Joseph Ferrante v. Environmental Protection Agency

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

JOSEPH FERRANTE, DOCKET NUMBER
Appellant, PH-0752-15-0372-I-2

v.

ENVIRONMENTAL PROTECTION DATE: April 25, 2022
AGENCY,
Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Lawrence Berger, Esquire, Glen Cove, New York, for the appellant.

Alexandra Meighan and Merrick D. Cosey, Washington, D.C., for the
agency.

BEFORE

Raymond A. Limon, Vice Chair
Tristan L. Leavitt, Member

FINAL ORDER

¶1 The agency has filed a petition for review of the initial decision, whi ch
reversed the appellant’s constructive suspension of more than 14 days .
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED by
this Final Order to clarify the improper agency action that rendered the
appellant’s leave of absence involuntary and to modify the constructive
suspension period, we AFFIRM the initial decision.

BACKGROUND
¶2 The appellant is employed as a Criminal Investigator, GS-1811-13, with the
agency in Edison, New Jersey. Ferrante v. Environmental Protection Agency,
MSPB Docket No. PH-0752-15-0372-I-2, Appeal File (I-2 AF), Tab 16, Refiled
Initial Decision (RID) at 2. The appellant is subject to medical examination
whenever there is a question as to his continued ability to meet the medical
standards or physical requirements of his law enforcement position. RID at 2;
Ferrante v. Environmental Protection Agency, MSPB Docket No. PH-0752-15-
0372-I-1, Initial Appeal File (IAF), Tab 25 at 131-56.
¶3 On February 13, 2015, the appellant suffered a nonwork-related head injury
that resulted in a facial fracture and cognitive impairment and that required
emergency surgery and physical therapy. RID at 2; IAF, Tab 25 at 11, 72, 85,
305. On February 17, 2015, the appellant informed his supervisor of his injury
and began a period of voluntary sick leave. IAF, Tab 25 at 20. The agency
 3

continued to approve his sick leave from February to April 2015, but requested
that he provide sufficient documentation detailing, among other things, how his
medical condition affected his ability to perform his duties. IAF, Tab 6 at 20, 22,
Tab 25 at 20-22. The appellant provided additional medical documentation. IAF,
Tab 25 at 20-21, 25-32, 54, 275-84. The agency found it insufficient to make a
determination as to his fitness for duty and on March 17, 2015, ordered him to
submit to a Federal Occupational Health (FOH) medical examination. Id. at 22.
Instead, on March 19, 2015, the appellant provided a note from his treating
certified registered nurse practitioner (CRNP) stating that he was unable to work
“[d]ue to impaired delayed recall and fatigue” and indicated that he may not use a
firearm, among other restrictions. Id. at 82, 85. But, on April 13, 2015, after
receiving clearance from his CRNP, the appellant requested to return to partial
duty on April 15, 2015. Id. at 32, 83. The agency declined his request and again
ordered him to undergo an FOH exam. Id. at 80, 82.
¶4 The appellant scheduled his FOH exam and reported for testing and
examination on April 29 and May 12, 2015. RID at 3. On May 28, 2015, the
appellant’s CRNP cleared him for return to full duty. IAF, Tab 25 at 54.
Nonetheless, as indicated in her June 15, 2015 report, the FOH medical review
officer (MRO) deferred making a final determination on the appellant’s clearance
until he provided a report from a board-certified neurologist detailing 14 specific
pieces of medical information, including the “Results of a CURRENT
neurological and mental status evaluation.” IAF, Tab 25 at 11-12, 14-15, 74-75.
The appellant did not receive the FOH report until July 9, 2015. RID at 4; IAF,
Tab 25 at 302-03. On July 17, 2015, the appellant’s treating practitioners
forwarded his extant clinical documentation because they believed it to be fully
responsive to the FOH request. RID at 4; IAF, Tab 25 at 286, 305. The FOH
MRO, however, clarified that the records were only 1 of the 14 items needed and
reissued the request for the remaining information. IAF, Tab 25 at 304-06. The
appellant then scheduled an appointment with a board-certified neurologist and
 4

obtained the remaining documentation. RID at 4; IAF, Tab 25 at 213, 307-10.
The appellant submitted this information to the agency on or about October 2,
2015; FOH cleared him for duty, effective October 14, 2015; the agency informed
him of his clearance on Friday, October 16, 2015, and returned him to duty the
following Monday, on October 19, 2015. RID at 4-5.
¶5 While the appellant’s medical clearance decision was pending, he filed this
Board appeal, claiming that the agency’s refusal to return him to duty and
placement on “[e]nforced [l]eave” constituted a constructive suspension and
disability discrimination. IAF, Tab 1 at 5, Tab 23 at 3. The agency asserted that
the appellant was not returned to duty because there was a legitimate, outstand ing
question as to his fitness for duty. IAF, Tab 6 at 7-10. The administrative judge
initially dismissed the appeal without prejudice, but automatically refiled the
appeal on February 3, 2016. I-2 AF, Tabs 1-2; IAF, Tab 27, Initial Decision
at 1-3. After holding the appellant’s requested hearing, the administrative j udge
issued an initial decision finding that the agency constructively suspended the
appellant from May 13, 2015, the day after his last FOH exam, to October 16,
2015, the last day of his absence before returning to duty; reversing the
constructive suspension because it was effected without minimum due process;
and finding unproven the appellant’s disability discrimination claim of failure to
provide a reasonable accommodation. RID at 5, 13, 16.
¶6 The agency has filed a petition for review. Petition for Review (PFR) File,
Tabs 1-2. The appellant has filed a response, to which the agency has replied.
PFR File, Tabs 4-5. On petition for review, neither party challenges the
administrative judge’s findings on the appellant’s failure to provide a reasonable
accommodation claim. PFR File, Tabs 1-2, 4-5. Accordingly, we focus our
discussion on the appellant’s constructive suspension claim.
 5

DISCUSSION OF ARGUMENTS ON REVIEW
¶7 Although various fact patterns may give rise to an appealable constructive
suspension, all constructive suspension claims are premised on the proposition
that an apparently voluntary absence actually is not. Rosario-Fabregas v.
Department of the Army, 122 M.S.P.R. 468, ¶ 8 (2015), aff’d, 833 F.3d 1342
(2016). To demonstrate that the absence was not voluntary and is an actionable
constructive suspension, an appellant must prove that he lacked a meaningful
choice in the matter and that the agency’s wrongful actions deprived him of that
choice. Id. Assuming the jurisdictional requirements of 5 U.S.C. chapter 75 are
otherwise met, proof of these two things is sufficient to establish Board
jurisdiction. Id. This analysis extends to situations when, as here, the agency
prevents the appellant’s return to work after an initial voluntary absence. Id. Our
reviewing court has specifically held that the jurisdictional analysis set forth
above is appropriate in such cases. Rosario-Fabregas v. Merit Systems
Protection Board, 833 F.3d 1342, 1346-48 (2016); Thomas v. Department of the
Navy, 123 M.S.P.R. 628, ¶ 9 (2016).
¶8 On petition for review, the agency does not dispute that the appellant’s
absence from April 15 until October 16, 2015, was involuntary. PFR File, Tab 1
at 7, Tab 4 at 10. Nevertheless, it argues that the administrative judge erred in
finding that the appellant met his burden of proof as to the sec ond prong, i.e., that
its wrongful actions deprived the appellant of a meaningful choice . PFR File,
Tab 1 at 7. We find that the agency constructively suspended the appellant for
the reasons set forth below.

The agency was authorized to order the appellant to report for a FOH exam
before returning him to duty.
¶9 Under 5 C.F.R. § 339.301(b)(3) (2015), an agency has the authority to
require an employee who occupies a position with physical and medical standards
to report for a medical exam whenever there is a direct question about his
 6

continued capacity to meet the physical or medical requirements of his position. 2
Here, the administrative judge correctly found that, while the agency must
consider the appellant’s provided medical documentation, it need not rely on that
information exclusive of an opinion from its own physician. RID at 6-8.
¶10 We further find that the agency’s exam order was appropriate because the
appellant’s medical documentation did not sufficiently resolve the question of his
fitness for duty. The appellant’s clearances from his treating practitioners did not
explain how his medical condition affected his duties, or the reasons and bases
for finding that his medical condition had improved since their recommendations
that the appellant be excused from his duties. IAF, Tab 25 at 26-32, 54, 85,
256-57; see Archerda v. Department of Defense, 121 M.S.P.R. 314, ¶¶ 19, 34-35
(2014) (finding that the agency was authorized to order the appellant to report fo r
a fitness-for-duty exam because the provided medical documentation did not
adequately explain his Post-Traumatic Stress Disorder (PTSD) medications,
provide a history of his medical condition, include a prognosis or diagnosis, or
indicate how his PTSD affected his ability to perform his Firefighter position
duties); Calicott v. U.S. Postal Service, EEOC Appeal No. 01A01169, 2003 WL
21634364, at *2 (July 2, 2003) (finding that the agency had a sufficient basis for
ordering a fitness-for-duty exam when the employee’s medical documentation
lacked relevant facts and information regarding his current medical status). We
therefore discern no error in the agency’s decision to order the appellant to

2
The Office of Personnel Management amended 5 C.F.R. part 339, effective March 21,
2017, after the issuance of the March 10, 2017 initial decision. RID at 1; 82 Fed.
Reg. 10959-01, 10959 (Feb. 17, 2017). For the purposes of this nonprecedential final
order, we apply the 2015 version of the regulations in effect at the time of the
appellant’s alleged constructive suspension. See Zajac v. Department of Agriculture,
112 M.S.P.R. 160, ¶ 5 n.2 (2009). Nonetheless, we would reach the same outcome
under either version because the amended regulations do not absolve the agency its
obligation to designate an appropriate practitioner and to pay for exams that it orders.
Compare 5 C.F.R. part 339 (2015), with 5 C.F.R. part 339 (2017).
 7

submit to a FOH exam, under 5 C.F.R. § 339.301(b)(3) (2015), to determine his
fitness for duty.

The agency failed to fully discharge its obligations under 5 C.F.R. part 339 in
effecting the ordered FOH examination.
¶11 The agency argues that, contrary to the administrative j udge’s findings, it
acted appropriately and reasonably in requiring the appellant to submit acceptable
medical documentation before permitting him to return to work, given the
severity of his injury and the demanding nature of his position. PFR File, Tab 1
at 4, 7-14. While we agree with the administrative judge that the agency acted
improperly when it ordered the appellant to obtain and provide a neurological
evaluation after the agency had conducted the medical examination, we
additionally find that the wrongful action included the agency’s requirement that
the appellant pay for that evaluation.
¶12 The agency-ordered FOH exam did not include the neurological evaluation
at issue. RID at 11-12; IAF, Tab 25 at 259-64. However, early documentation
from the appellant’s treating practitioners raised a question as to his cognition,
which, among other things, affected his ability to operate a firearm. IAF, Tab 25
at 276-84. Thus, given the extent of the appellant’s head injuries and the nature
of his position, the FOH exam likely should have included that evaluation or
referred him for further testing. I-2 AF, Tab 12, Hearing Compact Disc (HCD)
at 1:38:10-1:38:45 (testimony of FOH MRO explaining that FOH medical
examiner is responsible for conducting appropriate medical exams); IAF, Tab 25
at 264 (exam notes from the FOH examining physician recognizing that the
appellant had suffered head trauma, but declining to refer him for further testing );
Archerda, 121 M.S.P.R. 314, ¶ 21 (stating that an exam ordered pursuant to
5 C.F.R. § 339.301 must be done in conformance with the Equal Employment
Opportunity Commission Americans with Disabilities Act regulations , consistent
with business necessity, and tailored to its specific concerns regarding the
appellant’s ability to perform).
 8

¶13 Recognizing the deficiency, the FOH MRO directed the appellant to submit
a “CURRENT” neurological and mental status evaluation by a board-certified
neurologist. IAF, Tab 25 at 11, 305. The neurological evaluation was a required
component of the clearance determination. Id. at 11-12, 74-76, 305-06. Rather
than merely provide already-obtained medical information describing his
diagnosis or prognosis, the appellant was forced to undergo a new exam to fulfill
the FOH directive. Id. at 307-10. Also, unlike Rosario-Fabregas, 122 M.S.P.R.
468, ¶¶ 2-5, 13, wherein, in furtherance of the interactive process, the agency
requested additional medical information from the appellant because the
supporting information he offered was insufficient to make a determination on his
reasonable accommodation request, the FOH MRO’s directive was in conjunction
with an agency-ordered medical exam and evaluation to determine whether it
would permit the appellant to resume his duties in a position with medical
standards and physical requirements. We therefore find that , under these facts,
the agency effectively ordered the appellant to undergo a med ical exam from a
private board-certified neurologist. 3
¶14 Thus, we agree with the administrative judge that the agency did not
comply with 5 C.F.R. § 339.303(b), which required it to “designate[] the
examining physician,” and that this wrongful action deprived the appellant of a
meaningful choice. RID at 12. Although the agency contends that it complied
with the designation requirement by directing the appellant to “have a
board-certified neurologist” complete a “CURRENT neurological and mental
status evaluation,” PFR File, Tab 1 at 15; IAF, Tab 25 at 11, 305, we disagree.
Section 339.303(b) does not indicate that an agency may “designate” an
employee’s yet unidentified personal physician as the examining physician;

3
The agency argues that under 5 C.F.R. § 339.302, it has the option of offering an exam
under certain conditions. However, even if this is a circumstance in which the agency
had the authority to offer (or refrain from offering) an exam under that provision, it
nonetheless elected to utilize its authority under 5 C.F.R. § 339.301(b)(3) (2015) to
order a medical exam.
 9

rather, it provides that the agency must merely “offer” the employee an
opportunity to submit medical documentation from the personal physician.
¶15 Moreover, when an agency orders or offers a medical exam, the agency
shall pay for the exam. 5 C.F.R. § 339.304 (2015). The evidence in the record
does not reflect that the agency made any effort to pay for the new neurological
exam. 4 Consequently, we find that the agency also did not comply with the
requirements set forth in 5 C.F.R. § 339.304 (2015), and that wrongful action,
along with its failure to comply with 5 C.F.R. § 339.303 (2015), deprived the
appellant of a meaningful choice.
¶16 As a result, the delay in medically clearing the appellant was attributable to
the agency’s failure to conduct a sufficient exam and to comply with its
obligations under 5 C.F.R. part 339 in ordering and paying for a neurological
exam, and not due to the appellant’s delay in providing the neurological report.
Cf. 5 C.F.R. § 339.102(c) (2015) (explaining that “[a]n employee’s refusal to be
examined in accordance with a proper agency order authorized under [5 C.F.R.
part 339] is grounds for appropriate disciplinary or adverse action”) (emphasis
added). We therefore find that the appellant proved that the agency
constructively suspended him from June 15, 2015, when the FOH MRO
completed her report, to October 16, 2015, the appellant’s last day of absence
before returning to duty, and that the Board has jurisdiction, under 5 U.S.C.
§ 7512(2), over that constructive suspension.

4
Moreover, on review, the appellant’s representative asserts under penalty of perjury
that the agency required the appellant to obtain the neurological evaluation “at his own
cost and expense.” PFR File, Tab 4 at 3, 12. We consider this new evidence because it
implicates the Board’s jurisdiction. See Lovoy v. Department of Health & Human
Services, 94 M.S.P.R. 571, ¶ 30 (2003) (considering new arguments raised on review
because the issue of jurisdiction can be raised at any time). Also, the agency does not
dispute this evidence. PFR File, Tabs 1, 5; see Woodall v. Federal Energy Regulatory
Commission, 30 M.S.P.R. 271, 273 (1986) (finding that a declaration subscribed as true
under penalty of perjury, if uncontested, proves the facts it asserts).
 10

The administrative judge erred in including the appellant’s involuntary absence
before June 15, 2015, in the constructive suspension period.
¶17 The agency argues that the administrative judge erred in finding that the
delay between the appellant’s last FOH appointment on May 13, 2015, and the
appellant’s receipt of the June 15, 2015 MRO report on J uly 9, 2015, was
unreasonable. We agree with the agency in part and modify the administrative
judge’s finding as to when the constructive suspension period began .
¶18 The administrative judge relied on Sherrod v. Department of the Navy,
90 M.S.P.R. 347, ¶ 24 (2001), in finding that the delay was unreasonably long.
RID at 11-12. We find Sherrod distinguishable from the instant case. There, the
agency failed to provide any explanation for its nearly 3-month delay between
receiving the appellant’s request to return to duty and medical information from
his private physician and issuing its request for more information. Sherrod,
90 M.S.P.R. 347, ¶ 24. Here, in contrast, the agency submitted evidence
explaining the medical review process and the FOH MRO’s actions taken to
complete her review, which included reviewing medical documentation from the
appellant’s private practitioners and the FOH exam information. HCD
at 1:37-1:39:20, 1:48:25-1:48:40 (testimony of FOH MRO); IAF, Tab 25 at 11-12,
74-75.
¶19 We also find the remaining cases relied on by the administrative judge on
this issue inapposite. In Caballero v. U.S. Postal Service, 34 M.S.P.R. 263,
266-67 (1987), the Board did not base its finding on the appellant’s constructive
suspension claim on the length of the agency’s delay in rendering a
fitness-for-duty determination. In Baker v. U.S. Postal Service, 84 M.S.P.R. 119,
¶¶ 10, 13 (1999), the Board found that the agency constructively suspended the
appellant because it failed to comply with its obligations to search for a light -duty
assignment within the appellant’s restrictions and within the 72-hour time frame
mandated by the collective bargaining agreement. There is no similar provision
requiring the agency to return the appellant to work within a specific timeframe in
 11

this case; thus, the Board’s unreasonably long delay finding in Baker is not
applicable. Finally, the administrative judge relied upon Justice v. Department of
the Navy, 89 M.S.P.R. 379, ¶ 13 (2001), in finding that, although a “brief delay”
between a medical examination and a medical clearance determination would not
be improper, the Board declines to speculate in these types of cases as to how
long a reasonable delay might last. RID at 12 n.10. Justice, however, was issued
before the Board decided in Bean v. U.S. Postal Service, 120 M.S.P.R. 397
(2013), that a finding of wrongful agency action is required for an involuntary
absence to constitute a constructive suspension, and therefore, merely held that
the appellant’s constructive suspension began on the day the agency refused to
allow him to return to work when he reported for duty that day. See Justice,
89 M.S.P.R. 379, ¶ 13.
¶20 The FOH MRO completed her review of the appellant’s medical
information 1 month after his last FOH exam. RID at 3; IAF, Tab 25 at 12. We
find that this is not an unreasonably long time to conduct such a review and that
such a delay does not constitute a wrongful action sufficient to trigger a
constructive suspension. See Campbell v. U.S. Postal Service, 94 M.S.P.R. 646,
¶¶ 20-21 (2003) (finding no wrongdoing in the agency’s nearly 1 -month delay
between receiving the appellant’s clearance from his private physician and
issuing its request for medical documentation). Therefore, the appellant has not
shown any wrongdoing in the agency’s actions from April 15 to June 14, 2015.
Accordingly, we find that the appellant was constructively suspended only from
June 15, 2015, when the FOH MRO deferred a medical determination pending
further documentation, including a neurological and mental status evaluation,
until October 16, 2015, the last day of the appellant’s absence until his return to
duty.
 12

The agency constructively suspended the appellant from June 15 to October 16,
2015, without due process.
¶21 As explained by the administrative judge, RID at 13, minimum due process
for depriving a tenured public employee of his property right in his emp loyment
entails prior notice and an opportunity to respond. Cleveland Board of
Education v. Loudermill, 470 U.S. 532, 546 (1985). An adverse action taken
without due process must be reversed. Stephen v. Department of the Air Force,
47 M.S.P.R. 672, 681 (1991). Here, the appellant’s constructive suspension of
more than 14 days must be reversed because the agency failed to provide him
with any process before taking that adverse action. See Mc Lain v. U.S.
Postal Service, 82 M.S.P.R. 526, ¶ 10 (1999) (reversing the appellant’s
constructive suspension of more than 14 days because it was effected without the
procedural protections of 5 U.S.C. § 7513(b), in violation of his constitutional
right to minimum due process).
¶22 Accordingly, we find that the agency violated the appellant’s constitutional
rights by constructively suspending him from June 15 to Octo ber 16, 2015,
without minimum due process. We therefore affirm the initial decision’s reversal
of the appellant’s constructive suspension, as modified. 5

ORDER
¶23 We ORDER the agency to cancel the appellant’s constructive suspension
from June 15 to October 16, 2015. 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.

5
The agency also asserted its belief that the administrative judge did not order interim
relief. PFR File, Tab 2 at 4-5. As argued, the administrative judge was correct in
declining to order interim relief. See Zygas v. U.S. Postal Service, 116 M.S.P.R. 397,
¶ 14 (2011) (finding an interim relief award inappropriate in co nstructive suspension
cases when at the time the initial decision is issued, the agency has returned the
appellant to paid duty status at the same grade and step occupied prior to his absence).
 13

¶24 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.
¶25 We further ORDER the agency to compensate the appellant for the cost of
the neurological examination and evaluation from his private physician that he
obtained on or about October 2, 2015.
¶26 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).
¶27 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).
¶28 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
 14

Board’s decision in accordance with the attached lists so that payment can be
made within the 60-day period set forth above.

NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set forth at title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.

NOTICE OF APPEAL RIGHTS 6
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 an d
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

6
Since the issuance of the initial decision in this matter, t he 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.
 15

within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.

(1) Judicial review in general. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
 16

(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, yo u 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
to waiver of any requirement of prepayment of fees, costs, or o ther 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:
 17

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 comm ercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction. 7 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).

7
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
 18

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/CourtWebsite s.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.