Francisco Rodriguez v. Department of Agriculture ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
FRANCISCO RODRIGUEZ, DOCKET NUMBER
Appellant, DA-0752-17-0295-I-1
v.
DEPARTMENT OF AGRICULTURE, DATE: June 29, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Erin Martinez, El Paso, Texas, for the appellant.
Jose Calvo, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The agency has filed a petition for review of the initial decision, which
reversed the agency’s action on procedural grounds. 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 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 requi red
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 agency 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 clarify the analysis of the appellant’s discrimination and
retaliation claims, we AFFIRM the initial decision.
BACKGROUND
¶2 The appellant served as a GS-07 Consumer Safety Inspector assigned to the
Caviness Beef Packers plant in Hereford, Texas. Initial Appeal File (IAF),
Tab 31 at 6, Tab 21 at 12. On January 12, 2016, the Dallas District Manager of
the Food Safety Inspection Service received a signed statement from a
management official at Caviness alleging that the appellant offered to make
problems between the agency’s inspectors and plant management disappear if the
management official approved 15 minutes overtime for the inspectors. IAF,
Tab 43 at 154-55, Tab 22 at 16, 18. Because she determined that the appellant
had lost credibility at Caviness due to these allegations, the District Manager,
who was the appellant’s fifth-level supervisor, temporarily detailed him to the
next closest assignment, Cargill Meat Solutions, which is about 22 miles from
Caviness, effective January 17, 2016. IAF, Tab 21 at 12, Tab 22 at 16, 18 .
¶3 The agency investigated the allegations and, based on sworn a ffidavits from
Caviness management officials that the appellant had propositioned plant
management as described above, it proposed to suspend the appellant for 60 days
based on a charge of Unethical Use of Official Authority. IAF, Tab 1 at 10-14.
3
The appellant provided oral and written replies to the proposal. IAF, Tab 43 at 2,
23-53. In a March 23, 2017 decision, the deciding official sustained the charge
and suspended the appellant from April 2 to May 31, 2017. IAF, Tab 1 at 16-20.
The agency subsequently made the appellant’s detail to the Cargill facility
permanent, citing the suspension as the reason for making the directed
assignment. IAF, Tab 21 at 15.
¶4 The appellant filed a Board appeal. IAF, Tab 1. In pertinent part, he
argued that the agency violated his due process rights when it imposed the 60 -day
suspension and permanent reassignment as a unified penalty. IAF, Tab 42 at 3.
The administrative judge found that the Board had jurisdiction over both the
suspension and the reassignment as a unified penalty because they arose out of
the same circumstances for which the agency found the appellant culpable. IAF,
Tab 49, Initial Decision (ID) at 4-6. He also found that the agency violated the
appellant’s procedural due process rights because the notice proposing his
suspension failed to cite a permanent reassignment as a proposed penalty,
depriving him of a reasonable opportunity to respond concerning the
appropriateness of the penalty. ID at 8. Consequently, the administrative judge
reversed the agency’s action, canceling the appellant’s suspension and his
directed reassignment. ID at 15. He did not order interim relief. ID at 17.
¶5 In its petition for review, the agency contends that the administrative judge
erred in finding that a personnel action that enhances an adverse action penalty
creates a constitutionally protected property interest that mandates notice of the
enhancement in the notice of proposed action. Petition for Review (PFR) File,
Tab 1 at 4, 17. The agency argues that the Board has never held that a failure to
provide advance notice of a reassignment constitutes a denial of due process and
that neither the U.S. Court of Appeals for the Federal Circuit (Federal Circuit)
nor the Board have ruled that an agency’s failure to provide notice that it was
considering reassignment as a penalty enhancement implicates a procedural due
process issue. Id. at 7-8. The agency contends that, because notice is not
4
required before the agency can effect a reassignment that, like here, does not
involve a loss of grade or pay, there was no taking of property protected by the
due process clause. Id. at 9-11. The agency also argues that the Board’s
jurisdiction to review a unitary penalty does not create any new due process
requirements and contends the administrative judge therefore erred in extending
due process protection to the agency’s decision to reassign him. Id. at 11-14.
Instead, the agency asserts that any defect in the notice given the appellant
concerning the penalty should be governed by the harmful error standard. Id.
at 15-18. The appellant responded in opposition to the agency’s petition for
review and the agency filed a reply to the appellant’s response. PFR File,
Tabs 3-4.
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge correctly found that the 60-day suspension and
reassignment constitute a unitary penalty.
¶6 As a general rule, the Board does not have appellate jurisdiction over
reassignments that do not constitute a reduction in grade or p ay, even when the
reassignment reduces the employee’s status, duties, or responsibilities.
Aliota v. Department of Veterans Affairs, 60 M.S.P.R. 491, 495 (1994) (citing
Artmann v. Department of the Interior, 926 F.2d 1120 (Fed. Cir. 1991)).
Jurisdiction exists, however, when the reassignment is part of a unitary penalty
that is otherwise within the Board’s jurisdiction. Id. (citing Brewer v. American
Battle Monuments Commission, 779 F.2d 663 (Fed. Cir. 1985) (finding that the
Board had jurisdiction over a reassignment imposed in connection with a
demotion as part of a unified penalty arising out of the same set of
circumstances)).
¶7 In this matter, the administrative judge found that the appellant’s 60-day
suspension and reassignment comprised a unitary penalty because the agency
relied on the same incident of misconduct as the basis for both actions. ID at 6.
Neither party challenges this on review. Instead, the agency concedes on review
5
that it implemented a unitary penalty and contends that the administrative judge
erred in finding that it violated the appellant’s right to due process by failing to
cite the directed reassignment part of the unitary penalty in the notice of proposed
suspension that it issued to the appellant. PFR File, Tab 1 at 7-8.
¶8 Because the 60-day suspension and the directed reassignment both arose
from the same set of circumstances for which the agency found the appellant
culpable, we agree with the administrative judge that the two actions comprise a
unitary penalty over which the Board has jurisdiction. ID at 6; see Brewer,
779 F.2d at 664-65. Moreover, not only does the Board have jurisdiction to
review both actions as a unitary penalty, our reviewing court has indicated that
under such circumstances, i.e., when an appealable adverse action is paired with a
directed reassignment that would not be appealable in and of itself, the Board
should review the entire agency action, including the directed reassignment.
Brewer, 779 F.2d at 665.
The administrative judge properly reversed the agency’s action on procedural
grounds.
¶9 Pursuant to the Federal Circuit’s decisions in Ward v. U.S. Postal Service,
634 F.3d 1274, 1279-80 (Fed. Cir. 2011), and Stone v. Federal Deposit Insurance
Corporation, 179 F.3d 1368, 1376-77 (Fed. Cir. 1999), a deciding official
violates an employee’s due process rights when he relies upon new and material
ex parte information as a basis for his decisions on the merits of a proposed
charge or the penalty to be imposed. This is because procedural due process
guarantees are not met if the employee has notice of only certain charges or
portions of the evidence and the deciding official considers new and material
information; therefore, it is constitutionally impermissible to allow a deciding
official to receive additional undisclosed material information that may
undermine the objectivity required to protect the fairness of the process. Stone,
179 F.3d at 1376. Moreover, our reviewing court has held that there is no
constitutionally relevant distinction concerning whether such additional
6
undisclosed information relates to the underlying charge or to the penalty. Ward,
634 F.3d at 1280. Thus, all the aspects of a penalty must be included in the
advance notice of an adverse action so that the employee will have a fair
opportunity to respond to those factors before the deciding official. Ward,
634 F.3d at 1280; Solis v. Department of Justice, 117 M.S.P.R. 458, ¶¶ 9-10
(2012); cf. Pope v. U.S. Postal Service, 114 F.3d 1144, 1148 (Fed. Cir. 1997)
(finding that due process requires that charges be sufficiently detailed to al low
the employee to make an informed reply).
¶10 The record reflects that the agency’s notice of proposed suspension in this
matter did not mention the appellant’s directed reassignment. IAF, Tab 10
at 17-21. In his response to the agency’s petition for review, the appellant
reiterates the administrative judge’s finding that the agency gave him no
opportunity to respond concerning the penalty of directed reassignment. PFR
File, Tab 3 at 16; ID at 9. We agree with the administrative judge that the agency
violated the appellant’s due process guarantee to a meaningful opportunity to
respond concerning the appropriateness of the penalty. ID at 10; Solis,
117 M.S.P.R. 458, ¶ 10.
¶11 The agency’s arguments on review—that the appellant had no property
interest in the location of his assignment and that a reassignment without the loss
of grade or pay is not an adverse action appealable to the Board, but is instead a
management prerogative that does not create new due process rights—ignore the
fact that the reassignment in this case is part of a unified penalty and do not
change the analysis. PFR File Tab 1 at 9-15. As the above analysis indicates, the
agency’s failure to mention the appellant’s directed reassignment in the notice of
proposed suspension deprived him of his due process right to make a meaningful
response to the proposed action. Accordingly, the agency has failed to provide a
basis for disturbing the administrative judge’s finding that the agency violated the
appellant’s constitutional right to minimum due process of law by failing to
provide him with an opportunity to respond to the notice of directed
7
reassignment. See Schutte v. Department of the Treasury, 100 M.S.P.R. 645, ¶ 9
(2005). Thus, his suspension and directed reassignment must be reversed and the
agency may initiate a “new constitutionally correct” proceeding based on the
same facts. Solis, 117 M.S.P.R. 458, ¶ 10 (quoting Ward, 634 F.3d at 1280).
The appellant failed to establish his discrimination and retaliation claims .
¶12 Concerning the appellant’s affirmative defenses, we also agree with the
administrative judge that the appellant failed to establish his various claims of
discrimination and retaliation. ID at 12-15; IAF, Tab 42 at 3. Although the
appellant did not file a cross petition for review challenging the administrative
judge’s findings on this point, we take this opportunity to clarify the analysis of
these claims.
¶13 The administrative judge analyzed these claims under the legal standards set
forth in Savage v. Department of the Army, 122 M.S.P.R. 612, ¶¶ 42, 48-49, 51
(2015), overruled in part by Pridgen v. Office of Management and Budget,
2022 MSPB 31, ¶¶ 23-25. In applying these standards, the administrative judge
discussed various types of direct and circumstant ial evidence, and concluded that
the record lacked any evidence that the agency was motivated by a discriminatory
or retaliatory animus when it suspended and reassigned the appellant. ID
at 12-15; see Savage, 122 M.S.P.R. 612, ¶ 42 (identifying different types of
evidence relevant to a discrimination claim). The Board has clarified that Savage
does not require administrative judges to separate “direct” from “indirect”
evidence and reaffirmed its holding in Savage, 122 M.S.P.R. 612, ¶ 51, that the
dispositive inquiry is whether the appellant has shown by preponderant evidence
that the prohibited consideration was a motivating factor in t he contested
personnel action. Gardner v. Department of Veterans Affairs, 123 M.S.P.R. 647,
¶ 30 (2016), clarified by Pridgen, 2022 MSPB 31, ¶¶ 23-24.
¶14 The administrative judge found that the appellant produced no direct
evidence of discrimination or retaliation. ID at 12. He also found that the
circumstantial evidence the appellant produced did not indicate that the agency
8
had discriminated or retaliated against him because neither the proposing official
nor the deciding official were implicated in the appellant’s allegations and the
appellant failed to show that the agency used either of those officials, under a
“cat’s paw” theory, to effect the action for discriminatory or retaliatory purposes,
ID at 12-14. Staub v. Proctor Hospital, 562 U.S. 411, 422 (2011); see Aquino v.
Department of Homeland Security, 121 M.S.P.R. 35, ¶¶ 20-21 (2014) (explaining
“cat’s paw” to describe an instance when a particular management official, acting
because of an improper animus, influences another agency official wh o is
unaware of the improper animus when the latter official implements a personnel
action). The administrative judge also found the appellant’s unsupported and
conclusory allegations failed to show that the agency’s stated reasons for its
action were unworthy of belief. ID at 14-15. The administrative
judge distinguished between direct and circumstantial evidence and there is
no indication that he disregarded any evidence in concluding that the appellant
failed to meet his burden of proof. ID at 12-15.
¶15 As noted above, the appellant does not challenge the administrative judge’s
findings on review, and we decline to disturb them. To the extent that the
administrative judge discussed the evidence as either direct or indirect, or
suggested that an appellant must prove a convincing mosaic of discrimination, we
modify the initial decision to find that the appellant did not present any evidence
of status-based discrimination or retaliation. 2 ID at 12-15; see Pridgen,
2022 MSPB 31, ¶¶ 23-24.
2
Because we affirm the administrative judge’s finding that the appellant failed to show
that any prohibited consideration was a motivating factor in the agency’s action, we
need not resolve the issue of whether the appellant proved that discrimination or
retaliation was a “but-for” cause of the agency’s decisions. See Pridgen, 2022 MSPB
31, ¶¶ 20-22, 29-33.
9
ORDER
¶16 We ORDER the agency to cancel the suspension and the directed
reassignment and retroactively restore the appellant, effective April 2, 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.
¶17 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, as appropriate, no later than 60 calendar days after the
date of this decision. We ORDER the appellant to cooperate in good faith i n 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.
¶18 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).
¶19 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).
¶20 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
10
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
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
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.
11
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 partic ular
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
12
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
13
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
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,
132 Stat. 1510.
14
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 Feder al
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD: /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).
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.