Ramiro Sepulveda v. Department of Homeland Security

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

RAMIRO C. SEPULVEDA, DOCKET NUMBER

Appellant, DA-0752-17-0220-I-1

v.

DEPARTMENT OF HOMELAND DATE: April 17, 2023

SECURITY,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Anthony W. Walluk, Esquire, San Antonio, Texas, for the appellant.

Grant Gardner, Laredo, Texas, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

¶1 The agency has filed a petition for review of the initial decision, which

reversed the agency’s action removing the appellant for violating a last -chance

agreement (LCA). Generally, we grant petitions such as this one only in the

following circumstances: the initial decision contains erroneous findings of

1

A nonprecedential order is one that the Board has determined does not add

significantly to the body of MSPB case law. Parties may cite nonprecedential orders,

but such orders have no precedential value; the Board and administrative judges are not

required to follow or distinguish them in any future decisions. In contrast, a

precedential decision issued as an Opinion and Order has been identified by the Board

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).

2

material fact; the initial decision is based on an erroneous interpretation of statute

or regulation or the erroneous application of the law to the facts of the case; the

administrative judge’s rulings during either the course of the appeal or the initial

decision were not consistent with required procedures or involved an abuse of

discretion, and the resulting error affected the outcome of the case; or n ew and

material evidence or legal argument is available that, despite the petitioner’s due

diligence, was not available when the record closed. Title 5 of the Code of

Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully

considering the filings in this appeal, we conclude that the petitioner has not

established any basis under section 1201.115 for granting the petition for review.

Therefore, we DENY the petition for review and AFFIRM the initial decision,

which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).

BACKGROUND

¶2 Prior to his removal, the appellant was a GS-12 Customs and Border

Protection (CBP) Officer with the U.S. Customs and Border Protection in the

Laredo, Texas field office. Initial Appeal File (IAF), Tab 1 at 3. His primary job

duty was to process commercial tractor-trailers at the World Trade Bridge while

assigned to a booth at a primary lane, which included processing the vehicle and

driver information, conducting x-rays of the vehicle as applicable, and referring

the vehicle to a secondary lane for further inspection as needed. Hearing

Transcript (HT) at 281:11-283:19 (testimony of a supervisor), 124:6-17

(testimony of the appellant). On April 1, 2016, the agency sustained a proposal to

remove the appellant based on charges of failure to follow policy and failure to

provide honest and complete information. IAF, Tab 6 at 25-28. Subsequently, on

April 13, 2016, the appellant and the agency executed a LCA, wherein the agency

agreed to mitigate the proposed removal to a 21-day suspension. Id. at 29-32.

The appellant agreed that the LCA would be effective for a 1 -year period, during

which “any form of misconduct” he engaged in would constitute a “violation of

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the [a]greement.” Id. at 29. The appellant further indicated his understanding

that any violation of the LCA would “result in the implementation of the

[r]emoval [d]ecision” and that he waived “any and all appeal rights regarding the

removal in any forum,” in the event that the agency reinstated his removal based

on his violation of the LCA. Id. at 30.

¶3 On February 8, 2017, the agency notified the appellant of its deci sion to

reinstate his removal, effective immediately, as a result of his violation of the

LCA. Id. at 11-12. Specifically, the agency determined that the appellant

violated the provision of the LCA requiring him to abstain from misconduct

when, on September 20, 2016, he used his Government computer for nonofficial

purposes during his official duties in violation of agency directives. Id.

¶4 The appellant timely filed an appeal of his removal with the Board. IAF,

Tab 1. Following a hearing, the administrative judge issued an initial decision

reversing the removal action. IAF, Tab 34, Initial Decision (ID). The

administrative judge found that the LCA was valid. ID at 4. However, the

administrative judge determined that the waiver of Board appeal rights in the

LCA was unenforceable because the agency breached the agreement . ID at 4, 10.

Specifically, she found that the agency acted arbitrarily and capriciously by

invoking the LCA based on the appellant’s personal internet use at his primary

lane. ID at 9-10. In reaching this determination, she made the following

findings: it is commonly understood in the South Texas region that personal

internet use is permitted, so long as it does not interfere with one’s official duties;

on-duty personal internet use is permitted; there is no evidence of any written

policy prohibiting personal internet use specifically at the primary lanes; there is

no formal, standardized method by which employees are notified of this alleged

prohibition; and there is no evidence to dispute the appellant’s assertions that his

personal internet use on September 20, 2016, took place during down time at his

lane and did not interfere with his duties. Id. Having found that the agency

breached the LCA, she reversed the agency’s removal action. ID at 10.

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¶5 The agency timely filed a petition for review. Petition for Review (PFR)

File, Tab 1. The appellant filed a response, to which the agency replied. PFR

File, Tabs 3-4.

DISCUSSION OF ARGUMENTS ON REVIEW

¶6 On petition for review, the agency challenges all of the administrative

judge’s findings, arguing that she made erroneous findings of fact in determining

the agency acted in bad faith and made legal and factual errors in finding that the

appellant’s personal internet use took place during down time and did not

interfere with his official duties. PFR File, Tab 1 at 7, 18. As discussed below,

the agency’s arguments do not provide a basis for review.

The administrative judge applied the correct standard of proof.

¶7 In a traditional chapter 75 adverse action appeal, the agency bears the

burden to show by preponderant evidence that the alleged misconduct occurred.

5 U.S.C. § 7701(c)(1)(B); Walker v. Department of the Army, 102 M.S.P.R. 474,

¶ 4 (2006). The Board lacks jurisdiction, however, to hear an appeal involving an

action taken pursuant to an agreement in which the appellant waived his Board

appeal rights. Smith v. Department of the Interior, 113 M.S.P.R. 592, ¶ 6 (2010).

A different standard of proof applies in such cases. In order to demonstrate that

the appellant’s waiver of his appeal rights in an agreement was unenforceable, the

appellant—not the agency—must show that: (1) he complied with the agreement;

(2) the agency materially breached the agreement or acted in bad faith; (3) he did

not voluntarily enter into the agreement; or (4) the agreement resulted from fraud

or mutual mistake. Id.; 5 C.F.R. § 1201.56(b)(2)(i)(A) (indicating that the

appellant bears the burden of proving jurisdiction by preponderant evidence).

¶8 The agency asserts that the administrative judge shifted the jurisdictional

burden of proof from the appellant to the agency when she stated that “there is no

evidence to dispute the appellant’s assertions that his personal internet use on

September 20, 2016, took place during down time at his lane and did not interfere

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with his duties.” PFR File, Tab 1 at 18-19; ID at 9-10. However, the

administrative judge clearly stated both in her decision and at the hearing that the

appellant had to prove jurisdiction over his appeal by preponderant evidence. ID

at 3; HT at 175:16-19. Moreover, the administrative judge applied the correct

standard of proof. ID at 3. The administrative judge’s statement that the agency

has not disputed the appellant’s assertions does not constitute shifting the burden

of proof to the agency.

The agency has failed to provide a basis for disturbing the administrative judge’s

findings regarding the agency’s limited personal use internet policy.

¶9 The agency contends that the administrative judge made factual errors when

she found that it is commonly understood in the South Texas region that personal

internet use is permitted so long as it does not interfere with one’s official duties;

that on-duty personal internet use is permitted; that there is no written policy

prohibiting internet use at primary lanes; and that there is no formal method by

which employees are notified of this alleged prohibition. PFR File, Tab 1 at 9 -17.

Specifically, the agency alleges that, contrary to the administ rative judge’s

findings, there were written policies prohibiting personal internet use at the

primary lanes and that the appellant was formally notified of these written

policies. Id. at 12-14. Specifically, the agency relies on the ethical regulations

governing use of Government property by Federal employees, the U.S. Customs

and Border Protection Standards of Conduct, and a Laredo Field Office Integrity

Muster (dated February 9, 2015, and initialed by the appellant on December 29,

2016) to support its proposition. 2 PFR File, Tab 1 at 13-14; IAF, Tab 7 at 30-31,

Tab 8 at 33, Tab 6 at 12.

2

In relevant part, the local muster states that “. . . the use of government office

equipment and computers is for authorized purposes only. However, employees may

during non-work time use government office equipment and computers on a ‘limited

personal use’ basis only.” IAF, Tab 7 at 30 (emphasis in original). “Limited personal

use” is defined as “. . . use that involves minimal additional expenses to the

government, is performed during the employee’s non-work time, does not interfere with

the mission or operations of a department or agency, and does not violate the Standards

6

¶10 In resolving credibility issues, an administrative judge must consider factors

such as the contradiction of the witness’s version of events by other evidence or

its consistency with other evidence. Hillen v. Department of the Army,

35 M.S.P.R. 453, 458 (1987). 3 The Board must give deference to an

administrative judge’s credibility determinations when, as here, they are based,

explicitly or implicitly, on the observation of the demeanor of witnesses

testifying at a hearing; the Board may overturn such determinations only when it

has “sufficiently sound” reasons for doing so. Haebe v. Department of Justice,

288 F.3d 1288, 1301 (Fed. Cir. 2002). When, as here, an administrative judge has

heard live testimony, her credibility determinations must be deemed to be at least

implicitly based upon the demeanor of the witnesses. Little v. Department of

Transportation, 112 M.S.P.R. 224, ¶ 4 (2009).

¶11 In finding that it is commonly understood that personal internet use is

permitted as long as it does not interfere with one’s official duties, the

administrative judge thoroughly reviewed the numerous written agency directives

regarding personal internet use. ID at 10 n.8. However, she credited the

testimony she heard regarding the commonly accepted interpretation and

of Ethical Conduct for Employees of the Executive Branch . . . .” Id. An employee’s

“non-work time” is defined as “time when an employee is not otherwise expected to be

addressing official business provided such use does not interfere with or impede CBP

mission or operations.” Id. at 31 (emphasis in original). The muster also provides

numerous examples of authorized use and inappropriate personal uses, none of which

includes a general prohibition of internet use on the primary lanes and allows for

limited personal use of the internet. Id. at 31-32.

3

In Hillen, the Board articulated factors to consider in resolving credibility issues. The

Board held that, to resolve credibility issues, an administrative judge must identify the

factual questions in dispute, summarize the evidence on each disputed question, state

which version he believes, and explain in detail why he found the chosen version more

credible, considering such factors as: (1) the witness’s opportunity and capacity to

observe the event or act in question; (2) the witness’s character; (3) any prior

inconsistent statement by the witness; (4) a witness’s bias, or lack of bias; (5) the

contradiction of the witness’s version of events by other evidence or its consistency

with other evidence; (6) the inherent improbability of the witness’s version of events;

and (7) the witness’s demeanor. Hillen, 35 M.S.P.R. at 458.

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application of the rules concerning on-duty personal internet use. Id. After

applying the factors set forth in Hillen, 35 M.S.P.R. at 458, the administrative

judge did not credit the deciding official’s and supervisor’s testimony that there is

a longstanding, absolute prohibition on personal internet use on duty at primary

lanes. ID at 7. She did not credit their testimony because the deciding official

acknowledged there was no written policy that specif ically distinguishes between

on-duty personal internet use at primary lanes versus other locations, another

CBP officer testified that it was his understanding that limited personal internet

use is permissible at the primary lanes, and the supervisor testified that some

officers access the internet for personal use at the primary lanes. Id. Rather, the

administrative judge credited both the appellant’s and the deciding official’s

testimony that personal internet use is permitted while on duty so long as it does

not interfere with one’s duties. ID at 6-7.

¶12 While the agency argues that the appellant received notice of the agency’s

internet policies, the administrative judge’s finding was specific to the alleged

prohibition of personal internet use specifically at the primary lanes. PFR File,

Tab 1 at 16-17; ID at 9. In finding that there is no formal, standard method by

which employees are notified of the alleged prohibition of personal internet use

specifically at the primary lanes, the administrative judge did not credit the

deciding official’s or supervisor’s testimony. ID at 7, 9. After applying the

factors set forth in Hillen, 35 M.S.P.R. at 458, the administrative judge noted that

the deciding official testified that he had no knowledge of whether or how such

information is disseminated to employees and that the supervisor testified that the

only way for an employee to know such conduct is prohibited is for the supervisor

to bring it to their attention if they notice an employee on the internet. ID at 7.

¶13 The administrative judge properly considered factors, such as the

contradiction of witness testimony and its consistency with the record, to make

well-reasoned credibility determinations. See Hillen, 35 M.S.P.R. at 458. The

agency has failed to provide a basis for disturbing t hese credibility findings.

8

Accordingly we affirm the administrative judge’s findings that it is commonly

understood in the South Texas region that personal internet use is permitted, so

long as it does not interfere with one’s official duties; on-duty personal internet

use is permitted; there is no written policy prohibiting personal internet use

specifically at the primary lanes; and there is no formal, standardized method by

which employees are notified of this alleged prohibition. ID at 9.

The agency has failed to provide a basis for disturbing the administrative judge’s

finding that the appellant’s personal internet use occurred during down time at his

primary lane.

¶14 The agency also disputes the administrative judge’s finding that there is no

evidence to dispute the appellant’s assertion that his personal internet use on

September 20, 2016, took place during down time and did not interfere with his

duties. PFR File, Tab 1 at 18. The agency alleges that it provided evidence that

unequivocally disproves the appellant’s assertion that he did not access the

internet for personal use during his official duties. Id. at 20-23. The agency then

argues that, because the personal internet use occurred during the appellant’s

official duties, the question of whether it interfered with his official duties is

irrelevant. Id. at 23-25. However, based on our review of the record, we agree

with the administrative judge that the appellant only used the internet while on

duty as the primary lane on September 20, 2016, while he had no official duties to

perform, i.e., he was on down time because there were no vehicles in his lane to

process. ID at 8. As such, we also agree with the administrative judge’s finding

that the appellant’s personal internet use did not interfere with his job duties. ID

at 8-9.

¶15 After applying the factors set forth in Hillen, 35 M.S.P.R. at 458, the

administrative judge credited the appellant’s testimony, which was further

supported by the record evidence, that he only used the internet while on duty at

the primary lane when there were no vehicles for him to process. ID at 6 -8. In

making her determination, the administrative judge analyzed the agency’s

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processing report for September 20, 2016, which shows the number of vehicles

processed at the appellant’s primary lane, analyzed and reconciled conflicting

testimony from multiple witnesses, and addressed the accident that occurred in

the appellant’s primary lane. ID at 8-9; IAF, Tab 14 at 32. Despite the agency’s

allegations, the administrative judge’s failure to mention all of the extensive

testimony and evidence does not mean that she did not consider it in reaching her

decision. See Marques v. Department of Health and Human Services,

22 M.S.P.R. 129, 132 (1984), aff’d, 776 F.2d 1062 (Fed. Cir. 1985) (Table).

¶16 The agency argues that the Board need not defer to the administrative

judge’s credibility determination regarding the appellant’s testimony that he only

accessed the internet when there were no vehicles for hi m to process because she

did not explicitly indicate that her credibility determination was based on the

observation of the demeanor of the witness. PFR File, Tab 1 at 21. However, as

noted above, when, as here, an administrative judge has heard live tes timony, her

credibility determinations must be deemed to be at least implicitly based upon the

demeanor of the witnesses. Little, 112 M.S.P.R. 224, ¶ 4. The agency has

submitted insufficient evidence and argument to demonstrate error by the

administrative judge in crediting the appellant’s testimony, resolving conflicting

witness testimony, and considering the evidence. 4 The administrative judge made

reasonable credibility determinations based on a review of the record as a whole,

and we find no basis to disturb them on review. See Purifoy v. Department of

Veterans Affairs, 838 F.3d 1367, 1372-73 (Fed. Cir. 2016) (explaining the high

level of deference the Board must give to demeanor-based credibility findings);

Haebe, 288 F.3d at 1302.

4

In relevant part, the administrative judge properly noted that the agency proffered no

evidence explaining how to interpret the technical data purporting to show the

appellant’s internet usage. ID at 10 n.7. The agency’s failure to submit such evidence

does not provide a basis for disturbing the administrative judge’s well -reasoned

credibility determinations. Nor does it provide a reason for remanding the appeal for

further credibility findings.

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¶17 For the reasons noted above, we find that the agency has not established any

basis for granting the petition for review. Accordingly, we affirm the

administrative judge’s initial decision.

ORDER

¶18 We ORDER the agency to cancel the removal action and retroactively

restore the appellant effective February 8, 2017. 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.

¶19 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 ou t 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.

¶20 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).

¶21 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).

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¶22 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.

NOTICE OF APPEAL RIGHTS 5

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

5

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.

12

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:

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

13

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

to waiver of any requirement of prepayment of fees, costs, or o ther 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

14

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 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

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 jurisdi ction.

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,

132 Stat. 1510.

15

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 websit e at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

Contact information for the courts of appeals can be found at their

respective websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

FOR THE BOARD: /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/Back20Pay%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.