The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JWYANZA REED, DOCKET NUMBER
Appellant, DC-1221-21-0222-W-3
v.
DEPARTMENT OF HEALTH AND DATE: January 25, 2024
HUMAN SERVICES,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Jwyanza Reed , Esquire, Greenbelt, Maryland, pro se.
Andrea M. Downing , Esquire, 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 of the initial decision, which
granted in part and denied in part the appellant’s request for corrective action in
her individual right of action appeal. On petition for review, the agency primarily
argues that the administrative judge erred in finding that the appellant made a
protected disclosure. The appellant filed a cross petition for review challenging
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
the administrative judge’s determination that the evidence supporting her
placement on leave without pay (LWOP) in March 2020 was strong. Generally,
we grant petitions such as this one only in the following 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). As discussed below, we DISMISS the
petition for review due to the agency’s noncompliance with the interim relief
order. We DENY the appellant’s cross petition for review, concluding that she
has not established any basis under section 1201.115 for granting it. 2 Therefore,
we AFFIRM the initial decision, which is now the Board’s final decision.
5 C.F.R. § 1201.113(b).
BACKGROUND
¶2 The appellant filed this appeal alleging, as relevant for purposes of this
discussion, that she was terminated from her Attorney Advisor position during her
trial period for disclosing that requiring her to telework in anticipation of the
COVID-19 pandemic would violate a collective bargaining agreement (CBA)
provision stating that telework was voluntary. Reed v. Department of Health and
Human Services, MSPB Docket No. DC-1221-21-0222-W-1, Initial Appeal File,
Tab 1; Reed v. Department of Health and Human Services , MSPB Docket No.
2
We also deny the appellant’s motion for leave to file a reply to the response to her
cross petition for review. The appellant has not shown that the information she would
submit is material to the outcome of this appeal, nor that it was not readily available
before the record closed on review. Petition for Review File, Tab 12; see 5 C.F.R.
§ 1201.114(k).
3
DC-1221-21-0222-W-3, Appeal File (W-3 AF), Tab 6 at 4-5, Tab 20 at 30-31.
During the appeal, the administrative judge determined that the appellant
exhausted her remedies with the Office of Special Counsel and established Board
jurisdiction over her claim. W-3 AF, Tab 11 at 7-12.
¶3 After holding a hearing, the administrative judge concluded in a February
2023 initial decision that the appellant made a protected disclosure about the
alleged CBA violation which was a contributing factor in her termination and that
the agency did not prove by clear and convincing evidence that it would have
terminated her absent her disclosure. W-3 AF, Tab 35, Initial Decision (ID). The
administrative judge ordered as corrective action, among other things, rescission
of the appellant’s September 25, 2020 termination and reinstatement retroactive
to that date. ID at 47-48. The administrative judge also ordered the agency to
provide interim relief effective the date of the initial decision if either party filed
a petition for review. ID at 48-49.
¶4 The agency filed a petition for review, as well as a March 29, 2023
certification of compliance with the interim relief order stating that the appellant
had been extended a reinstatement offer to which she had not responded. Petition
for Review (PFR) File, Tabs 1-2. The appellant then moved to dismiss the
agency’s petition for review for noncompliance with the interim relief order. PFR
File, Tab 4. She attached to her motion the agency’s reinstatement offer, her
April 4, 2023 response requesting, among other things, a start date not before
August 28, 2023, and the agency’s same-day answer denying her request and
giving her until April 12, 2023, to accept reinstatement with certain start dates in
April or May 2023. Id. at 8-10. The appellant argued in her motion that she had
not been reinstated, that it was unreasonable for the agency to demand that she
return on the April or May 2023 dates because she had been separated for over
2 years and that the interim relief order did not prevent implementation of a
delayed return date. Id. at 5-6.
4
¶5 With its response to the motion to dismiss, the agency attached a Standard
Form 50 showing the appellant’s April 12, 2023 resignation and an agency email
informing the appellant that it interpreted her failure to accept reinstatement and
motion to dismiss the petition for review as a rejection of the reinstatement offer,
and thus rescinded her termination and replaced it with the resignation. PFR File,
Tab 8 at 106, 112-13. The agency also attached the appellant’s response to a
subsequent agency email, in which she asserted that she never resigned, that she
was unwilling to leave her then-current employment, which the agency indicated
was outside the Federal Government, and that it was unreasonable for the agency
to demand her return in April or May 2023, while “actively seek[ing] a decision
that would exclude [her] from the workplace to which [it] currently demands [her]
return.” Id. at 20, 109-111.
ANALYSIS
¶6 With exceptions not relevant for purposes of this discussion, 5 U.S.C.
§ 7701(b)(2)(A) provides that if an employee prevails in a Board appeal, she shall
be granted the relief provided in the decision effective upon the making of the
decision and remaining in effect pending the outcome of any petition for review.
As noted previously, in the initial decision, the administrative judge ordered the
agency to, among other things, rescind the appellant’s September 25, 2020
termination, reinstate the appellant retroactive to her termination, and provide her
interim relief in accordance with 5 U.S.C. § 7701(b)(2)(A) if either party filed a
petition for review. ID at 47-49. Thus, based on statutory language and the
administrative judge’s order, the agency was required to reinstate the appellant
effective the date of the initial decision. See Johnson v. Department of Veterans
Affairs, 2023 MSPB 9, ¶ 7 (stating that interim relief generally requires returning
the appellant to duty and providing her with the pay and benefits of employment).
By refusing to return to work on the terms set by the agency, the appellant did not
forfeit her right to reinstatement. See Abbott v. Department of Veterans Affairs ,
5
67 M.S.P.R. 124, 129 (1995) (finding an agency not in compliance with an
interim relief order when it interposed conditions on the appellants’ return to
duty). Because the agency denied the appellant this right by processing a
resignation, rather than reinstating her, we conclude that the agency has not
complied with the interim relief order and dismissal of the petition for review is
appropriate. See Lambert v. Department of the Navy, 85 M.S.P.R. 130, ¶ 8 (2000)
(dismissing an agency’s petition for review for failure to reinstate an appellant
effective the date of an initial decision as required by an interim relief order).
¶7 In so concluding, we do not assert that the agency lacked any options in
responding to the appellant’s request for a delayed start date. For example, the
Board has found that placement of appellants on LWOP status based on refusals
to report for duty during interim relief periods did not violate interim relief
orders. Byers v. Department of Veterans Affairs, 89 M.S.P.R. 655, ¶¶ 9, 12
(2001); Wilson v. Department of Justice, 68 M.S.P.R. 303, 308-09 (1995); cf.
Johnson, 2023 MSPB 9, ¶¶ 8-9 (finding that an agency’s placement of an
appellant on LWOP status without making any effort to resume pay during the
interim relief period warranted dismissal of its petition for review). It is well
settled that an interim relief order does not insulate an appellant from subsequent
agency action as long as that action is not inconsistent with the initial decision.
Rutberg v. Occupational Safety and Health Review Commission , 78 M.S.P.R. 130,
135 (1998). But in denying the appellant the reinstatement ordered by the
administrative judge, the agency’s unilateral, involuntary resignation of the
appellant was inconsistent with the interim relief order and accordingly cannot
stand. See Russell v. Department of Justice, 74 M.S.P.R. 289, 293-94 (1997)
(ordering an agency to hold harmless and reimburse an appellant for expenses
related to a unilateral, involuntary, and improper geographic reassignment in
violation of an interim relief order).
6
ORDER
¶8 We ORDER the agency to cancel the appellant’s termination, reinstate her
effective September 25, 2020, and cancel the appellant’s April 12, 2023
resignation. 3 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.
¶9 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.
¶10 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).
¶11 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).
3
We find that appropriate corrective action under subsections (e)(1) and (g)(1)(A)(i) of
5 U.S.C. § 1221, in order to place the appellant as nearly as possible in the position she
would have occupied had the prohibited personnel practice not occurred, necessarily
includes cancelation of the April 12, 2023 resignation.
7
¶12 For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Board decision
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to process payments and adjustments resulting from the
Board’s decision in accordance with the attached lists so that payment can be
made within the 60-day period set forth above.
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set forth at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST CONSEQUENTIAL AND/OR
COMPENSATORY DAMAGES
You may be entitled to be paid by the agency for your consequential
damages, including medical costs incurred, travel expenses, and any other
reasonable and foreseeable consequential damages. To be paid, you must meet
the requirements set out at 5 U.S.C. §§ 1214(g) or 1221(g). The regulations may
be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.204.
In addition, the Whistleblower Protection Enhancement Act of 2012
authorized the award of compensatory damages including interest, reasonable
8
expert witness fees, and costs, 5 U.S.C. § 1214(g)(2), which you may be entitled
to receive.
If you believe you are entitled to these damages, you must file a motion for
consequential damages and/or compensatory damages WITHIN 60 CALENDAR
DAYS OF THE DATE OF THIS DECISION. You must file your motion with the
office that issued the initial decision on your appeal.
NOTICE TO THE PARTIES
A copy of the decision will be referred to the Special Counsel “to
investigate and take appropriate action under [5 U.S.C.] section 1215,” based on
the determination that “there is reason to believe that a current employee may
have committed a prohibited personnel practice” under 5 U.S.C. § 2302(b)(8) or
section 2302(b)(9)(A)(i), (B), (C), or (D). 5 U.S.C. § 1221(f)(3). Please note that
while any Special Counsel investigation related to this decision is pending, “no
disciplinary action shall be taken against any employee for any alleged prohibited
activity under investigation or for any related activity without the approval of the
Special Counsel.” 5 U.S.C. § 1214(f).
NOTICE OF APPEAL RIGHTS 4
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
4
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.
9
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
10
(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:
11
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. 5 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).
5
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.
12
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: ______________________________
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.