The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SHAWNEEN L. BETHA, DOCKET NUMBER
CH-0752-19-0116-I-2
Appellant,
v.
DATE: July 5, 2023
UNITED STATES POSTAL SERVICE,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Hartley D. Alley, Esquire, San Antonio, Texas, for the appellant.
Brian J. Odom, Esquire, Denver, Colorado, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The agency has filed a petition for review and the appellant has filed a cross
petition for review of the initial decision, which mitigated the appellant’s removal
to a demotion. Generally, we grant petitions such as these only in the following
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
circumstances: 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
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 new 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 neither party has
established any basis under section 1201.115 for granting the petition or cross
petition for review. Therefore, we DENY the petition for review and the cross
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 During the relevant time period, the appellant was employed by the agency
as the Hawkeye District Manager, a Postal Career Executive Service (PCES),
Level II position, in Des Moines, Iowa. Betha v. U.S. Postal Service, MSPB
Docket No. CH-0752-19-0116-I-1, Initial Appeal File (IAF), Tab 25 at 4; Betha v.
U.S. Postal Service, MSPB Docket No. CH-0752-19-0116-I-2, Appeal File (I-2
AF), Tab 6 at 4. By letter dated June 29, 2018, the agency proposed the
appellant’s removal based on two charges of unacceptable conduct: (1) purchase,
possession, and distribution of a marijuana product; and (2) unacceptable
conduct. IAF, Tab 1 at 8-13. In charge one, the agency asserted that on
September 12, 2017, while attending a Western Area Senior Leadership Meeting
in Denver, Colorado, the appellant and her subordinate employees entered a
cannabis store where the appellant purchased a package of chewable gummies
containing marijuana. Id. at 8-9. The agency further asserted that, after
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purchasing the gummies, the appellant shared some of the gummies with other
employees in the parking area and transported the remaining gummies in a
Government-owned vehicle (GOV) from the restaurant to her hotel. Id. at 9. In
the second charge, the agency maintained that, beginning in or around February
2017, the appellant brought her dog to work without ensuring appropriate
approval and on numerous occasions asked or allowed subordinate emp loyees to
care for the dog while on duty, including walking the dog and watching the dog
while the appellant was in meetings. Id. at 9-10. After affording the appellant an
opportunity to respond, the agency issued a decision sustaining both charges and
removing the appellant, effective November 30, 2018. Id. at 14-17.
¶3 The appellant filed a Board appeal, disputing the charges and raising
affirmative defenses of harmful procedural error and discrimination based on her
disability, race, and gender. IAF, Tab 1 at 6; I-2 AF, Tabs 7, 35. After the
appellant withdrew her request for a hearing, I-2 AF, Tab 3, the administrative
judge issued an initial decision based on the written record, I -2 AF, Tab 50,
Initial Decision (ID). The administrative judge found that the agency proved its
charges, the appellant failed to prove any of her affirmative defenses, 2 mitigated
the penalty to “a demotion to the level [she] held prior to her District Manager
position,” and ordered interim relief. ID at 5-28. Regarding charge one, the
administrative judge found that the agency proved that the appellant pur chased
2
In particular, the administrative judge found that the appellant failed to prove her
claim of harmful error based on the agency’s failure to warn employees that private
purchase and possession of marijuana in a legal state was prohibited by Federal law and
could lead to discipline. ID at 17-18. The administrative judge further found that the
appellant failed to prove that her disability, race, or sex was a motivating factor in the
agency’s decision to remove her. ID at 18-23. The appellant does not dispute these
findings on cross petition for review. Because we discern no error with the
administrative judge’s motivating factor analysis or conclusion s regarding the
appellant’s discrimination claims, we do not reach the question of whether
discrimination was a “but-for” cause of the removal action. See Pridgen v. Office of
Management and Budget, 2022 MSPB 31, ¶¶ 20-22, 29-33.
4
the marijuana gummies, gave a gummy to at least one subordinate employee, and
rode back to the hotel in the GOV after visiting the cannabis store. ID at 5-10.
Regarding charge two, the administrative judge found that the agency failed to
prove that the appellant lacked proper approval to bring her diabetic alert dog to
work because the appellant had inquired about what was needed to bring her dog
to work, had sent a certification for the dog to Labor Relations, and her request
was subsequently approved by the agency’s District Reasonable Accommodation
Committee prior to the issuance of the agency’s notice of proposed removal. ID
at 11-15. However, the administrative judge found that the agency proved that
the appellant misused her position and postal resources by having subordinate
employees watch her dog for her during work hours. ID at 15.
¶4 The agency has filed a petition for review, the appellant has filed a cros s
petition for review, and the parties have filed responses. Petition for Review
(PFR) File, Tabs 1, 8-9, 11. 3
DISCUSSION OF ARGUMENTS ON REVIEW
We deny the appellant’s motion to dismiss the agency’s petition for review for
failure to comply with the administrative judge’s interim relief order. 4
¶5 When, as here, the appellant was the prevailing party in the initial decision
and interim relief was ordered, a petition for review filed by the agency must be
3
The agency has moved to dismiss the appellant’s cross petition for review as untimely
filed. PFR File, Tab 11 at 6. We deny the agency’s motion because the record reflects
that the appellant timely filed her response to the agency’s petition for review and her
cross petition for review on March 5, 2020, PFR File, Tabs 8-9, after requesting and
receiving an extension of the filing deadline until March 9, 20 20, PFR File, Tabs 3-4.
4
The appellant has moved to strike a portion of the agency’s response to her challenge
regarding the agency’s interim relief certification as an untimely supplement to the
agency’s petition for review. PFR File, Tab 7 at 3. We d eny the appellant’s motion
because the contested portion of the agency’s pleading amounts to background facts
that were also contained, almost verbatim, in the agency’s petition for review and the
agency’s response does not present any new arguments, beyond the interim relief issue,
not contained in the agency’s petition for review. PFR File, Tab 6 at 4 -7.
5
accompanied by a certification that the agency has complied with the interim
relief order, either by providing the interim relief ordered, or by making a
determination that returning the appellant to the place of employment would
cause undue disruption to the work environment. Ayers v. Department of the
Army, 123 M.S.P.R. 11, ¶ 6 (2015); 5 C.F.R. § 1201.116(a); see 5 U.S.C.
§ 7701(b)(2)(A)(ii).
¶6 With its petition for review, the agency submitted evidence that it had
assigned the appellant to a position as Postmaster in Saint Paul, Minnesota. PFR
File, Tab 1 at 31. The appellant has filed a pleading in which she asserts that the
agency has not complied with the interim relief order because the assignment is
not within the local commuting area of Des Moines, Iowa , where she resides and
where her prior duty station was located. PFR File, Tab 5 at 4-5. She further
asserts that she was not timely notified of the assignment, she was directed to
report to work in Saint Paul on short notice, and she was not informed concerning
relocation costs or how her salary level was determined. Id. at 5-6. In reply, the
agency asserts that the appellant’s assignment to the position of Postmaster of the
Saint Paul, Minnesota Post Office complied with the interim relief order, which
required the agency to assign the appellant to a position at the level the appellant
held immediately prior to her District Manager position. PFR File, Tab 6 at 8-9;
ID at 28-30.
¶7 To the extent the appellant’s pleading seeks to enforce the interim relief
order, the Board’s regulations do not provide for petitions for enforcement of
interim relief orders; such petitions apply only to final Board decisions. See
Ayers, 123 M.S.P.R. 11, ¶ 7; 5 C.F.R. § 1201.182(a). The Board’s regulations,
however, do allow an appellant to challenge an agency’s certification that it has
provided interim relief, and the Board may dismiss a petition for review if it finds
the agency to be in noncompliance with its interim relief obligations. 5 C.F.R.
§ 1201.116(b), (e). Here, however, we find that the agency’s petition does not
meet the criteria for review in any event, and the issuance of our final decision
6
renders moot any dispute concerning the agency’s compliance with the interim
relief order. See Ayers, 123 M.S.P.R. 11, ¶ 8 (reaching the same conclusion when
the Board affirmed the administrative judge’s reversal of the appellant’s removal
based on whistleblower reprisal). If the appellant believes that the agency is in
noncompliance with the Board’s final order, she may file a petition for
enforcement in accordance with the instructions provided below.
The appellant’s cross petition for review fails to provide a basis to disturb th e
initial decision.
¶8 In her cross petition for review, the appellant assert s that she is not
challenging the initial decision on the merits. PFR File, Tab 9 at 4. Nonetheless,
she identifies two alleged erroneous findings by the administrative judge, whic h
she contends amount to due process violations, requiring reversal of the agency’s
removal action. Id. In particular, the appellant asserts that the administrativ e
judge erred in ruling that charge one included the transportation of marijuana and
that the agency proved that the appellant transported marijuana in a GOV. Id.
We find such arguments unpersuasive. The appellant has not shown how the
administrative judge’s rulings amounted to a due process violation. See, e.g.,
Stephen v. Department of the Air Force, 47 M.S.P.R. 672, 681 (1991) (holding
that an appealable agency action taken without affording an appellant prior notice
of the charges, an explanation of the agency’s evidence, and an opportunity to
respond, must be reversed because such action violates his constitutional right to
minimum due process under Cleveland Board of Education v. Loudermill,
470 U.S. 532 (1985)).
¶9 Moreover, we discern no error in the administrative judge’s determination
that transportation of marijuana was part of the agency’s charge and that the
agency proved that the appellant transported marijuana in the GOV. ID at 9-10.
The appellant’s challenges to the administrative judge’s characterization of the
testimony of W.B., the driver of the GOV, on this issue are unpersuasive as the
record reflects that W.B. did not clearly recall who rode in the GOV. PFR File,
7
Tab 9 at 7-12; I-2 AF, Tab 13 at 29-30. Further, the administrative judge credited
the testimony of S.L. and A.G. that the appellant rode back from the cannabis
store to the hotel in the GOV with them. ID at 10; I-2 AF, Tab 42 at 4-6, 13-14.
Regardless, the administrative judge also found that, even if the appellant did not
ride back to the hotel in the GOV, the agency proved the essence of its charge.
ID at 10.
¶10 Finally, to the extent the appellant is raising a due process violation based
on the deciding official’s consideration of her transportation of marijuana, PFR
File, Tab 9 at 5-7, we find that such an argument was not timely raised, see Banks
v. Department of the Air Force, 4 M.S.P.R. 268, 271 (1980) (stating that the
Board will not consider an argument raised for the first time in a petition for
review absent a showing that it was based on new and materi al evidence not
previously available despite the party’s due diligence). In any event, even if it
were timely raised, the notice of proposed removal clearly referenced
transportation of marijuana and the appellant’s written response addressed the
issue. IAF, Tab 21 at 11, Tab 28 at 17. Thus, the deciding official did not
consider any new and material information. See, e.g., Solis v. Department of
Justice, 117 M.S.P.R. 458, ¶ 8 (2012) (explaining that only ex parte
communications that introduce new and material information to the deciding
official constitute due process violations).
The administrative judge properly found that demotion was the maximum
reasonable penalty.
¶11 When the Board sustains all of the agency’s charges, it may mitigate the
agency’s penalty to the maximum reasonable penalty if it finds the agency’s
original penalty to be too severe. Lachance v. Devall, 178 F.3d 1246, 1260 (Fed.
Cir. 1999). Nevertheless, the Board’s function is not to displace management’s
responsibility or to decide what penalty it would impose, but to assure that
management’s judgment has been properly exercised and that the penalty selected
does not exceed the maximum limits of reasonableness. Parker v. U.S. Postal
8
Service, 111 M.S.P.R. 510, ¶ 9, aff’d, 355 F. App’x 410 (Fed. Cir. 2009). Thus,
the Board will modify a penalty only when it finds that the agency failed to weigh
the relevant factors or that the penalty imposed clearly exceeded the bo unds of
reasonableness. Id. If the agency’s penalty is beyond the bounds of
reasonableness, the Board will mitigate it only as necessary to bring it within the
parameters of reasonableness. Id.
¶12 Here, although the administrative judge found that the agency proved the
essence of its charges, she found that the penalty of removal exceed ed the bounds
of reasonableness and that demotion was the maximum reasonable penalty. ID
at 23-28. Regarding the agency’s charge of “unacceptable conduct: purchase,
possession, and distribution of a marijuana product,” the administrative judge
found that the strong language of the charge overstated the magnitude of some of
the appellant’s misconduct. ID at 25. She further found that the facts established
that the appellant, on one occasion, purchased a package of marijuana gummies in
a legal state to treat her sciatic pain with no evidence that the appellant actually
consumed them and she shared the gummies with employees off-duty. ID
at 25-26. Regarding the agency’s second unacceptable conduct charge, the
administrative judge found that charge two was the minor charge and
acknowledged that part of the charge was not sustained. ID at 25. She also noted
that the appellant no longer needed the services of a diabetic alert dog. Id.
¶13 On review, the agency argues that the administrative judge erred in
mitigating the removal penalty to a demotion and, in doing so, improperly relied
on case law that was not factually similar to the instant appeal. PFR File, Tab 1
at 23-29. We find that the administrative judge appropriately considered relevant
case law in conducting her penalty analysis and we agree with the administrative
judge that demotion is the maximum reasonable penalty under the circumstances
of this appeal.
¶14 Like the administrative judge, we acknowledge the seriousness of the
appellant’s misconduct under charge one. ID at 25. However, the appellant’s
9
single lapse in judgment in purchasing the gummies, which although legal under
Colorado state law remains illegal under Federal law, did not result in arrest or
conviction of any crime. Further, this lapse in judgment was an isolated incident
in the appellant’s otherwise very successful 33-year career with no prior
discipline. IAF, Tab 21 at 5. There is also no evidence that the appellant
consumed the gummies or that she otherwise engaged in drug use that affected
her ability to perform her job duties. We are also cognizant of the lack of clarity
with which the appellant may have been on notice concerning the implications of
purchasing marijuana in a state in which it is legal to do so. ID at 26; I-2 AF,
Tab 28 at 13-16. Indeed, the record reflects that, during the same conference in
Denver, Colorado, another EAS-22 Customer Service Manager also purchased
and used an ointment containing cannabis oil (THC). IAF, Tab 21 at 8; I-2 AF,
Tab 6 at 5, Tab 44 at 18-22. For her misconduct in purchasing and using an
illegal substance, the agency issued her a letter of warning in lieu of 14-day
suspension. I-2 AF, Tab 44 at 18-19.
¶15 Nonetheless, the appellant held a position of particular prominence as the
Hawkeye District Manager, the highest-level position in the district, in which she
was subject to a higher standard of conduct. See Martin v. Department of
Transportation, 103 M.S.P.R. 153, ¶ 13 (2006) (noting that agencies are entitled
to hold supervisors to a higher standard of conduct than nonsupervisors because
they occupy positions of trust and responsibility), aff’d, 224 F. App’x 974 (Fed.
Cir. 2007). Thus, we agree with the administrative judge that, although the Board
has mitigated removals to suspensions based on marijuana possession, use, and/or
attempted sale, ID at 25, 28, demotion is the maximum reasonable penalty
considering the appellant’s possession and “distribution” to coworkers as well as
her position and supervisory status, see, e.g., Kruger v. Department of Justice,
32 M.S.P.R. 71, 76-77 (1987) (mitigating the removal of a law enforcement
officer, who was similarly subject to a higher standard of conduct, to a 60-day
10
suspension for off-duty marijuana possession, which directly related to the
agency’s mission). 5
¶16 Finally, we reject the agency’s argument that the Board’s decision in Bruhn
v. Department of Agriculture, 124 M.S.P.R. 1 (2016), compels a finding that
removal was reasonable under the circumstances of this appeal. PFR File, Tab 1
at 27-28. As the administrative judge found, Bruhn involved a removal pursuant
to a last chance agreement based on the appellant’s second offense of growing
medical marijuana on the appellant’s personal property in California. ID
at 27-28. The appellant served a 45-day suspension for his first offense of
growing medical marijuana and was removed for violating the last chance
agreement after local law enforcement discovered marijuana plants growing in the
appellant’s garage on a second occasion. Id.; see Bruhn, 124 M.S.P.R. 1, ¶¶ 2-4,
16. Thus, we find that the administrative judge appropriately considered but
found Bruhn distinguishable.
¶17 Accordingly, we affirm the initial decision, mitigating the appellant’s
removal to a demotion.
ORDER
¶18 We ORDER the agency to cancel the appellant’s removal and substitute in
its place a demotion to the level the appellant held prior to her District Manager
position, effective November 30, 2018. 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.
5
We find unavailing the agency’s argument that the cases cited by the administrative
judge in which the Board mitigated removals to suspensions were no t factually similar
because none involved marijuana possession and distribution by an executive level
employee to subordinate employees. PFR File, Tab 1 at 26-29. The administrative
judge acknowledged, as does the Board, the different factual circumstances in
determining that a demotion, not a suspension was the maximum reasonable penalty.
11
¶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 Bac k Pay Act and/or Postal
Service regulations, as appropriate, 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 benef its due,
and to provide all necessary information the agency requests to help it carry out
the Board’s Order. If there is a dispute about the amount of back pay, interest
due, and/or other benefits, we ORDER the agency to pay the appellant the
undisputed amount no later than 60 calendar days after the date of this decision.
¶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).
¶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 documentatio n
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.
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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 attorn ey
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 6
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
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 no tice, the
Board cannot advise which option is most appropriate in any matter.
13
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 Appeal s 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
14
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. 420 (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:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
15
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. 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. Cou rt of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
7
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisd iction 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
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, a nd 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.
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.