Jacob McCauley v. Department of the Interior ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JACOB HERRICK MCCAULEY, DOCKET NUMBER
Appellant, DC-3443-19-0478-I-1
v.
DEPARTMENT OF THE INTERIOR, DATE: March 8, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Jacob Herrick McCauley , Mechanicsville, Virginia, pro se.
Jessica L. Kersey , Esquire, Knoxville, Tennessee, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his removal appeal for lack of jurisdiction. For the reasons discussed
below, we GRANT the petition for review and REVERSE the initial decision.
The appellant’s removal is NOT SUSTAINED.
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
BACKGROUND
The material facts of this appeal are undisputed. On January 8, 2017, the
agency appointed the appellant, a non-preference eligible, to an excepted service
GS-05 Student Trainee (Maintenance Worker) position under the Pathways
Student Internship Program, pursuant to 5 C.F.R. § 213.3402(a). 2 Initial Appeal
File (IAF), Tab 5 at 11-12. This was an indefinite appointment, intended to
continue through the completion of the appellant’s education and work
requirements, and the agency had the option to noncompetitively convert the
appellant to a term or permanent competitive service position within 120 days
after he successfully completed all program requirements. Id. at 12; see 5 C.F.R.
§ 362.204(b) (setting forth the circumstances under which an agency may
noncompetitively convert an Intern to a term or permanent appointment in the
competitive service).
Effective April 5, 2019, the agency summarily separated the appellant from
service. IAF, Tab 1 at 7-8. The agency informed the appellant that it was
terminating his appointment due to a shift in programmatic priorities and because
he had not met the standards set forth in the Pathways agreement in the
performance of his work. Id. On April 30, 2019, the appellant filed a Board
appeal and requested a hearing. Id. at 1-3. He argued that the agency did not
allow him to respond to the reasons for his termination and that those reasons for
termination could not be substantiated. Id. at 5.
The administrative judge issued an order to show cause, informing the
appellant that the Board may not have jurisdiction over his appeal because he did
not appear to be an “employee” with Board appeal rights under 5 U.S.C.
2
The Pathways Program was established in 2010 by Executive Order 13562 to promote
employment opportunities for students and recent graduates in the Federal workplace
(Exec. Order No. 13,562, 75 Fed. Reg. 82,585 (Dec. 27, 2010)). The Pathways Program
is the successor to the Federal Career Intern Program (FCIP) and was designed to
address the problems with the FCIP. See Exec. Order No. 13,562, 75 Fed. Reg. 82,585;
Dean v. Department of Labor, 122 M.S.P.R. 276, ¶ 10, aff’d in part, rev’d in part,
808 F.3d 497 (Fed. Cir. 2015).
3
chapter 75. IAF, Tab 4. The appellant did not file a response to the order. The
agency moved to dismiss the appeal for lack of jurisdiction, arguing that
the appellant did not satisfy the definition of “employee” under 5 U.S.C.
§ 7511(a)(1). IAF, Tab 5.
After the record on jurisdiction closed, the administrative judge issued an
initial decision dismissing the appeal for lack of jurisdiction. IAF, Tab 6, Initial
Decision (ID) at 4. The administrative judge found that, because the appellant’s
appointment under the Pathways program was a temporary appointment, he was
not an “employee” with Board appeal rights under 5 U.S.C. chapter 75. ID at 4.
Alternatively, the administrative judge found that, even if the appellant were an
“employee” for purposes of Board jurisdiction, he had not suffered an appealable
adverse action when the agency failed to convert him to a term or permanent
competitive service position at the end of his trial period. ID at 3-4.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has not filed a response.
ANALYSIS
On review, the appellant argues that he qualifies as an “employee” with
Board appeal rights under 5 U.S.C. § 7511(a)(1)(C), which defines as an
employee an individual in the excepted service, other than a preference eligible,
who has completed 2 years of current continuous service in the same or similar
positions in an Executive agency under other than a temporary appointment
limited to 2 years or less. PFR File, Tab 1 at 4. He argues that, based on the fact
that his appointment length was indefinite, and thus not one “limited to 2 years or
less,” and the fact that he continuously worked in his position for over 2 years, he
qualifies as an employee under this provision. Id.; IAF, Tab 5 at 12. The
appellant further argues that the administrative judge mischaracterized the nature
of his appeal, clarifying that he was not challenging the agency’s failure to
4
convert him to a permanent position, but was instead challenging the agency’s
failure to offer him predecisional due process. PFR File, Tab 1 at 4.
The appellant was an employee with chapter 75 appeal rights at the time of his
termination.
An individual who is involuntarily separated for cause is entitled to appeal
to the Board under 5 U.S.C. §§ 7512(1) and 7513(d) if he meets the definition of
“employee” under 5 U.S.C. § 7511(a)(1). Yeressian v. Department of the Army,
112 M.S.P.R. 21, ¶ 8 (2009). As a non-preference eligible in the excepted
service, to be entitled to Board appeal rights the appellant had to satisfy the
definition of “employee” under 5 U.S.C. § 7511(a)(1)(C), which is defined as an
individual:
(i) who is not serving a probationary or trial period under an initial
appointment pending conversion to the competitive service; or
(ii) who has completed 2 years of current continuous service in the
same or similar positions in an Executive agency under other than a
temporary appointment limited to 2 years or less.
The appellant need only satisfy the requirements under (C)(i) or (C)(ii) in order to
be an employee with adverse action appeal rights. Van Wersch v. Department of
Health and Human Services, 197 F.3d 1144, 1151 (Fed. Cir. 1999); Yeressian,
112 M.S.P.R. 21, ¶ 8.
In Van Wersch, the U.S. Court of Appeals for the Federal Circuit held that,
although the petitioner was serving a probationary period under a temporary
excepted service appointment pending conversion to the competitive service and
did not satisfy the requirements under subsection (C)(i), she satisfied the
requirements under subsection (C)(ii) because she had completed 2 years and
8 months of current continuous service in the same position in an Executive
agency. Therefore, she was an “employee” within the meaning of 5 U.S.C.
§ 7511(a)1)(C). Van Wersch, 197 F.3d at 1146, 1148. Similarly, in Beck v.
General Services Administration, 86 M.S.P.R. 489, ¶¶ 2, 11 (2000), the Board
found that an individual who was appointed to a Student Trainee position
5
pursuant to 5 C.F.R. § 213.3202, whose appointment was intended to continue
through completion of her education and study-related work requirements, and
who served more than 2 years of current continuous service in the same position,
met the statutory definition of an “employee” under subsection (C)(ii).
In this case, although the appellant was serving in a trial period under an
initial appointment pending conversion to the competitive service, he had served
more than 2 years in that position at the time of his separation. IAF, Tab 1 at 7,
Tab 5 at 11-12; see 5 C.F.R. §§ 213.3402(b)(1), 362.204(a). Therefore, although
the appellant did not meet the definition of “employee” under 5 U.S.C. § 7511(a)
(1)(C)(i), he met the alternative definition of “employee” under 5 U.S.C.
§ 7511(a)(1)(C)(ii). See Van Wersch, 179 F.3d at 1148; Beck, 86 M.S.P.R. 489,
¶ 11.
This finding is consistent with the Office of Personnel Management’s
(OPM) Pathways Programs Handbook, which provides guidance for agencies on
how to implement the Pathways Program and sets out specific requirements to
which agencies must adhere in administering the program. 3 See Pathways
Programs Handbook, U.S. Office of Personnel Management (Aug. 2016),
available at https://www.pmf.gov/media/5544619/opm-pathways-programs-
handbook-08-2016.pdf. In the section of the Handbook addressing terminations,
OPM notes that a termination based on the expiration of an internship
appointment is not effected under 5 U.S.C. chapter 75, and the Intern does not
have Board appeal rights. Pathways Programs Handbook at 25. However, OPM
also notes that if an Intern is terminated at any time prior to completion of the
designated appointment, “agencies must determine whether the action should be
3
While OPM Guides and Handbooks lack the force of law, the Board has held that they
are entitled to deference in proportion to their power to persuade. See Warren v.
Department of Transportation, 116 M.S.P.R. 554, ¶ 7 n.2 (2011) (addressing an OPM
retirement handbook), aff’d, 493 F. App’x 105 (Fed. Cir. 2013); Luten v. Office of
Personnel Management, 110 M.S.P.R. 667, ¶ 9 n.3 (2009) (granting “some deference”
to an OPM retirement handbook). Here, we find that OPM’s handbook is persuasive for
identifying the requirements agencies must meet in implementing the Pathways
Program.
6
processed in accordance with [] 5 U.S.C. [c]hapter 75, and the Intern . . . may be
given appeal rights.” Id. at 26. Continuing, the Handbook states that chapter 75
appeal rights “will be based on whether the Intern [] meets the definition of
‘employee’ as set forth in [] 5 U.S.C. [§] 7511.” The Handbook makes clear that
if an Intern meets the definition of “employee” under 5 U.S.C. chapter 75, then he
“may have the right to appeal the balance of the remainder of the appointment,”
and “adverse action procedures outlined in [5 C.F.R. § 752] will apply to the
action.” Id. Absent a specific exclusion of appeal rights or an exemption from
section 7511’s definition of an “employee,” a civil service position is not exempt
from the protections found in chapter 75, including the right to appeal an adverse
action to the Board. See Lal v. Merit Systems Protection Board, 821 F.3d 1376,
1379-80 (2016); Malloy v. Department of State, 2022 MSPB 14, ¶¶ 11-12.
The appellant’s separation from service constituted a removal within the meaning
of 5 U.S.C. § 7512(1).
As noted above, the administrative judge found that, even if the appellant
were an employee with chapter 75 appeal rights, his separation from service did
not constitute an adverse action because failure to convert an individual at the
conclusion of a term appointment does not constitute a removal under 5 U.S.C.
§ 7512(1). ID at 3-4. It is well established that termination of an appointment on
the expiration date specified as a basic condition of employment at the time the
appointment was made does not constitute an adverse action appealable under
chapter 75. Berger v. Department of Commerce, 3 M.S.P.R. 198, 199-200 (1980);
5 C.F.R. § 752.401(b)(11). However, there is no evidence that the appellant in
this case was serving in a temporary or term appointment with a defined end date.
Instead, he was serving under an indefinite appointment, i.e., a nonpermanent
appointment without a definite time limitation. IAF, Tab 1 at 12, 14; see 5 C.F.R.
§ 362.203(d)(3) (providing for two types of Pathways Intern appointments–
temporary appointments not to exceed one year, and indefinite appointments that
7
are “not required to have an end date” ). 4 Because the appellant’s appointment
did not have an end date specified, we find that his involuntary separation from
service did not fall within the exception of 5 C.F.R. § 752.401(b)(11).
Furthermore, the documentation surrounding the agency’s action shows
unequivocally that the appellant’s separation was for cause rather than pursuant to
the expiration of his appointment. In its notice of termination, the agency
explained to the appellant the reasons for his separation from service as follows:
“A change in programmatic priorities has shifted the need for your position. In
addition, you have not met the standards set forth in the Pathways agreement in
the performance of your work.” IAF, Tab 1 at 8. Similarly, the Standard
Form 50 (SF-50) documenting the appellant’s separation states that the reason for
the action was a “change in programmatic priorities.” Id. at 7. The agency has
endorsed this explanation on appeal. IAF, Tab 5 at 5. Nowhere has the agency
even suggested that the appellant might have been separated pursuant to the
expiration of his appointment.
We further observe that the SF-50 cites 5 C.F.R. § 362.105(h) as the
authority for the appellant’s termination. IAF, Tab 1 at 7. That paragraph
4
Even if an Intern appointment does not have an end date, OPM’s regulations require
the employing agency “to specify an end date of the appointment in the Participant
Agreement with the Intern.” 5 C.F.R. § 362.203(d)(3)(i). Neither party in this case
submitted the appellant’s Participant Agreement for the record, so we are unable to
determine what, if any, end date was specified in that agreement. However, we find
that the provisions of any such agreement would be immaterial to the analysis. Nothing
in the Participant Agreement could serve to alter the nature of the appellant’s
appointment or change the fact that the appointment itself had no definite time
limitation. “Federal employment is not governed by contract principles. In the federal
personnel system, employees are appointed to positions, with their terms of
employment being specified primarily in position descriptions. Appointment, not
contract law, is the central concept.” Bartel v. Federal Aviation Administration,
14 M.S.P.R. 24, 35-36 (1982), aff'd as modified, 30 M.S.P.R. 451 (1986). “Absent
specific legislation, Federal employees derive the benefits and emoluments of their
positions from appointment rather than from a contractual or quasi-contractual
relationship with the government, even where compacts have been made between
employees and their agencies.” Walton v. Department of the Navy, 42 M.S.P.R. 244,
250 n.14 (1989).
8
provides as follows: “An agency may terminate a Pathways Participant for
reasons including misconduct, poor performance, or suitability under the
provisions of this chapter.” 5 C.F.R. § 362.105(h). Had the appellant been
terminated pursuant to the expiration of his appointment, the applicable
regulatory authority would have been 5 C.F.R. § 362.205(b).
For these reasons, we find no dispute of material fact about the nature of
the appellant’s separation. The record shows that, like the appellant in
McCrary v. Department of the Army, 103 M.S.P.R. 266, ¶¶ 2, 9, 15 (2006), the
appellant in this case was separated for cause during his internship, and as an
employee within the meaning of 5 U.S.C. § 7511(a)(1)(C)(ii), was subjected to an
appealable adverse action, i.e., a removal under 5 U.S.C. § 7512(1). This appeal
is unlike Scull v. Department of Homeland Security, 113 M.S.P.R. 287, ¶¶ 3, 10
(2010) in which the appellant, although an employee with adverse action appeal
rights, was separated pursuant to the expiration of his appointment and therefore
not subjected to an adverse action appealable under chapter 75.
The agency removed the appellant without due process.
The essential requirements of procedural due process are prior notice of the
reasons for the adverse action and an opportunity to respond. Cleveland Board of
Education v. Loudermill, 470 U.S. 532, 546 (1985). In this case, the record
shows that the appellant did not receive any prior notice whatsoever of the
reasons for his separation, and consequently had no opportunity to respond. IAF,
Tab 1 at 5, 7-8, Tab 5 at 5. Because the agency’s procedures for effecting the
appellant’s removal did not comport with his constitutional right to minimum due
process, the agency’s action is not sustained. See Sandoval v. Department of
Agriculture, 115 M.S.P.R. 71, ¶ 15 (2010).
ORDER
We ORDER the agency to CANCEL the appellant’s removal and
RESTORE him to his position effective April 5, 2019. See Kerr v. National
9
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.
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.
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).
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).
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
10
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 5
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
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.
5
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.
11
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.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
12
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:
13
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. 6 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).
6
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.
14
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: ______________________________
Gina K. Grippando
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.