Garilynn Smith, Appellant, v. Department of the Army, Agency.
Docket No. PH-1221-16-0010-W-1
UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD
April 13, 2022
2022 MSPB 4
Jason Guiliano, Picatinny Arsenal, New Jersey, for the agency.
BEFORE
Raymond A. Limon, Vice Chair
Tristan L. Leavitt, Member
OPINION AND ORDER
¶1 The agency has filed a petition for review of the initial decision, which granted the appellant‘s request for corrective action in this individual right of action (IRA) appeal. For the reasons set forth below, we DENY the petition and AFFIRM the initial decision AS MODIFIED by this Opinion and Order, still granting corrective action. We modify the initial decision by applying the clear and convincing evidence standard for nondisciplinary IRA cases set forth in Gonzales v. Department of the Navy, 101 M.S.P.R. 248, ¶¶ 11-12 (2006), and by directly addressing the second and third factors set forth in Carr v. Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999).
¶2 On July 17, 2006, the appellant‘s husband, a U.S. Army sergeant and explosive ordnance disposal technician, was killed in action in Iraq. Initial Appeal File (IAF), Tab 20 at 38; Hearing Transcript, Volume 1 (HT1) at 7, 18 (testimony of the appellant). Following her husband‘s death, the appellant attempted to obtain information about the disposition of his remains, which had been flown to Dover Air Force Base, where they were handled by Air Force Mortuary Affairs Operations (Dover MAO) personnel. HT1 at 29-39, 121 (testimony of the appellant). On April 21, 2011,1 Dover MAO‘s Deputy Commander sent the appellant a letter stating that her husband‘s remains had been cremated, further incinerated by a medical disposal company, and sent to a Virginia landfill. IAF, Tab 20 at 39.
¶3 Shortly after receiving this information, the appellant notified the media and a policy advisor for U.S. Congressman Rush Holt about the mishandling of service members’ remains by Dover MAO. Id. at 40; HT1 at 42, 48 (testimony of the appellant). On December 7, 2011, The Washington Post published an article about the matter that identified the appellant by name. IAF, Tab 8 at 22-26. The following week, Representative Holt delivered a speech in the U.S. House of Representatives in which he explained that he would not vote for the National Defense Authorization Act of 2012 (NDAA) because, inter alia, it did not mention the desecration of the remains of deceased service members at Dover MAO. IAF, Tab 21 at 59-60. In his speech, Representative Holt stated that the appellant had brought the matter to his attention. Id. at 60.
¶4 During this time, the appellant was working at the agency‘s Picatinny Arsenal (Picatinny) in New Jersey. IAF, Tab 4 at 19-20. The appellant served as
¶5 The appellant applied for the position and was one of 14 candidates on the certificate of eligibles. IAF, Tab 6 at 33-37. Shortly after the vacancy announcement closed, two additional news reports were published about the landfill issue: (1) a September 23, 2012 article in The Washington Post, which identified the appellant by name, included a photograph of her at the landfill, and stated that she was instrumental in uncovering the scandal; and (2) a September 29, 2012 article in The Army Times, which also identified the appellant by name. IAF, Tab 23 at 5-14. In early October, the selecting official canceled the vacancy announcement. IAF, Tab 17 at 13.
¶6 On October 19, 2012, the agency posted a second vacancy announcement for the EA position, which included three additional duties. IAF, Tab 4 at 30-36, 38. The appellant applied for the position and was again placed on the certificate of eligibles; however, the selecting official chose another candidate for the position. IAF, Tab 6 at 28-32, Tab 21 at 158-59.
¶7 On January 11, 2013, the appellant filed a complaint with the Office of Special Counsel (OSC) alleging that she was not selected for the EA position in reprisal for her disclosures concerning the improper disposal of human remains
¶8 The appellant timely filed this IRA appeal and requested a hearing. IAF, Tab 1. The administrative judge determined that the Board had jurisdiction over the appeal. IAF, Tab 11. Following a hearing, the administrative judge issued an initial decision granting the appellant‘s request for corrective action. IAF, Tab 47, Initial Decision (ID) at 1, 25. He found that the appellant proved by preponderant evidence that she made protected disclosures regarding Dover MAO‘s improper handling of her husband‘s remains, and that these disclosures were contributing factors in the agency‘s decision not to select her for the EA position. ID at 17-22. The administrative judge also concluded that the agency failed to prove by clear and convincing evidence that it would not have selected the appellant for that position in the absence of her protected disclosures. ID at 22-24.
¶9 The agency has filed a petition for review,2 alleging that the administrative judge failed to properly admit evidence at the hearing, relied on “inadmissible” hearsay evidence in the initial decision, and improperly allowed the appellant to testify as an expert witness on mortuary affairs, yet denied the agency the opportunity to present a rebuttal expert witness. Petition for Review (PFR) File, Tab 3 at 5-16. The agency further alleges that the appellant failed to prove the contributing factor element of her whistleblower claim and that, in any event, it proved by clear and convincing evidence that it would not have selected the
ANALYSIS4
The Board declines to dismiss the agency‘s petition for review for failure to comply with the administrative judge‘s interim relief order.
¶10 When, as here, the appellant was the prevailing party in the initial decision and the decision granted the appellant interim relief, any petition for review filed by the agency must be accompanied by a certification that the agency has complied with the interim relief order.
¶11 In her response to the agency‘s petition for review, the appellant moves to dismiss the petition on the grounds that the agency has failed to provide interim
¶12 Although the Board may dismiss an agency‘s petition for review if the agency fails to establish its compliance with the interim relief order, it need not do so. Kolenc v. Department of Health & Human Services, 120 M.S.P.R. 101, ¶ 11 (2013). We exercise our discretion in this case not to dismiss the petition for review because the issue of the agency‘s compliance with the interim relief order is now moot by virtue of our final decision ordering corrective action. See Elder v. Department of the Air Force, 124 M.S.P.R. 12, ¶ 20 (2016).
¶13 Under the Whistleblower Protection Enhancement Act, at the merits stage of the appeal, the appellant must prove by preponderant evidence7 that she made a protected disclosure under
¶14 A protected disclosure is a disclosure that an appellant reasonably believes evidences a violation of any law, rule, or regulation, gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.
¶15 Following the hearing in this appeal, the administrative judge issued a close of record order directing the appellant to submit a brief addressing why she believed that her disclosure reported a type of wrongdoing listed in
¶16 The administrative judge provided the agency the opportunity to respond to the appellant‘s brief, and it did so. IAF, Tabs 37, 45. In its post-hearing brief, the agency argued that the appellant did not make a protected disclosure because the DOD directive cited by the appellant does not clearly state that what occurred with the ashes in this case violated that directive or any law, policy, or regulation. IAF, Tab 45 at 5-6.
¶17 The administrative judge agreed with the appellant, and found that “dumping the ashes of [service members] into a landfill” fails to accord those remains the “reverence, care and dignity” required by the DOD directive. ID at 19-20. Therefore, the administrative judge found that the appellant made a protected disclosure by reporting conduct that violated this directive. ID at 18-20.
¶18 In the alternative, the administrative judge found that, even if Dover MAO did not violate the DOD directive, the appellant‘s disclosures were nonetheless protected because she established that she reasonably believed that Dover MAO
The appellant proved contributing factor under the knowledge/timing test.
¶19 To prevail in an IRA appeal, an appellant also must prove by preponderant evidence that her protected disclosures were a contributing factor in a personnel action. Scoggins v. Department of the Army, 123 M.S.P.R. 592, ¶ 21 (2016). The term “contributing factor” means any disclosure that affects an agency‘s decision to threaten, propose, take, or not take a personnel action regarding the individual who made the disclosure. Id.;
¶20 Regarding the knowledge prong of the test, the administrative judge found that the evidence presented at the hearing shows that Picatinny management
¶21 The agency challenges this finding on review; however, it does not dispute that Picatinny management officials knew of the appellant‘s disclosures before they decided not to select her. PFR File, Tab 3 at 16 (stating that the agency “freely admits” that it was aware of the appellant‘s alleged whistleblowing prior to the personnel action in question); IAF, Tab 24 at 4-5 (same). It also does not dispute that the length of time between the appellant‘s disclosures and her nonselection was sufficiently short to satisfy the timing prong of the test. PFR File, Tab 3 at 16-18. The agency contends that the appellant nonetheless failed to prove contributing factor because the knowledge/timing test also “requires a reasonable person standard as to that knowledge being a contributing factor to the personnel action” and the appellant has not met that standard. Id. at 16.
¶22 This argument is unpersuasive. As previously indicated, once an appellant has satisfied the knowledge/timing test, she has met her burden of proving contributing factor. Scoggins, 123 M.S.P.R. 592, ¶ 21. The appellant clearly has
The agency failed to show by clear and convincing evidence that it would have nonselected the appellant for the EA position absent her protected disclosures.
¶23 When, as in this case, an appellant shows by preponderant evidence that she made protected disclosures and that those disclosures were a contributing factor in the decision to take a personnel action, the burden shifts to the agency to prove by clear and convincing evidence that it would have taken the personnel action in the absence of the whistleblowing. See
¶24 Regarding the first Carr factor, the administrative judge found that the agency‘s explanation for not selecting the appellant lacked credibility because it was “riddled with inconsistencies” and that the agency “utterly failed to justify its selection decision.” ID at 23-24. In making this finding, the administrative judge noted that the selecting official and two other management officials testified during the hearing that the appellant was not suited for the EA position for the following reasons: (1) the appellant had problems getting along with coworkers; (2) she had “leave usage” issues; and (3) she frequently demanded teleworking arrangements. ID at 24. The administrative judge found that none of these reasons for refusing to select the appellant were supported by the evidentiary record. Id. In particular, the administrative judge found that the agency‘s claim that the appellant had trouble getting along with coworkers was directly contradicted by management in the appellant‘s 2010-2011 performance evaluation, as she received the highest possible rating under the category “Working Relationships & Communications.” ID at 15, 24; IAF, Tab 22 at 89.
¶25 The administrative judge further noted that the appellant‘s second-line supervisor, who criticized the appellant‘s ability to work with other administrative assistants and cast doubt on her leadership ability during the hearing, praised the appellant‘s performance on her evaluation form. ID at 15. As the administrative judge noted, the supervisor stated in his Senior Rater comments that the appellant could be relied on to train and assist senior administrative assistants on various tasks, had the capability and desire to excel in positions well above the administrative level, and had outstanding potential to succeed in a position of higher authority and responsibility. ID at 15-16; IAF,
¶26 On review, the agency argues that, because the appellant was applying for a GS-09 position and the performance evaluation pertains to her performance in a GS-08 position, the administrative judge should have given less weight to the appellant‘s performance evaluation and more weight to the testimony of agency officials regarding their concerns about the appellant‘s potential for accomplishing GS-09 level work. PFR File, Tab 3 at 18. This argument is unpersuasive. If the appellant had difficulty getting along with others, that should have been reflected in her performance evaluation. Her excellent rating in all categories, including “Working Relationships & Communications,” and the praise she received from agency management in her performance evaluation, severely undermine the legitimacy of the agency‘s reasons for its decision not to select her for the EA position. Accordingly, we agree with the administrative judge‘s assessment of the first Carr factor and find that the agency did not have legitimate reasons for not selecting the appellant.
¶27 We next consider the second Carr factor, the strength of any motive to retaliate on the part of any agency officials who were involved in the decision in question. As the administrative judge noted in the initial decision, although the appellant‘s protected disclosures exposed misconduct by personnel from the Department of the Air Force, rather than the Department of the Army, the evidence shows that the ramifications of the appellant‘s disclosures were not confined to the Air Force. ID at 22. For example, the record contains a December 6, 2011 email from a Washington Post reporter notifying the appellant of DOD personnel‘s reaction to a Facebook post in which she stated that an
¶28 In evaluating the second Carr factor, we also have considered the court‘s decision in Whitmore, 680 F.3d at 1371, which cautioned the Board against taking an unduly dismissive and restrictive view of retaliatory motive. The Whitmore court stated that, “[t]hose responsible for the agency‘s performance overall may well be motivated to retaliate even if they are not directly implicated by the disclosures, and even if they do not know the whistleblower personally, as the criticism reflects on them in their capacities as managers and employees.” Id. at 1370. Applying this broader view of retaliatory motive, the court has found that an official may have a retaliatory motive even if he is not “directly involved in the work at issue in an employee‘s disclosure.” Miller v. Department of Justice, 842 F.3d 1252, 1261-62 (Fed. Cir. 2016). In another case, an agency official took a personnel action against a whistleblower employee, but that official was not personally implicated in the employee‘s disclosures, which concerned congressional testimony by a different agency official. The court determined that the Board‘s administrative judge erred by failing to consider whether the agency official who took the personnel action nonetheless had a “professional retaliatory motive” against the employee because his disclosures regarding the alleged inaccuracy of an agency Under Secretary‘s congressional testimony “implicated the capabilities, performance, and veracity of [agency]
¶29 In this matter, although none of the agency officials involved in the decision not to select the appellant was directly implicated in the mishandling of service members’ remains, the misconduct the appellant disclosed was egregious and her disclosures generated a significant amount of negative publicity for the DOD. Given these circumstances, the appellant‘s disclosures reflected poorly on DOD officials as representatives of the general institutional interests of the DOD, which is sufficient to establish a retaliatory motive. See Whitmore, 680 F.3d at 1370; Chambers v. Department of the Interior, 116 M.S.P.R. 17, ¶ 69 (2011). We therefore find that the agency officials involved in the decision not to select the appellant had some motive to retaliate against her for her disclosures.
¶30 As for the third Carr factor, there is no record evidence concerning the agency‘s treatment of similarly situated nonwhistleblowers. As previously explained, it is the agency that bears the burden of proving that it would have taken the same action in the absence of the appellant‘s protected activity. Alarid v. Department of the Army, 122 M.S.P.R. 600, ¶ 14 (2015). While the agency does not have an affirmative burden to produce evidence concerning each and every Carr factor, and “the absence of any evidence relating to Carr factor three can effectively remove that factor from the analysis,” the failure to produce such evidence if it exists “may be at the agency‘s peril,” and “may well cause the agency to fail to prove its case overall.” Whitmore, 680 F.3d at 1374-75. Moreover, because the agency bears the burden of proof at this stage of the analysis, when the agency fails to introduce relevant comparator evidence, the third Carr factor cannot favor the agency. Smith v. General Services Administration, 930 F.3d 1359, 1367 (Fed. Cir. 2019); Siler v. Environmental Protection Agency, 908 F.3d 1291, 1299 (Fed. Cir. 2018). Here, the agency has
¶31 We therefore find that the agency did not have legitimate reasons for its failure to select the appellant for the EA position, that the agency officials involved in the decision had some motive to retaliate, and that the agency‘s failure to provide evidence in support of Carr factor 3 does not favor the agency. Thus, we agree with the administrative judge that the agency failed to prove by clear and convincing evidence that it would have taken the same action absent the appellant‘s protected disclosures.10 ID at 24. We therefore agree with the administrative judge‘s determination that the appellant is entitled to corrective action. Id.
The agency‘s evidentiary arguments provide no basis to disturb the initial decision.
¶32 The agency also argues on review that the administrative judge did not follow “required evidentiary procedures” and erred in relying on documents that were not properly admitted as evidence during the hearing. PFR File, Tab 3 at 5, 7-11. In addition, the agency claims that the administrative judge improperly considered hearsay evidence, such as excerpts from Representative Holt‘s speech. Id. These arguments are unavailing, as it is well settled that strict adherence to the Federal Rules of Evidence and of Civil Procedure is not mandatory in administrative proceedings, Crawford v. Department of the Treasury, 56 M.S.P.R. 224, 233 (1993), and hearsay evidence is admissible in Board proceedings, Shannon v. Department of Veterans Affairs, 121 M.S.P.R. 221, ¶ 15 (2014).
¶33 The agency further argues on review that the administrative judge erred by allowing the appellant to testify as an expert in Air Force mortuary affairs policy, but not granting its post-hearing request to present rebuttal expert testimony from Dover MAO personnel familiar with the regulations at issue and the handling of remains by the Air Force. PFR File, Tab 3 at 11-16; IAF, Tab 45. The agency asserts that such testimony was necessary for the appellant to prove that Dover MAO‘s handling of service members’ remains violated a law, rule, or regulation. PFR File, Tab 3 at 15.
¶34 An administrative judge has wide discretion to control the proceedings before him, to receive relevant evidence, and to ensure that the record on significant issues is fully developed. See Tisdell v. Department of the Air Force, 94 M.S.P.R. 44, ¶ 13 (2003);
¶35 Further, even assuming that expert testimony was necessary for the appellant to establish that Dover MAO‘s mishandling of service members’ remains violated a law, rule, or regulation, the absence of such testimony provides no reason to disturb the initial decision because it did not affect the outcome of the case. See Karapinka v. Department of Energy, 6 M.S.P.R. 124, 127 (1981) (explaining that an administrative judge‘s procedural error is of no
The agency has failed to prove its allegation of judicial bias.
¶36 The agency also raises an apparent claim of bias on review, alleging that the administrative judge “was obviously sympathetic” to the appellant and was so outraged by the mishandling of her husband‘s remains that he decided to rule against the agency, regardless of the evidence. PFR File, Tab 3 at 5, 14. It further contends that, in the initial decision, the administrative judge engaged in a “shocking personal attack” on agency counsel when addressing the agency‘s argument in its post-hearing brief that, because DOD Directive 1300.22 does not specify what qualifies as the “requisite care, reverence, and dignity befitting [the remains] and the circumstances . . . what we have here is more of a philosophical or theological debate than anything else.” Id. at 14.
¶37 Although the agency does not specifically identify the administrative judge‘s alleged “personal attack” on agency counsel, it appears to be referring to the following statement by the administrative judge in response to the above argument: “The agency should be disabused of the notion that a landfill is a dignified resting place for the remains of a U.S. Army Soldier who gave his life in the service of his nation.” ID at 18. This statement is not a personal attack on agency counsel. Moreover, given the reprehensible manner in which Dover MOA personnel handled the remains of the appellant‘s husband and other service members, we find the administrative judge‘s statement to be a measured and reasonable response to the agency‘s appalling suggestion that dumping service
¶38 Further, in making a claim of bias or prejudice against an administrative judge, a party must overcome the presumption of honesty and integrity that accompanies administrative adjudicators. Oliver v. Department of Transportation, 1 M.S.P.R. 382, 386 (1980). An administrative judge‘s conduct during the course of a Board proceeding warrants a new adjudication only if his comments or actions evidence “a deep-seated favoritism or antagonism that would make fair judgment impossible.” Bieber v. Department of the Army, 287 F.3d 1358, 1362-63 (Fed. Cir. 2002) (quoting Liteky v. United States, 510 U.S. 540, 555 (1994)); Smets v. Department of the Navy, 117 M.S.P.R. 164, ¶ 15 (2011), aff‘d per curiam, 498 F. App‘x 1 (Fed. Cir. 2012). The agency‘s allegations on review, which do not relate to any extrajudicial conduct by the administrative judge, neither overcome the presumption of honesty and integrity that accompanies an administrative judge, nor establish that he showed a deep-seated favoritism or antagonism that would make fair judgment impossible.
ORDER
¶39 We ORDER the agency to appoint the appellant to the position of Executive Assistant, GS-03019-09, at Picatinny Arsenal, New Jersey. 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.
¶40 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,
¶41 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 to describe the actions it took to carry out the Board‘s Order. The appellant, if not notified, should ask the agency about its progress. See
¶42 No later than 30 days after the agency tells the appellant that it has fully carried out the Board‘s Order, the appellant may file a petition for enforcement with the office that issued the initial decision in this appeal if the appellant believes that the agency did not fully carry out the Board‘s Order. The petition should contain specific reasons why the appellant believes that the agency has not fully carried out the Board‘s Order, and should include the dates and results of any communications with the agency.
¶43 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.
¶44 This is the final decision of the Merit Systems Protection Board in this appeal. Title 5 of the Code of Federal Regulations, section 1201.113 (
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
NOTICE TO THE APPELLANT REGARDING YOUR RIGHT TO REQUEST CONSEQUENTIAL DAMAGES
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NOTICE TO THE PARTIES
A copy of the decision will be referred to the Special Counsel “to investigate and take appropriate action under [5 U.S.C.] section 1215,” based on the determination that “there is reason to believe that a current employee may have committed a prohibited personnel practice” under
NOTICE OF APPEAL RIGHTS11
You may obtain review of this final decision.
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
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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.
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(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
If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court‘s website, www.cafc.uscourts.gov. Of particular relevance is the court‘s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court‘s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD:
/s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.
DFAS BACK PAY CHECKLIST
The following documentation is required by DFAS Civilian Pay to compute and pay back pay pursuant to
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
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.
- Initiate and submit AD-343 (Payroll/Action Request) with clear and concise information describing what to do in accordance with decision.
- The following information must be included on AD-343 for Restoration:
- Employee name and social security number.
- Detailed explanation of request.
- Valid agency accounting.
- Authorized signature (Table 63).
- If interest is to be included.
- Check mailing address.
- Indicate if case is prior to conversion. Computations must be attached.
- Indicate the amount of Severance and Lump Sum Annual Leave Payment to be collected (if applicable).
Attachments to AD-343
- Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday Premium, etc. with number of hours and dates for each entitlement (if applicable).
- Copies of SF-50s (Personnel Actions) or list of salary adjustments/changes and amounts.
- Outside earnings documentation statement from agency.
- If employee received retirement annuity or unemployment, provide amount and address to return monies.
- Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)
- 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.
- 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.)
- Must provide same data as in 2, a-g above.
- Prior to conversion computation must be provided.
- 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.