Robert Conley v. Department of Defense ( 2022 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROBERT H. CONLEY, DOCKET NUMBER
Appellant, SF-1221-15-0580-W-1
v.
DEPARTMENT OF DEFENSE, DATE: May 2, 2022
Agency,
and
DARRIN G. SLOVANICK,
Intervenor.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Robert H. Conley, Puyallup, Washington, pro se.
Roland D. Meisner, Quantico, Virginia, for the agency.
BEFORE
Raymon A. Limon, Vice Chair
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The agency has filed a petition for review and the appellant has filed a cross
petition for review of the initial decision, which granted in part and denied in part
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
the appellant’s request for corrective action in this individual right of action
(IRA) appeal. Generally, we grant petitions such as these 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 neither party has
established any basis under section 1201.115 for granting the petition or cross
petition for review. Therefore, we DENY the petition for review and the cross
petition for review and AFFIRM the initial decision, which is now the Board’s
final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
¶2 The appellant was formerly employed as an Industrial Security Specialist
with the agency’s Defense Security Service. Initial Appeal File (IAF), Tab 16
at 33. On May 26, 2015, he filed an IRA appeal alleging that, in reprisal for
protected disclosures he made concerning mishandling of classified materials by a
contractor and agency officials failing to take corrective action and/or attempting
to cover it up, the agency subjected him to numerous personnel actions, including
(1) forcing him to forfeit his leave in 2010; (2) significantly changing his job
duties; (3) placing him on administrative leave on July 13, 2012; (4) suspending
him without pay for 5 days in October 2012; (5) subjecting him to a hostile work
environment; (6) denying him promotions; and (7) forcing him to retire, effective
March 29, 2013. IAF, Tabs 1, 8, 54.
3
¶3 After holding the appellant’s requested hearing, the administrative judge
granted corrective action regarding the appellant’s claims concerning his leave
denial and significant change in duties. IAF, Tab 86, Initial Decision (ID)
at 23-28. The administrative judge denied corrective action on the remainder of
the appellant’s claims. Regarding the appellant’s placement on administrative
leave and suspension, the administrative judge found that the agency proved by
clear and convincing evidence that it would have taken such actions absent the
appellant’s protected disclosures. ID at 28-34. Regarding the appellant’s hostile
work environment and retirement claims, the administrative judge found that the
appellant failed to prove that these actions amounted to pe rsonnel actions. ID
at 34-42. Regarding the appellant’s denial of promotions, the administrative
judge found that he failed to prove that his protected disclosures we re a
contributing factor in his nonselections for certain positions. ID at 34.
¶4 The agency has filed a petition for review, the appellant has filed a cross
petition for review, and the parties have filed responses. Petition for Review
(PFR) File, Tabs 1, 3, 5-6.
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge properly denied the agency’s motion to dismiss the
appeal for lack of jurisdiction.
¶5 The administrative judge denied the agency’s motion to dismiss the appeal
for lack of jurisdiction, finding that the agency was not exempt from the
provisions of the Whistleblower Protection Act under 5 U.S.C. § 2302(a)(2)(C),
which exempts certain named agencies as well as executive agencies or units
thereof that have been determined by the President to have a principal function of
conducting foreign intelligence or counterintelligence activities. 2 ID at 2 n.1. On
review, the agency argues that the administrative judge misconstrued its argument
2
Although some of the alleged retaliatory actions occurred after the effective date of
the WPEA, Pub. L. No. 112-199, 126 Stat. 1465, the changes in the provisions of the
WPEA do not affect our analysis.
4
and that it never argued that it was an exempt agency. PFR File, Tab 1 at 5.
Rather, the agency contends that “because the [a]ppellant has neither Chapter 75
or Chapter 43 appellate rights that he could have otherwise acquired after serving
a probationary or trial period if he had been a preference eligible employee, then
he has no IRA appellate rights because there is no independent statutory basis for
IRA appellate jurisdiction.” Id. The agency’s jurisdictional arguments are
somewhat unclear. IAF, Tab 16; PFR File, Tab 1 at 4-7. However, to the extent
the agency is arguing that the appellant is not entitled to bring an IRA appeal
because he was appointed under 10 U.S.C. § 1601, id. at 7, such an argument is
unavailing. 3
¶6 The Board has held that employees appointed under laws exempting their
appointment from the application of the civil service laws are not necessarily
precluded from bringing an IRA appeal. See Fishbein v. Department of Health &
Human Services, 102 M.S.P.R. 4, ¶¶ 9-16 (2006) (finding that the appellant’s
appointment under 42 U.S.C. § 209(f), which provides that special “consultants
may be appointed without regard to the civil-service laws,” did not preclude him
from bringing an IRA appeal based on his termination if he otherwise met the
statutory requirements for doing so). Rather, the right to appeal to the Board
alleging a violation of 5 U.S.C. § 2302(b)(8) derives from 5 U.S.C. § 1221(a),
which provides a right to seek corrective action from the Board to “an employee,
former employee, or applicant for employment.” Fishbein, 102 M.S.P.R. 4, ¶ 11.
To be an employee under section 1221(a), an individual must meet the definition
of employee under 5 U.S.C. § 2105. Id., ¶ 12. Under 5 U.S.C. § 2105(a), an
“employee” is: (1) an officer and an individual who is appointed in the civil
service by one of the types of individuals enumerated in the statute acting in their
official capacity; (2) engaged in the performance of a Federal function under
3
Under 10 U.S.C. § 1601, the Secretary of Defense has the authority to establish certain
defense intelligence positions “without regard to the provisions of any other law
relating to the appointment, number, classification, or compensation of employees.”
5
authority of law or an Executive act; and (3) subject to the supervision of an
authorized official while engaged in the performance of the duties of his position.
The “civil service” is defined as “all appointive positions in the executive,
judicial, and legislative branches of the Government of the United States, except
positions in the uniformed services.” 5 U.S.C. § 2101(1). Based on the record, it
appears that the appellant meets the definition of an employee . 4 IAF, Tab 16
at 33-36; Tab 18 at 7-49; ID at 2-3, 7-8; see Fishbein, 102 M.S.P.R. 4, ¶ 13.
¶7 The agency also argues that, in denying its motion to dismiss, the
administrative judge improperly relied upon Czarkowski v. Merit Systems
Protection Board, 390 F.3d 1347 (Fed. Cir. 2004), because—in contrast to the
appellant’s appointment under 10 U.S.C. § 1601—the appellant in Czarkowski
was appointed under a title 5 excepted-service appointment. PFR File, Tab 5 at 6.
The agency misinterprets the administrative judge’s findings and conflates an
agency’s exemption under section 2302(a)(2)(C) with an employee’s entitlement
to bring an IRA appeal, which requires that he meet the definition of employee
under section 2105. The administrative judge cited to Czarkowski in support of
her finding that the agency was not exempt under section 2302(a)(2)(C) because it
was not named in the statute and there was no showing that the President had
determined that the principal function of the appellant’ s unit was conducting
foreign intelligence or counterintelligence activities. ID at 2 n.1. We discern no
error in the administrative judge’s analysis. Czarkowsk addressed whether a
particular agency was exempt under 5 U.S.C. § 2302(a)(2)(C)(ii), not whether the
appellant was an employee entitled to bring an IRA appeal. Here, the agency is
not arguing that the administrative judge erred in finding that it was not an
exempt agency. PFR File, Tab 1 at 5.
4
The agency did not argue below and does not argue on review that the appellant fails
to meet the definition of an employee. Additionally, in response to the Board’s Order
to Submit Evidence and Argument on this jurisdictional issue, PFR File, Tab 7, the
parties did not provide any evidence or argument suggesting that the appellant is not an
employee, PFR File, Tabs 8-9.
6
The agency’s remaining arguments do not provide a basis for reversal.
¶8 In its petition for review, the agency disputes the administrative judge’s
finding that the appellant suffered a personnel action when he lost 106 hours of
leave after being denied use or lose leave. PFR File, Tab 1 at 7-8. The agency
contends that there is no evidence, such as leave or earnings statements, in the
record to support the appellant’s testimony. Id. The agency further disputes the
appellant’s calculation of the number of hours of leave he lost. Id. However, the
agency failed to dispute that the appellant suffered a personnel action or raise
such arguments below. Thus, we decline to consider them for the first tim e on
review. See Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271 (1980)
(stating that the Board will not consider an argument raised for the first time on
review absent a showing that it is based on new and material evidence not
previously available despite the party’s due diligence).
¶9 In any event, the administrative judge credited the appellant’s testimony,
which is corroborated by a contemporaneous email, that the agency denied his
leave request, and noted that the agency witnesses did not provide any testimony
contradicting the appellant’s credible testimony surrounding the cancellation of
his leave in 2010. ID at 26. Thus, the agency’s arguments constitute mere
disagreement with the administrative judge’s credibility fin dings and do not
provide a basis for reversal. See Crosby v. U.S. Postal Service, 74 M.S.P.R. 98,
105-06 (1997) (stating 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); Broughton v. Department of Health &
Human Services, 33 M.S.P.R. 357, 359 (1987) (same).
¶10 The agency further disputes the administrative judge’s finding that K.H.,
the Regional Director who made the decision to deny the appellant’s leave
request, had a motive to retaliate. PFR File, Tab 1 at 8-9. The administrative
judge found that Regional Director K.H., as a high-level manager in the
appellant’s chain of command, had some motive to retaliate based on the
7
appellant’s continued protected disclosures. ID at 27. The agency argues that
such a finding was erroneous because Regional Director K.H. had nothing to do
with, and was not at the agency at the time of, the appellant’s alleged
whistleblowing. PFR File, Tab 1 at 9. However, the administrative judge
acknowledged that Regional Director K.H. was not with the agency when the
appellant worked there the first time and initially made his protected disclosures,
but found that the appellant continued to make protected disclosures after he was
rehired in February 2008, and after Regional Director K.H. was hired in
April 2009. 5 ID at 27.
¶11 The Board and our reviewing court have found a motive to retaliate exists
on the part of high-ranking officials, even if they were not directly implicated by
an appellant’s disclosures, when such disclosures reflect poorly on the agency.
See, e.g., Robinson v. Department of Veterans Affairs, 923 F.3d 1004, 1019 (Fed.
Cir. 2019) (finding that, although the deciding official did not have a personal
motive to retaliate against the appellant for contradicting an agency Under
Secretary, the Board’s administrative judge erred by failing to consider whether
he had a “professional retaliatory motive” against the appellant because his
disclosures “implicated the capabilities, performance, and ve racity of [agency]
managers and employees, and implied that the [agency] deceived [a] Senate
Committee”); Chambers v. Department of the Interior, 116 M.S.P.R. 17, ¶ 69
(2011) (finding motive to retaliate because the appellant’s disclosures reflected
on the responsible agency officials as representatives of the agency’s general
institutional interests); Phillips v. Department of Transportation, 113 M.S.P.R.
73, ¶ 23 (2010) (finding that comments generally critical of the agency’s
leadership would reflect poorly on officials responsible for monitoring the
performance of the field staff and making sure that agency regulations are carried
5
For example, as late as July or August 2009, the appellant continued to raise the issues
related to the mishandling of classified materials by a contracting agency in a letter to
the agency’s Inspector General. ID at 10; IAF, Tab 8 at 10, Tab 10 at 142.
8
out correctly and consistently). Thus, we discern no error in the administrative
judge’s analysis.
¶12 Next, the agency also argues that the administrative judge erred in finding
that it retaliated against the appellant when it significantly changed his job duties
by removing him from oversight duties involving the Boeing Corporation in or
around September 2008. PFR File, Tab 1 at 9-10. The administrative judge
found that the agency failed to prove by clear and convincing evidence that it
would have removed the appellant’s Boeing duties absent his protected
disclosures. ID at 24-26. In particular, the administrative judge found that the
agency’s evidence in support of removing such duties was weak. ID at 24. She
found that Regional Director J.W. made the decision to relieve the appellant from
such duties, and based on his testimony, he was unable to adequately explain his
rationale and offered inconsistent explanations. Id. She further credited
testimony of the appellant’s former supervisor that Regional Director J.W.
instructed him to remove the appellant from Boeing work but refused to explain
why. Id.¶13 On review, the agency argues, without citation to any evidence, that
Regional Director J.W. removed the appellant from overseeing Boeing at the
urging of a Defense Criminal Investigative Service Special Agent (Special
Agent). PFR File, Tab 1 at 9. Thus, the agency contends that the Special Agent
was a necessary witness and it was prejudiced by the administrative judge’s
refusal to issue a subpoena to the agency to compel his attendance at the hearing.
Id. The record reflects that the administrative judge denied the Special Agent as
a witness for the agency because she found that his testimony would be of only
limited relevance to the issues before her and because he recently had failed to
comply with a subpoena to attend his deposition, which prevented th e appellant
from discovering his anticipated testimony. IAF, Tab 54 at 1.
¶14 We find that the denial of the Special Agent as a witness was not prejudicial
to the agency. See Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282
9
(1984) (stating that an adjudicatory error that is not prejudicial to a party’s
substantive rights provides no basis for reversal of an initial decision) . The
agency had the opportunity to question Regional Director J.W. to elicit testimony
concerning his involvement or lack thereof in the decision to remove the
appellant from his Boeing oversight duties and to discuss any conversation he had
with the Special Agent or the Special Agent’s alleged urging of him to remove the
appellant from such duties. 6 The agency’s failure to elicit such testimony does
not render the Special Agent an essential witness or establish that the
administrative judge abused her discretion in denying him as a witness. Further,
Regional Director J.W. did not testify that he did not make the decision to remove
the appellant’s Boeing duties, IAF, Tab 40, and the agency counsel’s bare
allegation on review that the Special Agent urged Regional Director J.W. to
remove the appellant from such duties does not constitute evidenc e, PFR File,
Tab 1 at 9; see Pupis v. U.S. Postal Service, 105 M.S.P.R. 1, ¶ 5 (2007) (stating
that the statements of a party’s representative in a pleading do not constitute
evidence).
The administrative judge properly found that the appellan t failed to prove that his
retirement amounted to a personnel action.
¶15 Although a decision to resign or retire is presumed to be voluntary and
outside of the Board’s jurisdiction, Putnam v. Department of Homeland Security,
121 M.S.P.R. 532, ¶ 21 (2014), an involuntary resignation or retirement may
constitute an appealable personnel action in an IRA appe al, Colbert v.
Department of Veterans Affairs, 121 M.S.P.R. 677, ¶ 12 (2014). An appellant
who claims that his retirement was involuntary may rebut the presumption of
voluntariness in a variety of ways, including by showing that the retirement was
the result of objectively intolerable working conditions resulting from improper
acts of the agency. Conforto v. Merit Systems Protection Board, 713 F.3d 1111,
6
The parties agreed that Regional Director J.W.’s deposition would be used in lieu of
his live testimony at the hearing. IAF, Tab 46 at 8.
10
1121 (Fed. Cir. 2013), abrogated on other grounds by Perry v. Merit Systems
Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017).
¶16 Here, the administrative judge found that the appellant failed to prove that
he lacked a meaningful choice whether to retire due to improper actions of the
agency. She found that the incidents that occurred from 2002 to 2011 were years
before the appellant’s March 29, 2013 retirement and thus, not particularly
probative regarding the voluntariness of his decision to retire. ID at 39. She
found that the events that occurred in 2012 and early 2013 were most probative.
Id. Considering such events, she found that the interactions between the
appellant and his managers in the year before his retirement, such as his 5-day
suspension in October 2012, would not have caused a reasonable person to retire.
Id. at 39-40. Rather, she found that the appellant retired in large part because he
felt that if he did not retire, the agency would eventually remo ve him on what he
considered meritless charges. Id. at 40. Nonetheless, she found that the
following facts weighed heavily against a finding of coercion: (1) the appellant
took a month of leave in December 2012, just prior to his retirement; (2) he had
accepted a position outside of the agency, which began on April 1, 2013; and
(3) he was not facing any proposed or pending adverse action at the time he made
his decision to retire. Id. at 41.
¶17 On review, the appellant contends that the administrative judge erred in
finding that he failed to prove that his retirement was involuntary. PFR File,
Tab 3 at 2-5. He asserts that the administrative judge failed to consider that he
chose to retire rather than face what he believed was an imminent discharge
resulting in a loss of his retirement benefits. Id. at 4. He argues that, had the
administrative judge considered this, it would have resulted in a finding that the
agency misinformed or deceived him and failed to correct this misunderst anding
to the point at which he was so fearful of termination that he was forced to retire.
Id. The administrative judge, however, did consider such arguments below. She
found that the appellant’s belief that he would lose his retirement benefits was
11
erroneous and that a removal would have not have affected his ability to retire
and receive an annuity. ID at 40. She further found that the appellant failed to
show that any agency official provided him with such misinformati on and
therefore any reliance he may have had on such a belief was not due to agency
misinformation. ID at 40-41. Therefore, we find that the appellant’s arguments
on review constitute mere disagreement with the administrative judge’s
well-reasoned findings and do not provide a basis for reversal. See, e.g., Crosby,
74 M.S.P.R. at 105-06 (finding no reason to disturb the administrative judge’s
findings when she considered the evidence as a whole, drew appropriate
inferences, and made reasoned conclusions); Broughton, 33 M.S.P.R. at 359
(same).
¶18 Accordingly, we affirm the initial decision.
ORDER
¶19 Because the appellant is no longer employed by the agency, we find that no
meaningful corrective action can be ordered regarding the conclusion that the
agency committed a prohibited personnel practice when it removed the
appellant’s duties in reprisal for his protected disclosures.
¶20 We ORDER the agency to pay the appellant for the value of the 106 hours
of annual leave he forfeited in 2010, with interest, 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 value of the annual leave and interest
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 value of the annual leave or
interest due, we ORDER the agency to pay the appellant the undisputed amount
no later than 60 calendar days after the date of this decision.
¶21 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
12
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).
¶22 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).
¶23 For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Board decision
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to process payments and adjustments resulting from the
Board’s decision in accordance with the attached lists so that payment can be
made within the 60-day period set forth above.
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set forth at title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
13
NOTICE TO THE APPELLANT
REGARDING YOUR RIGHT TO REQUEST
CONSEQUENTIAL DAMAGES
You may be entitled to be paid by the agency for your consequential
damages, including medical costs incurred, travel expenses, and any other
reasonable and foreseeable consequential damages. To be paid, you must meet
the requirements set out at 5 U.S.C. §§ 1214(g) or 1221(g). The regulations may
be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.204. If you believe you
meet these requirements, you must file a motion for consequential damages
WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You
must file your motion with the office that issued the initial decision on your
appeal.
NOTICE TO THE PARTIES
A copy of the decision will be referred to the Special Counsel “to
investigate and take appropriate action under [5 U.S.C.] section 1215,” based on
the determination that “there is reason to believe that a current employee may
have committed a prohibited personnel practice” under 5 U.S.C. § 2302(b)(8) or
section 2302(b)(9)(A)(i), (B), (C), or (D). 5 U.S.C. § 1221(f)(3). Please note
that while any Special Counsel investigation related to this decision is pending,
“no disciplinary action shall be taken against any employee for any alleged
prohibited activity under investigation or for any related activity without the
approval of the Special Counsel.” 5 U.S.C. § 1214(f).
NOTICE OF APPEAL RIGHTS 7
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).
7
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.
14
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 wh ich 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 applicab le time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
15
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
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
16
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
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. 8 The court of appeals must receive your
8
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
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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 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 w ebsite 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.
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.
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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).
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.