Heather Daujotas v. Department of Defense ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
HEATHER LYNN DAUJOTAS, DOCKET NUMBER
Appellant, CH-0752-19-0455-I-1
v.
DEPARTMENT OF DEFENSE, DATE: February 23, 2023
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Ericka Owens, Great Lakes, Illinois, for the appellant.
Lauren Leathers, Falls Church, Virginia, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her indefinite suspension appeal as moot. For the reasons discussed
below, we GRANT the appellant’s petition for review, VACATE the initial
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
decision, and REMAND the case to the Central Regional Office for further
adjudication in accordance with this Remand Order.
BACKGROUND
¶2 The appellant was appointed to the position of Physical Science Technician
at the Initial Testing Department, Directorate of Operations, with the Navy Drug
Screening Laboratory in October 2016. Initial Appeal File (IAF), Tab 10 at 198.
The record reflects that, as of July 24, 2017, the agency design ated her position as
“non-critical sensitive.” Id. at 394-95. On May 2, 2019, the Department of
Defense Consolidated Adjudications Facility (DODCAF) revoked the appellant’s
“eligibility for access to classified information and/or assignment to duties tha t
were designated national security sensitive.” Id. at 35. The notice informed the
appellant that she could appeal the decision to the Personnel Security Appeals
Board (PSAB). Id.¶3 On May 8, 2019, the Deputy of Operations with the Initial Testing
Department, Navy Drug Screening Laboratory, proposed to indefinitely suspend
the appellant from duty and pay status based on the “revocation [of her] secret
eligibility determination” pending the final adjudication of her security clearance.
Id. at 32. The agency placed the appellant in an unpaid non-duty status beginning
the following day. Id. at 33-34. She was advised of her right to respond to the
proposal notice. Id. at 33.
¶4 On May 13, 2019, the agency issued the appellant a revised proposal to
indefinitely suspend her. Id. at 28. Contrary to the original proposal, however,
the revised proposal informed the appellant that she would be given 30 days of
advance notice, during which she would remain in a non -duty paid status, or
administrative leave, throughout this notice period. Id. at 23, 29-30.
¶5 On May 14, 2019, the appellant elected to appeal the DODCAF decision to
the PSAB. Id. at 26. On May 28, 2019, the agency issued its decision affirming
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the proposed indefinite suspension. 2 Id. at 22-23. The decision informed the
appellant that she would be indefinitely suspended effective June 8, 2019,
pending the final adjudication of her security clearance by DODCAF. Id. at 23.
¶6 The appellant subsequently appealed her indefinite suspension to the Board.
IAF, Tab 1. She alleged that her security revocation and subsequent indefinite
suspension were the product of disability discrimination and harmful procedural
errors. IAF, Tab 9 at 4-7. During a telephonic status conference, the agency
represented that it planned to rescind the appellant’s indefinite suspension and
was in the process of completing the requisite paperwork to do so. IAF, Tab 11
at 1. The administrative judge informed the parties that this action might render
the appeal moot, provided the agency returned the appellant to status quo ante.
Id. at 1-2. The administrative judge ordered the agency to file a notice of its
rescission and informed the appellant that she could object to the rescission if she
did not believe she was returned to status quo ante. Id. at 3.
¶7 The agency responded, asserting that on August 12, 2019, it unilaterally
cancelled the appellant’s indefinite suspension effective June 8, 2019 , and
submitted documentation that it retroactively placed the appellant in an
administrative leave status from June 8 through August 3, 2019. IAF, Tab 12
at 4-15, Tab 15 at 5-6. The agency subsequently provided documentation that it
awarded the appellant a bonus that she would have been aw arded had she not
been in a non-pay status during that period. IAF, Tab 15 at 6, 8. The appellant
argued that she had not been returned to status quo ante and thus the appeal was
not moot. IAF, Tabs 13, 17. According to the appellant, in order to be returned
to status quo ante, the agency needed to reinstate her to her same shift, strike the
disciplinary action from her personnel record, and award her lost overtime
compensation and attorney fees and costs. IAF, Tab 13 at 4-6.
2
The agency’s decision identifies the notice of proposed indefinite suspension as
“dated May 8, 2019 and revised on May 13, 2019.” IAF, Tab 10 at 22.
4
¶8 The administrative judge subsequently issued an initial decision dismissing
the appeal as moot. IAF, Tab 18, Initial Decision (ID) at 1. According to the
administrative judge, the agency’s cancellation of the indefinite suspension and
retroactive placement of the appellant on administrative leave, effective June 8,
2019, and continuing, restored her to the same status she held prior to the
issuance of the indefinite suspension decision. ID at 6. The administrative judge
found that the agency provided the appellant with the requisite back pay and the
applicable bonus. Id. She further found that, because the appellant was placed on
administrative leave, she was not eligible for overtime pay. Id. Finally, the
administrative judge found that the Board does not adjudicate attorney fee
requests until a final decision has been issued. ID at 7. However, she suggested
that, under the circumstances here, the appellant was not a “prevailing party”
entitled to attorney fees and costs. Id.¶9 The appellant has filed a petition for review of the initial decision. Pe tition
for Review (PFR) File, Tab 1. She argues that her appeal is not moot because she
has not been returned to status quo ante. Id. at 9-12. She also argues that she is
entitled to attorney fees because she was the prevailing party. Id. at 12-19. She
attaches new documents on review, including correspondence between her and
her attorney, an April 2019 performance review, and documents relating to her
payment of attorney fees. 3 PFR File, Tab 2 at 4-18. The agency has responded to
her petition for review, and the appellant has replied to its response. PFR File,
Tabs 6, 7.
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The appellant additionally asserts that, beyond the evidence submitted for the first
time on review, there is new and material evidence or legal argument that was not
available when the record closed despite her due diligence. PFR File, Tab 1 at 11,
Tab 7 at 4-5. We need not address the new arguments or evidence on review because,
as set forth below, we remand this appeal for further adjudication.
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DISCUSSION OF ARGUMENTS ON REVIEW
The appellant has sufficiently alleged that she has not been returned to status quo
ante, and thus, her appeal is not moot.
¶10 The appellant argues on review that she has not been returned to status quo
ante, and thus her appeal is not moot because the disciplinary actions must be
purged from her record, she should be returned to active duty in “her 6 AM shift,”
and she is entitled to overtime compensation and attorney fees and costs. PFR
File, Tab 1 at 9. The administrative judge held that, because the agency rescinded
the indefinite suspension, returned the appellant to administrative leave, paid her
back pay, and paid her a bonus, the agency returned the appellant to status quo
ante. 4 ID at 7. For the reasons set forth below, we disagree.
¶11 The Board’s jurisdiction is determined by the nature of an agency’s action
at the time an appeal is filed with the Board. Sredzinski v. U.S. Postal Service,
105 M.S.P.R. 571, ¶ 4 (2007). An indefinite suspension lasting more than
14 days is an adverse action appealable to the Board under 5 U.S.C. § 7513(d).
5 U.S.C. § 7512(2); Palafox v. Department of the Navy, 124 M.S.P.R. 54, ¶ 8
(2016). An agency’s unilateral modification of its adverse action after an appeal
has been filed cannot divest the Board of jurisdiction unless the appellant
consents to such divesture or unless the agency completely rescinds the action
being appealed. 5 Sredzinski, 105 M.S.P.R. 571, ¶ 4. Thus, the Board may dismiss
an appeal as moot if the appealable action is cancelled or rescinded by the
agency. Id. For an appeal to be rendered moot, an appellant must receive all of
4
The agency did not process the appellant’s lost wages and benefits as back pay, as
suggested by the administrative judge. Instead, it retroactively pla ced her in an
administrative leave status from June 8 to August 3, 2019. IAF, Tab 15 at 5 -6.
5
The administrative judge suggested below that the appellant consented to such
divesture by agreeing at the status conference that, if the agency rescinded the
indefinite suspension and reinstated the appellant with full back pay and benefits, the
rescission would be complete. ID at 7. We disagree. The appellant’s repeated
assertions that she had not been returned to status quo ante demonstrates that she did
not consent to such divesture. IAF, Tabs 13, 17.
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the relief that she could have received if the matter had been adjudicated and she
had prevailed. Murphy v. Department of Justice, 107 M.S.P.R. 154, ¶ 6 (2007).
That is, the employee must be returned to the status quo ante and not left in a
worse position because of the cancellation than she would have been in if th e
matter had been adjudicated. Gillespie v. Department of Defense, 90 M.S.P.R.
327, ¶ 7 (2001). If an appeal is not truly moot despite cancellation of the action
under appeal, the proper remedy is for the Board to retain jurisdiction and to
adjudicate the appeal on the merits. Fernandez v. Department of Justice,
105 M.S.P.R. 443, ¶ 5 (2007). The record does not support the finding that the
appellant has been returned to status quo ante for several reasons.
The record is devoid of any evidence that the agency has purged the
indefinite suspension from the appellant’s personnel file.
¶12 The appellant argued, both below and on review, that the agency has not
purged the indefinite suspension from her personnel file. IAF, Tab 13 at 4; PFR
File, Tab 1 at 9. In response to her request that the disciplinary action be struck
from her record, the agency stated that “[o]n August 12, 2019, the Agency
cancelled the Indefinite Suspension.” IAF, Tab 15 at 5. To cancel an appealable
action either when ordered by the Board or to render an appeal moot, an agency
must remove all references to that action from the employee’s personnel record.
Price v. U.S. Postal Service, 118 M.S.P.R. 222, ¶ 13 (2012). The agency has the
burden of proving mootness. See Friends of the Earth, Inc. v. Landlaw
Environmental Services (TOC), Inc., 528 U.S. 167, 189 (2000) (reflecting that the
burden of proving mootness is on the moving party); Price, 118 M.S.P.R. 222,
¶ 10 (finding that an administrative judge did not, as an appellant claimed, allow
an agency to avoid its burden of proving mootness). The agency here neither
alleged nor offered evidence indicating that it purged the proposal s to indefinitely
suspend or the indefinite suspension decision from the appellant’ s record. On
remand, the administrative judge should resolve whether the agency can meet its
burden of proving it did so. In supporting its assertions, the agency should be
7
mindful that the statements of a party’s representative in a pleading do not
constitute evidence. Hendricks v. Department of the Navy, 69 M.S.P.R. 163, 168
(1995). This rule applies equally to the appellant.
On remand, the administrative judge should determine whether the agency
provided the appellant with status quo ante relief when it placed her in an
administrative leave status going forward.
¶13 The administrative judge found that the appellant was returned to the same
status she held prior to the issuance of the indefinite suspension, which was
placement on administrative leave pending adjudication of her security clearance.
ID at 6; IAF, Tab 15 at 5. The appellant continues to argue, as she did below,
that status quo ante is a return to active duty, rather t han administrative leave.
PFR File, Tab 1 at 21; IAF, Tab 13 at 4-6. We are unable to resolve this issue on
the record before us.
¶14 The Board generally has held that placing an appellant on administrative
leave following the cancellation of an adverse action does not constitute a
complete rescission of the agency action and thus a return to the status quo ante.
Sredzinski, 105 M.S.P.R. 571, ¶ 8. The appellant was in a duty status as of
May 8, 2019. IAF, Tab 1 at 6, Tab 10 at 32-34. On that date, the agency issued
the proposed indefinite suspension that also placed her in an unpaid, non -duty
status pending a decision on her proposed suspension. IAF, Tab 10 at 32 -34. It
subsequently corrected that status to administrative leave. IAF, Tab 1 at 6,
Tab 10 at 28-30. In the absence of the proposed indefinite suspension here, there
was no mechanism that placed the appellant on administrative leave. IAF, Tab 10
at 29. Moreover, the placement on administrative leave and the indefinite
suspension both arose out of the May 2, 2019 DODCAF revocation decision. Id.
at 28, 35. Accordingly, absent an exception, placement of the appellant on
administrative leave is not status quo ante relief, as she should have been returned
to active duty, the status she occupied prior to the rescin ded action.
8
¶15 Such an exception exists if an agency’s refusal to return the appellant to
duty status is supported by a “strong overriding interest.” Sredzinski,
105 M.S.P.R. 571, ¶ 8. The agency contended below that it could not return the
appellant back to work because her access to sensitive information had been
removed and her security clearance was being adjudicated. IAF, T ab 15 at 5. It
is unclear from the record below whether this sufficiently demonstrates a strong
overriding interest. For example, while the agency asserted in its proposed
indefinite suspension that the appellant’s position required a secret clearance, t he
record reflects that her position was designated as non-critical sensitive. IAF,
Tab 10 at 28, 394; see Gamboa v. Department of the Air Force, 120 M.S.P.R.
594, ¶ 7 (2014) (explaining that, although adjudicated under the same standard,
occupying a non-critical sensitive position is distinct from needing a security
clearance). If the agency fails to make such a showing on remand, the appellant’s
placement on administrative leave cannot be said to be status quo ante.
Sredzinski, 105 M.S.P.R. 571, ¶ 8.
On remand, the administrative judge should adjudicate the appellant’s
entitlement to overtime pay from June 8, 2019, forward.
¶16 Regarding the issue of overtime pay, the appellant contends that she was not
returned to status quo ante because she was not compensated for missed overtime
beginning with the period of her proposed indefinite suspension on May 8, 2019.
IAF, Tab 13 at 5; PFR File, Tab 1 at 9-10. The administrative judge did not
address the appellant’s entitlement to overtime pay during the 30 -day notice
period preceding the effective date of the action. ID at 6 -7. Nonetheless, her
failure to do so was not harmful because the appellant is not en titled to overtime
for this period, which spanned May 8 to June 7, 2019. IAF, Tab 10 at 23, 29 -30;
see Karapinka v. Department of Energy, 6 M.S.P.R. 124, 127 (1981) (explaining
that an administrative judge’s procedural error is of no legal consequence unless
it is shown to have adversely affected a party’s substantive rights). The Board
lacks jurisdiction to award back pay for pay enhancements such as overtime pay
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lost during periods of administrative leave preceding an appealable action.
Rittgers v. Department of the Army, 123 M.S.P.R. 31, ¶ 12 (2015).
¶17 Here, documents submitted by the agency reflect that the appellant was in
an administrative leave status during the notice period. IAF, Tab 10 at 23, 29-30.
The appellant essentially conceded the point below by requesting overtime, but
not back pay, for this period. IAF, Tab 13 at 5. To the extent that her demand for
overtime pay on review includes this period, we are without authority to gra nt it.
¶18 The administrative judge held that the appellant was not eligible for
overtime pay beginning June 8, 2019, the effective date of her suspension,
because she was on administrative leave. ID at 6. As to the period of June 8,
2019, the effective date of the suspension, to August 12, 2019, the cancellation of
that suspension, we disagree. 6 As discussed above, the status the appellant
occupied prior to the rescinded action was active duty, not administrative leave.
¶19 Overtime back pay may be computed based on either the appellant’s own
overtime history or the average overtime hours worked by similarly situated
employees during the relevant time period. Rittgers, 123 M.S.P.R. 31, ¶ 13.
Before this appeal can be dismissed as moot, the agency must calculate and pay
the appellant’s overtime back pay for the period from June 8, 2019, forward,
using a method most likely to restore her to status quo ante. 7 IAF, Tab 10
at 32-34, Tab 12 at 6; see Rittgers, 123 M.S.P.R. 31, ¶ 13.
6
In light of the agency’s cancellation of the suspension on August 12, 2019, we
presume the appellant was placed in an administrative leave status at the beginning of
the pay period that included that date, i.e., as of August 4, 2019. On remand, the
administrative judge should clarify with the parties that the appellant received pay for
the period from August 4 through 11, 2019. IAF, Tab 12 at 8 -15.
7
This is so regardless of whether the agency demonstrates that it has a strong
overriding interest in placing the appellant on administrative leave as opposed to
returning her to active duty. If the agency fails to demonstrate a strong overriding
interest, then the appellant’s overtime calculation should encompass the entire time that
she was not in an active duty status. However, if the agency successfully demonstrates
a strong overriding interest in placing the appellant on admin istrative leave following
its cancellation of the indefinite suspension, the overtime calculation would end on the
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¶20 According to the appellant, she worked 29 hours of overtime per week.
PFR File, Tab 1 at 10; IAF, Tab 13 at 5. The agency declined to provide any
overtime. IAF, Tab 15 at 6. The record does not contain any records to confirm
that the appellant routinely worked overtime, and if so, how much. Therefore, we
must remand this issue to the administrative judge to further develop the record
and make a determination as to whether the agency has provided status quo ante
relief. 8
The appellant’s claim of attorney fees does not bar the dismissal of the appeal as
moot.
¶21 The appellant asserts on review that, because the agency rescinded the
indefinite suspension, she is the “prevailing party,” and thus is entitled to
reimbursement of attorney fees. PFR File, Tab 1 at 12-22. Because she has not
been paid said attorney fees, argues the appellant, she has not been returned to
status quo ante and the appeal is not moot. Id. at 20-22. The administrative
judge held that, when an agency unilaterally rescinds an adverse action, the
appellant generally is not considered the prevailing party. ID at 7. She further
held that, in any event, the Board does not adjudicate attorney fee requests until a
final decision has been issued. Id. We agree with the administrative judge that,
if the agency on remand sufficiently returns the appellant to status quo ante as set
forth in this order, the Board is not barred from dismissing the appeal as moot,
regardless of the appellant’s claim of attorney fees.
¶22 For an appeal to be rendered moot, an appellant must receive all of the
relief that she could have received if the matter had been adjudicated and she had
date the agency cancelled the appellant’s suspension, August 12, 2019. IAF, Tab 12
at 6; see Rittgers, 123 M.S.P.R. 31, ¶ 12 (finding an appellant generally is not entitled
to overtime pay during a period of administrative leave).
8
The appellant has filed a motion for leave to file an additional pleading in which she
alleges that she was not returned to the status quo ante because of a time -off award that
she was not permitted to use and which expired while she was on admin istrative leave.
PFR File, Tab 9. On remand, the administrative judge shall permit the app ellant to
submit evidence and argument relating to this issue.
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prevailed. Murphy, 107 M.S.P.R. 154, ¶ 6. However, the Board has held that the
potential recovery of attorney fees under 5 U.S.C. § 7701(g)(1) does not prevent
the dismissal of an appeal as moot. Murphy, 107 M.S.P.R. 154, ¶ 6. Rather, the
award of attorney fees to a prevailing party is considered to be separate from
relief on the merits. See id. Thus, the appellant here may file for such award in
accordance with the requirements of the Board’s regulations, and the potential
dismissal of this appeal as moot will have no prejudicial effect on the outcome of
that separate proceeding. Alleman v. Department of the Army, 79 M.S.P.R. 233,
239-40 (1998); 5 C.F.R. § 1201.203. Because the issue of the appellant’s
entitlement to attorney fees is not properly before us, we decline to consider the
appellant’s arguments that such fees are warra nted in the interest of justice. PFR
File, Tab 1 at 12-17. Similarly, we decline to address the appellant’s argument
that her attorney failed to convey the appellant’s arguments regarding attorney
fees to the administrative judge. Id. at 11, 17.
¶23 On remand, even if the administrative judge determines that the agency has
returned the appellant to status quo ante and dismisses the appeal as moot, the
appellant may seek attorney fees in a separate proceeding. Alternatively, if the
agency fails to return the appellant to status quo ante, the administrative judge
will adjudicate the appeal on the merits. See Fernandez, 105 M.S.P.R. 443, ¶ 5
(finding that, if an appeal is not truly moot despite cancellation of the action
under appeal, the proper remedy is for the Board to retain jurisdiction and to
adjudicate the appeal on the merits). In that scenario, the appellant may similarly
file for such attorney fees if she is the prevailing party.
The appellant’s discrimination claim does not prevent a mootness finding.
¶24 The appellant claims, both below and on review, that the DODCAF’s
decision to revoke her security clearance was the result of disability
discrimination. IAF, Tab 9 at 4-5, Tab 10 at 35, 49; PFR File, Tab 1 at 16-17.
The administrative judge found that the Board lacks the authority to review the
substance of the underlying security determination, including the authority to
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consider the appellant’s assertion of disability discrimination. ID at 3 n.1. We
agree.
¶25 Ordinarily, if an appellant raises a claim of compensatory damages over an
appealable action, the agency’s complete rescission of the action appealed does
not afford her all of the relief available before the Board and the appeal is not
moot. Hess v. U.S. Postal Service, 124 M.S.P.R. 40, ¶ 8 (2016). Lack of
mootness in such circumstances is premised on the Board’s ability to award
compensatory damages. Id., ¶¶ 8, 19. The Board lacks authority to review
allegations of prohibited discrimination or reprisal related to the revocation or
suspension of a security clearance. Putnam v. Department of Homeland Security,
121 M.S.P.R. 532, ¶ 19 (2014). Because the Board cannot consider such
allegations, it cannot make a finding that the agency violated the appellant’s
rights under the Rehabilitation Act. Such a finding is a prerequisite to awarding
compensatory damages for disability discrimination in Federal employment.
42 U.S.C. § 1981a(a)(2). Thus, the fact that the appellant raised a disability
discrimination claim does not prevent a mootness finding here.
Should the agency fail to return the appellant to status quo ante, the
administrative judge should address the appellant’s claim of harmful procedural
error.
¶26 The appellant on review repeats her argument from below that the
DODCAF’s decision to revoke her security clearance, and the ensuing indefinite
suspension, suffered from harmful procedural errors. IAF, Tab 9 at 5 -7; PFR
File, Tab 1 at 12-15, 17. The administrative judge did not address these
arguments. We also do not address them because such alleged procedural errors
involve the merits of the appellant’s indefinite suspension and thus are only
before the Board if her appeal is not moot.
¶27 As discussed above, the Board lacks the authority to review the merits of
the decision to suspend access to classified information, including whether that
decision was based on impermissible discrimination . Palafox, 124 M.S.P.R. 54,
13
¶ 8; Putnam, 121 M.S.P.R. 532, ¶ 19. However, the Board retains the authority to
review whether: (1) the appellant’s position required access to classified
information; (2) the appellant’s access to classified information was suspended;
and (3) the appellant was provided with the due process and the procedural
protections specified in 5 U.S.C. § 7513 and under the agency’s own regulations.
Palafox, 124 M.S.P.R. 54, ¶ 8.
¶28 We observe that the record is unclear as to whether the appellant’s position
required access to classified information or a Secret Clearance, as charged. IAF,
Tab 10 at 22, 28, 394-95; see Gamboa, 120 M.S.P.R. 594, ¶ 8-11 (finding that an
agency failed to prove its charge based on an appellant’s clearance revocation
because it failed to prove the appellant was required to maintain a security
clearance). Furthermore, Department of Defense regulations preclude the agency
from indefinitely suspending an employee based on a personnel security
determination when the employee has filed an appeal with the PSAB and is
awaiting a written decision on that appeal. See Schnedar v. Department of the Air
Force, 120 M.S.P.R. 516, ¶¶ 9-10 (2014).
¶29 On remand, should the administrative judge find that the agency fails to
return the appellant to status quo ante, she must adjudicate this appeal on the
merits and address these procedural issues as they pertain to the revocation of the
appellant’s security clearance and the subsequent indefinite suspension.
ORDER
¶30 Accordingly, we REMAND this appeal to the Central Regional Office for a
determination as to whether, after the parties have an opportunity to respond, the
agency has returned the appellant to status quo ante. This includes the purging of
both proposed indefinite suspensions and the suspension decision from the
appellant’s personnel file, the calculation of overtime pay, and whether the
agency has a strong overriding interest in refusing to return the appellant to active
duty. If the agency has done so, the administrative judge shall dismiss the appeal
14
as moot. If the agency has not done so, the administrative judge shall adjudicate
the appeal on its merits, including whether the indefinite suspension suffered
from harmful procedural errors.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.