Anna v. Perez v. Department of Homeland Security ( 2014 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANNA V. PEREZ, DOCKET NUMBER
Appellant, NY-0752-11-0254-I-2
v.
DEPARTMENT OF HOMELAND DATE: September 11, 2014
SECURITY,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Albert Loew, Esquire, Merrick, New York, for the appellant.
Cheryl Scott-Johnson, Esquire, Philadelphia, Pennsylvania, for the agency.
Michael W. Gaches, Esquire, Arlington, Virginia, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The agency has filed a petition for review of the initial decision that
reversed its May 19, 2011 indefinite suspension action. Generally, we grant
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
petitions such as this one only when: 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 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. See 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, and based on the following
points and authorities, we conclude that the petitioner has not established any
basis under section 1201.115 for granting the petition for review. Therefore, we
DENY the petition for review. Except as expressly modified by this Final Order,
we AFFIRM the initial decision.
BACKGROUND
¶2 The appellant was employed as a Federal Air Marshal (FAM) with the
Transportation Security Administration (TSA), Federal Air Marshal Service
(FAMS), at the agency’s New York Field Office (NYFO). MSPB Docket No.
NY-0752-11-0254-I-1 (I-1), Initial Appeal File (IAF), Tab 7, Subtab 4J. As a
condition of employment, the appellant was required to maintain a top secret
security clearance, and was subject to drug and alcohol testing. Id., Subtab 4I.
On February 9, 2011, the appellant underwent a random drug test and tested
positive for cocaine. Id., Subtab 4F. As a result, she was placed on
administrative leave effective February 17, 2011. MSPB Docket No.
NY-0752-11-0254-I-2 (I-2), Petition for Review (PFR) File, Tab 1 at 23-24.
Following reconfirmation testing, a FAMS medical review officer certified the
positive test result on March 1, 2011. I-1, IAF, Tab 7, Subtab 4F.
3
¶3 On March 11, 2011, the agency’s Office of Personnel Security Division
(PERSEC) issued the appellant a Notice of Determination to Revoke Access to
Classified Information. Id., Subtab 4E. The notice indicated that the revocation
decision was not final, but that the appellant’s top secret clearance was
suspended, effective immediately. Id. PERSEC explained that its determination
was based on appellant’s positive test result for cocaine on February 9, 2011, and
the reconfirmation and certification of that result on March 1, 2011. Id. The
notice further explained that, under agency guidelines for determining eligibility
for access to classified information, the appellant’s conduct was a disqualifying
security concern because it called into question her judgment, reliability, and
willingness to comply with rules and regulations, and caused doubt about her
ability to protect classified information. Id. The appellant was afforded 30 days
to make a reply in writing and/or in person to the Chief Security Officer (CSO),
Office of Security Services and Assessments, and request review of the
determination. Id.¶4 On March 28, 2011, Sam Luongo, Supervisory FAM, NYFO, issued a notice
proposing the appellant’s indefinite suspension based on the March 11, 2011
suspension of her security clearance. Id., Subtab 4D. The appellant was afforded
7 calendar days from her receipt of the notice to make an oral and/or written reply
together with any supporting evidence. Id. The appellant requested and received
a 14-day extension to respond. See id., Subtab 4B.
¶5 Meanwhile, on April 11, 2011, the appellant’s representative sent a letter to
Lewis Oakcrum, Personnel Security Specialist, PERSEC, requesting the
following: (1) an extension of time in which to reply to the March 11, 2011
determination; (2) copies of all the policies and procedures which the agency used
regarding security clearance revocations; (3) all materials which the agency relied
on to support its March 11 decision; and (4) the right to make a personal reply to
the determination. I-1, IAF, Tab 17, Exhibit C. Mr. Oakcrum did not
immediately respond to the letter. On April 15, 2011, the appellant requested an
4
additional extension of time to respond to the March 28, 2011 proposal notice,
and the agency extended the deadline until May 2, 2011. See I-1, IAF, Tab 7,
Subtab 4B. The appellant subsequently requested that the deadline be further
extended until 3 days after her receipt of additional information from PERSEC,
but the agency denied that request. See id.¶6 On May 2, 2012, while she was still awaiting a response from Mr. Oakcrum,
the appellant responded to the proposal notice orally and in writing. See id.,Subtabs 4B, 4C. In her oral reply, the appellant stated that she never used
cocaine. See id., Subtab 4B. In her written reply, the appellant argued, inter alia,
that the agency violated due process by failing to provide her with documents and
materials necessary to defend against the allegations underlying the suspension of
her security clearance. Id., Subtab 4C. She requested to remain on administrative
leave pending the outcome of further review concerning the revocation of her
security clearance. Id.¶7 On May 17, 2011, Larry Saez, Assistant Supervisory Air Marshal in Charge,
NYFO, issued a decision upholding the proposed indefinite suspension. Id.,Subtabs 4B. The letter indicated that the indefinite suspension would remain in
effect “pending the resolution of the revocation of your Top Secret Security
Clearance, or our investigation shows there is sufficient evidence either to return
you to duty or support an administrative action against you.” Id. In denying the
appellant’s request to remain on administrative leave, Mr. Saez explained that
PERSEC exercises the function of determining suitability for maintaining access
to classified information, and that his own review authority is limited to the
appellant’s “actual access to classified information and its relationship to [her]
ability to perform the duties of a FAM.” Id. Mr. Saez stated that the decision to
indefinitely suspend the appellant was in accordance with TSA policy, and that
“FAMs are placed on indefinite suspension when they do not have access to
classified information because they are unable to perform their duties without
5
such access.” Id. The appellant was indefinitely suspended beginning May 19,
2011. Id., Subtab 4A.
¶8 On June 15, 2011, the appellant filed a timely appeal of her indefinite
suspension. I-1, IAF, Tab 1. In her appeal, she argued that the agency had
committed harmful error and violated her due process rights by failing to provide
her with the documents on which PERSEC relied before placing her on indefinite
suspension. See I-1, IAF, Tabs 1, 11, 15; I-2, IAF, Tab 8. 2
¶9 Meanwhile, on June 21, 2011, Mr. Oakcrum responded to the appellant’s
letter of April 11, 2011. I-1, IAF, Tab 17, Exhibit C. He informed the
appellant’s representative that in making its March 11, 2011 determination to
suspend and revoke her clearance, PERSEC relied on the following documents:
(1) Incident Tracking Report, dated February 9, 2011; (2) FAM Medical Officer’s
Reconfirmation, dated March 1, 2011; and (3) Federal Drug Testing Custody and
Control Form. Id. In addition to these documents, the appellant was provided:
(4) the Security Clearance Granted letter, dated August 18, 2009; (5) TSA
Management Directive 1100.37-5, Employee Responsibilities and Conduct;
(6) TSA FAMS Directive ADM 3700, Employee Responsibilities and Conduct;
and (7) Executive Order 12563, Drug-Free Federal Workplace. Id. The appellant
was again afforded an opportunity to respond to the March 11, 2011 notice of
determination. Id. Following the appellant’s oral and written responses, CSO
Thomas Wiley issued a Notice of Review of Determination, dated January 18,
2
On October 10, 2011, the administrative judge dismissed the appeal without prejudice
to await the outcome of the petitions for review then pending in McGriff v. Department
of the Navy, 118 M.S.P.R. 89 (2012); Gaitan v. Department of Homeland Security,
118 M.S.P.R. 180 (201); Gargiulo v. Department of Homeland Security, 118 M.S.P.R.
137 (2012), aff’d, 727 F.3d 1181 (Fed. Cir. 2013); and Buelna v. Department of
Homeland Security, 118 M.S.P.R. 115 (2012). I-1, IAF, Tab 31, Initial Decision.
Following the issuance of the Board’s final decision in McGriff on April 26, 2012, the
appellant’s initial appeal was deemed automatically refiled, and the parties were
provided the opportunity to address the due process issues discussed in McGriff and its
companion cases. I-2, IAF, Tabs 1, 3-4. The decisions in question have since been
modified by Buelna v. Department of Homeland Security, 121 M.S.P.R. 262 (2014).
6
2012, upholding the Notice of Determination and revoking the appellant’s
security clearance. See I-2, IAF, Tab 11. The appellant subsequently appealed
Mr. Wiley’s decision to the agency’s Security Appeals Board (SAB). Id.¶10 On July 13, 2012, the administrative judge issued an initial decision
reversing the indefinite suspension on due process grounds. I-2, IAF, Tab 12,
Initial Decision (ID). In doing so, the administrative judge cited Gaitan,
118 M.S.P.R. 180, ¶ 23, for the proposition that “due process requires . . . that the
appellant receive a meaningful opportunity to respond to someone with authority
to change the outcome of the security clearance determination in either the
security clearance proceeding or the adverse action proceeding.” ID at 19. The
administrative judge found that the appellant did not receive a meaningful
opportunity to contest the clearance suspension prior to the imposition of
indefinite suspension, because she had not yet received the materials on which
PERSEC relied in suspending her clearance, and because Mr. Saez had no
authority to consider her claims regarding the accuracy of her drug test. ID at
14-20. The administrative judge ordered the agency to cancel the indefinite
suspension and restore the appellant effective May 19, 2011. ID at 14-20. He
further directed that, in the event either party filed a petition for review, the
agency should provide interim relief in accordance with 5 U.S.C.
§ 7701(b)(2)(A).
¶11 On August 17, 2012, the agency filed the instant petition for review,
contesting the administrative judge’s finding that the appellant had been denied
due process. PFR File, Tab 1. As evidence of compliance with the interim relief
order, the agency provided a declaration from the Chief of the FAMS Business
Management Office, who stated that the appellant had been restored to paid
administrative leave status effective July 13, 2012, but could not be returned to
full operational duty due to her lack of a security clearance. Id. at 20-21. The
agency also provided a copy of the February 16, 2011 notice placing the appellant
on administrative leave, the Standard Form 50 recording her return to duty, and
7
an earnings and leave statement indicating her return to pay status. Id. at 23-28.
However, on September 11, 2012, the agency again proposed to indefinitely
suspend the appellant based on the revocation of her clearance, pending the result
of her appeal to SAB. See PFR File, Tab 1 at 13-14; see also Perez v.
Department of Homeland Security, MSPB Docket No. NY-0752-13-0061-I-1,
Initial Decision (Mar. 7, 2013).
¶12 On November 5, 2012, following a series of extensions, the appellant filed
her response to the agency’s petition for review in this appeal. PFR File, Tab 8. 3
In her response, she argued, inter alia, that the agency had violated the interim
relief order by issuing the second notice of proposed indefinite suspension. Id. at
13-14. Shortly thereafter, the agency issued a decision upholding the second
proposed indefinite suspension, effective November 21, 2012. See Perez, MSPB
Docket No. NY-0752-13-0061-I-1. The appellant again appealed to the Board,
and her appeal was dismissed without prejudice pending the outcome of the
instant petition for review. Id.¶13 On January 9, 2014, following the issuance of the U.S. Court of Appeals for
the Federal Circuit’s decision in Gargiulo, 727 F.3d 1181, the Board invited the
parties to address the possible application of Gargiulo to the appellant’s due
process claim. PFR File, Tab 11. Both parties responded. PFR File, Tabs 14, 16.
ANALYSIS
The agency complied with the interim relief order.
¶14 Under 5 U.S.C. § 7701(b)(2)(A), an appellant who obtains relief in an
initial decision is entitled to the relief provided in the decision effective upon the
making of the decision and remaining in effect pending the outcome of the
petition for review, unless (i) the administrative judge determines that granting
3
Although the deadline for the appellant’s response was October 29, 2012, see PFR
File, Tab 6, we find that she has established good cause for the delay in filing, and
therefore GRANT her motion to accept the pleading.
8
such relief is not appropriate, or (ii) the relief granted in the decision provides
that the employee return or be present at the place of employment, and the agency
determines that the return or presence of the employee would be unduly
disruptive to the work environment. In the latter event, the appellant must
receive pay, compensation, and all other benefits as terms or conditions of
employment during the period pending the outcome of any petition for review.
5 U.S.C. § 7701(b)(2)(B). Here, the agency has presented unrebutted evidence
that as of August 17, 2012, when it filed its petition for review, it had complied
with the interim relief order by restoring the appellant to her original position,
albeit on administrative leave status, retroactive to the date of the initial
decision. 4 However, the interim order was still in effect when the agency later
proposed and effected the appellant’s second indefinite suspension.
¶15 The Board has held that an interim relief order does not insulate an
appellant from a subsequent adverse action, so long as that action is not
inconsistent with the interim relief order. Barcliff v. Department of the Navy,
62 M.S.P.R. 428, 433 (1994). The appellant contends that the second proposed
indefinite suspension is inconsistent with the interim relief order because it was
based on “the same facts and laws that existed at the time of the issuance of the
first decision of Indefinite Suspension.” PFR File, Tab 8 at 13. However,
nothing in the initial decision precludes the agency from initiating a second
indefinite suspension action. See Barcliff, 62 M.S.P.R. at 432-33. Moreover,
whereas the indefinite suspension on appeal was based on the suspension of the
appellant’s clearance on March 11, 2011, the second indefinite suspension was
4
The record reflects that the appellant was already on administrative leave at the time
the indefinite suspension was proposed. See PFR File, Tab 1 at 23-24. However,
assuming arguendo that the interim relief order required the appellant’s return to duty,
we would find that the agency made an implicit undue disruption determination by
providing a compelling reason for the appellant’s placement on administrative leave,
i.e., her lack of a security clearance. See Lambert v. Department of the Navy,
85 M.S.P.R. 130, 137 (2000) (Vice Chair Slavet, concurring).
9
proposed and effected on different grounds, namely the revocation of her
clearance on January 18, 2012. Although we do not presently address the merits
of the second indefinite suspension, which is the subject of a separate appeal, we
find that it is not inconsistent with the interim relief order, and therefore does not
warrant dismissal of the agency’s petition.
The appellant was denied due process with respect to the indefinite suspension.
¶16 While it is well established that no one has a right to a security clearance or
access to classified information, a tenured federal employee nonetheless has a
property interest in continued employment. King v. Alston, 75 F.3d 657, 661
(Fed. Cir. 1996). Typically, this is so because the statutory federal employment
scheme provides that the agency may take an adverse action against the employee
only for unacceptable performance, pursuant to 5 U.S.C. § 4303, or for such cause
as will promote the efficiency of the service, pursuant to 5 U.S.C. § 7513. Stone
v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1375 (Fed. Cir. 1999).
In this case, the adverse action on appeal is not governed by statute, but rather by
the provisions of TSA Management Directive (MD) 1000.75-3 and the
accompanying Handbook, which govern disciplinary actions against TSA
employees. See Buelna, 121 M.S.P.R. 262, ¶ 13. However, MD 1100.75-3,
§ 6(E) similarly provides that a tenured TSA employee may only be suspended,
removed, or demoted for unacceptable performance or for such cause as will
promote the efficiency of the service. Consequently, the appellant’s indefinite
suspension deprived her of a property interest cognizable under the Fifth
Amendment. See Buelna, 121 M.S.P.R. 262, ¶ 13. The Board has authority to
determine whether the agency provided the appellant due process rights in
connection with that action. Id., ¶ 15.
¶17 At the time the initial decision was issued, the Board had recently held that,
in an indefinite suspension based on the suspension of a security clearance, due
process requires that the employee receive a meaningful opportunity to respond to
10
someone with authority to change the outcome of the security clearance
determination in either the security clearance proceeding or adverse action
proceeding. Gaitan, 118 M.S.P.R. 180, ¶ 23; Gargiulo, 118 M.S.P.R. 137, ¶ 20.
Relying on Gaitan, the administrative judge concluded that the appellant was
deprived of due process because she did not receive a meaningful opportunity to
contest the suspension of her security clearance prior to being indefinitely
suspended. However, the Board has since held that the holding of Gaitan was
incorrect, because an employee has no property interest in a security clearance.
Buelna, 121 M.S.P.R. 262, ¶ 24 (citing Gargiulo, 727 F.3d at 1185). We
therefore modify the initial decision to consider the appellant’s due process claim
in light of Buelna.
¶18 Due process requires, at a minimum, that an employee being deprived of her
property interest be given “the opportunity to be heard ‘at a meaningful time and
in a meaningful manner.’” Mathews v. Eldridge, 424 U.S. 319, 333 (1976)
(quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). Because the appellant
was afforded an opportunity to respond to the proposed adverse action prior to
being suspended, we conclude that the hearing occurred at a “meaningful time.”
See Buelna, 121 M.S.P.R. 262, ¶ 21. Our inquiry therefore proceeds to whether
the appellant was heard in a “meaningful manner” that provided sufficient
protection against an erroneous deprivation of her property interest. See id.¶19 In Cleveland Board of Education v. Loudermill, 470 U.S. 532, 542-46
(1985), the U.S. Supreme Court explained that for purposes of reaching an
accurate decision, the opportunity to respond to a proposed removal is important
for two reasons. First, an adverse action will often involve factual disputes and
consideration of the employee’s response may clarify such disputes. Id.; Stone,
179 F.3d at 1376. Second, “[e]ven where the facts are clear, the appropriateness
or necessity of the [penalty] may not be,” and “in such cases” the employee must
receive a “meaningful opportunity to invoke the discretion of the decision
maker.” Loudermill, 470 U.S. at 543. Thus, “the employee’s response is
11
essential not only to the issue of whether the allegations are true, but also with
regard to whether the level of penalty to be imposed is appropriate.” Stone,
179 F.3d at 1367. Although the appellant in this case was not removed, the same
considerations identified in Loudermill are present in determining whether an
employee who is indefinitely suspended based upon the loss of a security
clearance received an adequate opportunity to contest the proposed action. See
Buelna, 121 M.S.P.R. 262, ¶ 22. 5 We address them in turn.
¶20 As to the facts underlying the agency’s charge, the record reflects, and the
parties do not dispute, that the indefinite suspension was based on the suspension
of the appellant’s clearance, not the merits or factual predicate of the clearance
suspension. I-1, IAF, Tab 7, Subtabs 4B, 4D. Consequently, the only relevant
factual disputes that could have been raised with respect to the charge were
whether the appellant’s position required a security clearance and whether the
clearance was suspended. See Buelna, 121 M.S.P.R. 262, ¶ 23. Because the
merits of the agency’s charge do not hinge on any factual disputes concerning the
merits of the clearance suspension, the appellant’s due process right to contest the
charge was not compromised by the agency’s failure to provide her with the
documentation on which PERSEC relied prior to indefinitely suspending her.
¶21 With regard to penalty, an employee has a due process right to invoke the
deciding official’s discretion to the extent that the appropriateness or necessity of
the penalty is in doubt. Id., ¶ 27 (citing Loudermill, 470 U.S. at 543). Due
process does not require that the deciding official consider alternatives that are
prohibited, impracticable, or outside management’s purview. See Buelna,
121 M.S.P.R. 262, ¶ 27. Thus, the appellant’s due process rights were not
5
In reaching that conclusion in Buelna, we considered the factors set forth in Mathews,
424 U.S. at 335, namely: (1) the private interest affected by the official action; (2) the
risk of erroneous deprivation of the interest through the procedures used, and the
probable value, if any, of additional or substitute safeguards; and (3) the government’s
interest. See Buelna, 121 M.S.P.R.262, ¶¶ 16-22. It is unnecessary to reiterate the
Mathews factors analysis in this appeal. See id., ¶ 18.
12
compromised by the deciding official’s inability to reverse the suspension of her
clearance, as that decision was solely within the purview of PERSEC.
¶22 However, to the extent there may have existed other alternatives to
suspension without pay, the appellant had a due process right to invoke the
discretion of a deciding official with authority to select such alternatives. Id.,
¶ 28. In this regard, we note that TSA policy does not explicitly require that an
indefinite suspension be imposed in every case where an employee’s required
security clearance has been suspended. Rather, it provides only that an indefinite
suspension “may be imposed” in such cases. See I-1, IAF, Tab 7, Subtab 4G, MD
1100.75-3 Handbook (2009), § J(1). 6 We therefore conclude that management
was not precluded from choosing an alternative course of action, such as leaving
the appellant on administrative leave pending the outcome of her response to the
CSO. The question therefore arises whether the appellant had a meaningful
opportunity to invoke the discretion of a deciding official with authority to select
such an alternative.
¶23 We find that the appellant did not receive such an opportunity because at
the time Mr. Saez issued the decision, he did not regard himself as having
authority to do anything other than impose the proposed indefinite suspension. In
his decision letter, Mr. Saez quoted the TSA policy described above, but
incorrectly paraphrased it as a blanket requirement that “FAMs are placed on
indefinite suspension when they do not have access to classified information
because they are unable to perform their duties without such access.” I-1, IAF,
Tab 7, Subtab 4B. In addition, Mr. Saez stated that his review authority was
strictly limited to review of the appellant’s actual access to classified information
and its relation to her ability to perform FAM duties, and that the “sole purpose”
of his meeting with the appellant “was to address the suspension of [the
appellant’s] security clearance” and render a decision. Id. Thus, it appears that
6
This provision is located at § I(1) in the most recent edition of the Handbook.
13
Mr. Saez erroneously believed that TSA policy required the appellant’s indefinite
suspension, and that he lacked the authority to consider mitigating factors that
might weigh in favor of the appellant’s request to remain on administrative leave.
Indeed, at the hearing, Mr. Saez conceded that he questioned the need to have an
oral reply to the proposal notice other than simply because appellant had a right
to have one. Hearing Transcript at 19.
¶24 When pressed as to whether there were any circumstances in which he
might not have imposed the proposed indefinite suspension, Mr. Saez speculated
that if he had determined that a “clear mistake” was made, e.g., if the appellant
claimed that she was absent when the test was administered, or was taking
medication for an injury, he would have forwarded the matter back to PERSEC
for further inquiry. See id. at 30-33, 39-57. However, even if Mr. Saez’s
testimony could be reconciled with the language of the decision letter, in which
he denied having any authority to review the factual basis for the clearance
suspension, any discretion he may have had to consider a claim of “clear mistake”
was insufficient to provide due process. Because TSA policy did not mandate
that Mr. Saez indefinitely suspend the appellant based on the suspension of her
clearance, it was an open question whether an indefinite suspension was
appropriate or necessary, even in the absence of a factual dispute concerning the
charge. Under these circumstances, the appellant was entitled to a meaningful
opportunity to invoke the decision maker’s discretion to choose an alternative.
See Loudermill, 470 U.S. at 543; Stone, 179 F.3d at 1376. The appellant did not
receive that opportunity, and was thus deprived of due process.
ORDER
¶25 We ORDER the agency to cancel the suspension and restore the appellant
effective May 19, 2012. See Kerr v. National Endowment for the Arts, 726 F.2d
730 (Fed. Cir. 1984). The agency must complete this action no later than 20 days
after the date of this decision.
14
¶26 We also ORDER the agency to pay the appellant the correct amount of back
pay, interest on back pay, and other benefits under the Office of Personnel
Management’s regulations, no later than 60 calendar days after the date of this
decision. We ORDER the appellant to cooperate in good faith in the agency’s
efforts to calculate the amount of back pay, interest, and benefits due, and to
provide all necessary information the agency requests to help it carry out the
Board’s Order. If there is a dispute about the amount of back pay, interest due,
and/or other benefits, we ORDER the agency to pay the appellant the undisputed
amount no later than 60 calendar days after the date of this decision.
¶27 We further ORDER the agency to tell the appellant promptly in writing
when it believes it has fully carried out the Board’s Order and of the actions it
took to carry out the Board’s Order. The appellant, if not notified, should ask the
agency about its progress. See 5 C.F.R. § 1201.181(b).
¶28 No later than 30 days after the agency tells the appellant that it has fully
carried out the Board’s Order, the appellant may file a petition for enforcement
with the office that issued the initial decision on this appeal if the appellant
believes that the agency did not fully carry out the Board’s Order. The petition
should contain specific reasons why the appellant believes that the agency has not
fully carried out the Board’s Order, and should include the dates and results of
any communications with the agency. 5 C.F.R. § 1201.182(a).
¶29 For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Board decision
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to process payments and adjustments resulting from the
Board’s decision in accordance with the attached lists so that payment can be
made within the 60-day period set forth above.
15
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 out 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
WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You
must file your attorney fees motion with the office that issued the initial decision
on your appeal.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.
DFAS CHECKLIST
INFORMATION REQUIRED BY DFAS IN
ORDER TO PROCESS PAYMENTS AGREED
UPON IN SETTLEMENT CASES OR AS
ORDERED BY THE MERIT SYSTEMS
PROTECTION BOARD
AS CHECKLIST: INFORMATION REQUIRED BY IN ORDER TO PROCESS PAYMENTS AGREED UPON IN SETTLEMENT
CASES
CIVILIAN PERSONNEL OFFICE MUST NOTIFY CIVILIAN PAYROLL
OFFICE VIA COMMAND LETTER WITH THE FOLLOWING:
1. Statement if Unemployment Benefits are to be deducted, with dollar amount, address
and POC to send.
2. Statement that employee was counseled concerning Health Benefits and TSP and the
election forms if necessary.
3. Statement concerning entitlement to overtime, night differential, shift premium,
Sunday Premium, etc, with number of hours and dates for each entitlement.
4. If Back Pay Settlement was prior to conversion to DCPS (Defense Civilian Pay
System), a statement certifying any lump sum payment with number of hours and
amount paid and/or any severance pay that was paid with dollar amount.
5. Statement if interest is payable with beginning date of accrual.
6. Corrected Time and Attendance if applicable.
ATTACHMENTS TO THE LETTER SHOULD BE AS FOLLOWS:
1. Copy of Settlement Agreement and/or the MSPB Order.
2. Corrected or cancelled SF 50's.
3. Election forms for Health Benefits and/or TSP if applicable.
4. Statement certified to be accurate by the employee which includes:
a. Outside earnings with copies of W2's or statement from employer.
b. Statement that employee was ready, willing and able to work during the period.
c. Statement of erroneous payments employee received such as; lump sum leave, severance
pay, VERA/VSIP, retirement annuity payments (if applicable) and if employee withdrew
Retirement Funds.
5. 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.
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 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.