George Berg v. Department of Veterans Affairs ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GEORGE BERG, DOCKET NUMBER
Appellant, CH-0714-20-0119-I-1
v.
DEPARTMENT OF VETERANS DATE: May 31, 2024
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Carson Bridges , Esquire, Dallas, Texas, for the appellant.
Gregory White , Detroit, Michigan, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The agency has filed a petition for review of the initial decision, which
reversed the appellant’s removal. Generally, we grant petitions such as this one
only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. Except as expressly
MODIFIED to find on different grounds that the agency failed to prove its
charges by substantial evidence, we AFFIRM the initial decision.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant’s request for interim relief is denied.
Under 5 U.S.C. § 7701(b)(2)(A), an employee or applicant for employment
who prevails in an appeal to the Board must be granted interim relief provided in
the initial decision, if a petition for review of the initial decision is filed with the
Board. However, the Department of Veterans Affairs Accountability and
Whistleblower Protection Act of 2017, Pub. L. No. 115-41, §202(a), 131 Stat.
862, 869-73 (codified as amended at 38 U.S.C. § 714), provides that, from the
date a covered individual appeals a removal taken under 38 U.S.C. § 714 until the
U.S. Court of Appeals for the Federal Circuit issues a final decision on the
appeal, the individual “may not receive any pay, awards, bonuses, incentives,
allowances, differentials, student loan repayments, special payments, or benefits
related to the employment of the individual by the [agency].” 38 U.S.C. § 714(d)
(7).
The Board has held that 38 U.S.C. § 714(d)(7) controls in these types of
cases and precludes an award of interim relief. Schmitt v. Department of
Veterans Affairs, 2022 MSPB 40, ¶ 16. Additionally, the appellant’s arguments
3
in this regard are now moot, because interim relief would be in effect only
pending the disposition of a petition for review. See 5 U.S.C. § 7701(b)(2)(A);
Garcia v. Department of State, 106 M.S.P.R. 583, ¶ 7 (2007). Accordingly, we
deny the appellant’s request.
Legal standard under 38 U.S.C. § 714Under 38 U.S.C. § 714(a), the Secretary of the Department of Veterans
Affairs may remove, demote, or suspend a covered employee upon the Secretary’s
determination that the employee’s performance or misconduct warrants such
removal. A covered employee may appeal a removal, demotion, or suspension of
greater than 14 days to the Board. 38 U.S.C. § 714(c)(4)(A). The statute further
provides that the administrative judge must sustain the agency’s decision to
remove if it is supported by substantial evidence. See 38 U.S.C. § 714(d)(2)(A).
The Board’s regulations define substantial evidence as the degree of relevant
evidence that a reasonable person, considering the evidence as a whole, might
accept as adequate to support a conclusion, even though other reasonable persons
might disagree. 5 C.F.R. § 1201.4(p).
The statute further provides that, if the agency’s decision is supported by
substantial evidence, the administrative judge may not mitigate the penalty.
38 U.S.C. 714(d)(2)(B). However, our reviewing court has clarified that
section 714 nonetheless “requires the Board to review for substantial evidence the
entirety of the [agency’s] decision—including the penalty—rather than merely
confirming that the record contains substantial evidence that the alleged conduct
actually occurred.” Sayers v. Department of Veterans Affairs, 954 F.3d 1370,
1376 (Fed. Cir. 2020).
The administrative judge erred in considering the appellant’s due process claim in
her analysis of the charges.
It is well established that denial of constitutional due process is an
affirmative defense for which the appellant bears the burden of proof. See, e.g.,
Mattison v. Department of Veterans Affairs, 123 M.S.P.R. 492, ¶12 (2016)
4
(finding that the appellant failed to prove his due process affirmative defense);
Hulett v. Department of the Navy, 120 M.S.P.R. 54, ¶¶ 10-11 (2013) (remanding
for further adjudication of the appellant’s due process claim, including notice of
his burden of proof); see also 5 C.F.R. § 1201.56(b)(2)(i)(C) (providing that the
appellant bears the burden of proving affirmative defenses by a preponderance of
the evidence). Hence, contrary to the analysis in the initial decision, the question
of whether the agency denied the appellant due process is ordinarily distinct from
the question of whether the agency met its burden of proving the charged
misconduct. As discussed below, however, we find on other grounds that the
agency failed to meet its burden of proving the charges by substantial evidence.
The agency failed to prove the charge of failure to follow purchase card
requirements.
Under the charge of failure to follow purchase card requirements, the
agency set forth the following specifications:
SPECIFICATION 1: Due to an investigation of the use of purchase
cards, vendor agreements, and service contract management in the
Facilities Management Service an Administrative Investigation
Board (AIB) was convened on August 21, 2019. During this
investigation it was determined that you were aware of utility
services being paid with a Government Purchase Card (GPC) due to a
lapsed contract. This is a violation of Service Contract Labor
Standards.
SPECIFICATION 2: Due to an investigation of the use of purchase
cards, vendor agreements, and service contract management in the
Facilities Management Service an Administrative Investigation
Board (AIB) was convened on August 21, 2019. During this
investigation it was determined that you are aware of your
subordinate, [the Administrative Officer], using split purchases to
pay bills over the purchase card threshold for services that were
covered by lapsed contracts. This is a violation of Purchase Card
Policies.
SPECIFICATION 3: Due to an investigation of the use of purchase
cards, vendor agreements, and service contract management in the
Facilities Management Service an Administrative Investigation
Board (AIB) was convened on August 21, 2019. During this
5
investigation it was determined that you approved eighteen (18)
transactions between 1/31/2018 and 8/8/2019 for [Maurer’s] Textile
Rental Service through Government Purchase Card (GPC) program
totaling $37,276.93. This is a violation of Purchase Card Policies.
SPECIFICATION 4: Due to an investigation of the use of purchase
cards, vendor agreements, and service contract management in the
Facilities Management Service an Administrative Investigation
Board (AIB) was convened on August 21, 2019. During this
investigation it was determined that you are aware of your
subordinate, [the Administrative Officer], us[ing] his Government
Purchase Card (GPC) for services already included in contracts with
the facility. This is a violation of Purchase Card Policies.
Initial Appeal File (IAF), Tab 8 at 31-32.
The Board is required to review the agency’s decision on an adverse action
solely on the grounds invoked by the agency, and may not substitute what it
considers to be a more adequate or proper basis. Gottlieb v. Veterans
Administration, 39 M.S.P.R. 606, 609 (1989). Hence, in order to prove the
specifications as written, the agency must show by substantial evidence that the
appellant engaged in the alleged conduct. The agency must show that the
appellant’s conduct constituted failure to follow purchase card policies, and not
some other form of misconduct that it could have charged but did not.
As for the agency’s supporting evidence, it is not our obligation to sift
through more than 5,000 pages of unlabeled, unindexed documents. See Keefer v.
Department of Agriculture, 92 M.S.P.R. 476, ¶ 18 n.2 (2002) (“[I]t is not the
Board’s obligation to ‘pore through the record’ . . . or to construe and make
sense of allegations . . . set forth at various parts of an extremely voluminous case
file.”) A party whose submissions lack clarity risks being found to have failed to
meet its burden of proof. Luecht v. Department of the Navy, 87 M.S.P.R. 297, ¶ 8
(2000). Accordingly, in assessing whether the specifications are supported by
substantial evidence, we will consider only those portions of the record which the
agency explicitly identified by tab and page number in its closing submission
below.
6
With regard to specification 1, even assuming that the appellant was aware
of utility services being paid with a Government Purchase Card (GPC) due to a
lapsed contract, the agency has not explained how such awareness would itself
constitute a violation of Service Contract Labor Standards. Accordingly,
specification 1 is NOT SUSTAINED.
As to specifications 2 and 4, the agency has not explained how the
appellant’s awareness of the Administrative Officer’s conduct would itself
constitute a violation of Purchase Card Policies. Accordingly, specifications 2
and 4 are NOT SUSTAINED.
With regard to specification 3, the agency cites a portion of the evidence
file purportedly showing that the appellant approved the transactions in question.
IAF, Tab 54 at 5-11, Tab 91 at 17. However, while the transaction records bear
the name of the Administrative Officer, the cited documents do not indicate that
the appellant personally approved the transactions. IAF, Tab 54 at 5-11.
Accordingly, specification 3 is NOT SUSTAINED. Because the agency has not
established any of the underlying specifications by substantial evidence, the
charge of failure to follow purchase card requirements is NOT SUSTAINED.
The charge of failure to properly follow supervisory functions is not sustained.
Under the charge of failure to properly follow supervisory functions, the
agency set forth the following specifications:
SPECIFICATION 1: Due to an investigation of the use of purchase
cards, vendor agreements, and service contract management in the
Facilities Management Service an Administrative Investigation
Board (AIB) was convened on August 21, 2019. During this
investigation it was determined that you were aware of a Community
Based Outpatient Clinic losing power due to failure to pay for
utilities and took no remedial action. As [the Administrative
Officer’s] supervisor, your conduct is unacceptable.
SPECIFICATION 2: Due to an investigation of the use of purchase
cards, vendor agreements, and service contract management in the
Facilities Management Service an Administrative Investigation
Board (AIB) was convened on August 21, 2019. During this
7
investigation it was determined that you signed an audit documenting
[the Administrative Officer’s] deficiency in purchase card
management and failed to take appropriate action. As [the
Administrative Officer’s] supervisor, your conduct is unacceptable.
SPECIFICATION 3: Due to an investigation of the use of purchase
cards, vendor agreements, and service contract management in the
Facilities Management Service an Administrative Investigation
Board (AIB) was convened on August 21, 2019. During this
investigation it was determined that you were aware of utility
contracts under [the Administrative Officer’s] responsibility that
lapsed. As [the Administrative Officer’s] supervisor, your conduct is
unacceptable.
SPECIFICATION 4: Due to an investigation of the use of purchase
cards, vendor agreements, and service contract management in the
Facilities Management Service an Administrative Investigation
Board (AIB) was convened on August 21, 2019. During this
investigation it was determined that you were aware of contracts that
have lapsed under [the Administrative Officer’s] responsibility for
cable services. As [the Administrative Officer’s] supervisor, your
conduct is unacceptable.
SPECIFICATION 5: Due to an investigation of the use of purchase
cards, vendor agreements, and service contract management in the
Facilities Management Service an Administrative Investigation
Board (AlB) was convened on August 21, 2019. During this
investigation it was determined that you were aware of contracts that
have lapsed under [the Administrative Officer’s] responsibility for
internet services. As [the Administrative Officer’s] supervisor, your
conduct is unacceptable.
SPECIFICATION 6: Due to an investigation of the use of purchase
cards, vendor agreements, and service contract management in the
Facilities Management Service an Administrative Investigation
Board (AlB) was convened on August 21, 2019. During this
investigation it was determined that you were aware of contracts that
have lapsed under [the Administrative Officer’s] responsibility for
waste management services. As [the Administrative Officer’s]
supervisor, your conduct is unacceptable.
SPECIFICATION 7: Due to an investigation of the use of purchase
cards, vendor agreements, and service contract management in the
Facilities Management Service an Administrative Investigation
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Board (AlB) was convened on August 21, 2019. During this
investigation it was determined that you were aware of contracts that
have lapsed under [the Administrative Officer’s] responsibility for
automatic doors maintenance. As [the Administrative Officer’s]
supervisor, your conduct is unacceptable.
SPECIFICATION 8: Due to an investigation of the use of purchase
cards, vendor agreements, and service contract management in the
Facilities Management Service an Administrative Investigation
Board (AlB) was convened on August 21, 2019. During this
investigation it was determined that you were aware of contracts that
have lapsed under [the Administrative Officer’s] responsibility for
PACS security systems. As [the Administrative Officer’s]
supervisor, your conduct is unacceptable.
SPECIFICATION 9: Due to an investigation of the use of purchase
cards, vendor agreements, and service contract management in the
Facilities Management Service an Administrative Investigation
Board (AlB) was convened on August 21, 2019. During this
investigation it was determined that you were aware of contracts that
have lapsed under [the Administrative Officer’s] responsibility for
networking. As [the Administrative Officer’s] supervisor, your
conduct is unacceptable.
IAF, Tab 8 at 32-33.
As with the specifications underlying the first charge, for the same reasons
discussed above, we decline to pore over the more than 5,000 pages of unlabeled,
unindexed documents contained in the evidence file, and will limit our attention
to the portions of the record explicitly cited in the agency’s closing submission.
Keefer, 92 M.S.P.R. 476, ¶ 18 n.2; Luecht, 87 M.S.P.R. 297, ¶ 8.
Regarding specifications 1 and 2, the agency has not identified where the
Board may find supporting evidence for these specifications in the voluminous
case file. See Keefer, 92 M.S.P.R. 476, ¶ 18 n.2; Luecht, 87 M.S.P.R. 297, ¶ 8.
For example, the findings and conclusions set forth in the Report of Investigation
(ROI) do not include the conduct alleged under specifications 1 and 2. Compare
IAF, Tab at 32 (notice of proposed removal), with Tab 21 at 131-38 (ROI).
Because the agency has not shown by substantial evidence that the alleged facts
9
were “determined” during the AIB investigation, specifications 1 and 2 are NOT
SUSTAINED.
Specifications 3 through 9 list seven instances in which the appellant was
allegedly aware that a particular contract, under the responsibility of the
Administrative Officer, had lapsed. IAF, Tab 8 at 32-33. The contracts listed
include contracts for utilities (specification 3), cable services (specification 4),
internet services (specification 5), waste management services (specification 6),
automatic door maintenance (specification 7), security systems (specification 8),
and networking (specification 9). Id. In its closing submission, the agency states
in support of each specification that the appellant “admitted that he was aware of
these contracts having lapsed in his service,” and cites to the same page of the
transcript of the appellant’s AIB interview. IAF, Tab 90 at 19-23; see IAF, Tab
71 at 47. 2 On that page of the transcript, the appellant generally states that he had
conversations with the Administrative Officer concerning lapsed contracts, but
his statement does not indicate whether he was aware of any of the specific lapsed
contracts identified in specifications 3 through 9. IAF, Tab 71 at 47. Nor has the
agency cited other evidence speaking to the appellant’s knowledge of those
particular lapsed contracts. Moreover, the agency has not explained how the
appellant’s awareness of lapsed contracts would, by itself, constitute a failure to
properly follow supervisory functions. Accordingly, specifications 3 through 9
are NOT SUSTAINED. Because the agency has not established any of the
underlying specifications by substantial evidence, the charge of failure to
properly perform supervisory functions is NOT SUSTAINED.
Having found that the agency failed to prove its charges by substantial
evidence, we affirm the reversal of the appellant’s removal. We do not reach the
2
The agency cites to “IAF, Tab 71 at 44,” which does not contain relevant information.
We generously assume that the agency intended to cite to the portion of the interview
found at page 47 of the same tab, corresponding to page 30 of the original interview
transcript. See IAF, Tab 21 at 133 (ROI, finding of fact #14) (citing page 30 of the
interview transcript).
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merits of the parties’ arguments concerning due process and the reasonableness of
the penalty.
ORDER
We ORDER the agency to cancel the removal and retroactively restore the
appellant effective December 10, 2019. 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 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).
11
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 3
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
3
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
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.
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
13
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 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,
14
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(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. 4 The court of appeals must receive your petition for
4
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,
15review 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.
132 Stat. 1510.
16
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.