UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

BRYAN ALLEN,

Appellant,

v.

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES,

Agency.

DOCKET NUMBER

DE-315H-18-0006-I-1

DATE: May 11, 2023

THIS ORDER IS NONPRECEDENTIAL1

Bryan Allen, Yuma, Arizona, pro se.

Naomi L. White, Phoenix, Arizona, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

REMAND ORDER

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

dismissed his termination appeal for lack of jurisdiction. For the reasons 

discussed below, we GRANT the appellant’s petition for review, REVERSE 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1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

initial decision, and REMAND the case to the field office for further adjudication 

in accordance with this Remand Order. 

BACKGROUND

¶2 On September 4, 2016, the agency appointed the appellant to the position of 

Clinical Nurse subject to a 1-year probationary period. Initial Appeal File (IAF), 

Tab 9 at 13. On Friday, September 1, 2017, the last workday prior to the 

anniversary of his appointment, it sent a letter to him via its internal email system 

and by certified, first-class mail advising him of his termination for removing 

patient health information, failing to timely screen patients, and failing to enter 

vital signs into the agency’s electronic health record. Id. at 15-16, 37-41. The 

letter was not delivered to his address until September 5, 2017. Id. at 39-41.

¶3 He filed the instant appeal challenging his termination. IAF, Tab 1. After 

providing the parties the opportunity to address the jurisdictional issue of whether 

the appellant was an “employee” with Board appeal rights and informing him of 

his jurisdictional burden regarding his claim of retaliation for an alleged 

protected disclosure, the administrative judge dismissed the appeal for lack of 

jurisdiction without holding the appellant’s requested hearing. IAF, Tab 2 at 3-6, 

Tab 8, Tab 10, Initial Decision (ID). Specifically, she found that the appellant 

failed to nonfrivolously allege that he was an “employee” with Board appeal 

rights because the agency effected his termination before he completed his 

probationary period by making a diligent and reasonable effort to serve him with 

the termination letter on September 1, 2017. ID at 4-6. 

¶4 The appellant has filed a petition for review challenging the initial decision. 

He asserts that the agency did not effect his termination before the end of his 

probationary period because he was on leave on September 1, 2017, without 

access to the termination letter through his agency email and so he did not receive 

notice of the termination until he was verbally notified when he returned to work 

on September 5, 2017. Petition for Review (PFR) File, Tab 1 at 3-4. The agency 
3

has responded in opposition, alleging that all agency employees can access their 

Government email from home and that the appellant otherwise received the 

termination letter through both certified and first-class mail and when he reported 

to work on September 5, 2017. PFR File, Tab 3 at 7-8.

¶5 In response, the Board issued a show cause order asking the parties to 

provide evidence and argument on how the appellant was notified of his 

termination and how he was able to access this notification. PFR File, Tab 4 

at 2-3. The appellant responded, stating that, although he asked the agency for a 

copy of the email that included his termination notice, to date, he had not seen 

any such email from the agency. PFR File, Tab 5 at 4-5. He also states that, even 

if he could have accessed his office email account from home, he never received 

training on how to do so and instead was told that he needed to insert a Personal 

Identity Verification (PIV) card into a computer to access the email. Id. at 5. 

Further, he has attached statements from two former coworkers indicating that 

they believed that they were unable to access their Government email from home. 

Id. at 9-10. 

¶6 The agency has responded that it diligently notified the appellant of his 

termination on September 1, 2017, via certified, first-class mail and by sending 

him an email that he could have accessed through its website. PFR File, Tab 6 

at 5-8. It also has attached the declaration of the appellant’s former supervisor in 

which she stated that she attempted to deliver the termination notice in person to 

the appellant from August 30 to September 1, 2017, but that she could not do so 

because he was absent. Id. at 9-10. She also stated that, on September 1, 2017, 

she mailed the termination notice. Id. at 10. She noted that, although she is 

unsure whether she attached the termination letter to the email, she notified the 

appellant of his termination in the body of the email. Id. She stated that the 

appellant never responded to the email and that, despite her attempts to do so, she 

was unable to recover the email. Id. at 10-11. The agency also has attached a 
4

document explaining how employees can access their agency email through its 

website. Id. at 12-18.

DISCUSSION OF ARGUMENTS ON REVIEW

The agency did not terminate the appellant before his probationary period expired

and thus he is an “employee” under 5 U.S.C. chapter 75.

¶7 To establish Board jurisdiction under 5 U.S.C. chapter 75, an individual 

must, among other things, show that he satisfies one of the definitions of 

“employee” in 5 U.S.C. § 7511(a)(1). 5 U.S.C. § 7513(d); see Walker v. 

Department of the Army, 119 M.S.P.R. 391, ¶ 5 (2013). For an individual, such 

as the appellant, who is in the competitive service and has not been appointed 

subject to 10 U.S.C. § 1599e, this means that he generally must satisfy one of the 

following requirements: (1) he is not serving a probationary or trial period under 

an initial appointment; or (2) he has completed 1 year of current continuous 

service under other than a temporary appointment limited to 1 year or less. 2

5 U.S.C. § 7511(a)(1)(A); see Walker, 119 M.S.P.R. 391, ¶ 5. 

¶8 A probationary period ends at the completion of the last day of the 

employee’s tour of duty before his anniversary date. Herring v. Department of 

Veterans Affairs, 72 M.S.P.R. 96, 100 (1996); 5 C.F.R. § 315.804(b). A “tour of 

duty” is an employee’s regularly scheduled hours and days of duty. Hardy v. 

Merit Systems Protection Board, 13 F.3d 1571, 1573 (Fed. Cir. 1994). For 

example, when the last workday is a Friday and the anniversary date is the 

 

2

Individuals in the competitive service who do not satisfy either definition may 

nevertheless have the right to appeal a termination to the Board under 5 C.F.R. 

§ 315.806. See Walker, 119 M.S.P.R. 391, ¶ 5. However, the Board’s jurisdiction over 

termination appeals under that section is limited to the following situations: (1) the 

employee was discriminated against on the basis of his marital status; (2) the agency 

action was based on partisan political reasons; or (3) the agency action was based (in 

whole or part) on preappointment reasons and the agency did not follow the procedures 

of 5 C.F.R. § 315.805. Id.; 5 C.F.R. § 315.806(a)-(c). The appellant has made no such 

allegations either below or on review. PFR File, Tab 1 at 3-4; IAF, Tab 1, Tab 8 at 1.
5

following Monday, the agency must separate the employee before the end of his 

tour of duty on Friday. 5 C.F.R. § 315.804(b). 

¶9 Here, the agency appointed the appellant to his position on September 4, 

2016. IAF, Tab 9 at 13. Thus, his anniversary date was Monday, September 4, 

2017. Accordingly, to effect his termination during his probationary period, the 

agency was required to terminate him by the end of his scheduled tour of duty on 

Friday, September 1, 2017.

¶10 When, as here, it is undisputed that the agency’s termination action is based 

upon conduct occurring after the appellant’s appointment, the agency must notify 

him “in writing as to why he is being separated and the effective date of the 

action.” 5 C.F.R. § 315.804(a). The plain meaning of the regulatory language 

indicates that the employee is not terminated until he receives such notice 

because the regulations state that the agency terminates the employee “by 

notifying him in writing.” Lavelle v. Department of Transportation, 17 M.S.P.R. 

8, 15 (1983) (quoting 5 C.F.R. § 315.804), modified on other grounds by Stephen 

v. Department of the Air Force, 47 M.S.P.R. 672 (1991).3 An agency is not 

required to actually afford an employee prior notice of its intention to terminate

him, so long as it acts diligently and reasonably under the circumstances in 

attempting to afford him prior notice. Rivera v. Department of Homeland 

Security, 116 M.S.P.R. 429, ¶¶ 11–12 (2011); Santillan v. Department of the Air 

Force, 54 M.S.P.R. 21, 26 (1992). As discussed below, we find that the agency 

did not act in a diligent or reasonable way when, during the appellant’s absence, 

it mailed him notice of his termination on its effective date and sent him an email 

to his agency address when he was on leave. 

¶11 The agency sent the appellant notice of his termination by certified mail on 

Friday, September 1, 2017, the last day of his tour of duty. IAF, Tab 9 at 37-39. 

 

3 Although Lavelle quotes a previous version of 5 C.F.R. § 315.804, the current version 

of the regulation contains the identical language regarding providing employees written 

notice of their termination.
6

However, he did not receive this notice until September 5, 2017, after his 

September 4, 2017 anniversary date. Id. at 39-41. The Board has held, under 

similar circumstances, that such service, on its own, does not afford the appellant 

proper notice of the agency’s termination action. See Lavelle, 17 M.S.P.R. at 16 

(finding that, because the agency’s termination action was to become effective the 

same day that it was issued, the agency’s selection of “certified mail, restricted 

delivery,” was inadequate to ensure prior service). Here, we also find that the 

certified mail, without more, did not constitute a diligent and reasonable effort to 

notify the appellant of his termination.

¶12 Further, we find that sending the email to the appellant’s agency address 

does not cure the deficiency in notifying him. In responding to the show cause 

order, the appellant stated that he was unable to access this email and that, if he 

were able to do so, he never received training regarding how to do so. PFR File, 

Tab 5 at 5. In making this statement, he indicated on the online questionnaire 

that he was asserting facts from his personal knowledge and declared, under 

penalty of perjury, that the facts stated in his pleading were true and correct. Id.

at 3. A declaration subscribed as true under penalty of perjury, if uncontested, 

proves the facts it asserts. Woodall v. Federal Energy Regulatory Commission, 

30 M.S.P.R. 271, 273 (1986). Here, the agency asserts that its employees can 

access their Government email via its website. PFR File, Tab 6 at 7. However, it 

has not contradicted the appellant’s assertion that, in the event that he had such 

access, the agency did not train him on how to use the website to access his 

email. Furthermore, his former coworkers’ statements that they believed a PIV 

card was required to access email outside of work support the appellant’s 

assertion. PFR File, Tab 5 at 9-10. Consequently, we find that, even assuming 

that the appellant could have accessed his agency email outside of work, the 

agency did not inform him that he could do so or instruct him on the process for 

accessing it. 
7

¶13 Accordingly, we find that the agency’s email to an account that the 

appellant did not know he could access does not make its efforts reasonable and 

diligent. Cf. Scull v. Department of Homeland Security, 113 M.S.P.R. 287, 

¶¶ 13-14 (2010) (finding that the appellant failed to make a nonfrivolous 

allegation that he was not terminated when his Federal Career Internship Program 

appointment expired when, although he was on leave during the last day of his 

internship, the agency sent copies of the termination notice to his email and to his 

residence via overnight and certified mail and his third-line supervisor left 

voicemail messages on his Government and personal cellular phones informing 

him that his position was not being converted). Because the agency did not act 

reasonably and diligently to notify the appellant of his termination and failed to 

terminate him before the end of his probationary period, we find that he is an 

“employee” with Board appeal rights under 5 U.S.C. § 7511(a)(1)(A)(ii). 

We must reverse the agency’s action because the appellant filed a timely appeal 

and the agency violated his due process rights by failing to comply with the 

procedures outlined in 5 U.S.C. § 7701.

¶14 Because the appellant is an “employee” with Board appeal rights and he was 

subjected to an appealable removal action pursuant to 5 U.S.C. § 7512(1), he was 

required to file his Board appeal no later than 30 days after the effective date, if 

any, of the action being appealed, or 30 days after the date of his receipt of the 

agency’s decision, whichever is later. 5 C.F.R. § 1201.22(b)(1). Here, the 

appellant received the agency’s decision on September 5, 2017, and filed his 

appeal on September 29, 2017. IAF, Tab 1, Tab 9 at 37-41. Thus, he timely filed 

his appeal fewer than 30 days after receiving the agency’s decision.

¶15 Further, the agency failed to provide the appellant minimum due process, 

thus requiring reversal of the action. An agency’s failure to provide a tenured 

public employee with an opportunity to present a response, either in person or in 

writing, to an appealable agency action that deprives him of his property right in 

his employment constitutes an abridgement of his constitutional right to minimum 
8

due process of law, i.e., prior notice and an opportunity to respond. Cleveland

Board of Education v. Loudermill, 470 U.S. 532, 546 (1985). Here, the agency 

issued the termination notice, effective immediately, and did not provide the 

appellant an opportunity to respond. IAF, Tab 9 at 15-17. Therefore, the 

agency’s procedures for effecting the separation did not comport with a tenured 

employee’s constitutional right to minimum due process of law. See Claiborne v. 

Department of Veterans Affairs, 118 M.S.P.R. 491, ¶ 8 (2012). Accordingly, the 

agency’s removal action must be reversed. See Samble v. Department of Defense, 

98 M.S.P.R. 502, ¶ 14 (2005).

We remand the appeal for adjudication of the appellant’s claim of whistleblower 

reprisal.

¶16 Below, the appellant asserted that the agency was retaliating against him for 

reporting that it did not treat a patient who was HIV positive. IAF, Tab 1 at 5. 

Because he has asserted a claim of whistleblower reprisal, he may be entitled to 

relief in addition to reversal of the agency’s decision. 5 U.S.C. § 1221(g); see 

Samble, 98 M.S.P.R. 502, ¶ 15.4 Accordingly, this claim is not moot and he is 

entitled to its adjudication. 5 U.S.C. § 7701; see Samble, 98 M.S.P.R. 502, ¶ 16. 

Thus, we remand the appeal for a hearing and adjudication on the merits of his 

affirmative defense of whistleblower reprisal. See Samble, 98 M.S.P.R. 502, 

¶ 16.

ORDER

¶17 For the reasons discussed above, we remand this case to the field office for 

further adjudication in accordance with this Remand Order. 

¶18 Pending a final decision on the appellant’s claim of whistleblower reprisal, 

we ORDER the agency to restore the appellant to duty, effective September 1, 

2017. See Kerr v. National Endowment for the Arts, 726 F.2d 730 (Fed. Cir. 

 

4

The Board issued Samble before the passage of the Whistleblower Protection 

Enhancement Act of 2012 and before subsequent amendments to the Whistleblower 

Protection Act. However, these changes in the law do not affect the relevant holding.
9

1984). The agency must complete this action no later than 20 days after the date 

of this decision.

¶19 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. 

¶20 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). 

¶21 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).

¶22 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 
10

Board’s decision in accordance with the attached lists so that payment can be 

made within the 60-day period set forth above.

 

 

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.