stating that “a deciding officer may violate an employee’s due process rights even if the deciding officer states that he ‘would have concluded that the employee should be removed whether or not he had received the ex parte communications’”
How later courts described this case
- stating that “a deciding officer may violate an employee’s due process rights even if the deciding officer states that he ‘would have concluded that the employee should be removed whether or not he had received the ex parte communications’”
Written by the judges who cited it.
The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROBERT M. CLEDERA, DOCKET NUMBER
Appellant, DA-0752-21-0013-I-3
v.
DEPARTMENT OF JUSTICE, DATE: March 25, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Ariel Solomon , Esquire, Washington, D.C., for the appellant.
Zachary Bock , Esquire, Falls Church, Virginia, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained his removal. For the reasons discussed below, we GRANT the
appellant’s petition for review and REVERSE the initial decision. 2
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
The administrative judge found that the appellant failed to prove his affirmative
defenses of discrimination based on a perceived mental disability, reprisal for equal
employment opportunity activity, whistleblower reprisal, harmful procedural error, and
several due process violations. Cledera v. Department of Justice, MSPB Docket No.
DA-0752-21-0013-I-3, Appeal File, Tab 39, Initial Decision. Except for the due
2
BACKGROUND
¶2 On September 10, 2020, the agency removed the appellant from his position
as a Legal Assistant at the Dallas Immigration Court, within the agency’s
Executive Office of Immigration Review (EOIR), based on charges of failure to
follow instructions (four specifications) and inappropriate conduct (one
specification). Cledera v. Department of Justice, MSPB Docket No. DA-0752-
21-0013-I-3, Appeal File (I-3 AF), Tab 12 at 21-25. The charges concerned the
appellant’s incessant demands that the Federal Protective Service (FPS) aid him
in investigating an incident on May 13, 2020, when he was allegedly almost hit
by two vehicles while crossing a crosswalk in front of the Earl Cabell Federal
Building (ECFB) where he worked. I-3 AF, Tab 11 at 6-7, Tab 12 at 22-23. In
his decision letter, the deciding official stated that the appellant’s continued
misconduct presented an increasingly disturbing pattern of disrespect for
authority and the health and safety of colleagues and occupants of the Federal
building. I-3 AF, Tab 12 at 23. He noted the appellant’s disciplinary history,
including a letter of reprimand for having attempted to bring a magazine clip
containing ammunition into the ECFB, and a 10-day suspension for his disregard
of COVID-19 precautions. I-3 AF, Tab 11 at 11-13, 19-22, Tab 12 at 23. He
concluded that, based on such, he found no potential for the appellant’s
rehabilitation and that removal was warranted. I-3 AF, Tab 12 at 23. The
appellant’s Board appeal followed, and the administrative judge issued an initial
decision in November 2022 sustaining the appellant’s removal. I-3 AF, Tab 39,
Initial Decision (ID).
¶3 The sole issue raised by the appellant in his petition for review concerns his
claim of a due process violation based on an ex parte communication. Petition
for Review (PFR) File, Tab 5 at 5. On August 7, 2020, following the agency’s
process violation discussed herein, the appellant does not challenge the administrative
judge’s findings regarding his affirmative defenses. Petition for Review File, Tab 5.
Therefore, we see no reason to reexamine those claims, and we conclude that the
appellant failed to prove them.
3
notice of proposed removal and placement of the appellant on administrative
leave but prior to the removal decision, the U.S. Marshals Service issued an Alert
Notice pertaining to the appellant. I-3 AF, Tab 11 at 8, Tab 12 at 470-74, Tab 31
at 40. The Alert Notice provided instructions for employees and visitors to
immediately contact the U.S. Marshals Service for the Northern District of Texas
if the appellant was seen in the courthouse, along with detailed information and a
photograph of the appellant. I-3 AF, Tab 31 at 40. It set forth as “reason for
caution” that the appellant was a “Civil Litigant who was fired on [July 30, 2020]
from the Executive Office of Immigration Review (Earl Cabell Federal Building)
after several disciplinary actions, including anti-social behavior related to
spreading COVID-19 and attempting to bring ammunition into the Federal
Building.” Id. It further stated that the appellant “appeared to suffer from mental
health issues including paranoia” and that the U.S. Marshals Service was
concerned that he might attempt to contact a U.S. District Judge. Id.
¶4 Notably, the U.S. District Court for the Northern District of Texas is also
housed in the ECFB, upstairs from the Dallas Immigration Court. Hearing
Transcript – October 17, 2022 (HT-1) at 222 (testimony of the proposing
official); Hearing Transcript – October 18, 2022 (HT-2) at 18 (testimony of the
current FPS Inspector). On August 10, 2020, a Judicial Security Inspector with
the U.S. Marshals Service delivered the Alert Notice to the Dallas Immigration
Court via the proposing official and requested that she post it by its reception
window. 3 I-3 AF, Tab 31 at 37. The Inspector explained that the Alert Notice
was issued upon the instruction of a U.S. District Judge who had dismissed a civil
lawsuit that the appellant had filed against the EOIR and had concerns regarding
his mental health. Id. The proposing official sent an email to the Assistant Chief
Immigration Judge, who was also the deciding official on the appellant’s
disciplinary action, relaying her conversation with the Inspector and attaching a
copy of the Alert Notice. Id. The deciding official then forwarded the proposing
3
The proposing official did not follow these instructions. I-3 AF, Tab 31 at 37.
4
official’s email to his supervisors and general counsel’s office. Id. at 36; HT-1
at 89, 98 (testimony of the deciding official). The deciding official also emailed
the U.S. Marshals Service Inspector to inform him that the appellant had not been
fired on July 30, 2020, as the Alert Notice had incorrectly stated. I-3 AF, Tab 31
at 39. The parties do not dispute that the agency did not provide the appellant
with notice of the issuance of the Alert Notice or the proposing official’s email to
the deciding official prior to the September 10, 2020 removal decision. PFR File,
Tab 5 at 5, Tab 7 at 7.
¶5 In the initial decision, the administrative judge found that the Alert Notice
issued by the U.S. Marshals Service was a constitutionally permissible ex parte
communication. ID at 25-27. She reasoned that the deciding official testified
credibly and compellingly that he did not consider it in his decision to remove the
appellant because, as it was not part of the information provided in that context,
he understood that he was not allowed to. Id. She further found that the Alert
Notice was “unlikely to be particularly disquieting” under the circumstances of
this case. Id.
DISCUSSION OF ARGUMENTS ON REVIEW
¶6 In his petition for review, the appellant argues that the administrative judge
improperly applied the law regarding due process violations. PFR File, Tab 5
at 4. He argues that the communication concerning the Alert Notice contained
new and material information and was thus constitutionally impermissible. Id.
at 5.
¶7 In response to the appellant’s arguments on review, the agency agrees that
the Alert Notice contained new information. PFR File, Tab 7 at 8-9. However, it
argues that the information was not material for two reasons: first, the deciding
official testified that he did not consider it, and the administrative judge’s
crediting of that testimony is entitled to deference; and second, the Alert Notice
did not create undue pressure upon the deciding official because the facts and
5
factors noticed to the appellant in the notice of proposed removal were sufficient
to support his removal. Id. at 8-10. The agency cautions that, if the Board were
to agree with the appellant, it would open the door for any ex parte
communication—regardless of materiality or whether the deciding official
considered the information—to be a basis for reversal of an agency’s adverse
action. Id. at 10.
¶8 The U.S. Court of Appeals for the Federal Circuit has rejected similar
arguments by agencies in Stone v. Federal Deposit Insurance Corporation,
179 F.3d 1368 (Fed. Cir. 1999) and its progeny. Stone, 179 F.3d at 1373,
1376-77. Our decision that the ex parte communications in this case violated due
process guarantees does not expand this existing precedent. In Stone, the Federal
Circuit held that “[t]he introduction of new and material information by means of
ex parte communications to the deciding official undermines the public
employee’s constitutional due process guarantee of notice (both of the charges
and of the employer’s evidence) and the opportunity to respond.” Id. at 1376.
Stone provided a three-factor test to assess whether a particular ex parte
communication violates due process: (1) “whether the ex parte communication
merely introduces ‘cumulative’ information or new information”; (2) “whether
the employee knew of the error and had a chance to respond to it”; and
(3) “whether the ex parte communications were of the type likely to result in
undue pressure upon the deciding official to rule in a particular manner.” Boss v.
Department of Homeland Security, 908 F.3d 1278, 1281 (Fed. Cir. 2018) (quoting
Stone, 179 F.3d at 1377). The inquiry is “whether the ex parte communication is
so substantial and so likely to cause prejudice that no employee can fairly be
required to be subjected to a deprivation of property under such circumstances.”
Hornseth v. Department of the Navy, 916 F.3d 1369, 1375 (Fed. Cir. 2019)
(quoting Stone, 179 F.3d at 1376-77).
¶9 In Ward v. U.S. Postal Service, 634 F.3d 1274 (Fed. Cir. 2011), the Federal
Circuit held that there is no constitutionally relevant distinction between ex parte
6
communications relating to the underlying charge and those relating to the
penalty. Ward, 634 F.3d at 1280. It held that if the Board finds that the ex parte
communications introduced new and material information under the factors set
forth in Stone, the employee must be afforded a constitutionally correct removal
procedure. Id. Furthermore, the Federal Circuit has made clear that the test
under Stone, while requiring consideration of the facts and circumstances of each
case, is “an objective one.” Rueter v. Department of Commerce, 63 F.4th 1357,
1365 (Fed. Cir. 2023); Hornseth, 916 F.3d at 1375. Particularly, regarding its
third factor, Stone directs the inquiry as to the “type of communication” involved
and whether that type is “likely” to cause prejudice. Stone, 179 F.3d at 1377. It
does not require that the ex parte communication actually resulted in undue
pressure upon the deciding official. See Johnson v. Department of the Air Force ,
50 F.4th 110, 116 (Fed. Cir. 2022) (stating that “a deciding officer may violate an
employee’s due process rights even if the deciding officer states that he ‘would
have concluded that the employee should be removed whether or not he had
received the ex parte communications’”) (citing Ward, 634 F.3d at 1280). Thus,
we conclude that the credible testimony of a deciding official establishing the
absence of subjective influence does not preclude a due process violation. See id.
¶10 Accordingly, we find that the administrative judge erred by assigning
significant weight to the deciding official’s testimony that he did not consider the
ex parte information. ID at 25-27. We will consider the facts and circumstances
of this case under the objective test set forth in Stone.
¶11 It is apparent, and the parties do not dispute, that the email containing the
Alert Notice issued by the U.S. Marshals Service introduced new information to
the deciding official. I-3 AF, Tab 31 at 36-41; PFR File, Tab 5 at 5, Tab 7 at 7-8.
The parties also do not appear to dispute that the appellant, who was on
administrative leave at the time of the issuance of the Alert Notice, was not aware
of the ex parte communication and did not have a chance to respond to it. PFR
7
File, Tab 5 at 5, Tab 7 at 7-8; HT-2 at 70-73 (testimony of the appellant). Thus,
we find that the first two Stone factors weigh in favor of a due process violation.
¶12 We find that the third Stone factor also weighs in favor of concluding that
the ex parte communications introduced new and material information and thus
violated due process. See Ward, 634 F.2d at 1279-80; Stone, 179 F.3d at 1377.
The administrative judge reasoned that the Alert Notice was unlikely to be
particularly disquieting because the only new information it contained was that
the appellant appeared to suffer from mental health issues including paranoia and
that a U.S. District Judge was concerned that he may attempt to contact her. ID
at 27; I-3 AF, Tab 31 at 40. She explained that the Alert Notice described the
appellant’s prior misconduct, for which he had been previously disciplined, rather
than any new behavior. ID at 27.
¶13 We disagree with this reasoning. First, it fails to recognize the additional
information concerning the Alert Notice from the Judicial Security Inspector with
the U.S. Marshals Service. I-3 AF, Tab 31 at 37. The deciding official was
informed that a U.S. District Judge, a few days earlier, had dismissed a civil
lawsuit filed by the appellant against the agency. Id. The U.S. District Judge had
instructed that the alert be issued because she had concerns regarding his mental
health. Id. Thus, we can reasonably surmise that the appellant exhibited some
type of disconcerting behavior or made some disconcerting statements in
connection with his district court case. Id. The deciding official was also
informed of the Inspector’s recommendation that the Dallas Immigration Court,
located downstairs from the district courthouse, post the Alert Notice in its
reception window. Id. at 37.
¶14 This new information is of the type likely to result in undue pressure upon
the deciding official. As the appellant highlights on review, the ex parte
information invokes the same major concerns expressly considered by the
deciding official in his penalty analysis. PFR File, Tab 5 at 7-14. The deciding
official stated in the decision letter that the misconduct set forth in the proposal
8
notice presented an increasingly disturbing pattern and diverted the attention of
security officials responsible for protecting the Federal building and its
employees and visitors. I-3 AF, Tab 12 at 23. He testified at the hearing that he
was embarrassed by the appellant’s inappropriate behavior during a meeting with
a FPS Inspector, i.e., the misconduct underlying the agency’s inappropriate
conduct charge, because it put the agency in an unfavorable light. HT-1 at 24.
Undoubtedly, this new information—that the appellant’s disconcerting behavior
has now drawn the attention of a U.S. District Judge and the U.S. Marshals
Service—is highly relevant to the same penalty factors considered to be
particularly aggravating in this case.
¶15 Furthermore, the Alert Notice is of the type likely to be particularly
influential under the circumstances of this case, in which the district courthouse
is housed in the same Federal building (the ECFB) as the appellant’s work
location. The situation creates obvious implications for the agency pertaining to
the appellant’s continued employment. The Alert Notice broadcasts to employees
and visitors that the appellant demonstrated anti-social behavior related to
spreading COVID-19, attempted to bring ammunition into the Federal Building,
and exhibits paranoia. I-3 AF, Tab 31 at 40. It instructs all employees and
visitors of the courthouse to contact the U.S. Marshals Service if they see the
appellant in the courthouse, and it states that he must be “closely monitored in
courts spaces.” Id. The FPS Inspector currently assigned to the ECFB testified
that, even though this Alert Notice does not expressly prohibit the appellant from
entering the ECFB, he exchanges information with the U.S. Marshals Service
daily and would take its Alert Notices seriously. HT-2 at 32-36. Furthermore,
the deciding official testified that he was not at liberty to ignore the Alert Notice,
and the fact that he sent it to his general counsel’s office and his supervisor
demonstrates its import. 4 HT-1 at 89-91, 98; I-3 AF, Tab 31 at 36. Thus, we find
4
The deciding official testified that he did not consider whether he had the ability to
bring the appellant back to work notwithstanding the Alert Notice, because the
appellant was already on administrative leave, and he had determined based on the
9
that the Alert Notice is the type of information likely to influence a decision
about whether to remove the appellant or, alternatively, institute some lesser
penalty that might require the appellant’s return to the workplace.
¶16 Based upon the above, we conclude that the ex parte communication was so
substantial and so likely to cause prejudice that it rose to the level of a due
process violation. In making this finding, we reject the agency’s argument that
the ex parte communications were permissible because the facts and factors in the
notice of proposed removal issued to the appellant were sufficient to support his
removal. PFR File, Tab 7 at 10. The Federal Circuit has clearly established that
a due process violation is not subject to the harmless error test. See Ward,
634 F.3d at 1280; see also Johnson, 50 F.4th at 115-16; Boss, 908 F.3d at 1282.
The prohibition on applying the harmless error test is directed to foreclosing the
argument that an employee would have been removed from his position on the
merits even without the procedural defect in his firing. Boss, 908 F.3d at 1282.
Thus, per the Federal Circuit’s instruction, we will not “fall into [the] trap” of
analyzing whether the appellant would have been removed even without the ex
parte information. Id.
¶17 Accordingly, we find that the administrative judge erred in finding no
violation of the appellant’s right to due process. We, therefore, reverse the initial
decision sustaining the appellant’s removal.
ORDER
¶18 We ORDER the agency to cancel the appellant’s removal and restore the
appellant effective September 10, 2020. 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.
charged misconduct that no alternative penalties were appropriate. HT-1 at 93-94
(testimony of the deciding official). We note again that “a deciding official may violate
an employee’s due process rights even if he states that ‘he would have concluded that
the employee should be removed whether or not he had received the ex parte
communications.’” Johnson, 50 F.4th at 116 (quoting Ward, 634 F.3d at 1280).
10
¶19 We also ORDER the agency to pay the appellant the correct amount of back
pay, interest on back pay, and other benefits under the Office of Personnel
Management’s regulations, no later than 60 calendar days after the date of this
decision. We ORDER the appellant to cooperate in good faith in the agency’s
efforts to calculate the amount of back pay, interest, and benefits due, and to
provide all necessary information the agency requests to help it carry out the
Board’s Order. If there is a dispute about the amount of back pay, interest due,
and/or other benefits, we ORDER the agency to pay the appellant the undisputed
amount no later than 60 calendar days after the date of this decision.
¶20 We further ORDER the agency to tell the appellant promptly in writing
when it believes it has fully carried out the Board’s Order and of the actions it has
taken to carry out the Board’s Order. The appellant, if not notified, should ask
the agency about its progress. See 5 C.F.R. § 1201.181(b).
¶21 No later than 30 days after the agency tells the appellant that it has fully
carried out the Board’s Order, the appellant may file a petition for enforcement
with the office that issued the initial decision on this appeal if the appellant
believes that the agency did not fully carry out the Board’s Order. The petition
should contain specific reasons why the appellant believes that the agency has not
fully carried out the Board’s Order, and should include the dates and results of
any communications with the agency. 5 C.F.R. § 1201.182(a).
¶22 For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and 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.
11
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set forth at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
NOTICE OF APPEAL RIGHTS 5
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
5
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
12
(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.
(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
13
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
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:
14
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction. 6 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
6
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
15
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: ______________________________
Gina K. Grippando
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.