Noelle Douglas v. Department of Justice ( 2022 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
NOELLE B. DOUGLAS, DOCKET NUMBER
Appellant, DC-0752-17-0130-I-1
v.
DEPARTMENT OF JUSTICE, DATE: November 10, 2022
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Lawrence Berger, Esquire, Glen Cove, New York, for the appellant.
Margo L. Chan, Esquire, and Susan E. Gibson, Esquire, Washington, D.C.,
for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The agency has filed a petition for review of the initial decision, which
mitigated the appellant’s removal to a 7-day suspension. 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
erroneous interpretation of statute or regulation or the erroneous a pplication 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 affec ted the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review. Except as
expressly MODIFIED to correct a statement by the administrative judge in
addressing the penalty determination, we AFFIRM the initial decision.
BACKGROUND
¶2 On October 21, 2016, the agency removed the appellant from her Chief
Investigator position with the Justice Prisoner and Alien Transport System of the
agency’s U.S. Marshals Service. Initial Appeal File (IAF), Tab 6 at 7. The
appellant received a proposal notice stating that the agency’s Office of
Professional Responsibility, Internal Affairs (OPR-IA) investigated an allegation
that she misused her position by having a subordinate employee, a Management
and Program Analyst (MPA), assist in preparing her Senior Executive Service
(SES) application package and that her removal was proposed based on two
charges: (1) misuse of position (two specifications); and (2) lack of candor (four
specifications). Id. at 134-45. The deciding official subsequently found that the
evidence supported both charges (but not Specification B of charge 2), 2 and thus,
she sustained the charges and found the penalty of removal appropriate. Id.
at 8-13.
2
Because the deciding official did not sustain Specification B of charge 2, the
administrative judge did not address it.
3
¶3 On appeal, the administrative judge sustained both specifications of
charge 1. IAF, Tab 31, Initial Decision (ID) at 2-8. However, because the
administrative judge found that the agency failed to present preponderant
evidence to support any of the three specifications of charge 2, lack of candor, the
second charge was not sustained. ID at 8-14. Based on the evidence as a whole,
including the deciding official’s proper consideration of the Douglas factors 3 and
her testimony that charge 1, standing alone, would warrant a maximum penalty of
a 7-day suspension, the administrative judge mitigated the agency’s removal
penalty to a 7-day suspension. ID at 16.
¶4 The agency has filed a petition for review. 4 Petition for Review (PFR) File,
Tab 1. The appellant has filed a response, and the agency has filed a reply to the
appellant’s response. PFR File, Tabs 5-6.
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge correctly found that the agency did not present
preponderant evidence to support Specification A of the lack of candor charge.
¶5 Specification A of the agency’s lack of candor charge, referring to the
MPA’s contribution to the SES package, states the following: “You displayed a
lack of candor on February 17, 2016, during your sworn OPR-IA interview, when
you stated in part; ‘. . . Let me put this very clearly on the record. I did not use
what [the MPA] wrote or provided.’” IAF, Tab 6 at 137 (italics in the original).
3
In Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981), the Board
established criteria that deciding officials must consider in determining the appropriate
penalty to impose for acts of misconduct by Federal employees.
4
With its petition for review, the agency submitted an interim relief certification stating
that the appellant was restored to her former position. PFR File, Tab 1 at 284-85. The
agency also submitted a Standard Form 52 and a document from the National Finance
Center database showing that the appellant was restored to her former position,
effective March 27, 2017. Id. at 286-89. The appellant has not raised any issues of
noncompliance with the interim relief order. In any case, given our disposition of this
appeal in favor of the appellant, the issue of the agency’s com pliance with the interim
relief order is now moot. See Wingate v. U.S. Postal Service, 118 M.S.P.R. 566, ¶ 3 n.1
(2012).
4
¶6 On review, the agency contends that the administrative judge erroneously
characterized Specification A of the lack of candor charge and as a result did not
properly weigh the evidence. PFR File, Tab 1 at 10-12. Specifically, the agency
argues that the appellant “used what [the MPA] wrote and sent her” in her SES
application. Id. The agency asserts that, because the appellant denied using
anything the MPA wrote, and the evidence shows that there are common words
between what the MPA wrote and what the appellant submitted in her SES
application, the agency presented sufficient evidence to prove the charge. The
agency also argues that the administrative judge erred by expanding his analysis
to address who “authored” the appellant’s entire SES package. Id. at 12.
¶7 Lack of candor and falsification are different, although related, forms of
misconduct, and the latter is not a necessary element of the former; thus, lack of
candor is a more flexible charge that need not require proof of intent to deceive.
Ludlum v. Department of Justice, 278 F.3d 1280, 1283-84 (Fed. Cir. 2002).
Nevertheless, lack of candor “necessarily involves an element of deception” and
requires proof that: (1) the employee gave incorrect or incomplete information ;
and (2) she did so knowingly. Fargnoli v. Department of Commerce,
123 M.S.P.R. 330, ¶ 17 (2016).
¶8 Here, the administrative judge found that the appellant’s testimony was
more credible than the MPA’s testimony. ID at 9-11. In particular, the
administrative judge found that the OPR-IA interview occurred almost 2 years
after the appellant submitted her SES application and that the appellant credibly
testified that she had no deceptive intent and had not known that her statement to
the investigators was inaccurate or untrue. ID at 9. The administrative judge
found further that, “although the agency combed through the application, it could
identify only a few, very few, phrases [in] common” between what the MPA
claims she wrote and the application submitted by the appellant. ID at 11. The
administrative judge credited the appellant’s explanation that, even though some
of the words may have been the same, it was not surprising given the nature of
5
the application. Id. The administrative judge also credited the appellant’s
testimony that the structure of her sentences and the focus of her message were
different than the MPA’s draft and that she had created or “authored” the
application. Id. Based on his review of the evidence and his credibility
determinations, the administrative judge specifically found that the agency failed
to present preponderant evidence showing that: (1) what the appellant told the
investigators was incomplete or inaccurate; and (2) she had any knowledge or
belief that her response was in any way inaccurate. ID at 11-12.
¶9 It is well established that the Board must defer to an administrative judge’s
credibility determinations when they are based, explicitly or implicitly, on
observing the demeanor of witnesses testifying at a hearing; the Board may
overturn such determinations only when it has “sufficiently sound” reasons for
doing so. Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002);
see Purifoy v. Department of Veterans Affairs, 838 F.3d 1367, 1373 (Fed. Cir.
2016) (clarifying that “[e]ven if demeanor is not explicitly discussed, assessing a
witness’s credibility involves consideration of various factors, including a
witness’s demeanor”). Here, the administrative judge thoroughly reviewed the
hearing testimony and found credible the appellant’s testimony that she had no
deceptive intent and that she believed that her statement to the investigators was
accurate and true. ID at 9-11. Although the administrative judge did not cite the
Board’s decision in Hillen v. Department of the Army, 35 M.S.P.R. 453, 458
(1987), we nonetheless find that he conducted a proper analysis required under
Hillen in making his credibility determinations. 5 ID at 9-12. Based on our
5
To resolve credibility issues, an administrative judge must identify the factual
questions in dispute, summarize the evidence on each disputed question, state which
version he believes, and explain in detail why he found the chosen version more
credible, considering such factors as: (1) the witness’s opportunity and capacity to
observe the event or act in question; (2) the witness’s character; (3) any prior
inconsistent statement by the witness; (4) a witness’s bias, or lack of bias; (5) the
contradiction of the witness’s version of events by other evidence or its consistency
6
review of the record, including the hearing testimony, we see no basis upon which
to disturb the administrative judge’s credibility determinations in this regard.
Nor do we find any basis upon which to disturb the administrative judge’s
conclusion that the agency failed to prove Specification A of the lack of candor
charge. See Fargnoli, 123 M.S.P.R. 330, ¶ 17.
The administrative judge correctly found that the agency did not present
sufficient evidence to support Specification C of the lack of candor charge.
¶10 Specification C of the lack of candor charge states the following: “You
displayed a lack of candor on February 17, 2016, during your sworn OPR-IA
interview, when you minimized the extent of [the MPA’s] role in assisting you
with your SES promotion package.” IAF, Tab 6 at 138. The proposal notice
quotes the appellant’s assertion that the MPA’s role was “simply a second set of
eyes” to review her application and see if “anything pops out,” while pointing out
that the appellant sent numerous emails and documents to the MPA for her to
incorporate into the appellant’s SES application. Id.¶11 On review, the agency asserts that the administrative judge
mischaracterized Specification C as requiring the agency to have to prove that the
MPA “substantively contributed” to the appellant’s SES application package and
that the administrative judge “did not give the proper weight to the voluminous
emails exchanged” between the appellant and the MPA during that time. PFR
File, Tab 1 at 12-15. The agency also contends that the appellant’s statement—
that the MPA took her request to act as a second set of eyes differently than what
the appellant intended and that the MPA, on her “own accord,” went “high and
left” on this—shows that the appellant knew about the MPA’s “extreme” level of
involvement in preparing her SES application. PFR File, Tab 1 at 12-13; ID
at 12; IAF, Tab 8 at 56, 58-59; Hearing Transcript (HT) at 170-71 (testimony of
with other evidence; (6) the inherent improbability of the witness’s version of events;
and (7) the witness’s demeanor. Hillen, 35 M.S.P.R. at 458.
7
the appellant); Hearing CD 1, Track 1 (testimony of the appellant). 6 The agency
contends, moreover, that the many emails the appellant sent to the MPA and their
frequent telephone calls demonstrate that the appellant knew that the MPA’s
assistance on the SES package was more than merely a “second set of eyes.” PFR
File, Tab 1 at 12-13.
¶12 The administrative judge found that the MPA “really had little or no
substantive contribution to the SES application package.” ID at 12. In support,
the administrative judge found that the appellant credibly testified that she
considered the MPA’s involvement to be nothing more than a “second set of
eyes” in reviewing her application package because her previous SES application,
done without the MPA’s assistance, was “good enough to get [her] in the door”
for an interview. ID at 12. The administrative judge likewise questioned the
“plausibility” of the MPA’s “adamant claim that she devoted all her time, both
official and a significant portion of her private time for weeks ,” to creating the
appellant’s SES application and found it “inherently implausible that it was her
total and exclusive activity for days on end as she claimed.” ID at 11. The
administrative judge also observed that the MPA appeared to be exaggerating her
role in assisting the appellant as revenge against the appellant because she
changed the MPA’s flexible work schedule and that the many emails and
telephone calls seem to have resulted from the MPA’s “intrusive, hyper-sensitive
distraction[s]” while involved in the endeavor and the MPA’s strategic
maneuvering “to attack” the appellant and position herself as a victim. 7 ID
at 12-13. In light of such testimony, the administrative judge stated that he
6
A copy of the hearing transcript is in the file below and the agency submitted another
copy with its petition for review. The record below contains a copy of the hearing CD.
7
The record reflects that, while assisting with the appellant’s SES applicati on, the MPA
had a very lax and informal telecommuting work arrangement that included little
supervisory oversight and no required days in the office or official core work hours.
IAF, Tab 7 at 39-30, Tab 8 at 15-25, 56-57, 68, 86-89, 94-95. Because the other
employees were not allowed to telework, the MPA’s flexible telework arrangement
became an issue within the office and was subsequently changed by the appellant. Id.
8
moderated the weight he assigned to the MPA’s testimony. Id. The
administrative judge concluded that the appellant’s testimony—recalling that the
MPA had little to no substantive contribution to the SES package , rendered
almost 2 years after the SES application was created—was more credible than the
MPA’s testimony. ID at 12.
¶13 Similar to our reasoning above regarding Specification A, proving that the
appellant knowingly gave incorrect or incomplete information during the OPR -IA
interview turns on the credibility of the witnesses. Here, the administrative judge
found credible the appellant’s testimony that she had no deceptive intent and that
she had not known that her statement to the investigators—concerning the extent
of the MPA’s role in assisting her with the SES application—was inaccurate or
untrue. ID at 12-13; see Fargnoli, 123 M.S.P.R. 330, ¶ 17 (indicating what an
agency must do to prove a lack of candor charge). As stated above, we will defer
to credibility determinations when they are based on an administrative judge’s
observing the demeanor of witnesses testifying at a hearing. Haebe, 288 F.3d
at 1301. We find that the agency’s assertions regarding credibility fail to provide
“sufficiently sound” reasons for granting review because they constitute mere
disagreement with the administrative judge’s determinations and fact findings.
Sabio v. Department of Veterans Affairs, 124 M.S.P.R. 161, ¶¶ 38-39 (2017);
Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 105-06 (1997) (finding that the
Board will defer to an administrative judge’s credibility findings and will not
grant a petition for review based on a party’s mere disagreement with those
findings). Consequently, we agree with the administrative judge that the agenc y
failed to prove Specification C because the agency failed to establish that the
appellant minimized the extent of the MPA’s role in assisting the appellant with
the SES promotion package.
9
The agency did not present preponderant evidence to support Specification D of
the lack of candor charge.
¶14 Specification D charges the following: “You displayed a lack of candor on
February 17, 2016, during your sworn OPR-IA interview, when you stated that
you did not know if assisting you on your SES promotion package interfered with
[the MPA’s] official work.” IAF, Tab 6 at 138. The details of Specification D
state that the MPA was communicating with the appellant through numerous
“personal conversations, telephone calls, and email exchanges during the day,
weekends, and off hours” and that it was “implausible” that the appellant was not
aware that the MPA was “spending an inordinate amount of time” on the SES
package when she should have been working on official Government business.
Id. at 138-39.
¶15 On review, the agency contends that the administrative judge erred by not
properly weighing the evidence showing that the appellant knew that the MPA
was working on her SES application on official work time. PFR File, Tab 1
at 15-17. The agency asserts that the dates and times of the numerous email
communications reflect that contact between the appellant and the MPA occurred
both on and off official duty hours. The agency also asserts that the appellant
testified that the MPA’s supervisor advised her that the MPA worked on the SES
package during official hours; that she replied that the MPA should not be using
official time; and that she did not tell the MPA not to work on the SES package
during official time. Id. at 16. The agency further relies on the MPA’s testimony
that she considered the SES package to be an official assignment and that the
appellant did not discuss with her whether or not to complete the work on official
time. Id. The agency contends that the circumstantial evidence thus supports a
finding that the agency proved that the appellant knew the MPA’s work on her
SES application package was performed during official time. Id.¶16 The administrative judge credited the appellant’s testimony that she did not
know, and that neither the MPA nor the MPA’s supervisor told her, that the
10
MPA’s work on the SES application interfered with her official work duties. ID
at 13. The administrative judge also considered the appellant’s testimony that she
believed she instructed the MPA to work on the application on ly during nonduty
hours. ID at 9. Further, the administrative judge explicitly discredited the
MPA’s “overwrought descriptions of exclusive self-sacrificing consecration to the
appellant’s cause” and determined that the MPA’s “choice to wholly commit
virtually every waking minute to the appellant’s cause was . . . quite
understandably, unknown to the appellant.” Id. In addition, the administrative
judge discussed the testimony of an agency Information Technology Specialist
who stated that the MPA told her that she had written the appellant’s Executive
Core Qualifications during evenings when the MPA was off work. ID at 10. The
administrative judge found the evidence of record consistent with the appellant’s
statement that she did not know if the MPA’s work on her SES application
package interfered with the MPA’s official work. Id.¶17 We find that the administrative judge thoroughly addressed the credibility
issues necessary to determine whether the appellant lacked candor when she
stated that she did not know whether assisting with the appellant’s SES promotion
package interfered with the MPA’s official work. ID at 13-14. These findings
were implicitly based on the demeanor of the witnesses and are entitled to
deference. Id.; see Purifoy, 838 F.3d at 1373. Further, the administrative judge’s
conclusion in Specification D was based on the overall evidence and the
testimony previously discussed in Specifications A and C of the lack of candor
charge. Id.¶18 We conclude that the agency’s assertions fail to provide a basis for
overturning the administrative judge’s credibility determinations and fact
findings. Haebe, 288 F.3d at 1301. Accordingly, because the agency failed to
prove that the appellant knew that her statements during the OPR -IA interview
were false, we find no basis upon which to disturb the administrative judge’s
11
determination that the agency failed to prove the charge of lack of candor. See
Fargnoli, 123 M.S.P.R. 330, ¶¶ 16-18.
The administrative judge appropriately mitigated the removal penalty to a 7-day
suspension.
¶19 On review, the agency argues that the administrative judge erred by failing
“to reference or consider Appellant’s prior disciplinary record, which included
recent serious sustained charges” in his penalty analysis when he mitigated the
removal to a 7-day suspension. PFR File, Tab 1 at 18. Specifically, the agency
asserts that the administrative judge ignored an “intervening” disciplinary action
that occurred after the proposal notice but before the issued decision of removal,
which consisted of sustained charges for similar misconduct and resulted in the
appellant accepting, pursuant to a settlement agreement, a demotion from an SES
to a GS-15 position and a 15-day suspension. Id. at 6, 18-21. The agency thus
contends that the administrative judge inaccurately portrayed the deciding
official’s testimony as stating that the appellant had no prior discipline. Id. at 18.
¶20 The deciding official, while aware of the intervening discipline, did not
consider it to be a prior discipline or an aggravating factor. Rather, she testified
that the appellant “did not have any prior formal discipline,” and she clarified that
when the appellant made “her oral reply [to the proposed removal], she had been
demoted and reassigned to another position—to a lower position so even though
that disciplinary [action occurred] after the instant offense [at issue in this
appeal], it’s still part of the record.” HT at 198 (testimony of the deciding
official). The administrative judge specifically questioned the deciding official
about the intervening discipline and asked what, if any, impact knowing about the
appellant’s demotion had on the deciding official and how it affected her penalty
determination. Id. (question of the administrative judge). The deciding official
testified that she found the appellant’s “prior record . . . showed a pattern of
behavior, but it had nothing to do with the prior discipline.” HT at 198-99
(testimony of the deciding official).
12
¶21 Although the proposal notice advised the appellant that the proposing
official considered the appellant’s intervening demotion to “show a pattern of
unethical behavior,” the deciding official’s testimony reflects that she did not rely
upon it as an aggravating factor and that she considered it only in relation to the
appellant’s potential for rehabilitation. HT at 199, 210-11. We find no error by
the administrative judge in not considering the interveni ng discipline as an
aggravating factor.
¶22 To the extent the agency may be asserting that the administrative judge
confused the timing of an oral admonishment the appellant received in 2011 f or
the intervening discipline of a demotion and 15 -day suspension, we agree. PFR,
Tab 1 at 18. The administrative judge incorrectly stated that the deciding official
“commented that after the proposal notice, but before the issued decision of
removal, the appellant had received an oral admonishment.” ID at 15. The
administrative judge must have been referring to the demotion and reassignme nt,
not the oral admonishment. Nevertheless, because the administrative judge
correctly found that the deciding official did not consider the intervening
discipline to be an aggravating factor, ID at 15; HT at 181-82, 198-99, we find
that this adjudicatory error did not prejudice the appellant’s substantive rights.
Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984).
¶23 Finally, the agency argues that the appellant’s overall work record,
including the demotion and 15-day suspension, supports the removal penalty for a
single charge of misuse of position. PFR File, Tab 1 at 21-22. The agency also
argues that because the appellant received an oral admonishment in 2011 for
misuse of position, this was not her first offense.
¶24 When, as here, the Board sustains fewer than all of the agency’s charges, it
may mitigate the agency’s penalty to the maximum reasonable pe nalty so long as
the agency has not indicated in either a final decision or in proceedings before the
Board that a lesser penalty be imposed on fewer charges. George v. Department
of the Army, 104 M.S.P.R. 596, ¶ 10 (2007), aff’d, 263 F. App’x 889 (Fed. Cir.
13
2008). In this case, the administrative judge correctly found that the deciding
official testified that the appellant had no prior discipline and that the penalty for
a misuse of position charge ranged from a reprimand to a 7-day suspension for a
first offense. HT at 206. Moreover, the deciding official, who was aware of the
2011 oral admonishment as well as the intervening demotion and 15 -day
suspension, explicitly testified that, if she had not sustained the lack of candor
charge, she would not have removed the appellant for a sustained charge of
misuse of position. HT at 214 (testimony of the deciding official). Thus, we find
that in assessing the penalty, the administrative judge deferred to the deciding
official’s testimony that she would not have removed the appellant and that the
maximum penalty for a first offense of misuse of position was a 7 -day
suspension. See generally Lachance v. Devall, 178 F.3d 1246, 1260 (Fed. Cir.
1999) (holding that, if fewer than all of the charges a re sustained and the agency
has not indicated in either its final decision or in proceedings before the Board
that it desires that a lesser penalty be imposed on fewer charges, the Board may
mitigate the agency’s penalty to the maximum reasonable penalty). Despite the
agency’s argument on review that the removal penalty is warranted based on the
appellant’s intervening discipline, as we stated above, the deciding official was
fully aware of this discipline, and she testified that she did not rely on it as an
aggravating factor. In addition, the oral admonishment, which is an informal
action and usually constitutes the first step in progressive discipline, although
notifying the appellant that her misuse of position in the future could be cause for
discipline, could not be considered a prior disciplinary offense or infraction when
assessing the penalty here. Therefore, we sustain the penalty determination.
Accordingly, we affirm the initial decision as modified herein.
ORDER
¶25 We ORDER the agency to cancel the removal and substitute a 7-day
suspension without pay, and to restore the appellant effective October 21, 2016 .
14
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.
¶26 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 Perso nnel
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.
¶27 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).
¶28 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).
¶29 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
15
Board’s decision in accordance with the attached lists so that payment can be
made within the 60-day period set forth above.
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set forth at title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
NOTICE OF APPEAL RIGHTS 8
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
8
Since the issuance of the initial decision in this matter, the Board may have upda ted
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.
16
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 appropria te 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.
17
(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. ____ , 137 S. Ct. 1975 (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:
18
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 th e
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction. 9 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).
9
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.
19
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.
DEFENSE FINANCE AND ACCOUNTING SERVICE
Civilian Pay Operations
DFAS BACK PAY CHECKLIST
The following documentation is required by DFAS Civilian Pay to compute and pay back pay
pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following
checklist to ensure a request for payment of back pay is complete. Missing documentation may
substantially delay the processing of a back pay award. More information may be found at:
https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx.
NOTE: Attorneys’ fees or other non-wage payments (such as damages) are paid by
vendor pay, not DFAS Civilian Pay.
☐ 1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the
specific dates of the back pay period within the ticket comments.
Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket
comments as to why the documentation is not applicable:
☐ 2) Settlement agreement, administrative determination, arbitrator award, or order.
☐ 3) Signed and completed “Employee Statement Relative to Back Pay”.
☐ 4) All required SF50s (new, corrected, or canceled). ***Do not process online SF50s
until notified to do so by DFAS Civilian Pay.***
☐ 5) Certified timecards/corrected timecards. ***Do not process online timecards until
notified to do so by DFAS Civilian Pay.***
☐ 6) All relevant benefit election forms (e.g. TSP, FEHB, etc.).
☐ 7) Outside earnings documentation. Include record of all amounts earned by the employee
in a job undertaken during the back pay period to replace federal employment.
Documentation includes W-2 or 1099 statements, payroll documents/records, etc. Also,
include record of any unemployment earning statements, workers’ compensation,
CSRS/FERS retirement annuity payments, refunds of CSRS/FERS employee premiums,
or severance pay received by the employee upon separation.
Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority
under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment
they may have received. The payroll office must collect the debt from the back pay award. The
annual leave will be restored to the employee. Annual leave that exceeds the annual leave
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).
2
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.