# Yaw Obeng v. Department of Commerce

> Merit Systems Protection Board · July 18, 2023

URL: https://www.frixlaw.com/law-library/cases/9409694

## Case

- **Court:** Merit Systems Protection Board
- **Decided:** July 18, 2023
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9409694

## Opinion text

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

YAW S. OBENG, DOCKET NUMBER
Appellant, DC-0752-20-0124-I-1

v.

DEPARTMENT OF COMMERCE, DATE: July 18, 2023
Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Charles W. Day, Jr., Esquire, Rockville, Maryland, for the appellant.

Ashley Geisendorfer, Washington, D.C., 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 sustained the charge of failure to
follow safety procedures but mitigated the demotion penalty to a 30 -day
suspension. 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 The appellant was previously employed as ZP-V Research Scientist with the
agency. Initial Appeal File (IAF), Tab 5 at 87. By a letter dated November 14,
2018, the agency proposed to demote the appellant (with a resulting loss in pay)
from the ZP-V pay band to a ZP-IV Research Chemist position, based on the
charge of failure to follow safety procedures with a single specification. Id.
at 146-53. In the narrative description under the charge, the agency alleged that
the appellant accessed a laboratory at his place of employment, the National
Institute of Standards and Technology (NIST), without authorization, and
completed a procedure cleaning a silicon wafer with hydrofluoric acid (HF)
without obtaining necessary permission or approval, and without u sing proper
required personal protective equipment (PPE). Id. at 149-50. The appellant
provided a written reply and an oral response to the proposal, as well as a
supplemental written reply. Id. at 98, 100-38, 140-44. After considering the
3

appellant’s replies, the deciding official issued a decision letter sustaining the
charge and the demotion penalty. Id. at 89-96.
¶3 The appellant subsequently filed a formal equal employment opportunity
(EEO) complaint alleging that the agency discriminated against him on the basis
of race (Black), national origin (Ghana), and age (61 years of age) when it
demoted him. Id. at 33-38. The agency issued a final agency decision (FAD)
finding no discrimination and provided the appellant with Board appeal rights for
his mixed-case complaint. 2 Id. at 40-85. The appellant timely filed the instant
Board appeal challenging his demotion and reduction in pay, arguing that the
charge was unsupported, and that the penalty was unreasonable and the deciding
official failed to properly apply the Douglas 3 factors in making his penalty
determination. IAF, Tab 1 at 1-5. The appellant also raised affirmative defenses
of discrimination based on his race, national origin, and age. Id. at 5. After
holding the appellant’s requested hearing, see IAF, Tab 21, Hearing Compact
Disc (HCD), the administrative judge issued an initial decision that sustained the
charge of failure to follow safety procedures and found nexus between the charge
and the efficiency of the service, but mitigated the demotion penalty to a 30-day
suspension as the maximum reasonable penalty, IAF, Tab 22, Initial Decision
(ID) at 9-19. The administrative judge also concluded that the appellant failed to
establish any of his affirmative defenses. ID at 20 -26.

2
A “mixed-case” complaint is a complaint of employment discrimination filed with a
Federal agency relating to or stemming from an action that can be appealed to the
Board. Moore v. Department of Justice, 112 M.S.P.R. 382, ¶ 4 n.4 (2009); 29 C.F.R.
§ 1614.302(a)(1). The appellant’s case was a mixed-case because, at the time the
agency issued the FAD, he had been issued a letter of decision on the demotion and loss
of pay that was appealable to the Board.
3
In Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981), the Board
articulated a nonexhaustive list of 12 relevant factors to be considered in determining
the appropriateness of an imposed penalty.
4

¶4 The agency has filed a petition for review of the initial decision, arguing
that the administrative judge misapplied the law to the facts , made erroneous
credibility determinations, and abused her discretion by mitigating the agency’s
chosen penalty. 4 Petition for Review (PFR) File, Tab 1. The appellant has filed a
response to the petition for review and a cross petition for review. 5 PFR File,
Tab 3. The agency has filed a reply to the response and the cross petition for
review. PFR File, Tab 6.

DISCUSSION OF ARGUMENTS ON REVIEW
¶5 On review, the agency argues that the administrative judge erred by failing
to identify all of the material issues of fact and by failing to resolve necessary
credibility disputes. PFR File, Tab 1 at 19-22. The agency also argues that the

4
With its petition for review, the agency submitted a certification of its complianc e
with the interim relief order and provided evidence demonstrating that it has complied
with the administrative judge’s interim relief order, which the appellant does not
challenge on review. Petition for Review (PFR) File, Tab 1 at 34 -39; see 5 C.F.R.
§ 1201.116(a).
5
The appellant was required to file a response to the petition for review and a cross
petition for review by Sunday, July 19, 2020. PFR File, Tab 2 at 1. Where, as here, the
deadline falls on a weekend, the filing deadline is extended to the next business day.
5 C.F.R. § 1201.23. Thus, the appellant’s submission was due on Monday, July 20,
2020. The appellant’s first response/cross petition for review was electronically filed at
11:56 p.m. Eastern Standard Time (EST) on July 20, 2020, and a substantially similar
second response with a number of formatting and spelling error corrections was
electronically filed at 12:48 a.m. EST on July 21, 2020. See PFR File, Tabs 3-4. The
appellant asserted that the first filing was erroneously submitted due to a
“synchronization conflict on Microsoft SharePoint,” and requests that the second filing
be accepted into the record. PFR File, Tab 4 at 3. The agency argues that the changes
made in the latter filing were “extensive” and went “beyond c orrecting mere
formatting” issues, and requests that the latter submission be rejected as untimely filed
without good cause shown for the delay. PFR File, Tab 6 at 5. We have reviewed both
filings, and aside from the nominal number of misspelling correct ions, word
substitutions, and general formatting changes the agency identified, the two filings were
otherwise functionally the same in terms of both structure and content. Nevertheless,
we have not considered the appellant’s second filing, and our decisi on here is based
exclusively on the first, timely filed response in opposition to the petition for review
and cross petition for review.
5

administrative judge abused her discretion when she mitigated the agency ’s
chosen penalty, by reweighing the Douglas factors and by substituting her
judgment for that of the deciding official. Id. at 23-32.

The administrative judge made reasoned findings of fact and credibility-based
determinations.
¶6 Regarding its argument that the administrative judge failed to identify all
material issues of fact, the agency points to a footnote in the initial decision
stating that, based on the appellant’s admission that he entered the HF lab and
cleaned silicon wafers without authorization and without using required PPE, the
administrative judge found that to be “a sufficient basis for finding that [the
appellant] engaged in the charged misconduct,” and so she found it unnecessary
to further discuss the specific evidence supporting the charge. PFR File, Tab 1
at 19; see ID at 10 n.1. The agency argues that in concluding that the charge was
proven based on the appellant’s admission, the administrative judge failed to
resolve the significant discrepancies between the testimony from the appellant
and the agency witnesses concerning how far the students accompanying the
appellant in the lab stood from the appellant, how the fume hood sash was
arranged, whether the appellant had received permission to use the HF lab,
whether he had regularly worked in the HF lab on previous occasions, and
whether his use of safety equipment was superior to that mandated by the lab ’s
standard operating procedures (SOPs), among other things. PFR File, Tab 1
at 19-21. The agency also argues that the administrative judge failed to make
explicit credibility findings pursuant to the Board’s decision in Hillen v.
Department of the Army, 35 M.S.P.R. 453, 458 (1987), and improperly credited
the appellant’s version of events with respect to some of these factual disputes.
Id. at 21-22; PFR File, Tab 6 at 9-10, 15-17. The agency asserts that the failure
to resolve these disputed issues constituted reversible error , citing the Board’s
decision in George v. Department of the Air Force, 24 M.S.P.R. 269, 270-71
(1984), for support. PFR File, Tab 1 at 19, 22, Tab 6 at 6-7, 15-17.
6

¶7 In response, the appellant argues that the administrative judge correctly
considered all material facts and made reasoned credibility determinations
necessary to resolve the appeal. PFR File, Tab 3 at 5-10. The appellant argues
that the agency overstates the importance of the cited footnote, observing that the
administrative judge merely concluded that based on the appellant’s admission,
no further evidentiary determinations were necessary concerning the issue of
whether the narrative charge had been proven, but that the administrative judge
made clear that she reviewed “all relevant evidence to include testimony and
admitted exhibits” in reaching her determination. Id. at 6-7; see ID at 10 n.1.
The appellant asserts that the administrative judge properly made credibility
findings in resolving the relevant disputed testimony, but that contrary to the
agency’s assertion otherwise, it was not necessary for the administrative judge to
resolve “the details of every instance of disputed testimony” in order to determine
that the agency proved the charge. PFR File, Tab 3 at 7-9. He also disputes the
agency’s assertion that the administrative judge improperly credited the
appellant’s testimony over that of agency officials on disputed issues. Id. at 9-10.
¶8 We agree with the appellant that the administrative judge properly
considered the relevant evidence in making her determinations. As the appellant
correctly notes, it was not necessary for the administrative judge to resolve the
dispute concerning issues such as the position of the fume hood, the relative
distance of the students observing the appellant, and the other factors identified
by the agency in order to determine whether the misconduct as described in the
proposal occurred as charged. When an agency relies upon a generic charge of
misconduct and an accompanying narrative specification supporting its cha rge,
the agency is required to prove only the essence of the charge, not every single
fact alleged, in order to sustain the charge. See Hicks v. Department of the
Treasury, 62 M.S.P.R. 71, 74 (1994), aff’d, 48 F.3d 1235 (Fed. Cir. 1995)
(Table). As described in the proposal, the agency charged the appellant with the
following: (1) accessing a NIST laboratory without authorization; (2) engaging
7

in the activity of cleaning a silicon wafer using HF; (3) without obtaining
necessary authorization and approval; and (4) without using the proper PPE
required by the SOP. IAF, Tab 5 at 149-50. The administrative judge concluded
that the agency proved each of these aspects of the charge based on the
appellant’s admission to each of these facts at his oral response to the proposal, in
his supplemental written response, and at the hearing. IAF, Tab 5 at 98, 100-38;
HCD (testimony of appellant); see ID at 9-10.
¶9 The administrative judge then turned to a detailed penalty analysis
discussion to address the remaining disputed issues regarding the seriousness and
severity of the appellant’s misconduct, whether he was on notice that he was
engaging in misconduct, and other mitigating or aggravating factors related to the
appellant’s misconduct that would bear on the appropriate penalty. ID at 12-19.
However, for the purpose of determining whether the agency proved the charge as
described in the proposal, the administrative judge properly considered and
summarized the relevant evidence in the record and made approp riate findings.
As the appellant correctly notes, the fact that the administrative judge did not
painstakingly recount all of the material facts and all of the evidence in the record
supporting the agency’s charge in reaching her determination that the agency
proved the misconduct as alleged does not mean that she did not consider it in
reaching her 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); see
PFR File, Tab 3 at 6-7.
¶10 With respect to the Board’s decision in George cited by the agency, that
decision is inapposite and distinguishable. PFR File, Tab 1 at 19, 22, Tab 6
at 6-7, 15-17. In concluding that the agency failed to show that the proposed
discipline would promote the efficiency of the service in George, the
administrative judge in that case failed to analyze whether the charged conduct
had, in fact, even occurred. George, 24 M.S.P.R. at 270. Here, by contrast, the
administrative judge specifically determined that the misconduct occurred based
8

on the appellant’s admission that it did, and that alone was sufficient to support
the administrative judge’s finding that the charge was proven.
¶11 Regarding the agency’s argument that the administrative judge “apparently
credited” the appellant’s testimony on disputed issues, such as his claim that he
was trying to improve the SOP or that the fume hood was configured in the
manner he described and similar such issues, and failed to credit contrary
testimony by agency witnesses concerning these points, there is also no merit to
this assertion. PFR File, Tab 1 at 21-22. Because the administrative judge held a
hearing, her credibility determinations were implici tly based on witness
demeanor. The Board must give deference to an administrative judge ’s
credibility determinations when 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);
see Mithen v. Department of Veterans Affairs, 122 M.S.P.R. 489, ¶ 13 (2015)
(noting that an administrative judge’s credibility determinations are “virtually
unreviewable”), aff’d, 652 F. App’x 971 (Fed. Cir. 2016). In the initial decision,
the administrative judge made clear that she relied on the factors identified by the
Board in Hillen for resolving credibility-based disputes, to the extent they existed
and were relevant to her determinations. 6 See ID at 23 (citing Hillen, 35 M.S.P.R.
at 458).

6
Indeed, the administrative judge explicitly noted that she credited the deciding
official’s testimony in analyzing the appellant’s discrimination affirmative defense
claims, citing the appropriate Hillen factors, but noted that her decision to mitigate the
demotion penalty was not based on the deciding official’s lack of credibility. See ID
at 23 (citing the Hillen factors related to the deciding official’s demeanor, prior
consistent statements, and lack of bias in crediting his testimony). Additionally, she
explicitly declined to credit the appellant’s testimony that he believed he was
“grandfathered” into using the HF lab and therefore lacked notice of his misconduct.
See ID at 16 (rejecting the appellant’s arguments regarding lack of notice).
9

¶12 With respect to the agency’s specific objections, the administrative judge
identified the appellant’s statement that he deviated from the SOP in order to
make the safety requirements “more rigorous,” first, in analyzing whether he had
notice that his actions were contrary to the agency’s established rules and
guidance, and second, in identifying his testimony at the hearing that he later
came to understand that he could not deviate from the established SOP. ID
at 15-16, 19. In neither instance did the administrative judge credit these
statements as true or as confirming that the appellant had, in fact, improved the
established safety protocols, but she instead cited them to show that there was a
shift in the appellant’s demeanor before and after the oral response to the
proposed demotion, after he reviewed his lab authorizations and contemplated his
conduct and began to fully understand the seriousness of his misconduct. See ID
at 5, 18-19.
¶13 Regarding the agency’s claim that the administrative judge apparently
credited the appellant’s testimony that he had the fume hood positioned in the
manner he described, there is also no support for this assertion. PFR File, Tab 1
at 21. The administrative judge did not make any findings at all about the
positioning of the fume hood in the initial decision because, as discussed above,
such a finding was not necessary to her determination that the charged
misconduct occurred, and the agency fails to identify where in the decision the
administrative judge purportedly made any such finding. Accordingly, we
conclude that the administrative judge properly considered the relevant evidence
in making her findings of fact and made reasoned credibility determinations, and
we see no reason to disturb those findings on review. See Clay v. Department of
the Army, 123 M.S.P.R. 245, ¶ 9 (2016) (finding no reason to disturb the
administrative judge’s findings where the administrative judge consider ed the
evidence as a whole, drew appropriate inferences, and made reasoned
conclusions); Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 106 (1997) (same).
10

The administrative judge did not abuse her discretion by mitigating the demotion
penalty to a 30-day suspension.
¶14 On review, the agency argues that given the administrative judge’s finding
that the deciding official provided a “thorough Douglas factor analysis,” she
abused her discretion by failing to give deference to the agency’s penalty
determination when she reweighed the Douglas factors and substituted her own
judgement for that of the agency. PFR File, Tab 1 at 22-32; Tab 6 at 13-15; see
Douglas, 5 M.S.P.R. at 305-06. Specifically, with respect to the appellant’s
potential for rehabilitation, the agency argues that the administrative judge
erroneously rejected the deciding official’s conclusion that the appellant’s
“continued rationalizations” and his failure to fully apologize for his misconduct
and acknowledge wrongdoing indicated that he had little potential for
rehabilitation. PFR File, Tab 1 at 23-28; Tab 6 at 10. To support its position, the
agency cites a number of Board decisions it argues demonstrate that the Board
will reverse an administrative judge’s penalty mitigation determination where she
rejected the deciding official’s Douglas factor analysis and instead independently
reweighed the mitigating and aggravating factors. See PFR File, Tab 1 at 26-28;
Tab 6 at 12-14.
¶15 The agency also disputes the administrative judge’s finding that the
appellant showed contrition and acknowledged his misconduct during the course
of the disciplinary process, and argues that this finding was in tension with the
deciding official’s testimony at the hearing that he was not satisfied with the
appellant’s apology or convinced that the appellant understood the severity of his
misconduct. PFR File, Tab 1 at 27-31; see ID at 14. To that end, the agency
highlights the fact that the appellant failed to specifically note that two students
were present while he was improperly using HF in his post-oral reply
supplemental statement, and that during his deposition and at the hearing, he
continued to take the position that he could deviate from the SOP and that his
procedure for handling HF was sufficiently safe. PFR File, Tab 1 at 27-31; Tab 6
11

at 11-12. The agency argues that as a result of these erroneous findings, the
administrative judge improperly concluded that the appellant’s misconduct
constituted a “technical violation,” and not an intentional one, and thus warranted
a reduced penalty. PFR File, Tab 1 at 22-25, 28-31 (citing Oddo v. Department of
the Treasury, 13 M.S.P.R. 483 (1982)). Finally, the agency argues that the
penalty of removal was within the bounds of reasonableness and so the penalty
should have been upheld. PFR File, Tab 1 at 25-29, Tab 6 at 6-7, 13-15.
¶16 When the Board sustains all of the charges, it will review an
agency-imposed penalty only to determine if the agency considered all of the
relevant factors and exercised management discre tion within tolerable limits of
reasonableness. Stuhlmacher v. U.S. Postal Service, 89 M.S.P.R. 272, ¶ 20
(2001). In determining whether the selected penalty is reasonable, the Board
gives due deference to the agency’s discretion in exercising its managerial
function of maintaining employee discipline and efficiency, recognizing that its
function is not to displace management’s responsibility or to decide what penalty
it would impose, but to ensure that management judgment has been properly
exercised and that the penalty selected does not exceed the maximum limits of
reasonableness. Id. Thus, the Board will modify a penalty only when it finds that
the agency failed to weigh the relevant factors or that the penalty the agency
imposed clearly exceeded the bounds of reasonableness. Id. The Board will
correct the agency’s penalty when all of the charges are sustained only to the
extent necessary to bring it to the maximum penalty or the outermost boundary of
the range of reasonable penalties. Id.
¶17 Nevertheless, the ultimate burden is on the agency to persuade the Board of
the appropriateness of the penalty imposed. Douglas, 5 M.S.P.R. at 307.
Although management officials are afforded significant deference in their penalty
determinations, “[t]he deference to which the agency’s managerial discretion may
entitle its choice of penalty cannot have the effect of shifting to the appel lant the
12

burden of proving that the penalty is unlawful, when it is the agency’s obligation
to present all evidence necessary to support each element of its decision .” Id.
¶18 In mitigating the agency’s chosen penalty, the administrative judge
reviewed the deciding official’s Douglas factor analysis and concluded that he
failed to properly consider all of the evidence relevant to a number of those
factors. ID at 12-19. Although the agency argues that this constituted an
unwarranted reweighing of the Douglas factors, the administrative judge instead
identified specific relevant information that the deciding official either failed to
consider or inappropriately discounted in conducting his Douglas factor analysis.
¶19 For example, regarding the first Douglas factor, which concerns the nature
and seriousness of the offense and its relation to the employee’s duties, position,
and responsibilities, including whether the offense was intentional or technical or
inadvertent, was committed maliciously or for gain, or was frequently repeated,
the administrative judge agreed with the deciding official’s conclusion that the
appellant’s violation was serious, but rejected his implicit conclusion that the
appellant’s misconduct was intentional, finding instead that it was a mere
oversight or error in judgment that was unlikely to be repeated in the future. ID
at 12-13, 15; see IAF, Tab 5 at 91. On review, the agency doubles down on its
assertion, arguing that the appellant’s misconduct was “intentional” or “willful,”
in contrast to that of the employee in the Board case cited by the appellant where
the penalty was mitigated. See PFR File, Tab 1 at 21, 28-31, Tab 6 at 14-15.
¶20 Despite the agency’s assertion otherwise, the record supports the
administrative judge’s conclusion that the appellant’s safety violation was
attributable to his mistaken belief that he could access the HF lab and that his
choice of PPE equipment was appropriate, and the deciding official failed to
adequately consider these facts and instead misconstrued the appellant’s
explanation for why he held his mistaken belief as post-hoc rationalizations for
his action. See ID at 14-15. Specifically, in his oral reply, the appellant
acknowledged that at the time he accessed the HF lab, he believed tha t he had
13

been “grandfathered” into using the lab, but that after he reviewed the Hazard
Review materials for the lab, he understood that he was not authorized to perform
certain activities in certain labs. IAF, Tab 5 at 111-13. The appellant later made
clear that he understood that this prior belief was mistaken, noting that he “fully
admit[ted]” that he made a mistake, that he was “not trying to justify the
mistake,” and that he was embarrassed by his oversight because he prided himself
as “mister safety.” Id. at 122. To further drive the point home, the appellant later
repeated that he was “willing—again repeat I’m willing to admit the mistakes that
I’ve made,” restated that he was not attempting to justify his mistakes, that he
“made mistakes . . . I made a mistake, period,” and that “[m]istakes were made
based on me making assumptions.” Id. at 124-25.
¶21 Seemingly recognizing the appellant’s acknowledgment that his actions
were the result of a mistake, the deciding official offered the appellant the
opportunity to supplement his oral response with a “very short concise statement
accepting responsibility for what happened,” and stated that he would consider
reducing the penalty to a 30-day suspension. Id. at 119-20, 128-29, 132-33. The
appellant agreed to do so and later produced the requested brief statement, in
which he once again stated that he entered the HF lab without authorization, that
he deviated from the lab’s required SOP, and that those actions “were mistakes”
and he “took responsibility for them.” Id. at 98. Accordingly, we agree with the
administrative judge’s finding that the appellant’s misconduct was not an
intentional violation of the agency’s safety rules, but instead was an oversight
based on his admittedly mistaken belief about the propriety of his actions, and
that the deciding official failed to adequately account for this fact in considering
the nature and seriousness of the misconduct, particularly with respect to whether
the appellant’s misconduct was intentional or technical or inadvertent. See ID
at 13; Douglas, 5 M.S.P.R. at 332.
¶22 Similarly, the agency challenges the administrative judge’s conclusion that
the appellant demonstrated clear potential for rehabilitation and that the deciding
14

official erred by determining otherwise. PFR File, Tab 1 at 26-29; Tab 6
at 13-14; see ID at 17-19. The agency points to the deciding official’s finding
that the appellant’s acknowledgment that “mistakes were made” in his oral reply
understated the severity of his actions and were evidence that he had limited
potential for rehabilitation, and the agency argues that the administrative judge
erred in concluding otherwise. PFR File, Tab 1 at 26-29, Tab 6 at 13-14; see IAF,
Tab 5 at 93. The agency argues that the deciding official appropriately concluded
that the appellant’s insistence on explaining his rationale for why he accessed the
HF lab and performed the cleaning activity without the proper PPE was evidence
that he did not truly understand the severity of his misconduct and so he had
limited rehabilitative potential. PFR File, Tab 1 at 28 -31, Tab 6 at 10. The
agency also cites a number of Board cases it argues support its position that the
Board will reverse an administrative judge’s mitigation determination where she
disregards the agency’s finding that the appellant has little rehabilitative
potential. PFR File, Tab 1 at 26-28 (citing Saiz v. Department of the Navy,
122 M.S.P.R. 521 (2015); Balouris v. U.S. Postal Service, 107 M.S.P.R. 574
(2008) aff’d, No. 2008-3147, 2009 WL 405827 (Fed. Cir. Feb. 19, 2009); Batten
v. U.S. Postal Service, 101 M.S.P.R. 222 (2006), aff’d, 208 F. App’x 868 (Fed.
Cir. 2006)).
¶23 We agree with the administrative judge’s conclusion that the appellant
exhibited clear potential for rehabilitation, and that the deciding official erred by
disregarding that fact in his penalty analysis. See ID at 18; IAF, Tab 5 at 93. As
the administrative judge correctly observed, the deciding official’s assertion in
the decision letter and in testimony at the hearing that there was no evidence of
the appellant’s potential for rehabilitation was directly at odds with his posture
during the appellant’s oral reply. See ID at 19. Specifically, in addition to the
appellant’s statements identified above acknowledging that he impermissibly
deviated from the SOP when he accessed the lab without using proper PPE, the
appellant also made clear that he accepted that he was wrong to deviate from the
15

SOP, but offered that he was only attempting to improve the procedures to make
them more rigorous. IAF, Tab 5 at 117. When pressed by the deciding official
regarding whether the appellant fully understood that deviating from a lab’s SOP
was impermissible even if the intention was to improve the SOP, the appellant
reaffirmed that he understood that, and stated that if he had ideas for how to
improve an SOP, he should have spoken with the lab overseer about his ideas as
opposed to “implementing it on the fly,” and stated that he was “profoundly
sorry” for not doing so. Id. at 118-19. Based on the appellant’s responses, the
deciding official asked him to prepare the supplemental statement acknowledging
that the facts set forth in the proposal letter were met and stated that he would
then consider reducing the penalty, mentioning a 30-day unpaid suspension as the
potential reduced penalty. Id. at 119-20. The deciding official acknowledged
that “mistakes are going to happen,” but that based on the appellant’s first written
response to the proposal, he had concerns that the appellant did not appear
“contrite” and did not “recognize, acknowledge mistakes that were made.” Id.
at 121, 123-24. To assuage any remaining concerns about his apparent lack of
contrition, the appellant once again stated that he was “willing to admit the
mistakes [he] made,” and clarified that he was not trying to justify his actions.
Id. at 124. He also expressed surprise about the fact that after he met with the
proposing official for the first time to discuss the incident, the language in the
resulting proposal suggested that the appellant was “insisting that [he] was right,”
which was not what the appellant intended to convey, so he acknowledged that he
may have “failed to communicate with [the proposing official] properly. ” Id.
at 124-25. The appellant then again stated that he was “profoundly sorry,” and
agreed to supplement his oral testimony with the requested written statement. Id.
at 126, 128. After the appellant sought clarification on what form the
supplemental response should take, the deciding official stated that he wanted a
“very short concise statement accepting responsibility for what happened” by
email, and the appellant agreed to do so. Id. at 132-33.
16

¶24 As the administrative judge correctly observed, the appellant did exactly as
he was asked to do in the supplemental statement. See ID at 18. The resulting
supplemental statement succinctly memorialized the issues discussed above, with
the appellant acknowledging the following: (1) that he entered the HF lab
without explicit authorization and training; (2) he deviated from the lab ’s SOP
without authorization from the Principal Investigator (PI) as specified by the
Hazard Review protocols; (3) that these were mistakes and he took responsibility
for them; and (4) that he apologized for the problems he caused the lab and its
management. 7 Id. at 98. Although the decision letter acknowledges the fact that
the appellant provided a supplemental response, the penalty determination section
includes no mention of the supplemental statement, instead selectively drawing
language from the appellant’s initial written response and oral reply. See IAF,
Tab 5 at 91-93.
¶25 Further, there is also no merit to the agency’s argument that the appellant
continued to rationalize his misconduct during his testimony at the hearing,

7
On review, the agency also makes much of the appellant’s statement in his
supplemental written reply acknowledging that he could not deviate from the HF SOP
“without authorization,” arguing that because changes to the SOP at issue must be
approved by the Director of the Physical Measurement Laboratory, the appellant’s
added qualifier further demonstrated his lack of rehabilit ation and that he did not know
the correct procedures. See PFR File, Tab 1 at 22 n.10; Tab 6 at 16. The agency’s
argument is unconvincing. As an initial matter, the agency omits additional qualifying
language the appellant included in his supplemental r esponse, stating that he deviated
from the SOP “without prior authorization from the PI as specified by the Hazard
Review protocols.” See IAF, Tab 5 at 98. Further, in discussing the Hazard Review
process and requirements with the appellant during the oral reply, the deciding official
noted that the appellant “did not have the freedom” to deviate from the established
SOP, but that he could “bring the issue back up to the PI, and the PI can decide that
under the right set of circumstances alternatives may be acceptable,” and that the
Hazard Review policies are set up to “ensure that people do not deviate from agreed
training unless agreed upon by line management.” IAF, Tab 5 at 117-18; see IAF,
Tab 14 at 9-10. Consequently, the language the appellant used in his supplemental
response stating that deviations from the SOP must be sought in the manner “specified
by the Hazard Review protocols” is consistent with the language used by the deciding
official and with the requirements identified in the agency’s Hazard Review policies.
17

providing additional evidence of his limited rehabilitative potential. See PFR
File, Tab 1 at 27-28, 32, Tab 6 at 10. As was the case with the appellant’s
statements during his oral reply, in his hearing testimony the appellant made clear
that his intent in explaining his actions was to identify his motivations at the time
he accessed the HF lab and used improper PPE, and was not an effort to defend
his actions after the fact. See HCD (testimony of the appellant) (stating that he
took “full responsibility” for his actions as he understood them at the time in his
response to the proposal and that he later “apologized profusely” for his
misunderstanding, and answering “zero,” and “I’m not going to do that again” in
response to a question concerning the likelihood that there would be “any
repetition of any conduct” identified in the charge).
¶26 On review, the agency also restates its argument that the appellant’s failure
to address the fact that students were present demonstrated that he was unwilling
to take full responsibility for his misconduct, and points to testimony from the
deciding official stating that the students’ presence was “extremely problematic”
and presumably weighed heavily in his decision finding a lack of rehabilitation.
PFR File, Tab 1 at 28-29, Tab 6 at 6-7. However, as the administrative judge
correctly noted, while the presence of the students was briefly discussed during
the oral reply, see IAF, Tab 5 at 129-30, the deciding official did not give any
indication that he expected the appellant to specifically mention that fact in his
supplemental written apology, and so it was unreasonable for the deciding official
to have considered the absence of that acknowledgment as eviden ce of a lack of
rehabilitation, see ID at 17-18. As previously noted, if a deciding official failed
to appropriately consider the relevant Douglas factors in making his penalty
determination, the Board need not defer to the agency’s penalty determination.
Von Muller v. Department of Energy, 101 M.S.P.R. 91, ¶ 19 (2005), aff’d, 204 F.
App’x 17 (Fed. Cir. 2006). Additionally, the Board may abandon its deference to
an agency’s penalty determination where the deciding official misjudged the
appellant’s rehabilitative potential. See id., ¶ 21; Watkins v. Department of the
18

Navy, 29 M.S.P.R. 146, 148 (1985) (declining to credit a supervisor’s assertion
that he lost confidence in the appellant, instead concluding that the appellant
exhibited good potential for rehabilitation). For the foregoing reasons, we agree
with the administrative judge’s conclusion that the appellant repeatedly took
responsibility for his misconduct and exhibited clear rehabilitation, and it is clear
from the record that the agency failed to properly consider the appellant ’s
rehabilitative potential in making its penalty determination. See Wentz v. U.S.
Postal Service, 91 M.S.P.R. 176, ¶¶ 24-25 (2002) (mitigating a penalty, based in
part on disagreement with the deciding official’s conclusion that appellant lacked
potential for rehabilitation).
¶27 Another of the factors to be considered in determining the propriety of a
penalty is the consistency of the penalty with the agency’s table of penalties.
Douglas, 5 M.S.P.R. at 305; see Peterson v. Department of Transportation,
54 M.S.P.R. 178, 184 (1992) (consistency of the penalty imposed with the
agency’s table of penalties is a relevant factor in determining the reasonableness
of the penalty). Where the agency has a table of penalties, the Board will adhere
to the guidelines in the table unless a deviation from the suggested penalty is
warranted under the circumstances. Goode v. Defense Logistics Agency,
45 M.S.P.R. 671, 676 (1990). The Board has long held that the agency’s table of
penalties should not be applied so inflexibly as to impair consideration of other
factors relevant to the individual case. Douglas, 5 M.S.P.R. at 307. Deviation
from the table is permissible where the circumstances of the case so justify.
Zazueta v. Department of Justice, 94 M.S.P.R. 493, ¶ 8 (2003), aff’d, 104 F.
App’x 166 (Fed. Cir. 2004).
¶28 Nevertheless, if the agency deviates from its guidelines in its table of
penalties, it must establish that the more severe penalty is within the bounds of
reasonableness. Basquez v. Department of the Air Force, 48 M.S.P.R. 215, 218
(1991). If the agency cannot justify the deviation, it has abused its discretion.
Williams v. Department of the Air Force, 32 M.S.P.R. 347, 349 (1987)
19

(concluding that where the agency has a table of penalties, it must adhere to the
guidelines in the table unless it can show that a deviation from the suggested
penalty is justified by the circumstances of the case); Stead v. Department of the
Army, 27 M.S.P.R. 630, 634 (1985). Indeed, a penalty grossly exceeding that
provided by an agency’s standard table of penalties, for that reason alone, may be
arbitrary and capricious, even where such a table provides only suggested
guidelines. Douglas, 5 M.S.P.R. at 307 n.71; cf. IAF, Tab 5 at 196 (noting that
the agency’s table of penalties in this case are “guidelines only and are not
mandatory”).
¶29 The agency’s table of penalties identifies a penalty range of an oral
admonishment to a 3-day suspension for a first offense of the most closely
analogous charge to the sustained charge, a “violation of safety regulations,
instructions, or prescribed safe practices.” See IAF, Tab 5 at 201. Aside from
generally stating on review that the demotion penalty was the “only reasonable”
or “lowest possible” penalty available under the circumstances, the agency does
not offer any specific argument explaining why such a significant departure from
the penalty range was justified. See PFR File, Tab 1 at 32, Tab 6 at 7.
¶30 Conversely, the Board has sustained decisions mitigating a removal to an
unpaid suspension for a first offense of a safety-related violation in circumstances
similar to those in this case, even on occasions where the appellant’s misconduct
potentially endangered himself or others. See, e.g., Wentz, 91 M.S.P.R. 176,
¶¶ 15-25 (concluding that a 5-day suspension, rather than removal, was the
maximum reasonable penalty for the sustained sole charge of “unsatisfactory
performance/failure to perform the duties of your position in a safe manner ”
based on a motor vehicle accident, where the appellant had several mitigating
factors including 13 years of discipline-free Federal service, he was under the
influence of prescription medication that played a part in the misconduct, and
other employees were treated much less harshly for similar safety violations);
Williams v. Department of the Navy, 38 M.S.P.R. 387, 390-91 (1988) (mitigating
20

a removal penalty to a 30-day suspension for a first offense of “failure to observe
precautions for personal safety, posted rules, signs, written or oral safety
instructions, or to use protective clothing or equipment,” where the appellant
violated medical restrictions mandating his use of a cane and endangered his own
safety, and where the agency’s table of penalties identified a penalty range of a
reprimand to 2-day suspension for a first offense); Watkins, 29 M.S.P.R.
at 147-48 (mitigating a removal penalty to a 60-day suspension for a first offense
of “endangering the safety personnel through car elessness” when the appellant
exposed himself and a subordinate to X-ray radiation, despite the seriousness of
the offense, the fact the appellant’s supervisor stated that he had lost confidence
in that appellant and declined to mitigate the penalty based on that loss of
confidence, and the fact that the appellant was in charge and therefore was held to
a higher standard, where the violation was the appellant’s first offense in an
otherwise spotless 25-year work and safety record, and the appellant ’s potential
for rehabilitation was good).
¶31 Further, as the administrative judge correctly noted, the agency could have
charged the appellant with a charge of “conduct demonstrating untrustworthiness
or unreliability,” for which the demotion penalty would have been more in line
with the agency’s table of penalties, and it is clear from the record that agency
officials specifically contemplated doing so but ultimately chose not to. See IAF,
Tab 5 at 203, Tab 16 at 63-64; HCD (testimony of proposing official); ID at 16.
The Board is required to review the agency’s decision on an adverse action solely
on the grounds invoked by the agency, and the Board will not substitute what it
considers to be a more adequate or proper basis. Gottlieb v. Veterans
Administration, 39 M.S.P.R. 606, 609 (1989). For the foregoing reasons, we
agree with the administrative judge’s conclusion that the demotion penalty
significantly exceeds the 3-day suspension maximum penalty provided by the
agency’s table of penalties, the agency failed to adequately justify such a
significant departure from the its table of penalties, and that a 30-day suspension
21

is the maximum reasonable penalty based on the facts of this case. See ID
at 16, 19.

The administrative judge correctly concluded that the appellant failed to establish
his affirmative defenses.
¶32 The appellant has also filed a cross petition for review challenging the
administrative judge’s finding that he failed to establish his affirmative defenses
of discrimination based on his race, national origin, and age. PFR File, Tab 3
at 17-18; see ID at 20-26. Specifically, the appellant argues that the
administrative judge erred by concluding that his white co-worker was not a valid
comparator, despite the fact that the deciding official had ultimate supervisory
authority over both the appellant and the co-worker, and the co-worker’s
misconduct was more egregious but he did not receive any disciplinary act ion.
PFR File, Tab 3 at 17-18. In response, the agency argues that the administrative
judge did not err in determining that the co-worker was not a valid comparator,
highlighting the administrative judge’s finding that the purported comparator was
in the ZP-IV pay band while the appellant was a ZP-V, the co-worker was already
subject to additional oversight at the time the agency considered discipline, and
the comparator immediately took responsibility for his misconduct and self-
reported his safety violation while the appellant did not. PFR File , Tab 6
at 17-18.
¶33 In the initial decision, the administrative judge determined that the
appellant failed to establish by preponderant evidence that race, national origin,
or age discrimination was a factor in the agency’s demotion decision. See ID
at 20-26. In reaching that determination, she thoroughly reviewed the record and
testimonial evidence and concluded that the appellant did not provide any direct
or circumstantial evidence of discrimination, any evidence of suspicious timing,
ambiguous oral or written statements, behavior or comments directed at
employees in the appellant’s protected groups, or any other evidence that could
establish an inference of discriminatory intent. ID at 22 -26. Regarding the
22

appellant’s purported comparator employee, as the administrative judge correctly
noted, the Board has held that for other employees to be deemed similarly
situated for purposes of a discrimination affirmative defense claim, comparators
must have reported to the same supervisor, been subjected to the same standards
governing discipline, and engaged in conduct similar to the appellant ’s without
differentiating or mitigating circumstances. Gregory v. Department of the Army,
114 M.S.P.R. 607, ¶ 44 (2010) (citing Adams v. Department of Labor,
112 M.S.P.R. 288, ¶ 13 (2009); Spahn v. Department of Justice, 93 M.S.P.R. 195,
¶ 13 (2003)).
¶34 As the administrative judge correctly concluded, the proposed comparator
identified by the appellant is not an appropriate comparator because he was in a
lower pay band than the appellant (and thus had a lower level of independence),
did not report to the same supervisor, and made an immediate effort to report and
acknowledge his misconduct. See ID at 25-26. Accordingly, we agree with the
administrative judge that the identified co-worker was not an appropriate
comparator, and we also agree with her conclusion that there is no evidence in the
record showing that the appellant’s race, national origin, or age played any role in
the demotion decision. See ID at 22-26. Accordingly, we find that the
administrative judge properly found that the appellant failed to prove any of his
discrimination affirmative defenses. 8 ID at 22-23. For the foregoing reasons, we
deny the petition for review and cross petition for review an d affirm the initial
decision, which sustained the charge of failure to follow safety procedures but
mitigated the demotion penalty to a 30-day suspension.

8
Because we discern no error with the administrative judge’s motivating factor anal ysis
or conclusion regarding these 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.
23

ORDER
¶35 We ORDER the agency to CANCEL the appellant’s demotion effective
March 3, 2019, and substitute in its place a 30-day suspension without pay. 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.
¶36 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 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.
¶37 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).
¶38 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).
¶39 For agencies whose payroll is administered by either the Nation al Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and documentation
24

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 9
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

9
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.
25

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 rev iew
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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
26

(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. 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:
27

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. 10 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).

10
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.
28

If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor 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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9409694. Public record. Not legal advice.