Lisa Giugliano v. Department of Veterans Affairs

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

LISA GIUGLIANO, DOCKET NUMBERS

Appellant, PH-0353-14-0772-I-3

PH-4324-16-0328-I-2

v.

DEPARTMENT OF VETERANS

AFFAIRS, DATE: May 2, 2023

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Charles L. Holsworth, Esquire, Pittsburgh, Pennsylvania, for the appellant.

Marcus S. Graham, Esquire, and Paul P. Kranick, Esquire, Philadelphia,

Pennsylvania, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member 2

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

Member Leavitt’s name is included in decisions on which the three -member Board

completed the voting process prior to his March 1, 2023 departure.

2

FINAL ORDER

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

granted in part and denied in part her request for corrective action under the

Uniformed Services Employment and Reemployment Rights Act of 1994

(codified as amended at 38 U.S.C. §§ 4301-4335) (USERRA). Generally, we

grant petitions such as this one only in the following ci rcumstances: the initial

decision contains erroneous findings of 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 judg e’s rulings during either

the course of the appeal or the initial decision were not consistent with required

procedures or involved an abuse of discretion, and the resulting error affected the

outcome of the case; or new and material evidence or legal argu ment 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. Except as

expressly MODIFIED to VACATE the administrative judge’s remedy analysis

and to apply the correct remedial authority, we AFFIRM the initial decision.

¶2 In June 2014, the appellant filed her first of two Board appeals under

USERRA. Giugliano v. Department of Veterans Affairs, MSPB Docket No. PH-

0353-14-0772-I-1, Initial Appeal File (0772 IAF), Tab 1. The administrative

judge twice dismissed the first appeal without prejudice for subsequent refiling,

resulting in three docket numbers for that first appeal. 0772 IAF, Tab 45;

Giugliano v. Department of Veterans Affairs, MSPB Docket No. PH-0353-14-

0772-I-2, Appeal File (0772 I-2 AF), Tabs 1, 38; Giugliano v. Department of

Veterans Affairs, MSPB Docket No. PH-0353-14-0772-I-3, Appeal File (0772 I-3

AF), Tab 1.

3

¶3 In May 2016, the appellant filed her second USERRA appeal. Giugliano v.

Department of Veterans Affairs, MSPB Docket No. PH-4324-16-0328-I-1, Initial

Appeal File (0328 IAF), Tab 1. The administrative judge also dismissed that

appeal without prejudice to subsequent refiling, resulting in an additional docket

number. 0328 IAF, Tab 40; Giugliano v. Department of Veterans Affairs, MSPB

Docket No. PH-4324-16-0328-I-2, Appeal File (0328 I-2 AF), Tab 1. In the

meantime, the administrative judge joined the two appeals for adjudication. 3

0772 I-2 AF, Tab 3.

¶4 After joining the appeals and developing the record, the administrative

judge held a 3-day hearing. 0772 I-3, Tabs 19-21. He then issued an initial

decision. 0772 I-3 AF, Tab 27, Initial Decision (ID). 4 The following facts, as

further detailed in that initial decision, appear to be undisputed.

¶5 At all times relevant to this appeal, the appellant was both an employee of

the agency and a member of the Air Force Reserve. ID at 2. She began her

uniformed service in July 2006, and the agency hired her as a call center nurse in

March 2009. Id. Throughout her tenure with the agency, she has been deployed

or otherwise responsible for performing military duty on a number of occasions,

including two instances of service lasting more than 90 days. ID at 3 & n.2.

Generally speaking, it is the agency’s treatment upon her return from uniformed

service that is the subject of this appeal. In more than a dozen particularized

allegations, the appellant alleged, for example, that the agency erred by

3

Following the administrative judge’s joinder of the appellant’s two appeals, all

subsequent filings were included in the records for each appeal. Compare, e.g., 0772

I-2 AF, Tabs 7-12 (appellant’s prehearing submissions), with 0328 IAF, Tabs 11-16 (the

same prehearing submissions). For the sake of simplicity and clarity, we will

exclusively cite to the file associated with the appellant’s original 0772 appeal.

4

When the administrative judge first issued the initial decision, it contained some

formatting errors and errors pertaining to notices to the parties. Therefore, the

administrative judge issued an erratum order, followed by a corrected initial decision.

Compare 0772 I-3 AF, Tab 24, with 0772 I-3 AF, Tab 26; ID. We will exclusively cite

to the corrected initial decision.

4

eliminating a position during one of her deployments, erroneously assigned her to

another position, improperly downgraded her performance appraisals, and

discriminated against her by not selecting her for several positions. 0772 I-2 AF,

Tab 32 at 5-6.

¶6 The administrative judge granted in part and denied in part the appellant’s

request for corrective action. 5 ID. He found that the agency violated the

USERRA discrimination provisions when it (1) failed to select the appellant for

the Lead Home Telehealth Coordinator position in November 2015;

(2) downgraded her performance reviews in 2015 and 2016; and (3) ceased a

pattern of cash awards starting in 2014. ID at 28-33, 41-42. However, he found

that the appellant failed to prove her remaining allegations of USERRA

violations. ID at 9-28, 34-41. Those allegations involved the appellant’s

February 2012 reinstatement and assignment to a case manager position, ID

at 9-18, the agency’s classification of assignments as details rather than

permanent changes of assigned positions, ID at 18-19, the agency’s elimination of

a call center supervisor position and a corresponding reassignment, ID at 19 -20, a

number of other vacancies and nonselections, ID at 21-28, 36-37, advancement to

the next nursing level, ID at 34-36, promotion in accordance with “escalator”

principles, ID at 37-38, “model employer” requirements, and an alleged hostile

work environment, ID at 38-41.

¶7 The appellant has filed a petition for review, which generally consists of

arguments concerning her discrimination claims and the appropriate remedy.

Giugliano v. Department of Veterans Affairs, MSPB Docket No. PH-0353-14-

0772-I-3, Petition for Review (0772 PFR) File, Tab 1. The agency has filed a

response. 0772 PFR File, Tab 3.

5

The administrative judge did not order the agency to provide interim relief. ID.

5

¶8 As the administrative judge recognized and explained in detail, two types of

cases arise under USERRA: (1) reemployment cases, in which the appellant

claims that an agency has not met its obligations under 38 U.S.C. §§ 4312-4318

following the appellant’s absence from civilian employment to perform

uniformed service; and (2) “discrimination” cases, in which the appellant claims

that an agency has taken an action prohibited by 38 U.S.C. § 4311(a) or (b).

Clavin v. U.S. Postal Service, 99 M.S.P.R. 619, ¶ 5 (2005); ID at 6-8. On the

merits, reemployment cases and discrimination cases differ in two important

ways. First, an individual’s rights under the reemployment provisions of

USERRA do not depend on the motivation for an agency’s action (or inaction),

whereas an essential element of a discrimination claim is that the contested

agency decision was based on an improper motivation. Clavin, 99 M.S.P.R. 619,

¶ 6. Second, in a reemployment case, the agency bears the burden of proving that

it met its statutory obligations. Id. By contrast, in a discrimination case, the

appellant bears the burden of proof on the merits, and if that burden is met th e

agency may avoid relief by showing that it would have taken the same action

even in the absence of the improper motivation. Id.

¶9 The claims that the appellant raised below implicated both the

reemployment and the discrimination provisions of USERRA. 0772 I-2 AF,

Tab 32 at 5-6. However, the only claims for which the administrative judge

found that the appellant prevailed fell under the latter and its prohibitions against

retaliation for engaging in protected USERRA activity. ID at 28-33; see

generally Kitlinski v. Merit Systems Protection Board, 857 F.3d 1374, 1381 & n.3

(Fed. Cir. 2017) (explaining that the anti-reprisal provision of USERRA “is

limited to barring acts of discrimination in employment and adverse employment

actions,” making it more narrow in scope than the anti-reprisal provisions of

Title VII of the Civil Rights Act of 1964).

¶10 Having carefully considered the appellant’s petition for review, we do not

construe it as pertaining to any of her USERRA reemployment claims. The

6

petition refers to “escalator principles,” see Rassenfoss v. Department of

Treasury, 121 M.S.P.R. 512, ¶ 12 n.4 (2014) (explaining that the “escalator

principle” is the concept that an employee who has been absent due to military

service or a work-related injury is entitled to be restored to the position that he or

she would have attained but for the absence), but it does so in the context of

arguments concerning alleged uniformed service discrimination. 0772 PFR File,

Tab 1 at 5, 8. Because the appellant has not specifically contested any of the

administrative judge’s findings on her reemployment claims, we decline to revisit

those issues on review. 5 C.F.R. § 1201.115 (“The Board normally will consider

only issues raised in a timely filed petition or cross pe tition for review.”).

¶11 The appellant contests the administrative judge’s findings on her USERRA

discrimination claims, but her arguments are not supported by any references to

the law or to the record. 0772 PFR File Tab 1 at 4-8; see Tines v. Department of

the Air Force, 56 M.S.P.R. 90, 92 (1992) (holding that a petition for review must

contain sufficient specificity for the Board to ascertain whether there is a serious

evidentiary challenge justifying a complete review of the record); 5 C.F.R.

§ 1201.114(b) (providing that a petition for review must state a party’s objections

to the initial decision, including all of the party’s legal and factual arguments, and

must be supported by references to applicable laws or regulations and by specific

references to the record). For example, the appellant states that “[o]nce the

appellant’s supervisors became dissatisfied with her being gone for military

service, discrimination began with consideration for promotions, positions, and

awards and the intervening years were surely influenced by that discrimination,”

and “[f]rom the evidence submitted at trial, it was obvious that prior to her

complaints the appellant was on her way to future promotions,” were it not for

discrimination. 0772 PFR File, Tab 1 at 5-6. However, she has not identified any

evidence to support these claims.

¶12 The appellant cites some portions of the initial decision that concern her

discrimination claims. However, she has not persuasively identified any error on

7

the part of the administrative judge. For example, the appellant notes that, in

discussing two separate promotion opportunities, the administrative judge directly

compared the appellant’s qualifications with those of the individual selected for

one, but not the other. Id. at 6 (referencing ID at 14-15, 21-22). For that latter

promotion opportunity, however, the administrative judge did provide a reasoned

analysis. ID at 22. He found that the selecting official credibly testified about

why she chose someone other than the appellant and how that decision had

nothing to do with the appellant’s uniformed service. Id. The appellant has not

provided any basis for us to reach a contrary conclusion. See Haebe v.

Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002) (recognizing that an

administrative judge’s credibility determinations are entitled to deference when

they are based, explicitly or implicitly, on the observation of the demeanor of

witnesses testifying at a hearing, and the Board can overturn such determinations

only when it has “sufficiently sound” reasons for doing so). The appellant also

suggests that the administrative judge failed to consider her qualifications . 0772

PFR File, Tab 1 at 6. However, the Board has long held that an administrative

judge’s failure to mention all of the evidence of record does not mean that he did

not consider it in reaching his decision. 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). The appellant also argues generally that “some factual issues

raised at trial [did not] appear[] in the decision,” 0772 PFR File, Tab 1 at 4, but

for the same reason, we find this argument unpersuasive. Accordingly, we affirm

the administrative judge’s findings regarding the appellant’s di scrimination

claims.

¶13 The appellant has separately noted that there was a substantial delay

between the time of her hearing and the issuance of the initial decision in this

appeal. Id. at 5. She seems to suggest that the agency has subjected her to

additional but otherwise unidentified discrimination during this period that the

Board should consider and address. Id. However, the administrative judge

8

properly limited this appeal and his decision to the specific claims raised below.

0772 I-2 AF, Tab 32 at 5-6, Tab 33 at 1-2. If the appellant believes she has been

subjected to additional USERRA violations, beyond those that she alleged below,

she may file a new Board appeal. See Michaels v. Department of Defense,

112 M.S.P.R. 676, ¶ 9 (2009) (dismissing a USERRA appeal against an

appellant’s employing agency and indicating that he could file a new one against

a former employing agency, where he was employed by the latter at the time of

the alleged USERRA violation); 5 C.F.R. §§ 1201.22(b)(2) (providing no time

limit for filing a USERRA appeal), 1208.12 (recognizing the same but

encouraging appellants to file a USERRA claim as soon as possible).

¶14 We must now turn to the remedy for the agency’s USERRA violations. The

administrative judge ordered the agency to (1) revise her 2015 and 2016

performance appraisals to “High Satisfactory;” (2) calculate the average cash

award the appellant received between 2011 and 2013, and pay the appellant that

amount for each year that followed, up through the date of the hearing ; and

(3) promote the appellant to the Lead Home Telehealth Coordinator, or its

equivalent, retroactive to November 2015, affording the appellant all incidents

and advantages of the position. ID at 42-43. The agency does not challenge

these orders on review.

¶15 On review, the appellant argues that the administrative judge should have

also considered other possible remedies, “such as agency assistance in finding the

appellant a supervisory position at another location in the area.” 0772 PFR File,

Tab 1 at 4. She separately suggests that the agency should be subject to punitive

damages. Id. Finally, the appellant asserts that the administrative judge’s

instruction to change her personnel records “does not fully rectify the harm done

to the appellant’s career.” Id. at 5-6. Although we are not persuaded by the

appellant’s arguments, we must vacate the administrative judge’s discussion of

the appropriate remedy because it is premised on the wrong statutory authority.

9

¶16 In reaching his conclusion about the appropriate remedy, the administrative

judge mistakenly relied upon 38 U.S.C. § 4323(d). ID at 42. That section applies

to USERRA actions against a State or private employer. See Silva v. Department

of Homeland Security, 112 M.S.P.R. 362, ¶ 10 (2009). By contrast, the Board’s

remedial authority under USERRA comes from 38 U.S.C. § 4324(c)(2). Johnson

v. U.S. Postal Service, 121 M.S.P.R. 101, ¶ 11 (2014). In pertinent part, these

two provisions differ in that the former provides for discretion in awarding relief

and the consideration of willfulness in a damages award, while the latter states

that relief is mandatory and does not contemplate willfulness. Compare

38 U.S.C. § 4323(d)(1)(A)-(C) (providing that a court “may award relief” in that

it “may require” the State or private employer to comply with the provisions of

this chapter, to compensate the person for any loss of wages or benefits, and to

pay additional liquidated damages if a violation was “willful”), with 38 U.S.C.

§ 4324(c)(2) (requiring that the Board “shall” order relief if a Federal executive

agency or the Office of Personnel Management violates USERRA). If the Board

finds an agency violated the employment or reemployment provisions of

USERRA, section 4324(c)(2) mandates that, under the circumstances, we enter an

order requiring the agency to (1) comply with section 4311, and (2) compensate

the appellant “for any loss of wages or benefits suffered . . . by reason of such

lack of compliance.” Erickson v. U.S. Postal Service, 120 M.S.P.R. 468, ¶ 13

(2013) (quoting 38 U.S.C. § 4324(c)(2)).

¶17 Once more, the administrative judge found that the agency violated

USERRA when it (1) failed to select the appellant for the Lead Home Telehealth

Coordinator position; (2) downgraded her performance reviews in 2015 and 2016;

and (3) ceased a pattern of cash awards, starting in 2014. ID at 41-21. As

previously stated, the agency has not disputed these violations on review.

Pursuant to 38 U.S.C. § 4324(c)(2), we must therefore order the agency to comply

with the provisions of USERRA and compensate the appellant for lost wages and

benefits suffered by reason of the agency’s lack of compliance. That include s

10

placing the appellant in the Lead Home Telehealth Coordinator position, or its

equivalent, retroactive to November 2015, revising her 2015 and 2016

performance reviews to reflect “High Satisfactory” performance, and

compensating the appellant for lost wages and benefits, including cash awards.

¶18 Applying the proper standards regarding our remedial authorit y, we find

that the appellant is not entitled to the additional remedies that she is requesting.

The Board cannot order the agency to help the appellant find an altogether new

position in a new location. Nor can we award her punitive damages. See Isabella

v. Department of State, 106 M.S.P.R. 333, ¶ 47 n.14 (2007) (explaining that while

the Veterans Employment Opportunities Act of 1998 provides for liquidated

damages if an agency’s violation was willful, the Board can only order an agency

to pay lost wages and benefits for a USERRA violation), aff’d on recons.,

109 M.S.P.R. 453 (2008); cf. 38 U.S.C. § 4323(d)(1)(A)-(C) (providing the

remedies for a State or private employer’s USERRA violation, including

liquidated damages if the violation was “willful”). Finally, we cannot speculate

about intangible harm to the appellant’s career. See Johnson, 121 M.S.P.R. 101,

¶ 11 (recognizing that the Board’s remedial authority under USERRA does not

extend to speculative matters, so an appellant’s speculation about lost upward

mobility stemming from the loss of training opportunities was inconsequential).

ORDER

¶19 We ORDER the agency to comply with the provisions of USERRA and

compensate the appellant for lost wages and benefits suffered by reason of the

agency’s lack of compliance, as detailed above. See 38 U.S.C. § 4324(c)(2); 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.

¶20 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.

11

If there is a dispute about the amount of back pay, interest due, and/or other

benefits, we ORDER the agency to pay the appell ant the undisputed amount no

later than 60 calendar days after the date of this decision.

¶21 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).

¶22 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).

¶23 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, expert witness fees, and other litigation expenses. To be paid, you must

meet the requirements set forth at title 38 of the United States Code (38 U.S.C.),

section 4324(c)(4). The regulations may be found at 5 C.F.R. §§ 1201.201,

12

1201.202, and 1201.203. If you believe you meet these requirements, you must

file a motion for attorney fees WITHIN 60 CALENDAR DAYS OF THE DATE

OF THIS DECISION. You must file your attorney fees motion with the office

that issued the initial decision on your appeal.

NOTICE OF APPEAL RIGHTS 6

The initial decision, as supplemented by this Final Order, constitutes the

Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain

review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of

your claims determines the time limit for seeking such review and the appropriate

forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following

summary of available appeal rights, the Merit Systems Protection Board does not

provide legal advice on which option is most appropriate for your situation an d

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.

6

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.

13

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

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

14

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:

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

15

(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. 7 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.

7

The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expired on

December 27, 2017. The All Circuit Review Act, signed into law by the President on

July 7, 2018, permanently allows appellants to file petitions for judicial review of

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.

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

132 Stat. 1510.

16

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.

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.