Carissima Pettus v. Department of the Navy ( 2022 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CARISSIMA M. PETTUS, DOCKET NUMBERS
Appellant, DC-0353-13-0409-B-1
DC-0752-16-0763-I-1
v.
DEPARTMENT OF THE NAVY,
Agency. DATE: April 4, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Carissima M. Pettus, Burlington, North Carolina, pro se.
Sean McBride, Esquire, Norfolk, Virginia, for the agency.
BEFORE
Raymond A. Limon, Vice Chair
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant petitions for review of the remand initial decision in Pettus v.
Department of the Navy, MSPB Docket No. DC-0353-13-0409-B-1, granting her
relief in her restoration appeal, and the initial decision in Pettus v. Department of
the Navy, MSPB Docket No. DC-0752-16-0763-I-1, dismissing her alleged
constructive suspension appeal. These two appeals concern the same absence;
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 jud ges 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
therefore, we JOIN them under 5 C.F.R. § 1201.36(b) because doing so will
expedite processing without adversely affecting the interests of the parties.
¶2 Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting her petitions for review.
Therefore, we DENY the petitions for review and AFFIRM the initial decisions,
which are now the Board’s final decisions in these appeals. 5 C.F.R. § 1201.113.
BACKGROUND
¶3 The appellant originally suffered an on-the-job injury on November 30,
2011. Pettus v. Department of the Navy, MSPB Docket No. DC-0353-13-0409-
I‑1, Initial Appeal File (0409 IAF), Tab 16 at 12. The Office of Workers’
Compensation Programs (OWCP) accepted this injury as compensable. Id. On
August 28, 2012, the appellant suffered a recurrence, which OWCP also deemed
compensable. 0409 IAF, Tab 8 at 49-50, 79. On November 29, 2012, the
appellant informed the agency that she had reached maximum medical
improvement and requested restoration to a position within her medical
restrictions. 0409 IAF, Tab 16 at 25. The agency denied her request. Id.at 19‑20. However, in doing so, it admittedly did not conduct an agency-wide
3
search for work. Pettus v. Department of the Navy, MSPB Docket No. DC-0353-
13-0409-B-1, Remand File (0409 RF), Tab 24 at 20-23, Tab 31 at 6.
¶4 The appellant filed a restoration appeal, after which the agency offered, and
she accepted, a position on December 24, 2013. 0409 IAF, Tab 1, Tab 19 at 3;
0409 RF, Tab 31 at 6.
The appellant’s restoration appeal.
¶5 After an administrative judge dismissed the appellant’s restoration appeal
for lack of jurisdiction, the Board remanded for a jurisdictional hearing because
the record reflected that the appellant had nonfrivolously alleged facts that, if
proven, would establish that she was a physically disqualified individual and that
the agency had violated the restoration rights to which she was entitled under
5 C.F.R. § 353.301(c). Pettus v. Department of the Navy, MSPB Docket No.
DC-0353-13-0409-I-2, Remand Order (Nov. 5, 2015). The administrative judge
issued an order in which she set forth the pertinent jurisdictional elements for the
appellant’s restoration and discrimination claims, granted the agency’s request for
a 30-day continuance, and set forth discovery deadlines. 0409 RF, Tabs 9, 13, 16.
¶6 The administrative judge granted the agency’s subsequent motion to compel
discovery and ultimately struck the appellant’s disability discrimination claim as
a sanction for her failure to comply with an order to respond to the agency’s
discovery requests. 0409 RF, Tabs 17-20.
¶7 The administrative judge determined that the agency’s failure to perform
the required agency-wide search was an arbitrary and capricious denial of the
appellant’s restoration request, and, in light of that ruling, the appellant withdrew
her earlier request for a hearing on her restoration claim. 0409 RF, Tab 9, Tab 31
at 6‑7. The administrative judge therefore issued a remand initial decision in
which she found that the agency had failed to properly restore the appellant for
the period beginning with her first request for restoration on November 29, 2012 ,
and ending with her acceptance of the agency’s offer of a GS-05 Security
4
Assistant position on December 23, 2013. 0409 RF, Tab 32, Remand Initial
Decision (0409 RID).
The appellant’s constructive suspension appeal.
¶8 The appellant first asserted a constructive suspension claim in her remanded
restoration appeal. 0409 RF, Tab 30 at 4. The administrative judge determined
that, under the circumstances, she should adjudicate only the restoration appeal
that the Board had remanded to the regional office, observing that the appellant
could file a new constructive suspension appeal. Id. at 4-5. The appellant did so,
contending that the agency constructively suspended her when it placed her in an
enforced leave status for more than 14 days. Pettus v. Department of the Navy,
MSPB Docket No. DC-0752-16-0763-I-1, Initial Appeal File (0763 IAF),
Tabs 1, 8.
¶9 The administrative judge dismissed the appeal because she found that the
appellant’s rights and remedies regarding the time that she alleged that the agency
constructively suspended her were subsumed in her restoration appeal. 0763 IAF,
Tab 9, Initial Decision (0763 ID).
¶10 The appellant filed separate petitions for review in each appeal. Pettus v.
Department of the Navy, MSPB Docket No. DC-0353-13-0409-B-1, Remand
Petition for Review (RPFR) File, Tab 1; Pettus v. Department of the Navy, MSPB
Docket No. DC-0752-16-0763-I-1, Petition for Review (PFR) File, Tab 1. For the
following reasons, we deny the appellant’s petitions for review and affirm the
remand initial decision finding that the agency denied her restoration and the
initial decision dismissing her constructive suspension appeal.
DISCUSSION OF ARGUMENTS ON REVIEW
We accept the appellant’s petition for review in her re storation appeal as timely
filed under the circumstances.
¶11 The appellant electronically filed her petition for review in her restoration
appeal 4 minutes and 49 seconds late. RPFR File, Tab 1. The Clerk of the Board
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notified the appellant that her petition was untimely. RPFR, Tab 2. The
appellant filed a motion to accept the filing as timely or to waive or set aside the
time limit, attributing her lateness to personal circumstances and te chnical
difficulties. RPFR File, Tab 3; 5 C.F.R. § 1201.114(g). The agency responded in
opposition to the appellant’s motion and to her petition for review. RPFR, Tab 4.
The appellant’s former representative also filed a motion to intervene to protect
the favorable remand initial decision and his opportunity to be awarded attorney
fees. RPFR, Tab 5. The agency responded in opposition to the motion to
intervene and the appellant’s former representative responded to the agency’s
opposition. 2 RPFR, Tabs 6-7.
¶12 In light of the appellant’s pro se status, the minimal delay involved, and the
lack of any prejudice to the agency, we exercise our discretion to accept the
appellant’s petition for review. See Moorman v. Department of the Army,
68 M.S.P.R. 60, 62-63 (1995) (finding that, to determine whether an appellant has
shown good cause, the Board will consider the length of the delay, the
reasonableness of his excuse and his showing of due diligence, whether he is
proceeding pro se, and whether he has presented evidence of the existence of
circumstances beyond his control that affected his ability to comply with the time
limits or of unavoidable casualty or misfortune which similarly shows a causal
relationship to his inability to timely file his petition) , aff’d, 79 F.3d 1167 (Fed.
Cir. 1996) (Table). Importantly, the fact that the appellant’s petition was less
than 5 minutes late indicates that she was most likely diligently trying to timely
file at the time of the deadline. See, e.g., Rousselle v. Department of the Army,
69 M.S.P.R. 531, 535-36 (1996) (finding that an appellant acted with due
diligence by depositing his petition for review with proper postage in a Kinko’s
mail box).
2
We deny the motion to intervene. Issues regarding attorney fees are premature, as the
remand initial decision is not yet final. See generally 5 C.F.R. § 1201.203 (explaining
how to seek attorney fees incurred in connection with a Board appeal).
6
The administrative judge correctly found that the agency failed to restore the
appellant and ordered back pay but not placement in a position.
¶13 The administrative judge found that the appellant was physically
disqualified from her former position and the agency failed in its obligation to
restore her from November 29, 2012, to December 23, 2013. 0409 RID at 7. The
parties do not challenge this finding on review. An employee who is physically
disqualified from her former position as the result of a compensable injury has an
agency‑wide right to restoration to an equivalent position or the “nearest
approximation thereof” within the first year of her injury. 5 C.F.R. § 353.301(c).
Under the applicable regulation, the appellant only needs to prove that the agency
failed to restore her, or improperly restored her, following a leave of absence . 3
5 C.F.R. § 353.304(a).
¶14 The appellant argues on review that the administrative judge should have
ordered the agency to place her in a Program Support Assistant position that she
requested on November 29, 2012. RPFR File, Tab 1 at 5. We disagree. Under
the circumstances here, the administrative judge correctly ordered the agency to
pay the appellant back pay from November 29, 2012, to December 23, 2013.
0409 RID at 7; Pettus v. Department of the Navy, MSPB Docket No. DC-0353-
13-0409-I-2, Tab 12 at 46‑47, 112, 114. The record reflects that, after the agency
restored the appellant to a Security Assistant position on December 23, 2013, it
removed her for misconduct unrelated to the matters on appeal and she did not
appeal that removal. 0409 RID at 3 n.2. The Board has held that an employee
who was absent from work because the agency removed her for cause, rather than
for reasons substantially related to her compensable injury, is not entitled to
restoration. Manning v. U.S. Postal Service, 118 M.S.P.R. 313, ¶ 8 (2012). Thus,
3
To the extent that the administrative judge found that the appellant had to prove that
the agency’s denying restoration was arbitrary and capricious, we modify that finding.
0409 RID at 5-6. The arbitrary and capricious burden does not apply to employees
seeking restoration within 1 year after compensation begins . See 5 C.F.R. § 353.304(setting forth an appellant’s burden of proof based on the degree of her recovery) .
7
even if the appellant could somehow establish that the agency should have placed
her in the Program Support Assistant position, she would not be entitled to that
remedy.
¶15 Regarding the striking of her disability discrimination claim, the appellant
contends on review that the administrative judge failed to give her 10 days to
respond to the agency’s motion for sanctions and this prejudiced her ability to
oppose the motion. RPFR, Tab 1 at 10. However, the record does not reflect that
the appellant lodged any objection to the administrative judge’s ruling below.
See Brown v. U.S. Postal Service, 64 M.S.P.R. 425, 429 (1994) (finding that the
appellant’s failure to preserve an objection on the record to the administrative
judge’s ruling on a motion to compel precluded him from objecting to that ruling
on review). The record reflects that the appellant not only failed to respond to the
agency’s discovery request, but that she also failed to respond to the agency’s
motion to compel discovery and the administrative judge’s orders to file her
discovery responses. 0409 RF, Tabs 16-20; Smets v. Department of the Navy,
117 M.S.P.R. 164, ¶ 13 (2011) (finding that an administrative judge is not
required to provide the appellant with an opportunity to oppose sanctions for
failure to comply with an order that warned of the possibility of sanctions) , aff’d
per curiam, 498 F. App’x 1 (Fed. Cir. 2012). In granting the agency’s motion to
compel, the administrative judge warned the appellant that failure to comply
could result in sanctions. 0409 RF, Tab 18. It is well settled that administrative
judges have broad discretion to regulate the proceedings before them, including
the authority to rule on discovery motions and to impose sanctions as necessary to
serve the ends of justice. Defense Intelligence Agency v. Department of Defense,
122 M.S.P.R. 444, ¶ 16 (2015); see 5 C.F.R. § 1201.43 (discussing the
circumstances under which an administrative judge may impose sanctions,
including failure to comply with an order or prosecute an appeal). We discern no
basis for finding that the administrative judge abused her discretion in imposing
the sanction after the appellant’s repeated failures to comply with the Board’s
8
discovery rules and with the administrative judge’s orders regarding discovery.
See Heckman v. Department of the Interior, 106 M.S.P.R. 210, ¶¶ 14-16 (2007)
(finding that an administrative judge did not abuse her discretion in dismissing
two of the appellant’s claims after he failed to comply with multiple orders for
2 1/2 months).
¶16 The appellant also argues that the administrative judge granted the agency a
continuance without good cause while holding her to strict deadlines, contending
that, as a result, the administrative judge took too long to adjudicate the appeal.
RPFR File, Tab 1 at 10. The appellant implies that this demonstrates that the
administrative judge was biased against her. Id. The record reflects that the
administrative judge granted the agency a 30-day suspension based on its
scheduling conflict. 0409 RF, Tab 14, Tab 16 at 7‑8. Although the request was
made by the agency, the administrative judge extended deadlines for both parties,
and expressed her intention that they use this time to conduct discovery.
0409 RF, Tab 16 at 7‑8. There is a presumption of honesty and integrity on the
part of administrative judges that can be overcome only by a substantial showing
of personal bias, and the Board will not infer bias b ased on an administrative
judge’s case-related rulings. Vaughn v. Department of the Treasury,
119 M.S.P.R. 605, ¶ 18 (2013). An administrative judge’s conduct during the
course of a Board proceeding warrants a new adjudication only if her comments
or actions evidence “a deep-seated favoritism or antagonism that would make fair
judgment impossible.” Bieber v. Department of the Army, 287 F.3d 1358,
1362‑63 (Fed. Cir. 2002) (quoting Liteky v. United States, 510 U.S. 540, 555
(1994)). The appellant fails to make such a showing.
The administrative judge correctly found that the appellant’s constructive
suspension claim was subsumed in her restoration appeal .
¶17 A constructive suspension claim generally is subsumed in a restoration
claim when both claims are based on the same absence. Kinglee v. U.S. Postal
9
Service, 114 M.S.P.R. 473, ¶¶ 19-22 (2010). If, as here, the Board has
determined on the merits that the agency violated an appellant’s restoration rights
and has ordered the relief to which the employee is entitled, it would be illogical
to also find that the agency constructively suspended the appellant for the same
time period. See id., ¶ 21. Moreover, viewing the appellant’s constructive
suspension claim as subsumed by her restoration claim is consistent with the
principle of excluding other avenues of relief whereby a comprehensive scheme
exists regarding the rights and remedies at issue. Id., ¶ 22. The comprehensive
scheme promulgated by the Office of Personnel Management identifies the rights
and remedies for physically disqualified individuals like the appellant , and we
find that those procedures are sufficient to address her claims herein. See id.¶18 The appellant asserts on review that the Board’s holding in Kinglee is
restricted to circumstances involving the National Reassessment Process of the
U.S. Postal Service. PFR File, Tab 1 at 7. We find no reason to distinguish the
holding in Kinglee on that basis. See Dean v. U.S. Postal Service, 115 M.S.P.R.
56, ¶ 21 n.8 (2010) (finding that a constructive suspension claim was subsumed in
an employee’s restoration claim because a comprehensive scheme regarding the
rights and remedies for those who partially or fully recover from compensable
injuries provided sufficient redress for both claims).
ORDER
¶19 We ORDER the agency to pay the appellant the correct amount of back pay,
interest on back pay, and other benefits under the Back Pay Act, as appropriate,
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
10
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.
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST ATTORNEY FEES AND COSTS
IN MSPB DOCKET NO. DC-0353-13-0409-B-1
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
11
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 4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
4
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
12
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
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
13
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:
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
14
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction. 5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
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 partic ular
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
5
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent j urisdiction 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
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
¶23
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-50's (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 Computati on 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.