UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

LEWIS A. HICKS,

Appellant,

v.

DEPARTMENT OF THE NAVY,

Agency.

DOCKET NUMBER

AT-0752-13-7338-I-1

DATE: January 2, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL1

Lewis A. Hicks, Americus, Georgia, pro se.

Denise Gillis, Quantico, Virginia, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Anne M. Wagner, Vice Chairman

Mark A. Robbins, Member

FINAL ORDER

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

reversed the appellant’s removal. Generally, we grant petitions such as this one 

only when: the initial decision contains erroneous findings of material fact; the 

initial decision is based on an erroneous interpretation of statute or regulation or 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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 erroneous application of the law to the facts of the case; the 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 affected 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. See 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, and based on the following points and authorities, we conclude that the 

petitioner has not established any basis under section 1201.115 for granting the 

petition for review. Therefore, we DENY the petition for review. Except as 

expressly modified by this Final Order, which addresses matters relating to 

interim relief and new evidence submitted by the appellant on review that 

supports the administrative judge’s findings, we AFFIRM the initial decision.

¶2 The agency removed the appellant from his Engineer Technician position 

based on a charge of “Criminal Charge,” with a specification that the appellant 

pled guilty to four counts of Electronic Child Exploitation. Initial Appeal File 

(IAF), Tab 4 at 19, 27. The agency alleged that the appellant was sentenced due 

to his guilty plea to 10 years of probation, and that, as a first-time offender, the 

appellant was required to report to a probation officer, register as a sex offender, 

and adhere to numerous conditions of probation. Id. at 27-28. On appeal to the 

Board, the appellant asserted that the action was based on harmful error and that 

the agency did not prove a nexus between the off-duty misconduct and the 

efficiency of the service. IAF, Tab 1 at 5.

¶3 Based on the written record, because the appellant did not request a hearing, 

IAF, Tab 1 at 2, the administrative judge reversed the removal action, id., Tab 13, 

Initial Decision (ID) at 1, 11. The administrative judge found that the agency 

proved its charge because it proved that the appellant was charged with and pled 

guilty to a criminal charge under North Carolina v. Alford, 400 U.S. 25, 

37 (1970), which allows a criminal defendant to consent to the imposition of a 
3

sentence without admitting that he committed the acts constituting the crime, in 

order to obtain first offender treatment under Georgia law. ID at 3. The 

administrative judge found, however, that the agency did not prove a nexus 

between the misconduct and the efficiency of the federal service. ID at 3-11. 

The administrative judge held that no rebuttable presumption of nexus should be 

applied because the agency presented no evidence of the underlying facts and 

circumstances of the charge, including no affidavits, declarations, or police 

reports showing the factual basis for the appellant’s guilty plea, such that a 

determination could be made as to whether the misconduct involved “egregious” 

circumstances. ID at 4-5. He also found that the appellant’s behavior did not rise 

to the same level as cases where a rebuttable presumption of nexus had been 

applied because the Georgia Superior Court afforded the appellant first offender 

treatment, which by state statute does not apply to such offenses as sexual 

exploitation of a minor, electronically furnishing obscene material to a minor, and 

computer pornography and child exploitation. ID at 5-7. The administrative 

judge noted that, as reflected in a transcript, the Georgia Superior Court judge did 

not view the appellant’s criminal offense as a serious infraction. ID at 7.

¶4 The administrative judge further found that the agency did not otherwise 

prove a nexus between the misconduct and the efficiency of the service by 

showing that the misconduct adversely affected the appellant’s or his coworkers’ 

job performance or the agency’s trust and confidence in the appellant’s job 

performance; or by presenting preponderant evidence that the misconduct 

interfered with or adversely affected the agency’s mission. ID at 7-11. The 

administrative judge found that Department of the Navy OPNAV (Office of the 

Chief of Naval Operations) Instruction 1752.3 did not require an absolute bar on 

all sex offender access to Navy installations but instead required such a bar only 

to the maximum extent permitted by law and allowed for waiver of the bar by 

competent authority. ID at 8. He also noted that the appellant’s conditions of 

probation had been relaxed to permit him to be in the presence of minors provided 
4

a third party was present and that the agency’s legitimate interest in keeping the 

appellant away from family housing areas or places on the installation where 

children might congregate could be satisfied by issuance of a limited bar letter 

precluding the appellant from doing anything and going anywhere other than 

directly to and from his place of duty for work. ID at 9. Finally, the 

administrative judge found that, although the deciding official indicated that he 

would find it difficult to trust a registered sex offender, this did not mean that the 

deciding official would be unable to trust the appellant in particular to 

accomplish his assigned tasks, and the appellant had been performing his work 

satisfactorily for years. ID at 9. The administrative judge ordered the agency to 

provide interim relief if a petition for review was filed. ID at 12.

¶5 On petition for review,

2 the agency merely asserts that “[d]ue to the nature 

of Appellant’s misconduct, along with the requirement that he register as a sex 

offender, the presumption of nexus should stand in this case.” Petition for 

Review (PFR) File, Tab 1 at 10. It also contends that, if a rebuttable presumption 

of nexus does not apply in this case, the agency has established a nexus between 

the misconduct and the efficiency of the service because of the OPNAV 

Instruction and the deciding official’s statement, in his review of the penalty 

factors set forth in Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06

(1981), that he “would find it difficult to trust a registered sex offender.” Id. 

at 10-11; see IAF, Tab 10 at 18.

 2 The agency filed its petition for review on January 22, 2014, 1 day after the 

January 21, 2014 deadline. Petition for Review File, Tab 1 at 1; ID at 13. Because the 

federal government in Washington, D.C., was closed on January 21, 2014, see 

http://www.opm.gov/policy-data-oversight/snow-dismissal-procedures/statusarchives/14/1/21/Federal-Offices-are-Closed---Emergency-and-Telework-readyEmployees-Must-Follow-Their-Agencys-Policies_577/, we find that the agency timely 

filed its petition for review, see Slaughter v. Department of Agriculture, 56 M.S.P.R. 

349, 351 n.2 (1993), overruled on other grounds by Stabile v. Department of Defense, 

85 M.S.P.R. 253 (2000); cf. 5 C.F.R. § 1201.23 (if the date that ordinarily would be the 

last day for filing falls on a Saturday, Sunday, or federal holiday, the filing period will 

include the first workday after that date).
5

The agency has complied with the administrative judge’s interim relief order.

¶6 The agency submitted a certification of compliance with the interim relief 

order, asserting that the appellant had been placed back on the agency’s rolls in a 

paid leave status because his return or presence would be unduly disruptive to the 

work environment, and that “[b]ackpay determinations are currently being 

made . . . and will be paid to Appellant shortly.” PFR File, Tab 1 at 13. 

However, the appellant asserted in his response to the petition for review that the 

agency provided interim relief by placing him on administrative leave with pay as 

of January 15, 2014, rather than as of the December 17, 2013 date of the initial 

decision. Id., Tab 2 at 4. The Office of the Clerk of the Board issued an Order to 

Show Cause on Interim Relief requiring the agency to submit evidence 

responding to the appellant’s assertions. Id., Tab 6 at 2. In its response, the 

agency contends that the appellant has received “all backpay and benefits to 

which he is entitled.” Id., Tab 8 at 4. The appellant does not dispute this 

account, asserting that “[a]ll backpay has been received.” Id., Tab 9 at 4.

¶7 Interim relief provisions do not require the agency to grant the appellant 

back pay or other benefits to make him whole at the interim relief stage of the 

proceedings. Reid v. Department of the Navy, 118 M.S.P.R. 396, ¶ 6 n.2 (2012). 

Rather, the agency is only required to give the appellant an interim appointment 

with pay and benefits effective as of the date of the initial decision. See Dunn v. 

Department of the Air Force, 96 M.S.P.R. 166, ¶ 8 n.3 (2004), aff’d, 139 F. 

App’x 280 (Fed. Cir. 2005). Because it appears that the agency has actually 

exceeded the requirements of the interim relief order by awarding the appellant 

back pay, we find that it has complied with the interim relief order and that there 

is no basis for dismissing the agency’s petition for review. See Lavette v. U.S. 

Postal Service, 96 M.S.P.R. 239, ¶¶ 14-15 (2004).
6

The appellant’s new evidence supports the initial decision in this case.

¶8 After the close of the record on review the appellant filed a motion for leave 

to submit new evidence. PFR File, Tab 4 at 4. The Office of the Clerk of the 

Board granted the request. Id., Tab 6. The appellant thereafter submitted an 

April 17, 2014 “Order Terminating Probation” from the Superior Court of Barrow 

County, Georgia, finding that the appellant had successfully met all conditions of 

probation and that the probation was terminated effective April 17, 2014. Id., 

Tab 7 at 7. He also submitted an April 24, 2014 “Order of Discharge” from the 

same court finding that, in accordance with the Georgia Probation of First

Offenders Act, the appellant was charged without court adjudication of guilt, the 

discharge “shall completely exonerate” the appellant of any criminal purpose, the 

discharge shall not affect any of his civil rights or liberties, he shall not be 

considered to have a criminal conviction, and the discharge may not be used to

disqualify him in any application for employment or appointment to office in 

either the public or private sector. Id. at 8. The “Order of Discharge” further 

ordered and directed that the Georgia Crime Information Center be notified of the 

discharge, id., and the appellant asserted that he has been removed from the 

Georgia Sex Offender Registry, id. at 4; see IAF, Tab 7 at 4-8 (transcript of the 

disposition of the Superior Court of Barrow County, Georgia, in which the 

prosecutor and the judge agreed that the appellant would be required to register as 

a sex offender only for the term of his probation). 

¶9 Under OPNAV Instruction 1752.3, the agency’s policy is that, “[t]o the 

maximum extent permitted by law, unless waived by competent authority, sex 

offenders are to be identified and prohibited from accessing Navy facilities.” 

IAF, Tab 10 at 12. OPNAV Instruction 1752.3 defines a sex offender as “a 

person convicted of a criminal offense per guidelines in reference (c) [relating to 

Department of Justice, Office of Attorney General, National Guidelines for Sex 

Offender Registration and Notification] and all persons who are required to be 

registered as sex offenders according to this same reference.” Id. at 12-13. 
7

Although afforded an opportunity to do so, PFR File, Tab 6 at 3, the agency has 

not addressed on review the new evidence submitted by the appellant, see PFR 

File, Tab 8 at 4-7. Thus, it appears that the criteria for prohibiting the appellant 

from accessing Navy facilities may no longer be present in this case. The 

administrative judge’s finding that OPNAV Instruction 1752.3 was not an 

absolute bar on access to Navy installations therefore appears to be correct, at 

least as far as it applies to the appellant’s situation in this case.

The agency’s petition for review does not meet the criteria for review.

¶10 A petition for review states a party’s objections to the initial decision and 

must be supported by references to applicable laws or regulations and by specific 

references to the record. 5 C.F.R. § 1201.114(b). Here, the agency’s petition for 

review merely reiterates in a conclusory fashion contentions raised below without

addressing the detailed rationale set forth by the administrative judge for 

rejecting those contentions and reversing the removal action. The agency’s bare 

allegation that a rebuttable presumption of nexus should be applied in this case 

and that the deciding official did not have trust and confidence in a registered sex 

offender does not establish error in the initial decision, especially in light of the 

new evidence submitted by the appellant on review suggesting that he is no 

longer a registered sex offender. Accordingly, the agency has not established a 

basis for granting its petition for review, see 5 C.F.R. § 1201.115, and we 

otherwise discern no reason to disturb the initial decision in this case.

ORDER

¶11 We ORDER the agency to cancel the appellant’s removal and to restore the 

appellant effective July 31, 2013. 3

 See Kerr v. National Endowment for the Arts, 

 3 The December 17, 2013 initial decision incorrectly ordered the agency to restore the 

appellant effective December 13, 2013. ID at 11. The administrative judge 

subsequently issued an erratum decision that correctly ordered the agency to restore the 

appellant effective July 31, 2013. IAF, Tab 14; see IAF, Tab 11 at 5.
8

726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no later 

than 20 days after the date of this decision.

¶12 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. 

¶13 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 

took 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). 

¶14 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).

¶15 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 
9

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 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. §§ 1201.201, 1201.202, and 1201.203. If 

you believe you meet these requirements, you must file a motion for attorney fees 

WITHIN 60 CALENDAR 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 APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

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 have the right to 

request the United States Court of Appeals for the Federal Circuit to review this 

final decision. 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 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).
10

If you need further information about your right to appeal this decision to 

court, you should refer to the federal law that gives you this right. It is found in 

Title 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 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, and 11.

If you are interested in securing pro bono representation for your court 

appeal, you may visit our website at http://www.mspb.gov/probono for a list of 

attorneys who have expressed interest in providing pro bono representation for 

Merit Systems Protection Board appellants before the court. 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 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 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 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 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-50's (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.