UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD

AR CE HILL AFB, UT, Appellant s , ∗

v.
DEPARTMENT OF THE AR MY, Agency. DOCKET NUMBER DE

- 0752

- 14

- 0470

- I

- 1

DATE: May 27, 2016

Annette B. Kuz , Esquire, San Francisco, California, for the agency. Ryan D. Eddy
, Regina L.T. Gray
, Jason R. Redeen
, Joy J. Sharbutt
, Thomas P. Stonehocker
, Mark T. Swenson
, Doug Wesemann , and Tim H. Willard
, a ppellants
, pro se.

BEFORE

Susan Tsui Grundmann, Chairman Mark A. Robbins, Member

ORDER ¶1 The a gency has filed a petition for review of an initial decision that reversed the furlough actions. The two Board members cannot agree on the disposition of the petition for review. Specifically, the B oard members cannot agree on the application of the recent decision by the U.S. Court of Appeals for
the Federal Circuit in Steffen v. Department of the Army
, No. 2015

- 3205
, 2016 WL 692213 (Fed. Cir. Feb. 22, 2016), which was issued after the administrative judge’s initial decision in the instant action. Therefore,

∗ The appellants that are included in this consolidation are set forth in Appendix A of this order.2

the initial decision now becomes the final decision of the Merit Systems
Protecti on Board in this appeal. Title 5 of the Code of Federal Regulations, section 1200.3(b) ( 5 C.F.R. § 1200.3 (b)). This decision shall not b e considered as precedent by the Board in any other case. 5 C.F.R. § 1200.3 (d)

. ¶2 Based on the initial decision, which now becomes the fin al decision of the Board, the parties’ obligations are set out below: ¶3 The agency must cancel the appellants’ furloughs effective July 8, 2013

. 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. ¶4 Th e agency must pay the appellants 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. The appellant s must cooper ate 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 its obligations. If there is a dispute about the amount of back pay, interest due, and/or other benefits, the agency must pay the appellant s the undisputed amount no later than 60 calendar days after the date of this decision. ¶5 The agency must tell the appellant s promptly in writing when it believes it has fully carried out its obligations and of the actions it took to carry out its obligations . The appellant s , if not notified, should ask the agency about its

progress. See 5 C.F.R. § 1201.181 (b). ¶6 No later than 30 days after t he agency tells the appellant s that it has fully carried out its obligations, the appellant s may file a petition for enforcement with the office that issued the initial decision on this appeal if the appellant s believe that the agency did not fully carry o ut its obligations. The petition should contain specific reasons why the appellant s believe that the agency has not fully carried3

out its obligations, and should include the dates and results of any communications with the agency. 5 C.F.R. § 1201.182 (a). ¶7 For agencies whose payroll is administered by either the National Finance Center of the Department of Agriculture (NFC) or the Defens e 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 must timely provide DFAS or NFC with all documentation necessary to process payments and adjustments resulting from the Board’s decision in accordance with the attached lists so that payment can be
made within the 60

- day period set forth above.

NOTICE TO THE APPELL ANT S REGARDING YOUR RIGHTS TO REQUEST AT TORNEY FEES AN D COSTS You may be entitled to be paid by the agency for your reasonable attorney fees and costs. To be paid, you must meet the requirements set out at title 5 of the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The regulations may be found at 5 C.F.R. § 1201.202

. If you believe you meet these requirements, you must file a motion for attorney fees WITHIN 60 CAL ENDAR
DAYS OF THE DATE OF THIS DECISION. You must file your attorney fees motion with the office that issued the initial decision on your appeal.

NOTICE TO THE APPELL ANT S REGARDING YOUR FURTHER REVIEW RIGHTS You have the right to request review of the fin al decision by the U.S. Court of Appeals for the Federal Circuit. You must submit your request to the court at the following address: United States Court of Appeals for the Federal Circuit 717 Madison Place, N.W.

Washington, DC 204394

The court must receive your request for review no later than 60 calendar days
after the date of this order. See 5 U.S.C. § 7703 (b)(1)(A) (as rev. eff. Dec. 27, 2012). If you choose to file, be very careful to file on time. The court has held that normally it does not have the authority to waive this statutory deadline and that filings that do not comply with the deadline must be dismissed. See Pinat v. Office of Personnel Management
, 931 F.2d 1544 (Fed. Cir. 1991). If you need further information about your right to appeal this decision to court, you should refer to the federal law t hat gives you this right. It is found in

t itle 5 of the United States Code, section 7703 ( 5 U.S.C. § 7703 ) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United States Code, at our website, http://www.mspb.gov/appeals/uscode/htm

. Additional information is available at the court's websit e, 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, and 11. If you are interested in securing pro bono representation for a n 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 B oard appellants before the Federal Circuit. The Merit Systems Protection Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case.

FOR THE BOARD:

Washington, D.C. ____________ __________________ William D. Spencer Clerk of the Board

### DFAS CHECKLIST
INFORMATION REQUIRED BY DFAS IN ORDER TO PROCESS PAYMENTS AGREED UPON IN SETTLEMENT CASES OR AS

ORDERED BY THE MERIT SYSTEMS PROTECTION BOARD

AS CHECKLIST: INFORMATION REQUIRED BY IN ORDER TO PROCESS PAYMENTS AGREED UPON IN SETTLEMENT CASES 

### CIVILIAN PERSONNEL OFFICE MUST NOTIFY CIVILIAN PAYROLL OFFICE VIA COMMAND LETTER WITH THE FOLLOWING: 1. Statement if Unemployment Benefits are to be deducted, with dollar amount, address and POC to send. 2. Statement that employee was counseled concerning Health Benefits and TSP and the election forms if necessary. 3. Statement concerning entitlement to overtime, night differential, shift premium, Sunday Premium, etc, with number of hours and dates for each entitlement. 4. If Back Pay Settlement was prior to conversion to DCPS (Defense Civilian Pay System), a statement certifying any lump sum payment with number of hours and amount p aid and/or any severance pay that was paid with dollar amount. 5. Statement if interest is payable with beginning date of accrual.
6. Corrected Time and Attendance if applicable.


### ATTACHMENTS TO THE LETTER SHOULD BE AS FOLLOWS: 1. Copy of Settlement Agreement and/or the MSPB Order. 2. Corrected or cancelled SF 50's. 3. Election forms for Health Benefits and/or TSP if applicable. 4. Statement certified to be accurate by the employee which includes: a. Outside earnings with copies of W2's or statement from employer.

b. Statement that employee was ready, willing and able to work during the period. c. Statement of erroneous payments employee received such as; lump sum leave, severance pay, VERA/VSIP, retirement annuity pa yments (if applicable) and if employee withdrew Retirement Funds. 5. 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 hoursNATIONAL FINANCE CEN TER 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 securi ty 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

- 50's (Personnel Actions) or list of salary adjustments/changes and amounts. 3. Outside earnings documentation statement from agency. 4. If employee re ceived 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 t he 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 c omputation 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

- 46 30.APPENDIX A

AR CE H ill AFB, UT
DE

- 0752

- 14

- 0470

- I

- 1

Doug Wesemann DE

- 0752

- 13

- 0502

- I

- 1
Jason R. Redeen DE

- 0752

- 13

- 0482

- I

- 1 Joy J. Sharbutt DE

- 0752

- 13

- 0738

- I

- 1
Mark T. Swenson DE

- 0752

- 13

- 0792

- I

- 1 Regina L. T. Gray DE

- 0752

- 13

- 0850

- I

- 1 Ryan D. Eddy DE

- 0752

- 13

- 1520

- I

- 1
Thomas P. Stonehocker DE

- 0752

- 13

- 0787

- I

- 1
Tim H. Willard DE

- 0752

- 13

- 0649

- I

- 1