 1201.202, 1201.203, and 1208.25. 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 motion for attorney fees and costs with the office that issued the initial
decision on your appeal.
NOTICE OF APPEAL RIGHTS 7
The damages initial decision, as supplemented by this Final Order,
constitutes the Board’s final decision in this matter. 5 C.F.R. § 1201.113. You
may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the
nature of your claims determines the time limit for seeking such review and the
appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the
following summary of available appeal rights, the Merit Systems Protection
Board does not provide legal advice on which option is most appropriate for your
situation and the rights described below do not represent a statement of how
courts will rule regarding which cases fall within their jurisdiction. If you wish
to seek review of this final decision, you should immediately review the law
applicable to your claims and carefully follow all filing time limits and
requirements. Failure to file within the applicable time limit may result in the
dismissal of your case by your chosen forum.
7
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
11
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 webs ite 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
12
were affected by an action that is appealable to the Board and that such a ction
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
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:
13
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. 8 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).
8
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
14
If you 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 wa rrants 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.