# April Pedretti v. Department of Veterans Affairs

> Merit Systems Protection Board · May 10, 2024

URL: https://www.frixlaw.com/law-library/cases/9968126

## Case

- **Court:** Merit Systems Protection Board
- **Decided:** May 10, 2024
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

APRIL PEDRETTI, DOCKET NUMBER
Appellant, SF-0714-17-0696-I-1

v.

DEPARTMENT OF VETERANS DATE: May 10, 2024
AFFAIRS,
Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

McRae Cleaveland , Bobby Devadoss , Esquire, and Megan Zeller , Esquire,
Dallas, Texas, for the appellant.

Eric Lazare , San Diego, California, for the agency.

BEFORE

Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman

FINAL ORDER

The appellant has filed a petition for review of the initial decision, which
sustained the agency’s demotion decision pursuant to the Department of Veterans
Affairs Accountability and Whistleblower Protection Act of 2017 (VA
Accountability Act), Pub. L. No. 115-41, § 202(a), 131 Stat. 862, 869-73
(codified as amended at 38 U.S.C. § 714). For the reasons discussed below, we
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

GRANT the petition for review and REVERSE the initial decision to the extent
the administrative judge sustained the demotion action. The appellant’s demotion
is REVERSED. We AFFIRM the initial decision to the extent the administrative
judge found that the appellant failed to prove her affirmative defenses of
discrimination based on disability and sex, as MODIFIED to apply the correct
standards applicable to those claims.

BACKGROUND
By a letter dated August 8, 2017, the agency proposed to remove the
appellant from her position as a GS-12 National Cemetery Administrator (NCA),
pursuant to 38 U.S.C. § 714, based on a charge of lack of proper oversight.
Initial Appeal File (IAF), Tab 4 at 19-21. The deciding official issued a decision
letter sustaining the charge and mitigating the removal penalty to a demotion to a
GS-9 Budget Analyst position, effective September 17, 2017. Id. at 23-26. The
appellant timely filed the instant Board appeal challenging her demotion,
asserting that the charge and specifications were not supported by the record; the
agency action did not promote the efficiency of the Federal service; and the
agency decision was motivated by unlawful discrimination. IAF, Tab 1 at 6.
After the appellant filed a motion withdrawing her request for a hearing
and requested a trial by submission, IAF, Tab 16, the administrative judge issued
a close of record order in which she identified the issues to be adjudicated, set
forth the applicable law and burdens of proof with respect to the charge and the
affirmative defenses, and ordered the parties to submit closing evidence and
argument, IAF, Tab 18.
In an initial decision based on the parties’ written submissions, the
administrative judge found that the agency proved the charge by substantial
evidence and that the appellant failed to prove her disability and sex
discrimination affirmative defenses. IAF, Tab 24, Initial Decision (ID) at 3-20.
The administrative judge further determined that, pursuant to 38 U.S.C.
3

§ 714(d)(2)(B), she was precluded from mitigating the penalty, and so, she
affirmed the demotion without addressing the reasonableness of the penalty. ID
at 11, 20-22.
The appellant has timely filed a petition for review of the initial decision,
and the agency has filed a response in opposition to the petition for review. 2
Petition for Review (PFR) File, Tabs 3, 5.

DISCUSSION OF ARGUMENTS ON REVIEW
On review, the appellant generally takes issue with the administrative
judge’s credibility determinations and argues that the agency failed to meet its
burden of proving all three specifications of the charge. PFR File, Tab 3 at 7-13.
She also argues that the agency’s chosen penalty was excessive and the agency’s
action did not promote the efficiency of the service. Id. at 17-18. Finally, she
challenges the administrative judge’s finding that she failed to establish her
affirmative defenses of discrimination based on her disability and sex. Id.
at 13-17.

2
With her petition for review, the appellant has included a number of exhibits,
including emails she exchanged with agency officials, a copy of a sworn affidavit, a
copy of the agency’s discovery responses, and a number of other documents related to
the demotion action, most of which were included in the record below and thus are not
new. PFR File, Tab 3 at 20-72; see Meier v. Department of the Interior , 3 M.S.P.R.
247, 256 (1980) (explaining that evidence that is already a part of the record is not
new). To the extent that the appellant submits documents that were not part of the
record below, the Board generally will not consider evidence submitted for the first
time on review absent a showing that it was unavailable before the record was closed
despite the party’s due diligence. See Avansino v. U.S. Postal Service, 3 M.S.P.R. 211,
214 (1980); 5 C.F.R. § 1201.115(d). Further, the submitting party must show that the
evidence is material. See Okello v. Office of Personnel Management, 112 M.S.P.R. 563,
¶ 10 (2009). All of the newly submitted documents predate the initial decision, and the
appellant does not assert that any of the documents were first obtained after the initial
decision was issued. See Avansino, 3 M.S.P.R. at 214. In addition, the appellant has
not shown that any of the evidence is of sufficient weight to change the outcome of the
appeal. Accordingly, we have not considered these documents.
4

The demotion action must be reversed based on recent U.S. Court of Appeals for
the Federal Circuit (Federal Circuit) and Board precedent.
We do not reach the parties’ arguments regarding the charge and penalty
because we conclude that the agency improperly demoted the appellant for
conduct predating the VA Accountability Act. See Wilson v. Department of
Veterans Affairs, 2022 MSPB 7, ¶ 26 (handling the arguments on review similarly
in a section 714 appeal in which the action was reversed because the charged
conduct predated the VA Accountability Act). After the initial decision in this
appeal was issued, the Board and the Federal Circuit issued precedential decisions
addressing the application of the VA Accountability Act to events that occurred
before the date of its enactment. Based on that precedent, which was not
available to the administrative judge when she issued the initial decision, we
conclude that the appellant’s demotion must be reversed.
In Sayers v. Department of Veterans Affairs, 954 F.3d 1370, 1374, 1380-82
(Fed. Cir. 2020), the Federal Circuit concluded that 38 U.S.C. § 714 cannot be
applied to events occurring before its enactment because Congress did not
authorize its retroactive application, and the statute’s lowered substantial
evidence standard of proof and elimination of the Board’s authority to mitigate
the penalty detrimentally affected Dr. Sayers’s property right to continued
employment. The court also acknowledged that the notice of proposed removal in
that case had not been issued until after the enactment of the VA Accountability
Act but determined that “[s]ection 714’s impermissible retroactive effect on
Dr. Sayers’s substantive employment right is not eliminated by the prospective
application of § 714’s procedures.” Id. at 1381. Consequently, the court held
that the agency may not use the VA Accountability Act to discipline an employee
for matters that occurred before its effective date, June 23, 2017, and vacated
Dr. Sayers’s removal. Id. at 1380-82.
As in Sayers, in this case, the agency removed the appellant under the VA
Accountability Act based entirely on misconduct that predated the Act’s June 23,
5

2017 enactment date. IAF, Tab 4 at 19-21, 23-26. Additionally, as the court held
in Sayers, the fact that the proposal and decision letters were issued after the
enactment date is of no consequence because 38 U.S.C. § 714 may not be applied
to conduct that predates the passage of the Act, irrespective of the date that the
agency action was proposed and effectuated. Sayers, 954 F.3d at 1380-81.
Accordingly, the agency’s charge is not sustained, and the appellant’s demotion
must be reversed. See id. at 1380-82; Wilson, 2022 MSPB 7, ¶ 33.

We agree with the administrative judge that the appellant failed to prove her
discrimination affirmative defenses, but we modify the initial decision to clarify
the proper standard applicable to these claims.

Sex Discrimination
In the initial decision, the administrative judge determined that the
appellant failed to establish her affirmative defense of sex discrimination,
concluding that none of the statements she identified evinced a discriminatory
animus and the appellant failed to provide any evidence that she or other female
employees were treated worse than their male counterparts. ID at 18-20.
Consequently, the administrative judge determined that the appellant failed to
provide any evidence that her sex was a motivating factor in the agency’s
decision to demote her, and thus did not meet her burden of proof with respect to
this affirmative defense. ID at 20.
On review, the appellant argues that the administrative judge afforded
insufficient weight to credible evidence of discriminatory animus by the
appellant’s supervisor who initiated the investigation that eventually resulted in
her demotion. PFR File, Tab 3 at 15-16. Specifically, she argues that the
administrative judge “seemingly brush[ed] [] away” her supervisor’s statement
that “the last woman we had here barely met my expectations,” and his
instruction to the appellant not to “screw it up.” Id. at 16.
In an order setting forth the appellant’s burdens for her affirmative
defenses, the administrative judge identified the standard set forth in Savage v.
6

Department of the Army, 122 M.S.P.R. 612 ¶¶ 41-42, 51 (2015), as clarified by
Gardner v. Department of Veterans Affairs, 123 M.S.P.R. 647 (2016), as the
standard applicable to the appellant’s sex discrimination claim. IAF, Tab 9
at 2-5. She similarly applied this standard in the initial decision. ID at 18-19.
Following the issuance of the initial decision in this case, the Board issued
Pridgen v. Office of Management and Budget , 2022 MSPB 31, ¶¶ 20-25, 30,
which overruled parts of Savage and clarified the proper analytical framework to
be applied to affirmative defenses of Title VII discrimination and retaliation.
Based on our review of the record, we conclude that the outcome of this
appeal under the standard set forth in Pridgen would be the same as that arrived
at by the administrative judge. Regarding the appellant’s argument that the
administrative judge improperly dismissed her supervisor’s statement to her that
“the last woman we had here barely met my expectations,” and his warning that
the appellant not “screw it up,” the appellant argues that the administrative judge
seemingly dismissed the offending statement on temporal grounds. PFR File,
Tab 3 at 16. The record does not support the appellant’s assertion.
After noting that the supervisor made the statement shortly after the
appellant became the new NCA in November 2015, the administrative judge
pointed out that the supervisor appeared to have made the statement in the context
of explaining what his expectations were of all cemetery directors. ID at 19. The
administrative judge observed that, contextually understood, the supervisor’s
harsh statements about the prior NCA’s performance and his cautionary statement
to the appellant not to “screw it up” were indicative of his stern management
style, generally, irrespective of the sex of his subordinates. ID at 19. This
reading is bolstered by the administrative judge’s observation that one of the
appellant’s comparators for her disability discrimination claim (who is male) also
alleged that he was harassed by the supervisor and was also eventually proposed
for removal during the same time frame as the appellant, leading the
administrative judge to conclude that the supervisor was “apparently stern with
7

all of his employees.” ID at 20. Based on our review of the record, we agree
with the administrative judge’s finding that there is no evidence that
discriminatory animus by the appellant’s supervisor influenced the deciding
official. Further, we find that the administrative judge appropriately considered
all of the relevant evidence. Consequently, we affirm the administrative judge’s
finding that the appellant failed to meet her burden of proving that sex
discrimination played any part in the demotion action, as modified herein to apply
the standard set forth in Pridgen.

Disability Discrimination
As previously noted, the appellant raised an affirmative defense of
disability discrimination due to her post-traumatic stress disorder (PTSD)
condition based on failure to accommodate and disparate treatment theories. IAF,
Tab 12 at 6-7, Tab 21 at 10-13, 39-40. As the administrative judge correctly
observed, the Board adjudicates claims of disability discrimination raised in
connection with an otherwise appealable action under the substantive standards of
section 501 of the Rehabilitation Act of 1973, which has incorporated the
standards of the Americans with Disabilities Act of 1990, as amended by the
Americans with Disabilities Act Amendments Act of 2008. ID at 13 n.3; Pridgen,
2022 MSPB 31, ¶ 35; Haas v. Department of Homeland Security, 2022 MSPB 36,
¶ 28. Therefore, we apply those standards here to determine if there has been a
Rehabilitation Act violation. Pridgen, 2022 MSPB 31, ¶ 35.
Regarding the appellant’s failure to accommodate claim, the administrative
judge concluded that the agency was not obligated to accommodate the appellant
because there was no evidence that she had requested any accommodation. ID
at 13-15. We agree with this finding. In finding that the appellant did not prove
her failure to accommodate claim, the administrative judge observed that the
appellant was granted all the leave she requested for her counseling appointments
for her condition, and further, that her requests to attend a funeral and for
8

temporary housing were not requests for a reasonable accommodation. ID
at 14-15.
On review, the appellant concedes that she did not request a reasonable
accommodation from the agency but argues that the agency nonetheless had an
obligation to investigate any “facts and/or circumstances that give rise to a link
between an employee’s medical condition and issues or problems in the
workplace.” PFR File, Tab 3 at 15. Consequently, she appears to suggest that the
onus was on the agency to initiate the interactive process and to offer some sort
of unstated accommodation, and that by failing to do so, the agency failed to
accommodate her PTSD condition. Id. The Rehabilitation Act requires an
agency to provide reasonable accommodation to the known physical or mental
limitations of an otherwise qualified individual with a disability unless the agency
can show that accommodation would cause an undue hardship on its business
operations. Clemens v. Department of the Army, 120 M.S.P.R. 616, ¶ 10 (2014).
An employee only has a general responsibility to inform her employer that she
needs accommodation for a medical condition, and once an employee requests a
reasonable accommodation, the employer must engage in the interactive process
to determine an appropriate accommodation. Id., ¶ 12.
To trigger an agency’s obligation, an employee needs to link her request to
a medical condition. EEOC Enforcement Guidance on Reasonable
Accommodation and Undue Hardship under the Americans with Disabilities Act,
Question 1, Notice No. 915.002 (Oct. 17, 2002), available at https://
www.eeoc.gov/laws/guidance/enforcement-guidance-reasonable-accommodation-
and-undue-hardship-under-ada . Because the appellant has conceded that she did
not request reasonable accommodation, we agree with the administrative judge
that she failed to meet her burden of establishing her disability discrimination
claim based on a failure to accommodate theory. ID at 15. She also has not
alleged any facts below or on review that would have informed the agency that
she believed her PTSD condition required accommodation, nor has she asserted
9

that she made any request for accommodation of her PTSD condition that the
agency did not grant.
The administrative judge also rejected the appellant’s disparate treatment
disability discrimination claim, concluding that she failed to present any evidence
that any similarly situated employees without a disability were treated more
favorably than the appellant. ID at 15-17. Further, the administrative judge
determined that the appellant had not provided any evidence that the deciding
official had any knowledge of her PTSD condition at the time she decided to
sustain the charge and mitigate the removal to a demotion. ID at 17.
Additionally, the administrative judge considered the appellant’s argument
that she and a number of other employees with PTSD were treated less favorably
because of their PTSD. ID at 16-17. The same standards and methods of proof
set forth above for the appellant’s Title VII claim apply to her disability
discrimination claim based on alleged disparate treatment. Pridgen, 2022 MSPB
31, ¶¶ 40, 42. One way an appellant may establish a discrimination claim is
through comparator evidence, or evidence relating to the allegedly more favorable
treatment of similarly situated employees outside her protected group. Id., ¶¶ 24,
27. To be similarly situated, comparators must have reported to the same
supervisor, been subject to the same standards governing discipline, and engaged
in conduct similar to the appellant’s without differentiating or mitigating
circumstances. Id., ¶ 27.
Although she did not have the benefit of the Board’s Pridgen decision, the
administrative judge’s analysis was consistent with Pridgen. ID at 14-17. She
evaluated the sworn affidavits from purported comparator employees but
concluded the following: (1) one of the purported comparators was not similarly
situated to the appellant because he was not supervised by the same supervisor as
the appellant; (2) another comparator, who was supervised by the appellant’s
supervisor and who had PTSD, was a valid comparator, but that employee’s
sworn affidavit indicated that the supervisor was intensely critical of all of his
10

subordinates, including those without disabilities, and so that comparator’s
affidavit did not provide any evidence of discrimination; and (3) the appellant did
not indicate whether any of the final group of potential comparators were
individuals with a disability, so the administrative judge could not determine
whether they were valid comparators. ID at 16; IAF, Tab 21 at 90-110. Further,
the administrative judge considered, and rejected, the appellant’s argument that
several statements by her supervisor concerning PTSD being “50%
service-connected” and the appellant being “too sensitive” were evidence of
discriminatory animus. ID at 15-16. Finally, the administrative judge noted that
the appellant had not provided any evidence that the deciding official was aware
of the appellant’s disability when she decided to sustain the charge and mitigate
the removal penalty to a demotion. ID at 17.
Other than generally disagreeing with the weight the administrative judge
assigned to the written affidavits of the purported comparator employees, the
appellant does not specifically address these findings on review, and we agree
with the administrative judge that the record is devoid of any evidence tending to
show that the agency was motivated by discriminatory animus when it proposed
or effectuated the demotion action at issue in this appeal. PFR File, Tab 3
at 10-11. We discern no basis to disturb the administrative judge’s conclusions,
and we affirm her finding that the appellant failed to prove this affirmative
defense, as modified to incorporate the correct applicable standard set forth in
Pridgen. See Pridgen, 2022 MSPB 31, ¶¶ 20-25.

ORDER
We ORDER the agency to cancel the demotion action and to reinstate the
appellant to her former position as a GS-12 National Cemetery Administrator,
effective September 17, 2017. 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.
11

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.
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).
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).
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.
12

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 3
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation 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
3
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
13

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.

(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
14

judicial review of this decision—including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
15

If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction. 4 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
4
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
16

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9968126. Public record. Not legal advice.