Lisa Giugliano v. Department of Veterans Affairs ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LISA GIUGLIANO, DOCKET NUMBERS
Appellant, PH-0353-14-0772-I-3
PH-4324-16-0328-I-2
v.
DEPARTMENT OF VETERANS
AFFAIRS, DATE: May 2, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Charles L. Holsworth, Esquire, Pittsburgh, Pennsylvania, for the appellant.
Marcus S. Graham, Esquire, and Paul P. Kranick, Esquire, Philadelphia,
Pennsylvania, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member 2
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
Member Leavitt’s name is included in decisions on which the three -member Board
completed the voting process prior to his March 1, 2023 departure.
2
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
granted in part and denied in part her request for corrective action under the
Uniformed Services Employment and Reemployment Rights Act of 1994
(codified as amended at 38 U.S.C. §§ 4301-4335) (USERRA). Generally, we
grant petitions such as this one only in the following ci rcumstances: 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 judg e’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 argu ment is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review. Except as
expressly MODIFIED to VACATE the administrative judge’s remedy analysis
and to apply the correct remedial authority, we AFFIRM the initial decision.
¶2 In June 2014, the appellant filed her first of two Board appeals under
USERRA. Giugliano v. Department of Veterans Affairs, MSPB Docket No. PH-
0353-14-0772-I-1, Initial Appeal File (0772 IAF), Tab 1. The administrative
judge twice dismissed the first appeal without prejudice for subsequent refiling,
resulting in three docket numbers for that first appeal. 0772 IAF, Tab 45;
Giugliano v. Department of Veterans Affairs, MSPB Docket No. PH-0353-14-
0772-I-2, Appeal File (0772 I-2 AF), Tabs 1, 38; Giugliano v. Department of
Veterans Affairs, MSPB Docket No. PH-0353-14-0772-I-3, Appeal File (0772 I-3
AF), Tab 1.
3
¶3 In May 2016, the appellant filed her second USERRA appeal. Giugliano v.
Department of Veterans Affairs, MSPB Docket No. PH-4324-16-0328-I-1, Initial
Appeal File (0328 IAF), Tab 1. The administrative judge also dismissed that
appeal without prejudice to subsequent refiling, resulting in an additional docket
number. 0328 IAF, Tab 40; Giugliano v. Department of Veterans Affairs, MSPB
Docket No. PH-4324-16-0328-I-2, Appeal File (0328 I-2 AF), Tab 1. In the
meantime, the administrative judge joined the two appeals for adjudication. 3
0772 I-2 AF, Tab 3.
¶4 After joining the appeals and developing the record, the administrative
judge held a 3-day hearing. 0772 I-3, Tabs 19-21. He then issued an initial
decision. 0772 I-3 AF, Tab 27, Initial Decision (ID). 4 The following facts, as
further detailed in that initial decision, appear to be undisputed.
¶5 At all times relevant to this appeal, the appellant was both an employee of
the agency and a member of the Air Force Reserve. ID at 2. She began her
uniformed service in July 2006, and the agency hired her as a call center nurse in
March 2009. Id. Throughout her tenure with the agency, she has been deployed
or otherwise responsible for performing military duty on a number of occasions,
including two instances of service lasting more than 90 days. ID at 3 & n.2.
Generally speaking, it is the agency’s treatment upon her return from uniformed
service that is the subject of this appeal. In more than a dozen particularized
allegations, the appellant alleged, for example, that the agency erred by
3
Following the administrative judge’s joinder of the appellant’s two appeals, all
subsequent filings were included in the records for each appeal. Compare, e.g., 0772
I-2 AF, Tabs 7-12 (appellant’s prehearing submissions), with 0328 IAF, Tabs 11-16 (the
same prehearing submissions). For the sake of simplicity and clarity, we will
exclusively cite to the file associated with the appellant’s original 0772 appeal.
4
When the administrative judge first issued the initial decision, it contained some
formatting errors and errors pertaining to notices to the parties. Therefore, the
administrative judge issued an erratum order, followed by a corrected initial decision.
Compare 0772 I-3 AF, Tab 24, with 0772 I-3 AF, Tab 26; ID. We will exclusively cite
to the corrected initial decision.
4
eliminating a position during one of her deployments, erroneously assigned her to
another position, improperly downgraded her performance appraisals, and
discriminated against her by not selecting her for several positions. 0772 I-2 AF,
Tab 32 at 5-6.
¶6 The administrative judge granted in part and denied in part the appellant’s
request for corrective action. 5 ID. He found that the agency violated the
USERRA discrimination provisions when it (1) failed to select the appellant for
the Lead Home Telehealth Coordinator position in November 2015;
(2) downgraded her performance reviews in 2015 and 2016; and (3) ceased a
pattern of cash awards starting in 2014. ID at 28-33, 41-42. However, he found
that the appellant failed to prove her remaining allegations of USERRA
violations. ID at 9-28, 34-41. Those allegations involved the appellant’s
February 2012 reinstatement and assignment to a case manager position, ID
at 9-18, the agency’s classification of assignments as details rather than
permanent changes of assigned positions, ID at 18-19, the agency’s elimination of
a call center supervisor position and a corresponding reassignment, ID at 19 -20, a
number of other vacancies and nonselections, ID at 21-28, 36-37, advancement to
the next nursing level, ID at 34-36, promotion in accordance with “escalator”
principles, ID at 37-38, “model employer” requirements, and an alleged hostile
work environment, ID at 38-41.
¶7 The appellant has filed a petition for review, which generally consists of
arguments concerning her discrimination claims and the appropriate remedy.
Giugliano v. Department of Veterans Affairs, MSPB Docket No. PH-0353-14-
0772-I-3, Petition for Review (0772 PFR) File, Tab 1. The agency has filed a
response. 0772 PFR File, Tab 3.
5
The administrative judge did not order the agency to provide interim relief. ID.5
¶8 As the administrative judge recognized and explained in detail, two types of
cases arise under USERRA: (1) reemployment cases, in which the appellant
claims that an agency has not met its obligations under 38 U.S.C. §§ 4312-4318following the appellant’s absence from civilian employment to perform
uniformed service; and (2) “discrimination” cases, in which the appellant claims
that an agency has taken an action prohibited by 38 U.S.C. § 4311(a) or (b).
Clavin v. U.S. Postal Service, 99 M.S.P.R. 619, ¶ 5 (2005); ID at 6-8. On the
merits, reemployment cases and discrimination cases differ in two important
ways. First, an individual’s rights under the reemployment provisions of
USERRA do not depend on the motivation for an agency’s action (or inaction),
whereas an essential element of a discrimination claim is that the contested
agency decision was based on an improper motivation. Clavin, 99 M.S.P.R. 619,
¶ 6. Second, in a reemployment case, the agency bears the burden of proving that
it met its statutory obligations. Id. By contrast, in a discrimination case, the
appellant bears the burden of proof on the merits, and if that burden is met th e
agency may avoid relief by showing that it would have taken the same action
even in the absence of the improper motivation. Id.¶9 The claims that the appellant raised below implicated both the
reemployment and the discrimination provisions of USERRA. 0772 I-2 AF,
Tab 32 at 5-6. However, the only claims for which the administrative judge
found that the appellant prevailed fell under the latter and its prohibitions against
retaliation for engaging in protected USERRA activity. ID at 28-33; see
generally Kitlinski v. Merit Systems Protection Board, 857 F.3d 1374, 1381 & n.3
(Fed. Cir. 2017) (explaining that the anti-reprisal provision of USERRA “is
limited to barring acts of discrimination in employment and adverse employment
actions,” making it more narrow in scope than the anti-reprisal provisions of
Title VII of the Civil Rights Act of 1964).
¶10 Having carefully considered the appellant’s petition for review, we do not
construe it as pertaining to any of her USERRA reemployment claims. The
6
petition refers to “escalator principles,” see Rassenfoss v. Department of
Treasury, 121 M.S.P.R. 512, ¶ 12 n.4 (2014) (explaining that the “escalator
principle” is the concept that an employee who has been absent due to military
service or a work-related injury is entitled to be restored to the position that he or
she would have attained but for the absence), but it does so in the context of
arguments concerning alleged uniformed service discrimination. 0772 PFR File,
Tab 1 at 5, 8. Because the appellant has not specifically contested any of the
administrative judge’s findings on her reemployment claims, we decline to revisit
those issues on review. 5 C.F.R. § 1201.115 (“The Board normally will consider
only issues raised in a timely filed petition or cross pe tition for review.”).
¶11 The appellant contests the administrative judge’s findings on her USERRA
discrimination claims, but her arguments are not supported by any references to
the law or to the record. 0772 PFR File Tab 1 at 4-8; see Tines v. Department of
the Air Force, 56 M.S.P.R. 90, 92 (1992) (holding that a petition for review must
contain sufficient specificity for the Board to ascertain whether there is a serious
evidentiary challenge justifying a complete review of the record); 5 C.F.R.
§ 1201.114(b) (providing that a petition for review must state a party’s objections
to the initial decision, including all of the party’s legal and factual arguments, and
must be supported by references to applicable laws or regulations and by specific
references to the record). For example, the appellant states that “[o]nce the
appellant’s supervisors became dissatisfied with her being gone for military
service, discrimination began with consideration for promotions, positions, and
awards and the intervening years were surely influenced by that discrimination,”
and “[f]rom the evidence submitted at trial, it was obvious that prior to her
complaints the appellant was on her way to future promotions,” were it not for
discrimination. 0772 PFR File, Tab 1 at 5-6. However, she has not identified any
evidence to support these claims.
¶12 The appellant cites some portions of the initial decision that concern her
discrimination claims. However, she has not persuasively identified any error on
7
the part of the administrative judge. For example, the appellant notes that, in
discussing two separate promotion opportunities, the administrative judge directly
compared the appellant’s qualifications with those of the individual selected for
one, but not the other. Id. at 6 (referencing ID at 14-15, 21-22). For that latter
promotion opportunity, however, the administrative judge did provide a reasoned
analysis. ID at 22. He found that the selecting official credibly testified about
why she chose someone other than the appellant and how that decision had
nothing to do with the appellant’s uniformed service. Id. The appellant has not
provided any basis for us to reach a contrary conclusion. See Haebe v.
Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002) (recognizing that an
administrative judge’s credibility determinations are entitled to deference when
they are based, explicitly or implicitly, on the observation of the demeanor of
witnesses testifying at a hearing, and the Board can overturn such determinations
only when it has “sufficiently sound” reasons for doing so). The appellant also
suggests that the administrative judge failed to consider her qualifications . 0772
PFR File, Tab 1 at 6. However, the Board has long held that an administrative
judge’s failure to mention all of the evidence of record does not mean that he did
not consider it in reaching his decision. Marques v. Department of Health and
Human Services, 22 M.S.P.R. 129, 132 (1984), aff’d, 776 F.2d 1062 (Fed. Cir.
1985) (Table). The appellant also argues generally that “some factual issues
raised at trial [did not] appear[] in the decision,” 0772 PFR File, Tab 1 at 4, but
for the same reason, we find this argument unpersuasive. Accordingly, we affirm
the administrative judge’s findings regarding the appellant’s di scrimination
claims.
¶13 The appellant has separately noted that there was a substantial delay
between the time of her hearing and the issuance of the initial decision in this
appeal. Id. at 5. She seems to suggest that the agency has subjected her to
additional but otherwise unidentified discrimination during this period that the
Board should consider and address. Id. However, the administrative judge
8
properly limited this appeal and his decision to the specific claims raised below.
0772 I-2 AF, Tab 32 at 5-6, Tab 33 at 1-2. If the appellant believes she has been
subjected to additional USERRA violations, beyond those that she alleged below,
she may file a new Board appeal. See Michaels v. Department of Defense,
112 M.S.P.R. 676, ¶ 9 (2009) (dismissing a USERRA appeal against an
appellant’s employing agency and indicating that he could file a new one against
a former employing agency, where he was employed by the latter at the time of
the alleged USERRA violation); 5 C.F.R. §§ 1201.22(b)(2) (providing no time
limit for filing a USERRA appeal), 1208.12 (recognizing the same but
encouraging appellants to file a USERRA claim as soon as possible).
¶14 We must now turn to the remedy for the agency’s USERRA violations. The
administrative judge ordered the agency to (1) revise her 2015 and 2016
performance appraisals to “High Satisfactory;” (2) calculate the average cash
award the appellant received between 2011 and 2013, and pay the appellant that
amount for each year that followed, up through the date of the hearing ; and
(3) promote the appellant to the Lead Home Telehealth Coordinator, or its
equivalent, retroactive to November 2015, affording the appellant all incidents
and advantages of the position. ID at 42-43. The agency does not challenge
these orders on review.
¶15 On review, the appellant argues that the administrative judge should have
also considered other possible remedies, “such as agency assistance in finding the
appellant a supervisory position at another location in the area.” 0772 PFR File,
Tab 1 at 4. She separately suggests that the agency should be subject to punitive
damages. Id. Finally, the appellant asserts that the administrative judge’s
instruction to change her personnel records “does not fully rectify the harm done
to the appellant’s career.” Id. at 5-6. Although we are not persuaded by the
appellant’s arguments, we must vacate the administrative judge’s discussion of
the appropriate remedy because it is premised on the wrong statutory authority.
9
¶16 In reaching his conclusion about the appropriate remedy, the administrative
judge mistakenly relied upon 38 U.S.C. § 4323(d). ID at 42. That section applies
to USERRA actions against a State or private employer. See Silva v. Department
of Homeland Security, 112 M.S.P.R. 362, ¶ 10 (2009). By contrast, the Board’s
remedial authority under USERRA comes from 38 U.S.C. § 4324(c)(2). Johnson
v. U.S. Postal Service, 121 M.S.P.R. 101, ¶ 11 (2014). In pertinent part, these
two provisions differ in that the former provides for discretion in awarding relief
and the consideration of willfulness in a damages award, while the latter states
that relief is mandatory and does not contemplate willfulness. Compare
38 U.S.C. § 4323(d)(1)(A)-(C) (providing that a court “may award relief” in that
it “may require” the State or private employer to comply with the provisions of
this chapter, to compensate the person for any loss of wages or benefits, and to
pay additional liquidated damages if a violation was “willful”), with 38 U.S.C.
§ 4324(c)(2) (requiring that the Board “shall” order relief if a Federal executive
agency or the Office of Personnel Management violates USERRA). If the Board
finds an agency violated the employment or reemployment provisions of
USERRA, section 4324(c)(2) mandates that, under the circumstances, we enter an
order requiring the agency to (1) comply with section 4311, and (2) compensate
the appellant “for any loss of wages or benefits suffered . . . by reason of such
lack of compliance.” Erickson v. U.S. Postal Service, 120 M.S.P.R. 468, ¶ 13
(2013) (quoting 38 U.S.C. § 4324(c)(2)).
¶17 Once more, the administrative judge found that the agency violated
USERRA when it (1) failed to select the appellant for the Lead Home Telehealth
Coordinator position; (2) downgraded her performance reviews in 2015 and 2016;
and (3) ceased a pattern of cash awards, starting in 2014. ID at 41-21. As
previously stated, the agency has not disputed these violations on review.
Pursuant to 38 U.S.C. § 4324(c)(2), we must therefore order the agency to comply
with the provisions of USERRA and compensate the appellant for lost wages and
benefits suffered by reason of the agency’s lack of compliance. That include s
10
placing the appellant in the Lead Home Telehealth Coordinator position, or its
equivalent, retroactive to November 2015, revising her 2015 and 2016
performance reviews to reflect “High Satisfactory” performance, and
compensating the appellant for lost wages and benefits, including cash awards.
¶18 Applying the proper standards regarding our remedial authorit y, we find
that the appellant is not entitled to the additional remedies that she is requesting.
The Board cannot order the agency to help the appellant find an altogether new
position in a new location. Nor can we award her punitive damages. See Isabella
v. Department of State, 106 M.S.P.R. 333, ¶ 47 n.14 (2007) (explaining that while
the Veterans Employment Opportunities Act of 1998 provides for liquidated
damages if an agency’s violation was willful, the Board can only order an agency
to pay lost wages and benefits for a USERRA violation), aff’d on recons.,
109 M.S.P.R. 453 (2008); cf. 38 U.S.C. § 4323(d)(1)(A)-(C) (providing the
remedies for a State or private employer’s USERRA violation, including
liquidated damages if the violation was “willful”). Finally, we cannot speculate
about intangible harm to the appellant’s career. See Johnson, 121 M.S.P.R. 101,
¶ 11 (recognizing that the Board’s remedial authority under USERRA does not
extend to speculative matters, so an appellant’s speculation about lost upward
mobility stemming from the loss of training opportunities was inconsequential).
ORDER
¶19 We ORDER the agency to comply with the provisions of USERRA and
compensate the appellant for lost wages and benefits suffered by reason of the
agency’s lack of compliance, as detailed above. See 38 U.S.C. § 4324(c)(2); 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.
¶20 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.
11
If there is a dispute about the amount of back pay, interest due, and/or other
benefits, we ORDER the agency to pay the appell ant 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
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, expert witness fees, and other litigation expenses. To be paid, you must
meet the requirements set forth at title 38 of the United States Code (38 U.S.C.),
section 4324(c)(4). The regulations may be found at 5 C.F.R. §§ 1201.201,
12
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.
NOTICE OF APPEAL RIGHTS 6
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation an d
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
6
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.
13
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(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
14
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court-appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
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
15
(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. 7 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of 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.
7
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
16
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.
DEFENSE FINANCE AND ACCOUNTING SERVICE
Civilian Pay Operations
DFAS BACK PAY CHECKLIST
The following documentation is required by DFAS Civilian Pay to compute and pay back pay
pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following
checklist to ensure a request for payment of back pay is complete. Missing documentation may
substantially delay the processing of a back pay award. More information may be found at:
https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx.
NOTE: Attorneys’ fees or other non-wage payments (such as damages) are paid by
vendor pay, not DFAS Civilian Pay.
☐ 1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the
specific dates of the back pay period within the ticket comments.
Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket
comments as to why the documentation is not applicable:
☐ 2) Settlement agreement, administrative determination, arbitrator award, or order.
☐ 3) Signed and completed “Employee Statement Relative to Back Pay”.
☐ 4) All required SF50s (new, corrected, or canceled). ***Do not process online SF50s
until notified to do so by DFAS Civilian Pay.***
☐ 5) Certified timecards/corrected timecards. ***Do not process online timecards until
notified to do so by DFAS Civilian Pay.***
☐ 6) All relevant benefit election forms (e.g. TSP, FEHB, etc.).
☐ 7) Outside earnings documentation. Include record of all amounts earned by the employee
in a job undertaken during the back pay period to replace federal employment.
Documentation includes W-2 or 1099 statements, payroll documents/records, etc. Also,
include record of any unemployment earning statements, workers’ compensation,
CSRS/FERS retirement annuity payments, refunds of CSRS/FERS employee premiums,
or severance pay received by the employee upon separation.
Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority
under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment
they may have received. The payroll office must collect the debt from the back pay award. The
annual leave will be restored to the employee. Annual leave that exceeds the annual leave
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).
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.