UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD

JEROMY CURTIS EOTVOS
,

Appellant,

v.
DEPARTMENT OF THE AR MY,

Agency. DOCKET NUMBER CH

- 0752

- 17

- 0355

- I

- 1

DATE: June 21, 2023



### THIS FINAL ORDER IS NONPRECEDENTIAL 1

Jeromy Curtis Eotvos , Montgomery, Minnesota, pro se.

Justin Baker and Jennifer Diaz , Saint Paul, Minnesota, for the agency.

BEFORE Cathy A. Harris
, Vice Chairman Raymond A. Limon
, Member

FINAL ORDER ¶1 The a gency has file d a petition for review of the initial decision, which reversed the appellant’s removal for misconduct. 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 a pplication of the law to

1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).2

the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affec ted 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. The refore, we DENY the petition for review . Except as expressly
MODIFIED to VACATE the administrative judge’s ruling on venue, 2 we AFFIRM the initial decision.

ORDER ¶2 We ORDER the agency to cancel the appellant’s removal and to restore him
effective March 13 , 2017. 3 See Kerr v. National Endowment for the Arts
,

2 The administrative judge’s ruling that the agency was precluded from initiating a parallel administrative process to determine the appellant’s fitness for mili tary duty amounted to an advisory opinion. Initial Appeal File, Tab 19. The Board is prohibited by statute from issuing advisory opinions. 5 U.S.C. § 1204 (h)

. 3 The record is not entirely clear on the effective date of the removal. Dual

- status technicians, like the appellant, have the right to appeal an adverse action decision to the Adjutant General before filing a Board appeal. Initial Appeal File (IAF), Tab 4 at 58

- 59. The agency’s January 5, 2017 original decision letter indicates that the appellant’s removal would be effective February 5, 2017. Id

. at 58. However, the appellant appealed the original decision to the Adjutant General, who sustained it on March 13, 2017, with a letter sugge sting that the removal penalty had not yet been imposed but not specifying a new date for the action to become effective. Id

. at 76. The Standard Form 50 documenting the removal reflects an effective date of April 15, 2017. Id

. at 11. This is also the effective date that the appellant indicated on his initial appeal form. IAF, Tab 1 at 3. Nevertheless, in her initial decision reversing the removal, the administrative judge ordered the agency to restore the appellant to duty effective March 13, 2017

— th e date of the Adjutant Gene ral’s decision. IAF, Tab 47 at 10. Because neither party disputes the accuracy of this date for purposes of status quo ante relief, we are operating under the assumption that it was, in fact, the effective date of the appellant ’s removal. Nevertheless, should any addendum proceedings in this case be necessary, the parties should clarify the matter during those proceedings.3

726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no later
than 20 days after the date of this decision. ¶3 We also ORDER the agenc y 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, in terest 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. ¶4 We further ORDER the agency to tell the appellant promptly in writing
when it believes it ha s 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). ¶5 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 appel lant 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 c ommunications with the agency. 5 C.F.R. § 1201.182 (a). ¶6 For agencies whose payroll is administered by either the National Finance Center of the Department of Agriculture (NFC) or the Def ense 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
documentati on necessary to process payments and adjustments resulting from the4

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 APPELL ANT REGARDING

YOUR RIGHT TO REQUES T ATTORNE Y 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 T itle 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The

re gulations 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 RIG HTS 4 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 b elow 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 fil ing time limits and requirements. Failure to file

4 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.5

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 t o 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 judic ial 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 a ttorney will accept representation in a given case.6

(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 tha t 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 th e 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 yo u 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
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:7

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 revi ew 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 Fe deral Circuit or any court of appeals of competent jurisdiction. 5 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).

5 The original statutory provision that provided for judicial review of certain whistleblower claims by any cour t 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 whistleblow er 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. 1510.8

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,” whi ch 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.g ov/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 representati on 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:

Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the BoardDEFENSE 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 § 5 50.805. 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 p aid by vendor pay, not DFAS Civilian Pay.
☐ 1) Submit a “SETTLEMENT INQUIRY

- Submission” Remedy Ticket. Please identify the specific dates of the ba ck 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 docume ntation is not applicable:

☐ 2) Settlement agreement, administrative dete rmination, arbitrator award, or order.
☐ 3) Signed and completed “Empl oyee Statement Relative to Back Pay”.
☐ 4) A ll 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 pa y 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 t he 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 separa te leave account pursuant to 5 CFR § 5 50.805(g).NATIONAL FINANCE CEN TER CHECKLIST FOR BA CK 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 Diffe rential, 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 agen cy. 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, certi fication 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 com putation 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.