UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD

AR CE2 FORT CARSON, CO, Appellant, ∗

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

- 0752

- 14

- 0380

- I

- 1

DATE: May 27, 2016

Lorenza D. Younts , Colorado Springs, Colorado , pro se.
William R. Canciglia
, Palmer Lake, Colorado, pro se. Thomas J. Ingram
, IV , Esq uire , Omaha, Nebraska, for the agency.

BEFORE
Susan Tsui Grundmann, Chairman Mark A. Robbins, Member

ORDER ¶1 The agency ’s U.S. Army Corps of Engineers has filed a petition for review of an initial decision that reversed the agency’s actions furloughing the appellants. The two Board members cannot agree on the disposition of the petition for review. Specifically, the Board m embers 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 initial decision now becomes the final decision of the Merit Systems Protection Boa rd in this appeal. Title 5 of the Code of Federal Regulations, section 1200.3(b) ( 5 C.F.R. § 1200.3 (b)). This

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

decision shall not be cons idered 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 final dec ision 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 o ther 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 cooperate in good faith in the agency ’ s efforts to calculate the amount of back pay, interest, and be nefits 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 amoun t 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 the 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 out its obligations. The petition should contain specific reasons why the appellant s believe that the agency has not fully carried 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 Defense Finance and3

Accoun ting 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 AND COST S 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 CALENDAR
DAYS OF THE DA TE 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 this final decision by the U.S. Court of Appeals for the Federal Circuit. You must submit your request to the court at the following address:
U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W.

Washington, DC 20439 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).4
If you need further information about your right to appeal this decision to court, you should refer to the Federal law that gives y ou this right. It is found in

t itle 5 of the U.S. 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 U.S. Co de, at our website, http://www.mspb.gov/appeals/uscode.htm . Additional information is available at the court’s website, www.cafc.uscourts.gov . Of particul ar 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 fo r an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our we bsite

at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board app ellants before the Federal
Circuit . The Merit Systems Protection Board neither endorse s 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 BoardAPPENDIX A

AR CE2 Fort Carson, CO
DE

- 0752

- 14

- 0380

- I

- 1

Loranza D. Younts DE

- 0752

- 13

- 0827

- I

- 1 William R. Canciglia DE

- 0752

- 13

- 1064

- I

- 1

### 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 paid 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 emplo yee 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 leav e, severance pay, VERA/VSIP, retirement annuity payments (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 hours.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 Restorati on:

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

- 50's (Personnel Actions) or list of salary adjustments/changes a nd 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 Increas e, 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 t he above, please contact NFC’s Payroll/Personnel Operations at 504

- 255

- 4630.