Wade Alford v. United States Postal Service ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
WADE ALFORD, DOCKET NUMBER
Appellant, DE-0752-20-0208-I-2
DE-0752-21-0103-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: March 14, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Wade Alford , Casa Grande, Arizona, pro se.
Samuel J. Schmidt , Esquire, Sandy, Utah, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The agency has filed a petition for review of the initial decision, which
reversed the appellant’s removals and granted in part and denied in part the
appellant’s request for corrective action. For the reasons discussed below, we
GRANT the agency’s petition for review and DENY the appellant’s cross petition
for review. We REVERSE the administrative judge’s findings that the appellant
proved his affirmative defenses of whistleblower reprisal and race discrimination,
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
AFFIRM as MODIFIED the administrative judge’s analysis of the appellant’s
claim of reprisal for equal employment opportunity (EEO) activity to account for
the standards announced in Pridgen v. Office of Management and Budget,
2022 MSPB 31 ¶¶ 20-22, 30, and AFFIRM the remainder of the initial decision
without modification, still REVERSING the appellant’s removals.
BACKGROUND
The agency removed the appellant, a preference eligible City Carrier,
effective April 4, 2020, based on the charge of “violation of the [agency]
standards of conduct: unacceptable behavior,” for his role in a December 12,
2019 workplace altercation with a coworker. Alford v. U.S. Postal Service,
MSPB Docket No. DE-0752-20-0208-I-1, Initial Appeal File (0208 IAF), Tab 9
at 78-81, 91-96, Tab 10 at 107. The appellant appealed his removal to the Board,
to which he argued, among other things, that his removal constituted race
discrimination and whistleblower reprisal. 0208 IAF, Tab 1, Tab 11, Tab 17
at 7-10. During the hearing, the administrative judge noted that due process
issues would likely result in a reversal of the removal. Alford v. U.S. Postal
Service, MSPB Docket No. DE-0752-20-0208-I-2, Appeal File (0208 I-2 AF),
Tab 29 (Hearing Transcript (HT 1) at 100-02) (colloquy of the administrative
judge). Subsequently, the agency filed evidence showing that it had rescinded the
decision notice. 0208 IAF, Tab 43 at 7. The administrative judge then dismissed
the appeal without prejudice, at the appellant’s request. 0208 IAF, Tab 49.
The agency designated a new deciding official and removed the appellant
for a second time, effective January 29, 2021, based on the original proposal
notice. Alford v. U.S. Postal Service, MSPB Docket No. DE-0752-21-0103-I-1,
Initial Appeal File (0103 IAF), Tab 9 at 9-13. The appellant filed a new appeal
based on the second removal, which the administrative judge joined with the
refiled appeal of the appellant’s first removal. 0103 IAF, Tabs 1, 14.
0208 I-2 AF, Tab 9. The administrative judge accepted for adjudication the
3
appellant’s affirmative defenses raised in his first removal as defenses to his
second removal, and further accepted new defenses the appellant asserted.
0208 I-2 AF, Tab 15 at 15-16, Tab 18.
After reconvening the hearing, the administrative judge issued an initial
decision reversing the appellant’s removals and granting in part, and denying in
part, the appellant’s request for corrective action. 0208 I-2 AF, Tab 48, Initial
Decision (ID). The administrative judge first found that the appeal of the first
removal was not moot because the appellant’s affirmative defenses from that
removal remained to be adjudicated. ID at 3-4. She then determined that the first
deciding official’s consideration of the appellant’s prior misconduct as an
aggravating penalty factor without prior notice to the appellant violated the
appellant’s due process rights. ID at 4-5. Thus, she found that the first removal
must be reversed. ID at 5. Next, the administrative judge found that the agency
failed to prove its charge in the second removal action. ID at 7-17. Finally, the
administrative judge concluded that the appellant proved his whistleblower
reprisal and race discrimination affirmative defenses for both removals, but failed
to prove any other affirmative defenses. ID at 17-25. Among other remedies, the
administrative judge ordered the agency to provide the appellant with interim
relief if either party filed a petition for review. ID at 26-28.
The agency filed a petition for review in which it argues, among other
things, that the administrative judge erred in finding that the appellant established
his race discrimination and whistleblower reprisal affirmative defenses. Petition
for Review (PFR) File, Tab 1. The appellant filed a response and a cross petition
for review. PFR File, Tab 8. The agency replied to the appellant’s response to its
petition for review and responded to the appellant’s cross petition for review.
PFR File, Tabs 1213. The appellant also filed a petition for enforcement of the
administrative judge’s interim relief order, to which the agency responded. PFR
File, Tabs 2, 4, 11.
4
DISCUSSION OF ARGUMENTS ON REVIEW
The agency has substantially complied with the interim relief order.
The Board will not entertain a petition for enforcement of an interim relief
order before a final decision is issued; rather, it will treat such a petition as a
motion to dismiss the agency’s petition for review. Johnson v. Department of
Veterans Affairs, 2023 MSPB 9, ¶ 7. Accordingly, we consider the appellant’s
petition for enforcement as a request to dismiss the agency’s petition for review.
With its petition for review, the agency submitted evidence that the
appellant remained on the agency payroll as a City Carrier, that it determined that
it would be unduly disruptive to return him to duty during the pendency of the
petition for review, that he was placed on administrative leave beginning June 4,
2022, and that it was processing his back pay for the period from May 19, the
date of the initial decision, to June 4, 2022. PFR File, Tab 1 at 30-36. The
agency filed additional evidence of its compliance efforts on review. PFR File,
Tab 11 at 10-28. The agency thus substantially complied with the interim relief
order and the appellant’s motion to dismiss the petition for review is denied. See
Bryant v. Department of the Army, 2022 MSPB 1, ¶ 7 (considering an agency’s
petition for review when the agency was in the process of providing interim relief
when it filed its petition for review).
We affirm the reversals of the agency’s removal actions.
We affirm the administrative judge’s reversal of the agency’s first removal
action for due process issues and reversal of the second removal action due to the
agency’s failure to prove its charge, discerning no reason to disturb the rationales
underlying those dispositions. ID at 4-5, 7-17, 25. Although the agency objects
to having been required by the administrative judge to prove the elements of a
threat charge set forth in Metz v. Department of the Treasury, 780 F.2d 1001,
1002 (Fed. Cir. 1986), it raises the objection for the first time on review and fails
to show that its objection is based on new and material evidence not previously
available despite its due diligence. Rather, because the record shows that the
5
agency waived its objection during the appeal, we decline to consider it. Clay v.
Department of the Army, 123 M.S.P.R. 245, ¶ 6 (2016); Zaborowski v.
Department of the Army, 34 M.S.P.R. 299, 301-02 (1987), aff’d, 852 F.2d 1293(Fed. Cir. 1988) (Table); 0208 I-2 AF, Tab 32 at 6-9.
The appellant failed to prove his affirmative defense of race discrimination.
Since the initial decision was issued, the Board has clarified the standards
for proving disparate treatment discrimination. Title VII of the Civil Rights Act
of 1964, as amended, requires that actions “shall be made free from any
discrimination based on race, color, religion, sex, or national origin.” 42 U.S.C.
§ 2000e-16(a); see Desjardin v. U.S. Postal Service, 2023 MSPB 6, ¶ 31;
Pridgen, 2022 MSPB 31, ¶ 20. To prove discrimination under Title VII, an
appellant must prove that prohibited discrimination was at least a motivating
factor in the agency’s action. Pridgen, 2022 MSPB 31, ¶ 21.
The appellant failed to prove that his race was a motivating factor in his
removal. The appellant, who is African American, argued that he was
discriminated against on the basis of race because the proposing official in both
of his removals and the deciding official in the first removal are Hispanic, while
his coworker, who also is Hispanic, was not disciplined. 0208 IAF, Tab 11
at 4-5.
The administrative judge noted the races of the agency officials involved in
removing the appellant. ID at 21-22. She then determined that, because the
record was silent regarding the difference in treatment between the appellant and
his coworker, whom the deciding official in the second removal action conceded
at the hearing had used abusive language during the altercation, she “must infer”
that the agency was motivated by racial discrimination in its decision to remove
the appellant but not discipline the coworker. ID at 22. The administrative judge
then found that the proposing and deciding officials ignored certain evidence
because they were “determined to find the appellant solely responsible” for the
altercation, and that because of the lack of credible evidence to support both
6
deciding officials’ decisions, the appellant established his race discrimination
affirmative defense. ID at 22-23.
The proposing official and both deciding officials testified that, based on
their reviews of the agency’s evidence, they viewed the appellant as the instigator
of, and aggressor in, the altercation, to the point of initiating physical contact.
HT 1 at 10-11, 19-24 (testimony of the first deciding official); 0208 I-2 AF,
Tab 27, Hearing Transcript 2 (HT 2) at 24-26 (testimony of the second deciding
official), 78-79 (testimony of the proposing official). The witness statements in
the agency investigation show no reason to doubt that those officials’
understandings of the altercation were genuine. 2 0208 IAF, Tab 10 at 98-105.
For employees to be deemed similarly situated for purposes of an
affirmative defense of discrimination based on disparate treatment, comparators
must have engaged in conduct similar to the appellant’s without differentiating or
mitigating circumstances. Hooper v. Department of Interior, 120 M.S.P.R. 658,
¶ 6 (2014). Here, the evidence available to the agency at the time of its decisions
showed differentiating circumstances between the conduct of the appellant and
his coworker. Thus, the two were not similarly situated. See Gregory v.
Department of the Army, 114 M.S.P.R. 607, ¶¶ 43-44 (2010) (finding that a
coworker was not similarly situated to an appellant because the coworker’s
misconduct was not sufficiently similar to the appellant’s). The appellant
presented no additional evidence, under the various methods of proof that the
Board set forth in Pridgen, to show that race was at least a motivating factor in
2
The administrative judge found that the proposing and deciding officials, being
“determined to find the appellant solely responsible” for the altercation, ignored written
statements of three witnesses purportedly indicating that they did not feel threatened or
fear working at the appellant’s post office. ID at 22-23. However, only one of those
three witnesses wrote in a statement that she was not afraid to work in the appellant’s
post office. 0208 IAF, Tab 10 at 100, 104-105. Another one of those witnesses wrote
that the appellant has anger issues and has had prior confrontations with several
employees. Id. at 104. On the other hand, more than one witness wrote that the
appellant’s actions aroused feelings of fear. Id. at 98, 103. The administrative judge’s
finding that the agency ignored evidence and her depiction of the purportedly ignored
evidence were thus erroneous.
7
the removal. Thus, although we agree with the administrative judge that the
agency failed to prove the charge, we also find that the appellant failed to
establish his race discrimination affirmative defense. Accordingly, we reverse
the administrative judge’s finding of race discrimination.
We modify the administrative judge’s analysis of the appellant’s EEO reprisal
affirmative defense to account for the standard articulated in Pridgen .
We also modify the administrative judge’s analysis of the appellant’s EEO
reprisal affirmative defense, to which she applied the test announced in Warren v.
Department of the Army, 804 F.2d 654, 656-58 (Fed. Cir. 1986) in finding that the
appellant failed to show that the deciding officials were “in anyway motivated to
retaliate against the appellant.” ID at 23. In Pridgen, 2022 MSPB 31, ¶ 30, we
stated that claims of retaliation for opposing discrimination in violation of
Title VII are analyzed under the same framework used for Title VII
discrimination claims discussed above. The application of the standards
articulated in Pridgen would not, however, require disturbing the administrative
judge’s conclusion that the appellant failed to prove his EEO reprisal affirmative
defense.
The appellant failed to prove his affirmative defense of whistleblower reprisal.
To prove whistleblower reprisal in a case involving an employee of the
U.S. Postal Service, an appellant must show: (1) a protected disclosure was
made; (2) the accused official knew of the disclosure; (3) the adverse action under
review could have been retaliation under the circumstances; and (4) there was a
genuine nexus between the alleged retaliation and the adverse action. See
Warren, 804 F.2d at 656-58; Mack v. U.S. Postal Service, 48 M.S.P.R. 617,
621-22 (1991). To establish a genuine nexus, an appellant must show that the
adverse action was taken because of his protected activity. Mattison v.
Department of Veterans Affairs, 123 M.S.P.R. 492, ¶ 8 (2016). This requires the
Board to weigh the severity of the appellant’s alleged misconduct against the
intensity of the agency’s motive to retaliate. Id.; see Warren, 804 F.2d at 658.
8
In concluding that the appellant met his burden under the Warren test, the
administrative judge found that there was direct evidence that the appellant’s
2011 Office of the Special Counsel (OSC) complaint played an “essential role” in
both decisions to remove the appellant. ID at 19. According to the
administrative judge, this evidence consisted of testimony in which the deciding
officials agreed with a note the proposing official wrote in support of the
proposed removal purportedly stating that the appellant’s statements in the
investigation of the altercation were less credible because he had made “false or
exaggerated” claims in his 2011 OSC complaint. ID at 19-20.
Upon review, we find that the administrative judge misinterpreted this
evidence. Looking at the text of the proposing official’s note, the reference to
“false or exaggerated” statements does not refer to the appellant’s allegations in
his OSC complaint, but rather to his allegation that management and his coworker
conspired to remove him due to past issues, possibly including his EEO activity,
OSC complaint, and union activity. 0208 IAF, Tab 9 at 103-04. Consistent with
this interpretation of the note, the proposing official testified that he did not know
anything about the appellant’s accusations in his 2011 OSC complaint, which was
“prior to [him].” HT 2 at 105 (testimony of the proposing official). Although
both deciding officials testified that they interpreted the “false or exaggerated”
language to refer to the appellant’s protected activity, namely his 2011 OSC
complaint, they also testified that they did not consider the proposing official’s
statements regarding the appellant’s credibility in deciding to remove the
appellant. HT 1 at 35-36, 92, 97 (testimony of the first deciding official); HT 2
at 48, 69 (testimony of the second deciding official). Nothing in the record
provides any basis to doubt the veracity of this testimony.
Returning to the Warren test, the appellant has not shown that he was
removed because of his OSC complaint—which was made over 8 years prior to
his proposed removal—precluding a finding of genuine nexus. See Carter v.
Small Business Administration, 61 M.S.P.R. 656, 668-69 (1994) (finding that the
9
passage of 10 years between an appellant’s EEO complaint and her proposed
removal supported a lack of genuine nexus); 0208 IAF, Tab 3 at 21, Tab 9 at 91.
Even if the proposing or deciding officials could be said to have had some
retaliatory motive due to any of the appellant’s protected activity, including the
2011 OSC complaint, there is no reason to believe that it outweighed the severity
of the appellant’s misconduct as depicted in the agency’s evidence as discussed,
or that the appellant was removed because of that protected activity. See Pyun v.
Social Security Administration, 111 M.S.P.R. 249, ¶ 14 (2009) (finding that there
was no genuine nexus when the inadequacy of the appellant’s performance
substantially outweighed the intensity of the agency’s motive to retaliate, of
which there was little evidence). We discern no evidence which would show that
the appellant otherwise established his whistleblower reprisal affirmative defense,
and we thus reverse the administrative judge’s finding that the appellant
established that defense. 3
3
We decline to consider the agency’s claim in its reply to the appellant’s response to its
petition for review that the administrative judge erred by not dismissing the case on
grounds of adjudicatory efficiency because the agency failed to raise the claim in its
petition for review. Lin v. Department of the Air Force, 2023 MSPB 2, ¶ 8 n.4;
5 C.F.R. § 1201.114(a)(4); PFR File, Tab 12 at 12. In any event, because the
appellant’s claims adjudicated in his appeal under the Uniformed Services Employment
and Reemployment Rights Act differed from those in the present appeal, dismissal on
adjudicatory efficiency grounds would be inappropriate. Alford v. U.S. Postal Service,
MSPB Docket No. DE-4324-20-0132-I-1, Initial Decision (Apr. 16, 2020). Next,
regarding the appellant’s claim in his cross petition for review that the administrative
judge erred in denying an exhibit he filed during the appeal and his motions to file
evidence and argument after the record closed, the administrative judge had wide
discretion to exclude irrelevant, immaterial, or unduly repetitious evidence. We find
that she did not abuse this discretion in excluding the appellant’s hearing exhibit, which
was not material to the issues in this case. Dieter v. Department of Veterans Affairs,
2022 MSPB 32, ¶ 23; PFR File, Tab 8 at 28-29; 0208 I-2 AF, Tab 16 at 7-34. Further,
the administrative judge correctly denied the appellant’s motions to admit new evidence
or argument because the appellant failed to show that such new evidence or argument
was not readily available before the record closed or that it was in rebuttal to new
evidence or argument submitted by the agency just before the close of the record.
McClenning v. Department of the Army, 2022 MSPB 3, ¶ 19; 5 C.F.R. § 1201.59(a)-(c);
0208 I-2 AF, Tabs 43-47.
10
ORDER
We ORDER the agency to cancel both removal actions and restore the
appellant to his position effective April 4, 2020. See Kerr v. National Endowment
for the Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency must complete this
action no later than 20 days after the date of this decision.
We also ORDER the agency to pay the appellant the correct amount of
back pay, interest on back pay, and other benefits under the Back Pay Act and/or
Postal Service 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.
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 in 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
11
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.
This is the final decision of the Merit Systems Protection Board in this
appeal. 5 C.F.R. § 1201.113.
NOTICE TO THE APPELLANT
REGARDING YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set out at Title 5 of
the United States Code (U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1202.202, 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 4
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
4
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
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.
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. 5 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).
5
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: ______________________________
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.