Jason Seeba v. Department of Justice ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JASON M. SEEBA, DOCKET NUMBER
Appellant, PH-0752-17-0162-I-1
v.
DEPARTMENT OF JUSTICE, DATE: February 21, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Raymond C. Fay, Esquire, Washington, D.C., for the appellant.
Jenifer Grundy Hollett, Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
Member Leavitt issues a separate dissenting opinion.
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed his removal from the Federal service. For the reasons discussed below,
we GRANT the appellant’s petition for review and REVERSE the initial decision.
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
BACKGROUND
¶2 The appellant was employed as a GS-11 Supervisory Correctional Officer
(Lieutenant) with the agency’s Bureau of Prisons. Initial Appeal File (IAF),
Tab 4 at 18, 122. On May 27, 2015, there was an incident during which the
appellant purportedly used excessive force to subdue a noncomplian t inmate and
thereafter provided inaccurate information in reporting the incident. Id. at 56-58.
In late August or early September 2016, the appellant provided to the warden a
lengthy memorandum outlining his career with the agency, his experiences
surrounding the 2008 death of a fellow Correctional Officer, his motivations for
becoming a Lieutenant, and his experience with the agency’s use of force policy. 2
Id. at 45-54.
¶3 On October 18, 2016, the agency issued the appellant a proposal notice,
charging him with failure to follow the agency’s use of force policy and
providing inaccurate information on a Government document. Id. at 56-58. The
first sentence of the notice stated that, “I propose you be removed from your
position of Supervisory Correctional Officer (Lieutenant), GS -007-11.” Id. at 56.
The proposal notice subsequently stated that “[i]f this proposal is sustained, your
removal would be fully warranted and in the interest of the efficiency of the
service.” Id. at 59. The proposal notice also stated that the appellant could reply
to the deciding official orally, in writing, or both and that any reply had to be
received by the deciding official within 15 work days. Id.¶4 The proposing official testified that an agency human resources manager
wrote the notice, 3 that it was his understanding that he was proposing that the
appellant be demoted to the Correctional Officer position, and that he did not
2
In the memorandum, the appellant also admitted that during the incident he said things
that had “no place in a professional environment,” and that he apologized for that. IAF,
Tab 4 at 54.
3
The human resources manager indicated that his assistant drafted the proposal notice.
Hearing Transcript at 153 (testimony of the human resources manager).
3
realize until he talked with the deciding official that the appellant ’s removal from
the Federal service was a possibility. Hearing Transcript (HT) at 125-28, 131-32,
141 (testimony of the proposing official). The proposing official specifically
testified that, while giving the appellant the proposal notice, he told the appellant
that he was proposing his removal from a supervisory position and that he would
become an officer. Id. at 131-32, 141 (testimony of the proposing official). The
deciding official similarly testified that, from his conversations with the
proposing official, it was his understanding that the proposing official “maybe
just [wanted the appellant] removed from the lieutenant’s job,” as opposed to
being removed from the Federal service. Id. at 188-89 (testimony of the deciding
official).
¶5 The appellant’s oral reply took place on October 31, 2016. IAF, Tab 4
at 23. He was not represented. The appellant testified that, at the beginning of
the oral reply meeting, he was “floored, stunned, shocked,” to learn that he was
facing removal from the Federal service. HT at 283 (testimony of the appellant).
The deciding official also testified that the appellant “was pretty surprised” to
learn, at the oral reply meeting, that his removal from the agency was a possible
penalty. HT at 190 (testimony of the deciding official).
¶6 After his oral reply, the appellant resubmitted a copy of the memorandum
he submitted in late August or early September 2016 and included a transmittal
memorandum stating that he was requesting that the memorandum be considered
in determining what discipline he would receive. IAF, Tab 4 at 55. The appellant
also apologized for submitting the information “at this later date,” but indicated
that he was initially informed that he was facing a demotion from his Lieutenant
position but that he had been advised that day that he was facing removal from
4
the agency. 4 Id. The appellant concluded that, although demotion is a serious
repercussion, removal “is a very different scenario.” Id.¶7 The deciding official issued a decision removing the appellant effective
January 3, 2017. Id. at 18-22. This appeal followed. IAF, Tab 1. The appellant
challenged the charges on the merits, argued that the penalty was unreasonable,
and asserted that he was denied due process when the proposing official informed
him that he was facing a demotion and he learned for the first time at the oral
reply that he was facing removal. Id. at 9-14.
¶8 After holding the appellant’s requested hearing, the administrative judge
sustained the charges, denied the appellant’s affirmative defense, determined that
the agency established nexus, and found the penalty to be reasonable. IAF,
Tab 36, Initial Decision (ID). In finding that the agency afforded the appellant
minimal due process before effecting his removal, the administrative judge
reasoned that “[t]he appellant’s oral and written responses reflect that he was
aware of the nature of the charges and afforded an opportunity to substantively
respond to the proposal notice.” ID at 18.
¶9 On review, the appellant again challenges the charges on the merits, argues
that he was denied due process, and asserts that the p enalty was unreasonable.
Petition for Review (PFR) File, Tab 1. The agency has filed a response opposing
the petition, and the appellant has filed a reply to the agency’s response. PFR
File, Tabs 3-4.
DISCUSSION OF ARGUMENTS ON REVIEW
¶10 When, as here, a public employee has a property interest in his continued
employment, the Government cannot deprive him of that interest without due
4
Although the appellant’s statement in the transmittal memorandum suggests that it was
written on October 31, 2016, the date of the oral reply, the memorandum is dated
November 4, 2016, and bears a notation that it was received on that date. IAF, Tab 4
at 55. The record shows that the deciding official considered the written reply. Id.
at 19.
5
process. Cleveland Board of Education v. Loudermill, 470 U.S. 532, 538 (1985).
The U.S. Supreme Court has described the requirements of due process as
follows:
The essential requirements of due process . . . are notice and an
opportunity to respond. The opportunity to present reasons, either in
person or in writing, why proposed action should not be taken is a
fundamental due process requirement. The tenured public employee
is entitled to oral or written notice of the charges against him, an
explanation of the employer’s evidence, and an opportunity to
present his side of the story.
Id. at 546. As the Court explained in Loudermill, the need for a meaningful
opportunity for the employee to present his side of the story is important for two
reasons. First, an adverse action “will often involve factual disp utes,” and
consideration of the employee’s response is of “obvious value in reaching an
accurate decision.” Id. at 543. Second, “[e]ven where the facts are clear, the
appropriateness or necessity of the discharge may not be; in such cases the only
meaningful opportunity to invoke the discretion of the decisionmaker is likely to
be before the termination takes effect.” Id.¶11 Our reviewing court, the U.S. Court of Appeals for the Federal Circuit
(Federal Circuit) has, as it must, followed the U.S. Supreme Court’s analysis in
Loudermill, stating that “the employee’s response is essential not only to the issue
of whether the allegations are true, but also with regard to whether the level of
penalty to be imposed is appropriate.” Stone v. Federal Deposit Insurance
Corporation, 179 F.3d 1368, 1376 (Fed. Cir. 1999). In Stone, the Federal Circuit
held that in some circumstances it is a due process violation for a deciding
official to consider additional material regarding the reasons for the action of
which the appellant was not provided notice. Id. at 1376. The Federal Circuit
specifically extended the holding in Stone to the consideration of additional
information in determining the penalty. Ward v. U.S. Postal Service, 634 F.3d
1274, 1280 (Fed. Cir. 2011).
6
¶12 In this appeal, it is undisputed that the agency proposing official told the
appellant, as he gave him the proposal notice, that he was proposing the
appellant’s demotion from Lieutenant to officer. HT at 131-32, 141 (testimony of
the proposing official). The notice itself, although perhaps clear to one versed in
the intricacies of Federal employment law, was, when combined with the
proposing official’s statement, far from clear. 5 The administrative judge found
credible the appellant’s assertion that he understood the proposal notice as
proposing his demotion rather than his removal from the Federal service . ID
at 17. The proposing official believed he was proposing a demotion, and
expressed such to the appellant, who relied upon the proposing official’ s
representations. To be clear, this is not a case wherein the appellant unreasonably
had a unilateral misunderstanding of the agency action.
¶13 Thus, when he appeared for his oral reply, the appellant was shocked and
surprised. He learned for the first time that the agency’s deciding official was
considering a significant additional fact—that he was facing removal from the
Federal service and not just a demotion. The deciding official did not stop the
proceedings, clarify the appellant’s misunderstanding, and afford him additional
time to reply. 6 The original response period set in the proposal notice expired on
November 8, 2016, eight days after the appellant learned that he was facing a
removal, and the appellant hastily submitted the memorandum he previously
submitted as an additional reply, but that memorandum did not address the
proposed adverse action.
5
The proposal notice did not state anywhere that the appellant was proposed for
removal from the Federal service, which may have clarified matters in this instance.
6
Affording the appellant a new period of time to reply would not have delayed the
agency’s ultimate decision as the deciding official did not issue his decision notice until
over 2 months after the oral reply. IAF, Tab 4 at 19. The fact that the appellant, who,
as noted, was not represented at the oral reply, failed to seek an extension of time to
respond when he learned that he faced removal is of no import to a due process
analysis. It is the agency’s obligation to afford due process, not the appellant’s to
request it.
7
¶14 Some courts have found that due process is afforded when an employee
receives an opportunity to respond immediately after being informed of the
possible action against him. See Sutton v. Bailey, 702 F.3d 444, 446-49 (8th Cir.
2012) (finding that there need not be a delay between the notice and the
opportunity to respond); Merrifield v. Board of County Commissioners for the
County of Santa Fe, 654 F.3d 1073, 1078 (10th Cir. 2011) (same); Staples v. City
of Milwaukee, 142 F.3d 383, 386-87 (7th Cir. 1998) (stating that oral notice
contemporaneous with the opportunity to reply may, in some circumst ances,
satisfy due process); Morton v. Beyer, 822 F.2d 364, 371 n.10 (3d Cir. 1987)
(same). The Federal Circuit precedent does not embrace such a view.
¶15 In Stone, the court quoted with approval the Board’s decision in Douglas v.
Veterans Administration, 5 M.S.P.R. 280, 304 (1981), for the proposition that
“aggravating factors on which the agency intends to rely for imposition of an
enhanced penalty . . . should be included in the advance notice of charges so that
the employee will have a fair opportunity to respond to those alleged factors
before the agency’s deciding official.” 179 F.3d at 1376 (emphasis added).
Likewise, in O’Keefe v. U.S. Postal Service, 318 F.3d 1310, 1315 (Fed. Cir.
2002), the court held that, because due process requires that an employee be
given notice of the charge and specifications against him in sufficient detail to
allow the employee to make an informed reply, it was a due process violation to
justify a penalty based on allegations not set forth in the notice of proposed
removal. Similarly, in Pope v. U.S. Postal Service, 114 F.3d 1144, 1148 (Fed.
Cir. 1997), the court held that “[d]ue process requires that the charges in the
notice be set forth” with enough detail to allow the employee to make an
informed response (emphasis added). More recently, in a nonprecedential
decision in Howard v. Department of the Air Force, 673 F. App’x 987, 989 (Fed.
8
Cir. 2016), 7 the court described its holding in Ward as explaining that “due
process violations occur when an agency’s removal decision is based on factors
not included in the notice of proposed removal” 8 (emphasis added).
¶16 Consistent with the precedent set forth above, the Board also has recognized
that when an agency intends to rely on aggravating factors in determining the
penalty, such factors should be included in the advance notice of adverse action
so that the employee will have a fair opportunity to respond to those factors
before the agency’s deciding official. Jenkins v. Environmental Protection
Agency, 118 M.S.P.R. 161, ¶ 12 (2012); Solis v. Department of Justice,
117 M.S.P.R. 458, ¶ 7 (2012); Lopes v. Department of the Navy, 116 M.S.P.R.
470, ¶ 5 (2011). The Board has recognized that a reply period as short as 5 days
may pass constitutional muster, provided that the employee received prior written
notice of the proposed separation. McCormick v. Department of the Air Force,
98 M.S.P.R. 201, ¶ 3 (2005). Here, however, in issuing the advance notice of a
proposed adverse action, the agency misled the appellant (and apparently the
proposing official as well) about the essential nature of the adverse action that it
was proposing and only corrected that misinformation at the oral reply. As the
Federal Circuit has held in the context of involuntary resignation, “[a] decision
made with blinders on, based on misinformation or a lack of information, cannot
be binding as a matter of fundamental fairness and due process.” Middleton v.
Department of Defense, 185 F.3d 1374, 1382 (Fed. Cir. 1999) (internal quotation
marks omitted); see Covington v. Department of Health and Human Services,
750 F.2d 937, 943 (Fed. Cir. 1984) (explaining that the agency’s failure to
7
The Board may follow a nonprecedential decision of the Federal Circuit when, as here,
it finds its reasoning persuasive. LeMaster v. Department of Veterans Affairs,
123 M.S.P.R. 453, ¶ 11 n.5 (2016).
8
The Federal Circuit has articulated the principles stated in the precedential decisi ons
set forth above in other nonprecedential decisions. See Brewer v. Department of
Defense, 249 F. App’x 174, 176 (Fed. Cir. 2007); Allen v. U.S. Postal Service, 99 F.
App’x 924, 927 (Fed. Cir. 2004).
9
provide the appellant with proper notice regarding his appeal rights precluded
him from making an informed choice).
¶17 In sum, consistent with the binding Federal Circuit precedent set forth
above, we find that the agency’s removal action was implemented without
providing the appellant, a tenured Federal employee, the required constitutional
due process. Therefore, the agency’s action must be reversed until such time as
the agency implements a constitutionally correct adverse action. See Stone,
179 F.3d at 1376-77. 9
ORDER
¶18 We ORDER the agency to cancel the appellant’s removal effective
January 3, 2017. 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.
¶19 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.
¶20 We further ORDER the agency to tell the appellant promptly in writing
when it believes it has fully carried out the Board’s O rder and of the actions it has
9
Considering that the proposing official intended only to propose a demotion from the
supervisory position, it remains to be seen as to whether a new proposal would contain
the same proposed penalty. Either way, the appellant should have the ability to raise
the fact that the proposing official intended only to demote him, as this could have been
a consideration in the application of the Douglas factors.
10
taken to carry out the Board’s Order. The appellant, if not notified, should ask
the agency about its progress. See 5 C.F.R. § 1201.181(b).
¶21 No later than 30 days after the agency tells the appellant that it has fully
carried out the Board’s Order, the appellant may file a petition for enforcement
with the office that issued the initial decision on this appeal if the appellant
believes that the agency did not fully carry out the Board’s Order. The petition
should contain specific reasons why the appellant believes that the 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).
¶22 For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a 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 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.
11
NOTICE OF APPEAL RIGHTS 10
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 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 c ase, 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:
10
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 indica ted in the notice, the
Board cannot advise which option is most appropriate in any matter.
12
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination. This option applies to you only if you have claimed that you
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. ____ , 137 S. Ct. 1975 (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
13
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:
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 Boar d’s
14
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. 11 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).
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 ou r 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.
11
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
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.
DEFENSE FINANCE AND ACCOUNTING SERVICE
Civilian Pay Operations
DFAS BACK PAY CHECKLIST
The following documentation is required by DFAS Civilian Pay to compute and pay back pay
pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following
checklist to ensure a request for payment of back pay is complete. Missing documentation may
substantially delay the processing of a back pay award. More information may be found at:
https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx.
NOTE: Attorneys’ fees or other non-wage payments (such as damages) are paid by
vendor pay, not DFAS Civilian Pay.
☐ 1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the
specific dates of the back pay period within the ticket comments.
Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket
comments as to why the documentation is not applicable:
☐ 2) Settlement agreement, administrative determination, arbitrator award, or order.
☐ 3) Signed and completed “Employee Statement Relative to Back Pay”.
☐ 4) All required SF50s (new, corrected, or canceled). ***Do not process online SF50s
until notified to do so by DFAS Civilian Pay.***
☐ 5) Certified timecards/corrected timecards. ***Do not process online timecards until
notified to do so by DFAS Civilian Pay.***
☐ 6) All relevant benefit election forms (e.g. TSP, FEHB, etc.).
☐ 7) Outside earnings documentation. Include record of all amounts earned by the employee
in a job undertaken during the back pay period to replace federal employment.
Documentation includes W-2 or 1099 statements, payroll documents/records, etc. Also,
include record of any unemployment earning statements, workers’ compensation,
CSRS/FERS retirement annuity payments, refunds of CSRS/FERS employee premiums,
or severance pay received by the employee upon separation.
Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority
under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment
they may have received. The payroll office must collect the debt from the back pay award. The
annual leave will be restored to the employee. Annual leave that exceeds the annual leave
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).
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.
DISSENTING OPINION OF TRISTAN L. LEAVITT
in
Jason M. Seeba v. Department of Justice
MSPB Docket No. PH-0752-17-0162-I-1
¶1 For the reasons explained below, I respectfully dissent fr om the majority
opinion in this case.
¶2 By letter dated October 18, 2016, the proposing official notified the
appellant: “I propose you be removed from your position of Supervisory
Correctional Officer.” Initial Appeal File (IAF), Tab 4 at 56. The agency
afforded the appellant 15 working days, until November 8, 2016, to reply orally,
in writing, or both. Id. at 59. Prior to the issuance of the proposal letter, the
appellant had already submitted a memorandum dated August 24, 2016,
purporting to provide his “written response to the charges” against him. Id.
at 45-54. The appellant also gave an oral reply on October 31, 2016, during
which he and the deciding official discussed his response to the charges against
him in detail. Id. at 23-28.
¶3 At the start of his oral reply, the appellant was informed, as was stated in
the written proposal notice, that the recommended penalty was removal from
Federal service. Hearing Transcript (HT) at 190, 283 (testimony of the appellant
and deciding official). The appellant testified he was in “disbelief” and “wasn’t
prepared to hear that” because of information the proposing official had provided
to him. HT at 283-84. Specifically, it is undisputed that when the proposing
official presented the proposal letter to the appellant, he told the appellant that
the proposal was only to demote him from a supervisory position and not to
remove him from Federal service. HT at 141 (testimony of proposing official).
The administrative judge found credible the appellant’s assertion that he initially
misunderstood the nature of the action proposed against him. Initial Decision
2
(ID) at 17. Even accepting that credibility finding, I disagree with my colleagues
that the appellant was denied due process as a result of his initial confusion.
¶4 The essential requirements of due process are notice and an o pportunity to
respond. Cleveland Board of Education v. Loudermill, 470 U.S. 532, 546 (1985).
The tenured public employee is entitled to oral or written notice of the charges
against him, an explanation of the employer’s evidence, and an opportunity to
present his side of the story and reasons why the proposed action should not be
taken. Id. (emphasis added). To require more than this prior to removal would
intrude to an unwarranted extent on the Government’s interest in quickly
removing an unsatisfactory employee. Id. As our reviewing court has explained,
the requirement that an employee be given an opportunity to present his side of
the story is not a guarantee that the employee must present his story to the agency
prior to removal. Darnell v. Department of Transportation, 807 F.2d 943, 945
(Fed. Cir. 1986). “An opportunity to present is quite different from a
presentation in fact.” Id. (emphasis in original).
¶5 For instance, in Flores v. Department of Defense, 121 M.S.P.R. 287, ¶ 4
(2014), the appellant was removed following the revocation of his eligibility for
access to occupy a sensitive position. The Defense Office of Hearings and
Appeals (DOHA) made an initial recommendation to restore the appellant’s
access; however, the final decision of the Clearance Appeals Board (CAB)
rejected that recommendation and upheld the revocation. Id., ¶ 3. The appellant
did not respond to the proposed removal action, despite being afforded the
opportunity to do so. Id., ¶ 11. He asserted that he did not respond because the
deciding official gave him the impression that the deciding factor would be the
favorable DOHA recommendation. Id. The Board rejected this argument, noting
that by the time the proposal notice was issued, the appellant was aware of the
CAB’s final determination. Id.¶6 It is true, as to due process, that the employee’s opportunity to respond is
essential not only as to the issue of whether the allegations are true, but also with
3
regard to whether the level of penalty to be imposed is appropriate. Stone v.
Federal Deposit Insurance Corporation, 179 F.3d 1368, 1376 (Fed. Cir. 1999)
(citing Loudermill, 470 U.S. at 543). However, here, similar to Flores, any
misinformation the appellant may have received concerning the nature of the
action proposed against him was resolved at the start of his oral reply, at which
point he admittedly understood he could be removed from Federal service. HT
at 283 (testimony of the appellant); IAF, Tab 4 at 55. The appellant still had the
opportunity to address the matter during his oral reply, as well as a remaining
8 calendar days to provide a written reply. See IAF, Tab 4 at 59. As the majority
acknowledges, the Board has found an even shorter reply period of 5 calendar
days sufficient to satisfy minimum due process requirements. See McCormick v.
Department of the Air Force, 98 M.S.P.R. 201, ¶ 3 (2005); cf. 5 U.S.C.
§ 7513(b)(2) (“a reasonable time, but not less than 7 days, to answer orally and in
writing and to furnish affidavits and other documentary evidence in support of the
answer” (emphasis added)).
¶7 Significantly, on November 4, 2016 (four days after his oral reply), the
appellant submitted additional documentation to the human resources (HR)
manager and requested that the deciding official consider it. IAF, Tab 4 at 55.
The appellant took this action based on his understanding that he was “facing
removal and termination from the Bureau of Prisons” and not merely demotion .
Id. The HR manager testified he presented this submission to the deciding
official for consideration with the rest of the disciplinary file. Id. at 161-62, 167(testimony of HR manager). The appellant’s removal did not become effective
until January 3, 2017. Id. at 18-22.
¶8 To the extent that the appellant believed he required more than 8 calendar
days to make a meaningful reply after the misunderstanding was clarified, he
could have requested an extension. But see Pumphrey v. Department of Defense,
122 M.S.P.R. 186, ¶ 8 (2015) (finding no due process violation where the agency
denied the appellant’s request for an extension beyond the 14 -day reply period,
4
which the Board found constitutionally sufficient to meet minimum due process
requirements). He did not do so. HT at 307. His assertion that he “didn’t think
that was an option,” id., is belied by the proposal notice, which explicitly
informed him: “Consideration will be given to extending this time limit if you
submit a written request, to the Warden, stating your reasons for desiring more
time.” 1 IAF, Tab 4 at 59. The majority finds the appellant’s failure to seek an
extension “is of no import to a due process analysis” because “[i]t is the agency’s
obligation to afford due process, not the appellant’s to request it.” I disagree.
¶9 As previously stated, due process requires provision of an opportunity to
respond, and an appellant’s failure to avail himself of such an opportunity
does not mean that his due process rights were violated. See Darnell, 807 F.2d
at 945; see also Flores, 121 M.S.P.R. 287, ¶ 11 (a tenured Federal employee may
waive his right to due process “provided the waiver is knowing, voluntary, and
intelligently made”). While agencies must provide a meaningful opportunity to
respond, employees must put forth reasonable effort in exercising
that opportunity.
¶10 For example, in Smith v. U.S. Postal Service, 789 F.2d 1540, 1541 (Fed.
Cir. 1986), the agency sent copies of its proposal notice to the petitioner and his
designated union representative on March 20. The union representative scheduled
an oral reply for April 3 and the petitioner did not appear, so the union
representative provided the reply on his behalf. Id. at 1541-42. The deciding
official considered the union representative’s reply in reaching his decision to
remove the petitioner, effective April 23. Id. at 1542. Notwithstanding, the
petitioner asserted the agency violated his due process rights b ecause he did not
receive the proposal notice until April 5, after the oral reply occurred, and was
1
The appellant also asserts he would have hired an attorney had he known the agency
was contemplating his removal from Federal service. Petition for Review File, Tab 4
at 7. The proposal notice informed him of his right to designate a representative, IAF ,
Tab 4 at 59, but he apparently did not exercise that right before his removal, even after
his oral reply.
5
therefore “not given the opportunity to defend himself.” Id. at 1543. Assuming
arguendo that the petitioner’s claim of belated receipt was true, the Feder al
Circuit found he failed to establish the agency violated his due process rights.
There was no evidence that the petitioner was “denied his right to constitutional
due process by agency action, negligence, or design.” Id. at 1543. Further, there
was no evidence that he had made “even a reasonable effort” to assert his right to
due process after the date he alleged receiving the proposal notice; there was no
evidence that he attempted to present any evidence, or that the agency prevented
him from presenting any evidence. Id. at 1543-44. The Federal Circuit noted that
“agencies are not psychic” and, in this instance, the agency could not have known
the petitioner had not received a copy of the proposal notice, particularly given
that his union representative arranged and presented an oral reply. Id. at 1544.
¶11 In Flores, the Board found irrelevant the appellant’s alternative assertion
that he believed responding to the proposed action would be futile in light of the
CAB’s final determination. 121 M.S.P.R. 287, ¶ 11. Regardless of the reason for
the appellant’s choice not to respond, “the agency was not obligated to read his
mind and schedule a response on its own initiative.” Id. Because there was no
indication “that the appellant made a reasonable effort to assert his right to
respond, or that the agency denied him his right to respond through action,
negligence, or design,” the Board found he was not denied due process. Id.¶12 As another example, in Harding v. U.S. Naval Academy, 567 F. App’x 920,
924-25 (Fed. Cir. 2014), 2 the petitioner asserted the agency violated her due
process rights by relying on a document she was unaware would be relied upon.
However, the agency had informed her of her right to access the materials that
would be relied upon, and she did not allege that she was denied the opportunity
2
The Board may choose to follow nonprecedential Federal Circuit decisions it finds
persuasive. See Dean v. Office of Personnel Management, 115 M.S.P.R. 157, ¶ 14
(2010).
6
to review those materials or that the document at issue was not included in them.
Accordingly, the Federal Circuit found her due process rights were not violated.
¶13 In the instant appeal, the appellant responded to the charges against him;
was told of the nature of the proposed action 8 calendar days before the end of the
reply period; submitted an additional written reply after realizing he could be
removed from Federal service; and never indicated to the agency that he required
additional time, despite being explicitly informed he could make such a request.
¶14 The majority seems to imply that the requirements of due process c annot be
satisfied unless all information to be considered is set forth in the written
proposal notice. Again, I disagree. 3 Due process is not a technical conception
with a fixed content unrelated to time, place and circumstances; rather, it is
flexible and calls for such procedural protections as the particular situation
demands. Gajdos v. Department of the Army, 121 M.S.P.R. 361, ¶ 18 (2014).
The root requirement of the Due Process Clause is that an individual be given
an opportunity to respond before he is deprived of any significant property
interest, including a meaningful opportunity to invoke the discretion of the
decisionmaker before the termination takes effect. Loudermill, 470 U.S.
at 542-43 (citations omitted). In short, the ultimate question is whether the
3
In any event, the agency’s written proposal was to remove the appellant from his
“position of Supervisory Correctional Officer.” IAF, Tab 4 at 56. The written notice
neither referenced a proposed demotion nor specified any alternate position to which
the appellant might be reassigned. See generally id. at 56-59. In fact, in addition to
noting that the appellant’s actions were “not consistent with the manner in which a
correctional supervisor should behave,” the proposal notice also expressed concern that
the appellant may not be “one to whom the care, custody, and correction of federal
criminal offenders may be entrusted,” suggesting that the concern extended beyond the
appellant occupying a Lieutenant role and included him occupying a law enforcement
position generally. Id. at 58-59. Accordingly, I believe the required information was
set forth in the proposal notice.
7
appellant had a meaningful opportunity to respond before the action
was taken. 4
¶15 Even if the written proposal notice was unclear, there can be no dispute
that the appellant received the information to which he was entitled well before
the removal action became effective over 2 months later . In my view, the fact
that this clarification was given verbally during the oral reply is far from fatal,
particularly where the appellant had time left to make any additional
submission he desired in support of his continued employment with the
agency. Under the circumstances presented here, I would affirm the
administrative judge’s finding that “the agency afforded the appellant minimal
due process before effecting his removal.” See ID at 17-18.
/s/
Tristan L. Leavitt
Member
4
Notably, there are instances when minimum due process requirements may be satisfied
despite information not being included in the proposal notice. See, e.g., Wilson v.
Department of Homeland Security, 120 M.S.P.R. 686 (2014) (although the deciding
official’s penalty determination was partly based on an aggravating factor not cited in
the proposal notice, his consideration of this factor did not undermine the appellant’s
right to due process because she made a “specific and significant” response to this
factor in her reply), aff’d, 595 F. App’x 995 (Fed. Cir. 2015); Addison v. Department of
Health and Human Services, 46 M.S.P.R. 261, 267 (1990) (in performance based
actions under chapter 43, information imparted in counseling sessions during the
performance improvement period can make up for a lack of specificity in the proposal
notice because the purpose of specificity in a proposal notice is to provide the employee
with a fair opportunity to oppose his removal by informing him of the reasons for the
proposed action with sufficient particularity to apprise him of the allegations he must
refute or the acts he must justify), aff’d, 945 F.2d 1184 (Fed. Cir. 1991).