Lam Dickie v. Department of Homeland Security ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DICKIE T. LAM, DOCKET NUMBER
Appellant, PH-0752-22-0250-I-1
v.
DEPARTMENT OF HOMELAND DATE: March 21, 2024
SECURITY,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Karen Weisbord , Philadelphia, Pennsylvania, for the appellant.
Laura Donohue-Liban , George Johnson , Ronetia Douglas and
Jayne T. Haiber , Baltimore, Maryland, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
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 mitigated the appellant’s removal
to a 60-day suspension without pay. Generally, we grant petitions such as these
only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 neither party
has established any basis under section 1201.115 for granting the petition or cross
petition for review. Therefore, we DENY the petition for review and cross
petition for review, and AFFIRM the initial decision, which is now the Board’s
final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
¶2 Prior to his removal, the appellant was a GS-12 Customs and Border
Protection Officer for the agency’s U.S. Customs and Border Protection (CBP)
division stationed in Philadelphia, Pennsylvania. Initial Appeal File (IAF), Tab 6
at 68. On September 12, 2020, the appellant, while on duty, in uniform and in a
marked CBP vehicle, made a traffic stop on the Walt Whitman Bridge at the
border of Pennsylvania and New Jersey. Id. at 164-65. The appellant notified his
supervisor of the incident after he returned to his duty station, IAF, Tab 1 at 17,
and his supervisor notified agency leadership, IAF, Tab 6 at 211. Shortly
thereafter, the agency found that the appellant’s statement to his supervisor
conflicted with the police report, and the Office of Professional Responsibility
(OPR) initiated an investigation into the traffic stop. IAF, Tab 6 at 198. At the
conclusion of the investigation, OPR determined that the appellant made an
unauthorized traffic stop and provided conflicting accounts of the stop to the
agency, but did not knowingly provide false or misleading information to the
agency. Id. at 178-96.
3
¶3 On February 18, 2022, the agency proposed to remove the appellant, based
on the following charges: (1) Misuse of a Government Vehicle for Other than
Official Purposes, (2) Misuse of Authority, and (3) Lack of Candor (five
specifications). Id. at 164-73. The agency charged the appellant with misuse of
his Government vehicle when while on duty, in uniform, and driving a marked
CBP law enforcement vehicle, he activated the vehicle’s emergency signaling
device while driving behind a private vehicle to cause the driver to stop without
an official purpose. Id. at 164. The agency charged him with misuse of authority
while on duty, and in uniform, he requested the private driver’s license, insurance
information, and vehicle registration, took custody of his driver’s license,
detained the driver for approximately 12 minutes prior to local law enforcement
arriving, and signed the ticket in his capacity as a CBP Officer with no nexus to
his authority as a CBP Officer and without having peace officer status. Id. The
agency also charged the appellant with lack of candor when he gave conflicting
information to his supervisor, in his written statement, and during his OPR
interview. Id. at 165-66. On May 31, 2022, the agency issued a decision letter
sustaining the misuse of authority and lack of candor charges and removed the
appellant effective June 14, 2022. Id. at 70-75.
¶4 The appellant timely appealed his removal to the Board challenging the
charges against him. IAF, Tab 1. He also raised the affirmative defense of
reprisal for equal employment opportunity (EEO) activity. Id. at 18-21. After
holding the requested hearing, IAF, Tab 1 at 2, Tabs 32-34, Hearing Recording
(HR), the administrative judge issued an initial decision, IAF, Tab 35, Initial
Decision (ID). Therein, he found that the agency proved the lack of candor
charge by preponderant evidence but failed to prove the charge of misuse of
authority by preponderant evidence. ID at 7-18. He also found that the appellant
failed to prove his affirmative defense of reprisal for EEO activity. ID at 18-19.
Finally, although he found that the agency proved that a nexus existed between
the appellant’s conduct and the efficiency of the service, he found that it failed to
4
show that removal based on the sole sustained charge of lack of candor was
reasonable. ID at 19-22. Accordingly, he mitigated the penalty of removal to a
60-day suspension without pay. ID at 22.
¶5 The agency has filed a petition for review of the initial decision. 2 Petition
for Review (PFR) File, Tab 1 at 5-26. The appellant has responded to the
agency’s petition for review and filed a cross petition for review challenging the
administrative judge’s decision to mitigate his removal to a 60-day unpaid
suspension. PFR File, Tabs 3-4. The agency has filed a reply to the response and
has responded to the appellant’s cross petition for review. PFR File, Tabs 6, 9.
Additionally, the appellant has filed motions for leave to file a surreply. 3 PFR
File, Tabs 7, 10.
DISCUSSION OF ARGUMENTS ON REVIEW
¶6 On review, the agency challenges the administrative judge’s finding that the
agency failed to prove its misuse of authority charge and two specifications of its
lack of candor charge. PFR File, Tab 1 at 5-19. Specifically, the agency argues
that the administrative judge made erroneous findings of facts and failed to
2
With its petition for review, the agency submitted a certification of its compliance
with the interim relief order and provided evidence demonstrating that it has complied
with the administrative judge’s interim relief order. Petition for Review (PFR) File,
Tab 1 at 27-31; see 5 C.F.R. § 1201.116(a). The appellant does not challenge the
agency’s certification on review.
3
Following the agency’s reply to the appellant’s response to its petition for review, the
appellant filed a motion for leave to file a surreply. PFR File, Tab 7. The appellant
filed a second motion for leave to file a surreply following the agency’s response to his
cross petition for review. PFR File, Tab 10. Such pleadings are generally not allowed
absent approval by the Office of the Clerk of the Board based upon a party’s motion
describing the nature of and need for the pleading. See Martin v. U.S. Postal Service,
123 M.S.P.R. 189, ¶ 8 n.1 (2016); 5 C.F.R. § 1201.114(a)(5). Here, the appellant
argues that a surreply is necessary to address the agency’s misrepresentation of the
record, the law, and the administrative judge’s initial decision. PFR File, Tab 7 at 5,
Tab 10 at 5-6. As explained below, we conclude that the administrative judge correctly
determined that the agency failed to prove its misuse of authority charge and found that
removal was unreasonable under the circumstances of this case. Thus, we discern no
need for these additional pleadings. Accordingly, the appellant’s motions for leave to
file a surreply are denied.
5
properly assess the credibility of the witnesses. Id. The agency also argues that
the administrative judge improperly mitigated its chosen penalty of removal. Id.at 19-26
The administrative judge made reasoned findings of fact and
credibility - based determinations.
¶7 The agency argues the administrative judge erroneously found that the
appellant’s actions following the traffic stop to be appropriate based on the
deciding official’s decision not to sustain the misuse of a Government vehicle for
other than official purposes charge and his belief that briefly engaging a driver is
appropriate. PFR File, Tab 1 at 10-13; ID at 7-13. It argues that in concluding
that the appellant’s actions were appropriate and consistent with the actions of a
witness, the administrative judge failed to correctly address the appellant’s
misuse of his authority to detain the driver and the driver’s license, to determine
the requisite traffic charge, and to sign and issue a ticket to the driver. PFR File,
Tab 1 at 10-17. In response, the appellant argues that the administrative judge’s
findings are supported by the record. PFR File, Tab 3 at 12-13, 19-22. We agree
with the appellant that the administrative judge made appropriate fact findings
and properly considered the relevant evidence in making his determinations.
Here, the agency based its charge of misuse of authority on the following
specification:
On September 12, 2020, at approximately 12:42 PM, while on duty,
and in uniform, with no nexus to your authority as a CBP Officer and
without having peace officer status, you approached a private driver,
requested his license and vehicle registration, and took custody of his
driver’s license; you also requested his insurance information and
detained the driver for approximately 12 minutes prior to local law
enforcement arriving. When law enforcement officers from the
Delaware River Port Authority Police Department (DRPA) arrived,
you informed them of the State of New Jersey traffic violation to
charge on the resulting Complaint-Summons (No. 0414-PA-293725),
signed your name as the complaining witness in your capacity as a
CBP Officer; and you served the Complaint-Summons on the driver.
6
Your conduct had no nexus to your authority and position as a CBP
Officer.
¶8 The administrative judge found that the agency failed to prove its charge by
preponderant evidence. ID at 7-13. In so finding, the administrative judge
explained that the deciding official conceded that many of the factual allegations
in the agency’s charge were appropriate. ID at 10-13; IAF, Tab 33, HR
(testimony of deciding official). Specifically, he noted that the deciding official
testified that both the traffic stop and the appellant’s subsequent actions were
appropriate and that the appellant had no authority over the DRPA officers. 4 ID
at 10-13; IAF, Tab 33, HR (testimony of deciding official). The administrative
judge found that those concessions along with the other evidence in the record
undermined the agency’s charge. ID at 11-13. The administrative judge
concluded that, amongst other things, the evidence and testimony that the agency
has no policy expressly addressing traffic stops; that CBP officers, including the
appellant, have made traffic stops and requested and received identification
without discipline; and that the agency reports reflect that the DRPA officers
completed and issued the ticket did not support sustaining the agency’s charge
considering the deciding official’s concessions. ID at 10,13; IAF, Tab 6 at 135,
147-57, 198, 200; Tab 19 at 150-54; Tab 33, HR (testimony of the appellant, the
appellant’s supervisor, as well as current and former CBP Officers officers).
¶9 We are similarly unpersuaded by the agency’s argument on review that the
administrative judge made erroneous findings regarding the 12-minute stop. PFR
File, Tab 1 at 13-14. The agency argues that he “made the erroneous leap that
because [the deciding official] said it is acceptable for a [CBP Officer] to call
911, then a twelve-minute detention was out of the Appellant’s control.” Id.; ID
at 12. However, the administrative judge did not solely consider the deciding
official’s concession regarding the appropriateness of the 911 call. Instead, he
4
The administrative judge found that the deciding official conceded that it was okay for
the appellant to act as a witness regarding a state crime or violation, to sign the ticket as
a witness, and to call 911 after making the stop. ID at 12.
7
made reasoned conclusions based on numerous factors. ID at 12-13. In
particular, the administrative judge considered that the deciding official testified
that “it is ‘sometimes appropriate to pull over a driver who is reckless or
dangerous’ and a [CBP Officer] ‘can stop a vehicle if it is a risk to public
safety.’” ID at 11; IAF, Tab 33, HR (testimony of the deciding official). He
considered the deciding official’s concession that the appellant properly stopped
the reckless driver and called 911. ID at 12; IAF, Tab 33, HR (testimony of the
deciding official). He also considered the lack of a policy addressing traffic
stops, and testimony and evidence corroborating that other CBP Officers have
made similar traffic stops, to include taking identification, without discipline. ID
at 12-13.
¶10 To the extent that the agency argues that the administrative judge
erroneously found the appellant to be a mere witness, its argument is without
merit. The administrative judge did not determine that the appellant was a
witness; instead, he expressed that the appellant’s actions “appeared to be that of
a witness” in large part based on the evidence and testimony that the appellant
relayed the details of the incident to the DRPA officers, the DRPA officers filled
out the ticket, asked him about the charge since he witnessed the incident, and
requested that he sign it as the complaining witness. ID at 12-13; IAF, Tab 6
at 198, 200, 217, Tab 9 (dash cam video); Tab 33, HR (testimony of the deciding
official). Therefore, we discern no basis to disturb the administrative judge’s
decision to not sustain the misuse of authority charge. ID at 13.
¶11 The agency also argues that the administrative judge failed to properly
assess witness credibility in accordance with Hillen v. Department of the Army,
35 M.S.P.R. 453, 458 (1987). PFR File, Tab 1 at 6-7. Specifically, the agency
asserts that the administrative judge “either did not explain his credibility
determinations or conducted scant analysis when he did” in finding that it failed
to prove two specifications of its lack of candor charge. PFR File, Tab 1 at 6-7.
We disagree.
8
¶12 The fact that an administrative judge does not mention all of the evidence or
Hillen factors does not mean that she did not consider them. Mithen v.
Department of Veterans Affairs, 122 M.S.P.R. 489, ¶ 14 (2015), aff’d, 652 F.
App’x 971 (Fed. Cir. 2016). Here, the administrative judge specified that he had
the opportunity to observe the witnesses, considered their demeanor, and relied
on the factors identified by the Board in Hillen for resolving issues of credibility.
ID at 7 n.4. Further, the Board defers to an administrative judge’s credibility
determinations when they are based, explicitly or implicitly, on observing the
demeanor of witnesses testifying at a hearing; the Board may overturn such
determinations only when it has “sufficiently sound” reasons for doing so. Haebe
v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002); see Purifoy v.
Department of Veterans Affairs, 838 F.3d 1367, 1372-73 (Fed. Cir. 2016) (finding
that the Board erred in failing to defer to an administrative judge’s implicit
demeanor-based credibility findings after holding a hearing, even though
demeanor was not specifically discussed); see also Mithen, 122 M.S.P.R. 489,
¶ 13 (noting that an administrative judge’s credibility determinations are
“virtually unreviewable”).
¶13 The agency also asserts that the administrative judge improperly found the
appellant credible given his numerous inconsistencies regarding what occurred
during the traffic stop. PFR File, Tab 1 at 6-7. We find this assertion unavailing.
At the outset, the administrative judge was not required to discredit the
appellant’s credibility on all issues because he found him not credible on one or
more issues. Cross v. Department of the Army, 89 M.S.P.R. 62, ¶ 14 (2001); see
Hawkins v. Smithsonian Institution, 73 M.S.P.R. 397, 404 (1997). Instead, the
specific instances of lack of credibility are proper considerations in assessing the
witness’s overall credibility. Cross, 89 M.S.P.R. 62, ¶ 14; see Sternberg v.
Department of Defense, 41 M.S.P.R. 46, 54 (1989) (explaining that once an
administrative judge has discredited a witness’s testimony on one charge, he must
reasonably explain why he accepts the testimony as credible on other charges).
9
¶14 In the initial decision, the administrative judge considered and gave
reasoned explanations for why he did not sustain the two specifications of the
lack of candor charge. ID at 17-18. With respect to the specification alleging
that the appellant failed to disclose information in his written statement, the
administrative judge specifically explained he found that the missing information
to be immaterial based on the agency’s testimony, as noted above, that it had no
issues with the appellant serving as a witness. ID at 17. Regarding the
specification that the appellant’s written statement was inconsistent with his OPR
interview, the administrative judge found that he credibly explained that he did
not include the driver’s medical issue in his written statement because he knew it
was not factual. Id. The record also reflects that the appellant testified that he
included the information during his OPR interview in response to the
investigator’s request to describe the incident in as much detail as you can
remember. IAF, Tab 33, HR (testimony of the appellant). Thus, we find that the
administrative judge’s credibility analysis was sufficient to justify his factual
findings.
We discern no basis to disturb the administrative judge’s finding that the
appellant failed to establish his affirmative defense.
¶15 The appellant argued that the agency’s actions were reprisal for engaging in
protected EEO activity. IAF, Tab 1 at 18-21. The administrative judge found
that the appellant failed to prove this affirmative defense considering the limited
evidence and testimony regarding the appellant’s affirmative defense. ID at 18-
19. The parties do not challenge, and we discern no basis to disturb, this finding
on review.
10
We discern no error in the administrative judge’s decision to mitigate the penalty
of removal to a 60-day suspension. 5
¶16 In addition to proving its charges by preponderant evidence, the agency
must also establish the existence of a nexus between the misconduct and the
efficiency of the service, and that the penalty of removal is reasonable. 5 U.S.C.
§ 7513(a); Shibuya v. Department of Agriculture, 119 M.S.P.R. 537, ¶ 18 (2013);
Douglas v. Veterans Administration, 5 M.S.P.R. 280, 306-07 (1981). The nexus
requirement, for purposes of determining whether an agency has shown that its
action promotes the efficiency of the service, means there must be a clear and
direct relationship between the articulated grounds for an adverse action and
either the employee’s ability to accomplish his duties satisfactorily or some other
legitimate Government interest. Scheffler v. Department of the Army,
117 M.S.P.R. 499, ¶ 9 (2012), aff’d, 522 F. App’x 913 (Fed. Cir. 2013). We
agree with the administrative judge’s findings that the agency has met the nexus
requirement here. ID at 18 (citing Miles v. Department of the Navy, 102 M.S.P.R.
316, ¶ 11 (2006) (reasoning that misconduct that occurred at work satisfies the
nexus requirement)).
¶17 Regarding the penalty, when, as here, not all of the charges are sustained,
the Board will consider carefully whether the sustained charges merit the penalty
imposed by the agency. Suggs v. Department of Veterans Affairs, 113 M.S.P.R.
671, ¶ 6 (2010), aff’d, 415 F. App’x 240 (Fed. Cir. 2011). In such circumstances,
the Board may mitigate the agency’s penalty to the maximum reasonable penalty
so long as the agency has not indicated in either its final decision or in
proceedings before the Board that it desires a lesser penalty be imposed on fewer
charges. Id. In doing so, the Board may not disconnect its penalty determination
5
The appellant largely argues in his cross petition for review that the administrative
judge’s mitigated penalty is unreasonable. PFR File, Tab 4. However, given our
disposition that the administrative judge appropriately mitigated the penalty to 60-days,
we deny the appellant’s cross petition for review.
11
from the agency’s managerial will and primary discretion in disciplining
employees. Id.¶18 On review, the agency continues to argue that the penalty of removal is
reasonable based on both the misuse of authority charge and lack of candor
charge. PFR File, Tab 1 at 19-26. Because, as discussed above, we agree with
the administrative judge that the agency failed to prove the misuse of authority
charge, we agree that the penalty can only be based on the lack of candor charge.
See Douglas, 5 M.S.P.R. at 302 (explaining that the Board reviews the penalty
based on the sustained charges to ensure that it is within the range allowed by law
and regulation). The agency argues that mitigation is not warranted in this case.
PFR File, Tab 1 at 19-26.
¶19 In assessing the penalty, the administrative judge considered the deciding
official’s decision letter and his testimony. ID at 20. The deciding official
testified that the appellant’s lack of candor readily supported his removal, that he
lost trust and confidence in the appellant’s ability to perform his duties, and that,
as a law enforcement officer, the appellant’s actions made him Giglio-impaired.
IAF, Tab 33, HR (testimony of the deciding official). The administrative judge
acknowledged that the Board considers lack of candor a serious offense that can
readily support the penalty of removal. ID at 20 (citing Jackson v. Department of
the Army, 99 M.S.P.R. 604, ¶ 6 (2005)). Nonetheless, he properly observed that
the appellant’s law enforcement status does not preclude mitigation of a lack of
candor charge. ID at 21 (citing Ludlum v. Department of Justice, 87 M.S.P.R. 56,
¶ 31 (2000)). Specifically, the administrative judge determined that mitigation is
appropriate given the appellant’s successful 19-year work history, his
supervisor’s testimony that he is a good and honest officer, and evidence that his
prior disciplinary actions occurred over 10 years prior. ID at 20 -22. As such, we
find that the administrative judge properly determined that the maximum
reasonable penalty under the circumstances of this case is a 60-day suspension
without pay. ID at 22. For the foregoing reasons, we deny the petition for review
12
and affirm the initial decision, which sustained the charge of lack of candor but
mitigated the removal to a 60-day suspension without pay.
ORDER
¶20 We ORDER the agency to cancel the appellant’s June 14, 2022 removal
and substitute in its place a 60-day suspension without pay. The agency must
complete this action no later than 20 days after the date of this decision. See Kerr
v. National Endowment for the Arts, 726 F.2d 730 (Fed. Cir. 1984).
¶21 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.
¶22 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).
¶23 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
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¶24 For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Board decision
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to process payments and adjustments resulting from the
Board’s decision in accordance with the attached lists so that payment can be
made within the 60-day period set forth above.
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees 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
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.
14
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
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
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Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 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
16
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(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
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.
17
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
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.
18
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).
2
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.