UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JANNIECE GARNER,

Appellant,

v.

DEPARTMENT OF COMMERCE,

Agency.

DOCKET NUMBER

AT-0752-18-0357-I-1

DATE: March 28, 2023

THIS FINAL ORDER IS NONPRECEDENTIAL1

Kalven L. Trice, Little Rock, Arkansas, for the appellant.

Scott Wallace Burton, Esquire, Suitland, Maryland, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member2

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which

sustained her removal. For the reasons discussed below, we GRANT the 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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 Member Leavitt’s name is included in decisions on which the three-member Board 

completed the voting process prior to his March 1, 2023 departure.
2

appellant’s petition for review, REVERSE the initial decision, and DO NOT 

SUSTAIN the appellant’s removal.

BACKGROUND

¶2 The agency removed the appellant from her GS-4 Field Representative 

position—the duties of which included conducting census activities with the U.S.

Census Bureau—based on a charge of Failure to Properly Secure Government 

Issued Property. Initial Appeal File (IAF), Tab 4 at 22, 23-26, 33-36. 

Specifically, the agency charged that, between September 2 and September 6,

2017, the appellant lost from her home her government-issued laptop computer, 

id. at 33, which she used to conduct and submit surveys for the agency. In 

support of the removal penalty, the agency relied on the appellant’s prior 

discipline consisting of an official reprimand for failing to secure another 

government-issued laptop computer.

3

Id. at 34. 

¶3 The appellant appealed the agency’s action. IAF, Tab 1. Although initially 

she requested a hearing, id. at 2, during the proceedings below she withdrew her 

request, IAF, Tab 26. Based on the written record, the administrative judge found 

that the agency proved the charge and that removal promoted the efficiency of the 

service and was a reasonable penalty. IAF, Tab 33, Initial Decision (ID) at 3-8. 

She also found that the appellant failed to prove her affirmative defenses of a 

violation of due process, harmful procedural error, and discrimination based on 

race and sex. ID at 8-16.

¶4 In her petition for review, the appellant disagrees with the administrative 

judge’s findings. She contends that the agency failed to prove the charge, 

Petition for Review (PFR) File, Tab 1 at 7-8, and that removal was not a 

 

3 On July 13, 2017, the appellant’s government-issued laptop was stolen from her car. 

IAF, Tab 4 at 45. The appellant had left the laptop in the front passenger foot well of

her vehicle where it was visible. Id. Leaving a laptop in such a location is contrary to 

an agency regulation providing that, when not in use, the laptop should be placed out of 

sight in the trunk of the car. Id. 
3

reasonable penalty, id. at 8-10. She also contends that she proved her affirmative 

defenses. Id. at 17-22. The agency has responded in opposition to the petition. 

PFR File, Tab 6. 

ANALYSIS

The agency failed to prove its charge. 

¶5 In an appeal in which a Federal agency takes an adverse action against a 

tenured employee, the Board will sustain the action if the charges are supported 

by a preponderance of the evidence. 5 U.S.C. § 7701(c)(1)(B). A preponderance 

of the evidence is that degree of relevant evidence that a reasonable person, 

considering the record as a whole, would accept as sufficient to find that a 

contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q). Here, 

as noted, the agency charged the appellant with Failure to Properly Secure 

Government Issued Property. IAF, Tab 4 at 33. In support of the charge, the 

agency relied on the requirement of its Administrative Handbook that employees 

must “[s]tore laptops, questionnaires and other materials in [their] home or hotel 

room, in a secure place that is not visible.” Id. at 33, 68. 

¶6 Here, the appellant has consistently stated that she complied with the 

requirements of the Administrative Handbook. In the September 6, 2017 email 

reporting the loss of the computer to her supervisor, she stated that she had “last 

had [the laptop] in [her] house.”

4

 Id. at 39. In her response to the notice of 

proposed removal, the appellant stated that she could not “explain [her] computer

being stolen” and that she “followed the proper procedure in reporting the

incidents and filed necessary police reports.” Id. at 29. In the September 13,

2017 Incident Report filed with the Memphis Police, the appellant reported the 

 

4

In that email, the appellant also stated that she had reported the loss to the ap propriate 

agency office and gave her supervisor the assigned case number. IAF, Tab 4 at 39. 

Such reporting complies with equipment loss reporting guidance provided in the

Administrative Handbook. Id. at 66. 
4

laptop stolen from her residence. IAF, Tab 19 at 92-94. During her deposition 

under oath, the appellant maintained that her laptop was stolen from her home. 

IAF, Tab 20 at 177. She stated that she stored the laptop in her bedroom closet. 

Id. at 178. She responded to agency counsel’s questions regarding whether she 

securely stored the laptop, stating that she locked her doors when she was away 

from home and that she was away on September 2, 2017. Id. at 178-79. The 

appellant acknowledged that her brother and parents had keys to her house but 

stated that they told her that they had not accessed the house between 

September 2 and 6, 2017. Id. at 179. 

¶7 The appellant also stated that she filed a stolen property/burglary report 

with the police and provided a copy of that report to the agency. She stated that 

she faxed a copy of the police report to B.M., a security specialist, id. at 128, 

170-71, on September 26, 2017, as instructed by A.M., her second-level 

supervisor, id. at 181. 

¶8 The agency’s argument that the appellant failed to comply with the 

requirements of the Administrative Handbook is not reflected in the testimony of

the proposing and deciding officials in their depositions. Id. at 41, 112. The 

proposing official stated that the facts were that an employee left a laptop that 

was in her car, not in the trunk, which is what the agency requires, and then very 

shortly thereafter, she had a second laptop removed. Id. at 59. The proposing 

official stated that, once she was notified that there were two laptops that were 

missing in a short amount of time, the documentation was assembled by the

regional office to give to the Employee Relations Board5for their review so that 

 

5

In her petition for review, the appellant contends that she was denied due process 

because the Employee Relations Board unduly influenced the agency to remove her. 

We have not addressed whether the agency violated the appellant’s due process rights 

because we have reversed the agency’s action and the appellant could not obtain an 

additional remedy were she to prove a due process violation. See Van Prichard v. 

Department of Defense, 117 M.S.P.R. 88, ¶¶ 7, 25 (2011), aff’d, 484 F. App’x 489 (Fed. 

Cir. 2012). 
5

they could look at what happened and the circumstances and make sure it was

consistent with the agency’s policy to recommend an action. Id. In short, the 

proposing official initiated the disciplinary process simply because the appellant 

had lost two laptops. The agency presented no evidence to show that the 

proposing official considered the circumstances surrounding the second 

computer’s loss in connection with the requirements of the Administrative

Handbook. 

¶9 Similarly, the agency presented no evidence that the deciding official 

considered the circumstances surrounding the second computer’s loss in light of

the requirements of the Administrative Handbook. The deciding official stated 

that the fact that the appellant lost a second laptop in less than five weeks was all 

the information that he had. Id. at 126. He admitted that he did not have any 

other information regarding the circumstances of the loss of the second computer. 

Id. He stated that he believed removal was warranted because “there was a 

second laptop lost,”6and the second laptop was “lost in the complainant’s home.”

Id. at 129. Further, the deciding official stated that he did not believe that the 

losses were beyond the appellant’s control.7Id. at 131. 

¶10 We find that the agency presented no evidence contradicting the appellant’s 

detailed statement that she followed the requirements of the Administrative 

Handbook. Further, we find that the appellant’s statement of compliance, that she 

 

6

It might be inferred from the deciding official’s deposition testimony that he believed 

that the charge was based on the loss of two laptop computers in a short period of time. 

However, although the notice of proposed removal references the loss of two laptops in 

a short period of the time, the charge is Failure to Properly Secure Government Issued 

Property, specifically the laptop that went missing from the appellant’s house between 

September 2 and September 6, 2017. IAF, Tab 4 at 33-34. 

7

For unexplained reasons, the September 13, 2017 Incident Report was not provided to 

the deciding official, even though the appellant stated that she provided it to the 

agency. When the deciding official was presented with the Incident Report during his 

deposition, he mistakenly believed that it was the Incident Report filed when the laptop 

was stolen from the appellant’s car. IAF, Tab 20 at 131-32. 
6

stored the laptop in the closet of her bedroom in her locked house , is credible. 

She made no prior inconsistent statements, and her version of events is 

uncontradicted and consistent with other evidence, including the reports she made

to her supervisor, the appropriate agency office, and the police. See Goode v. 

Defense Logistics Agency, 45 M.S.P.R. 671, 674 n. 2 (1990) (finding that the 

principles for resolving credibility issues are properly applied to cases that do not 

involve a hearing); Hillen v. Department of the Army, 35 M.S.P.R. 453, 458

(1987) (finding that, in resolving credibility issues, the Board considers, among 

other things, any prior inconsistent statement by the individual and the 

contradiction of the individual’s version of events by other evidence or its 

consistency with other evidence). The Board is required to review the agency’s 

decision on an adverse action solely on the grounds invoked by the agency. 

Fargnoli v. Department of Commerce, 123 M.S.P.R. 330, ¶ 7 (2016). Thus, we

reverse the initial decision’s findings regarding the charge and find that, given 

that it did not show any noncompliance by the appellant with its Administrative 

Handbook, the agency failed to prove the charge of Failure to Properly Secure 

Government Issued Property.

8

 

The appellant failed to prove her affirmative defenses of race and sex

discrimination. 

¶11 The appellant alleges on review that she sought to gather evidence relevant 

to her allegations of race and sex discrimination on the basis of disparate 

treatment through discovery and that these efforts were hindered by the agency’s 

failure to respond to her interrogatories and the administrative judge ’s denial of 

her motion to compel. PFR File, Tab 1 at 20-21. 

 

8

The appellant alleges that the administrative judge abused her discretion by denying 

the appellant’s motion to compel discovery and denying a number of witnesses 

requested by the appellant. PFR File, Tab 1 at 14-17. We need not address these

allegations in connection with the merits of the charge given our determination that the 

agency has not proven the charge. 
7

¶12 Discovery is the process by which a party may obtain relevant information 

from another party to an appeal. 5 C.F.R. § 1201.72(a). Relevant information 

includes “information that appears reasonably calculated to lead to the discovery 

of admissible evidence.” Id. What constitutes relevant information in discovery

is to be liberally interpreted, and uncertainty should be resolved in favor of the

movant absent any undue delay or hardship caused by such request. Mc Grath v. 

Department of the Army, 83 M.S.P.R. 48, ¶ 7 (1999). A party to whom a proper 

discovery request has been made must either comply or “stat[e] an objection to 

the particular request and the reasons for the objection.” 5 C.F.R. § 1201.73(b). 

The scope of discovery is broad: “[d]iscovery covers any nonprivileged matter 

that is relevant to the issues involved in the appeal . . . .” Baird v. Department of 

the Army, 517 F.3d 1345, 1351 (Fed. Cir. 2008); 5 C.F.R. § 1201.72(b). 

¶13 The appellant was entitled to obtain evidence through discovery to support 

her claim of disparate treatment race and sex discrimination. See Redd v. U.S. 

Postal Service, 101 M.S.P.R. 182, ¶ 15 (2006), overruled on other grounds by

Savage v. Department of the Army, 122 M.S.P.R. 612, ¶ 46 n.10 (2015), overruled 

in part by Pridgen v. Office of Management and Budget, 2022 MSPB 31, 

¶¶ 23-25. The relevance of the appellant’s discovery requests focuses on the 

extent to which each request is reasonably calculated to lead to the discovery of

admissible evidence in light of the factual matters in dispute. See Ryan v. 

Department of the Air Force, 113 M.S.P.R. 27, ¶ 19 (2009). Here, the factual 

matter in dispute is whether the agency treated the appellant disparately from 

another similarly-situated employee of a different race and sex. For employees to 

be deemed similarly situated for purposes of an affirmative defense of 

discrimination based on disparate treatment, all relevant aspects of the appellant’s 

employment situation must be “nearly identical” to those of the comparator 

employees. Adams v. Department of Labor, 112 M.S.P.R. 288, ¶ 13 (2009). 

Therefore, comparators must have reported to the same supervisor, been subjected 
8

to the same standards governing discipline, and engaged in conduct similar to the 

appellant’s without differentiating or mitigating circumstances. Id. 

¶14 The appellant’s efforts to gather relevant evidence regarding alleged 

disparate treatment were not hindered by any agency failure to respond to the

interrogatories challenged on review. See generally IAF, Tabs 13, 15. 

Specifically, to the appellant’s Interrogatory No. 13, “Please identify all 

employees under the supervision of Appellant’s first-line and second-line 

supervisors that have imposed Alternative Discipline for three years prior to 

Appellant’s letter of removal. Please provide race and gender of Employees 

provided Alternative Discipline and race and gender of supervisors,” the agency 

responded, “The Agency reserves the right to supplement this Answer. No 

Alternative Discipline was administered by [A.M.] or [T.N.] for similarly situated 

employees in the last three years prior to Appellant’s removal.” IAF, Tab 13

at 16. To the appellant’s Interrogatory No. 14, “Please identify all employees 

under the supervision of Appellant’s first-line and second-line supervisors that 

have imposed Progressive Discipline for three years prior to Appellant’s letter of 

removal. Please provide race and gender of Employees provided Alternative 

Discipline and race and gender of supervisors,” the agency responded, “Agency 

objects on the grounds that the Interrogatory is vague because of the term 

‘Progressive Discipline.’ Also, Agency objects to sentence two of the 

Interrogatory in that it is duplicative of Interrogatory 13.” Id. at 17. 

¶15 The administrative judge denied the appellant’s motion to compel. IAF,

Tab 16. Based on the evidence showing the agency’s responses to the above

discovery requests, we find that the appellant’s assertion on review that the 

agency hindered her efforts to discover relevant information regarding her 

affirmative defenses of race and sex discrimination by failing to respond to her 

interrogatories is unavailing. The administrative judge did not abuse her broad 

discretion in ruling on discovery matters in denying the appellant’s motion to 

compel discovery regarding her allegations of race and sex discrimination, 
9

particularly given that the above interrogatories do not seek information 

regarding similarly-situated comparators. See Boltz v. Social Security 

Administration, 111 M.S.P.R. 568, ¶¶ 6-7 (2009); 5 C.F.R. § 1201.41(b)(4). 

¶16 Further, the administrative judge properly found that the appellant failed to 

prove her allegations of race and sex discrimination. In her deposition, the 

appellant testified that she was not aware of any other employee who misplaced 

or lost, had stolen, or otherwise lost possession of two government-issued 

laptops. IAF, Tab 28 at 170-171. Considering the evidence gained through 

discovery and the appellant’s deposition statements, we agree with the 

administrative judge that the appellant failed to show that she was treated 

disparately based on race or sex. ID at 13-16.

ORDER

¶17 We ORDER the agency to cancel the removal and restore the appellant 

effective February 23, 2018. 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. 

¶18 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. 

¶19 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 
10

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). 

¶20 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). 

¶21 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. 

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.
11

NOTICE OF APPEAL RIGHTS9

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 

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). 

 

9

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.
12

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. 

(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, 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 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 
13

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: 

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 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 
14

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.10 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). 

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 

 

10 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. 
15

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:

Washington, D.C.

 /s/ for 

Jennifer Everling

Acting Clerk of the Board
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.