Charles Swann v. Department of Transportation ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CHARLES ANDREW SWANN, III, DOCKET NUMBER
Appellant, AT-0353-18-0589-I-1
v.
DEPARTMENT OF DATE: June 21, 2023
TRANSPORTATION,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Charles Andrew Swann, III, Newnan, Georgia, pro se.
Erin Oliver, Esquire, College Park, Georgia, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The agency has filed a petition for review and the appellant has filed a cross
petition for review of the initial decision, which found that the agency arbitrarily
and capriciously denied the appellant restoration as a partially recovered
employee. Generally, we grant petitions such as these only in the following
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner ’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the agency has not
established any basis under section 1201.115 for granting the petition for review,
and we therefore DENY it. We AFFIRM the initial decision, which is now the
Board’s final decision. 5 C.F.R. § 1201.113(b). Given the disposition of this
appeal, we find it is unnecessary to rule on the appellant ’s cross petition for
review.
BACKGROUND
¶2 The appellant was formerly employed as an Air Traffic Control Specialist
for the Federal Aviation Administration (FAA) at the Charlotte Air Traffic
Control Tower (ATCT) in Charlotte, North Carolina. Initial Appeal File (IAF),
Tab 1 at 1, Tab 14 at 22. He suffered a work-related injury on May 15, 2013, and
the Office of Workers’ Compensation Programs (OWCP) accepted his claim for
the following conditions: (1) tinnitus in right ear, (2) sudden hearing loss in right
ear, (3) vertigo, and (4) headache. IAF, Tab 5 at 4-7.
¶3 The appellant entered leave without pay status on May 16, 2013, and he
began receiving OWCP benefits on July 18, 2013. IAF, Tab 14 at 37. As a result
of his injuries, the agency determined that the appellant was medically
disqualified from air traffic control duties, id. at 33, and on October 31, 2015, he
was removed for failure to maintain medical certification, id. at 22, 24-25. In
3
May 2016, the Office of Personnel Management (OPM) approved the appellant’s
application for disability retirement. Id. at 19-20.
¶4 In a medical report dated June 21, 2017, the appellant’s neurologist
determined that the appellant had reached maximum medical improvement. Id.
at 13-17. The report noted that the appellant’s condition had improved due to
seeing a functional neurologist, that vestibular rehabilitation had resulted in a
severe diminishment of the appellant’s dizziness, and that his headaches had been
minimal and treatable with over-the-counter medications. Id. That same day, the
appellant’s neurologist also filled out an OWCP Work Capacity Evaluation form,
indicating that the appellant could not work as an Air Traffic Controller due to
mild residual low-grade dizziness and migraines, but could work 8 hours per
workday in a sedentary position. IAF, Tab 25 at 5.
¶5 Immediately thereafter, on the evening of June 21, 2017, the appellant
emailed the former Air Traffic Manager (ATM) of the Charlotte ATCT and asked
him for help in returning to work for the agency. IAF, Tab 19 at 8. The former
Charlotte ATM responded the following day, advising the appellant that another
individual was now the acting ATM at Charlotte and providing the appellant a
link to an agency web page containing an article about workers’ compensation.
Id. at 9. Later that day, the appellant emailed a return-to-work specialist in the
agency’s OWCP office. Id. at 10. In his message, the appellant indicated that he
had recovered from his injury sufficiently to return to “full sedentary duty,” and
that he had “submitted for a few job announcements on USAjobs.gov for Support
Type positions.” Id. According to the appellant, the return-to-work specialist
told him she could only help him if he was attempting to return to work prior to
being separated or within 1 year of his injury. IAF, Tab 1 at 5.
¶6 The appellant also states that on June 27, 2017, he contacted the acting
Charlotte ATM, who returned his call on June 29, 2017. IAF, Tab 19 at 4 -5.
According to the appellant, the acting Charlotte ATM explained to him that he did
not know how restoration to duty worked and that had he no guidance other than
4
to contact the return-to-work specialist, but he also stated that if the appellant
were able to medically qualify he could enter the agency’s Air Traffic Controller
Reinstatement Program (ATCRP). Id. at 5. The appellant further relates that on
August 24, 2017, he contacted doctors with the Aviation Medical Advisory
Service, who advised him that he could obtain medical certification. Id. The
appellant states that on the following day he contacted the acting Charlotte ATM
again to ask about entering the ATCRP, but the acting Charlotte ATM told him
that he would be unwilling and unable to submit him for consideration. Id. The
appellant asserts that on January 12, 2018, the Atlanta ATM assisted him in
applying to the ATCRP. Id. However, on February 1, 2018, the Atlanta ATM
informed him that the FAA had found him physically disqualified to be an Air
Traffic Controller. Id.¶7 The appellant further relates that on June 15, 2018, another employee with
the agency’s OWCP office came to his house to discuss his case. IAF, Tab 1 at 5.
According to the appellant, he told the OWCP specialist “everything that had
been going on” and that he was trying to work with the agency. Id. The
appellant states that the OWCP specialist told him that he should have been given
priority placement status, which would have guaranteed him consideration and an
interview for the jobs for which he had applied. Id. According to the appellant,
the OWCP specialist told him he would see what he could do to help and get back
to him. Id. The appellant states that, as of the date this appeal was filed, he had
not heard back from the OWCP specialist and was not receiving consideration for
positions for which he had applied since the June 15, 2018 visit. Id.¶8 The appellant filed this appeal on June 30, 2018. IAF, Tab 1. Before
issuing an initial decision, the administrative judge made a preliminary
determination that the appellant had established jurisdiction under 5 C.F.R.
§ 353.304(c) by making nonfrivolous allegations that the agency had arbitrarily
and capriciously denied him restoration as a partially recovered employee. IAF,
Tab 15. The administrative judge noted that the agency had not provided
5
evidence that it conducted a search of the Charlotte local commuting area to
determine whether there was a vacant position to which it could have restored the
appellant, as required under 5 C.F.R. § 353.301(d). IAF, Tab 15 at 2 n.1.
¶9 In response, the agency provided evidence including a September 12, 2018
declaration by a FAA Human Resources Specialist, who averred that on
August 17, 2018, and again on September 12, 2018, she conducted a search for
vacancies in the Charlotte local commuting area that were compatible with the
appellant’s qualifications and lack of a medical clearance, but did not find any
vacant positions for which the appellant was eligible. IAF, Tab 25 at 15-17. The
agency also provided a spreadsheet listing all FAA vacancies in the Charlotte
local commuting during the period from June 21, 2017, to September 21, 2018.
Id. at 18. The spreadsheet indicated that the appellant was not qualified for any
of the identified positions. Id.¶10 Based on his review of the written record, the administrative judge issued
an initial decision in the appellant’s favor. IAF, Tab 26, Initial Decision (ID).
He first found that the appellant had partially recovered from a compensable
injury and was therefore entitled to restoration rights under 5 C.F.R.
§ 353.301(d). ID at 6-7. The administrative judge further found that the agency
had arbitrarily and capriciously denied him restoration. ID at 8-11. Specifically,
he found while the agency had provided uncontested evidence that it searched
within the Charlotte local commuting area for vacant FAA positions to which the
appellant could be assigned, it was also required under 5 C.F.R. § 353.301(d) to
search for suitable positions within other components of the Department of
Transportation (DOT), and it had not done so. ID at 9-11. He further found that
the appropriate remedy was for the agency to conduct an app ropriate search
within the Charlotte local commuting area, retroactive to the date of the
appellant’s request for restoration, and to consider him for any suitable vacancies.
ID at 11. Accordingly, he reversed the denial of the appellant ’s request for
6
restoration and remanded the matter to the agency to conduct the required search.
Id. He declined to grant interim relief under 5 U.S.C. § 7701(b)(2). ID at 13.
¶11 In its petition for review, the agency argues that the initial decision should
be reversed on the following grounds: (1) the administrative judge erred in
finding that the appellant was partially recovered when the Department of Labor
(DOL) had not made such a determination; and (2) assu ming the appellant was
partially recovered, the appeal was untimely because it was not filed within
30 days of the date of his partial recovery, i.e., June 21, 2017. Petition for
Review (PFR) File, Tab 1. In his cross petition for review, the appellant contends
the administrative judge erred in finding that the agency conducted an adequate
search within the FAA. PFR File, Tab 3. The appellant has filed a response to
the agency’s petition for review, and the agency has replied to the appellant ’s
response. PFR File, Tabs 4-5. The agency has also filed a response to the
appellant’s cross petition for review. PFR File, Tab 7.
ANALYSIS
¶12 The Federal Employees’ Compensation Act, 5 U.S.C. § 8151, provides that
Federal employees who suffer compensable injuries enjoy certain rights to be
restored to their previous or comparable positions. Kingsley v. U.S. Postal
Service, 123 M.S.P.R. 365, ¶ 9 (2016); see 5 U.S.C. § 8151(b). Congress has
granted OPM the authority to issue regulations governing the obligations of
employing agencies in this regard. 5 U.S.C. § 8151(b). Pursuant to this
authority, OPM has issued regulations requiring agencies to make certain efforts
toward restoring employees with compensable injuries to duty, depending on the
timing and extent of their recovery. 5 C.F.R. § 353.301; see Smith v. U.S. Postal
Service, 81 M.S.P.R. 92, ¶ 6 (1999).
¶13 The regulation at 5 C.F.R. § 353.301(d) concerns the restoration rights
granted to “partially recovered” employees, defined in 5 C.F.R. § 353.102 as
injured employees who, “though not ready to resume the full range” of their
7
duties, have “recovered sufficiently to return to part-time or light duty or to
another position with less demanding physical requirements.” Section 353.301(d)
requires agencies to “make every effort to restore in the local commuting area,
according to the circumstances in each case, an individual who has partially
recovered from a compensable injury and who is able to return to limited duty.
At a minimum, this would mean treating [him] substantially the same as other
disabled individuals under the Rehabilitation Act.” 2 5 C.F.R. § 353.301(d). As
the administrative judge noted, the Board has observed that an agency’s
reassignment obligations under the Rehabilitation Act are not limited to a
particular type of work or to positions within a particular office or branch of the
agency. Sanchez v. Department of Energy, 117 M.S.P.R. 155, ¶ 18 (2011).
¶14 The regulation at 5 C.F.R. § 353.304 provides Board appeal rights to
individuals affected by restoration decisions under 5 C.F.R. § 353.301. As
relevant here, the regulation provides that a partially recovered employee “may
appeal to [the Board] for a determination of whether the agency is acting
arbitrarily and capriciously in denying restoration.” 5 C.F.R. § 353.304(c). In
order to prevail on the merits in such an appeal, the appellant must prove the
following elements by a preponderance of the evidence: (1) he was absent from
his position due to a compensable injury; (2) he recovered sufficiently to return to
duty on a part-time basis or to return to work in a position with less demanding
physical requirements than those previously required; (3) the agency denied the
request for restoration; and (4) the denial was arbitrary and capricious because of
2
The Rehabilitation Act incorporates by reference the regulatory standards for the
Americans with Disabilities Act. 29 U.S.C. § 791(f); Rosario-Fabregas v. Department
of the Army, 122 M.S.P.R. 468, ¶ 13 n.5 (2015), aff’d, 833 F.3d 1342 (Fed. Cir. 2016);
29 C.F.R. § 1614.203(b).
8
the agency’s failure to perform its obligations under 5 C.F.R. § 353.301(d). 3 See
Kingsley, 123 M.S.P.R. 365, ¶ 11; 5 C.F.R. § 1201.57(a)(4), (b).
¶15 Here, it is undisputed that the appellant was absent due to a compensable
injury. With regard to the second element, the agency argues that the
administrative judge erred in finding that the appellant was partially recovered
when DOL had not issued a ruling to that effect. However, we are not aware of
any authority for the proposition that such a ruling is a prerequisite for finding
that an employee is partially recovered under 5 C.F.R. § 353.102. The Board has
found partial recovery based on medical documentation alone, e.g., Corum v. U.S.
Postal Service, 118 M.S.P.R. 288, ¶¶ 15-18 (2012), and we agree with the
administrative judge that the report by the appellant’s neurologist is sufficient to
establish that, as of June 21, 2017, the appellant had recovered sufficiently to
work in a sedentary position. As to the remaining elements, it is undisputed that
the agency denied the appellant’s requests for restoration and that it did not
extend its search to other components of DOT, as required under 5 C.F.R.
§ 353.301(d).
¶16 We find no merit to the agency’s argument that the appeal was untimely
filed. The Board’s regulations provide that an appeal of an agency action must be
filed no later than 30 days after the effective date of the action being appealed or
30 days after receipt of the agency’s decision, whichever is later. 5 C.F.R.
§ 1201.22(b)(1). Thus, the deadline for filing an appeal under 5 C.F.R.
§ 353.304(c) is determined not by the date of partial recovery, but rather by the
date of the action on appeal, i.e., the alleged denial of restoration. See Hardy v.
U.S. Postal Service, 104 M.S.P.R. 387, ¶ 15, aff’d, 250 F. App’x 332 (2007).
While the agency in this case did not issue a formal notice denying the appella nt
3
We agree with the administrative judge that the appellant established the Board’s
jurisdiction under 5 C.F.R. § 353.304(c) by making nonfrivolous allegations with
respect to all four elements. IAF, Tab 15; see Hamilton v. U.S. Postal Service,
123 M.S.P.R. 404, ¶ 12 (2016).
9
restoration, we find that the agency’s delay in restoring him, despite his
continued good faith efforts to return to work, constitutes a denial of restoration
that was ongoing at the time the appeal was filed. 4 See Chism v. U.S. Postal
Service, 85 M.S.P.R. 436, ¶¶ 9-10 (2000) (finding that the agency’s delay in
restoring the appellant was equivalent to a denial of restoration) . 5
¶17 Given the disposition of this appeal, it is unnecessary to rule on the
appellant’s cross petition for review. As the administrative judge correctly found,
the appropriate remedy is for the agency to conduct a new search, retroactive to
June 21, 2017, consistent with its obligations under 5 C.F.R. § 353.301(d). See
Scott v. U.S. Postal Service, 118 M.S.P.R. 375, ¶ 14 (2012). This entails that the
agency search for suitable positions in the Charlotte local commuting area,
consistent with the requirements of the Rehabilitation Act, throughout the whole
of DOT—the FAA included. See Sanchez, 117 M.S.P.R. 155, ¶ 18. If the
appellant believes the agency has not complied with the Board ’s order, he may
file a petition for enforcement in accordance with the instructions provided
below.
ORDER
¶18 The agency is ORDERED to conduct a proper search retroactive to June 21,
2017, and to consider the appellant for any suitable assignments available during
that time period consistent with its restoration obligations under 5 C.F.R.
§ 353.301(d). See Kerr v. National Endowment for the Arts, 726 F.2d 730 (Fed.
4
Even if the appeal had not been timely filed, we would consider the agency’s failure to
provide the notice of appeal rights required under 5 C.F.R. § 353.104 in determining
whether there was good cause for the filing delay. See Cranston v. U.S. Postal Service,
106 M.S.P.R. 290, ¶¶ 10-14 (2007).
5
Chism was overruled in part on other grounds by Chen v. U.S. Postal Service,
97 M.S.P.R. 527 (2004), which was overruled by Latham v. U.S. Postal Service,
117 M.S.P.R. 400 (2012), which was overruled by Cronin v. U.S. Postal Service,
2022 MSPB 13. However, the proposition for which Chism is cited remains good law.
10
Cir. 1984). The agency must complete this action no later than 30 days after the
date of this decision.
¶19 In the event the agency’s retroactive job search uncovers available work to
which it could have restored the appellant, the agency is ORDERED pay the
appellant the correct amount of back pay, interest on back pay, and other benefits
under the Office of Personnel Management’s regulations, as appropriate, no later
than 60 calendar days after the date of this decision. We ORDER the appellant to
cooperate in good faith in the agency’s efforts to calculate the amount of back
pay, interest, and benefits due, and to provide all necessary information the
agency requests to help it carry out the Board’s Order. If there is a dispute about
the amount of back pay, interest due, and/or other benefits, we ORDER the
agency to pay the appellant the undisputed amount no later than 60 calendar days
after the date of this decision.
¶20 We further ORDER the agency to tell the appellant promptly in writing
when it believes it has fully carried out the Board’s Order and of the actions it has
taken to carry out the Board’s Order. The appellant, if not notified, should ask
the agency about its progress. See 5 C.F.R. § 1201.181(b).
¶21 No later than 30 days after the agency tells the appellant that it has fully
carried out the Board’s Order, the appellant may file a petition for enforcement
with the office that issued the initial decision on this appeal if the appellant
believes that the agency did not fully carry out the Board’s Order. The petition
should contain specific reasons why the appellant believes that the a gency has not
fully carried out the Board’s Order, and should include the dates and results of
any communications with the agency. 5 C.F.R. § 1201.182(a).
¶22 For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Bo ard decision
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
11
documentation necessary to process payments and adjustments resulting from the
Board’s decision in accordance with the attached lists so that payment can be
made within the 60-day period set forth above.
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set forth at title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
NOTICE OF APPEAL RIGHTS 6
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
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.
12
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
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.
13
(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. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the
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:
14
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction. 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).
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.
15
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our 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.