UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

ROBERTO C. GONZALEZ,

Appellant,

v.

DEPARTMENT OF EDUCATION,

Agency.

DOCKET NUMBER

SF-0752-15-0031-I-1

DATE: April 21, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL1

Lawrence Berger, Esquire, Glen Cove, New York, for the appellant.

Shelley K. Shepherd, Washington, D.C., for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

FINAL ORDER

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

terminated the appellant’s indefinite suspension, effective August 25, 2014. 

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 the erroneous application of 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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 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 and AFFIRM the initial decision, 

which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). 

BACKGROUND

¶2 The appellant was charged with one count of Cruelty to Child by Inflicting 

Injury and one count of Battery based on an incident that allegedly occurred in 

his home on January 25, 2014. See Initial Appeal File (IAF), Tab 8, Subtab 4e

at 9-10 (misdemeanor complaint). A subsequent protective order concerning the 

appellant’s minor child and wife was issued, which prohibited the appellant from 

owning or possessing a firearm. See id. at 19-20.

¶3 Effective June 29, 2014, the agency indefinitely suspended the appellant 

from his criminal investigator position due to “state criminal charges pending 

against [him]” and “inability to carry or possess a firearm.” IAF, Tab 8, 

Subtabs 4b (indefinite suspension Standard Form 50), 4c (decision letter), 4e 

(notice of proposed indefinite suspension). The notice of proposed indefinite 

suspension stated that the indefinite suspension may remain in effect “until the 

conclusion of [the] criminal proceedings, or until there is sufficient evidence to 

either return [the appellant] to duty or to support an administrative action against 

[him].” IAF, Tab 8, Subtab 4e at 1. On August 25, 2014, the criminal charges 
3

against the appellant were dismissed and the protective order was terminated. See 

IAF, Tab 9 at 8-12.2

 

¶4 In October 2014, the appellant filed a Board appeal challenging the 

continuation of the indefinite suspension beyond August 25, 2014. IAF, Tabs 1, 

16.3

 The appellant waived his right to a hearing. IAF, Tab 14 at 3. The record 

closed on November 24, 2014. See IAF, Tab 13 at 2. The administrative judge 

issued an initial decision in which she reversed the agency’s action and 

terminated the indefinite suspension, effective August 25, 2014, because the 

agency did not act within a reasonable period of time after the criminal charges 

were dismissed to initiate any adverse action against the appellant or restore him 

to duty. IAF, Tab 17, Initial Decision (ID). The administrative judge noted in 

the initial decision that: (1) as of the close of record date, the appellant’s 

indefinite suspension had continued for an additional 82 days after the dismissal 

of the criminal charges; (2) the “basic facts” of the underlying criminal charges 

were known to the agency before August 25, 2014; (3) the agency had gathered 

additional information about the charges; and (4) the agency did not provide any 

explanation for the need for a protracted investigation. See ID at 9-11. The 

administrative judge thus found that the agency failed in its obligation to 

expeditiously consider whether it intended to proceed with an adverse action. See 

ID at 11-12.

¶5 The agency filed a petition for review and two supplements, the appellant 

filed a response, and the agency filed a reply. See Petition for Review (PFR) 

File, Tabs 1-4, 8. On petition for review, the agency asserts that it has new and 

material evidence, including a December 18, 2014 Report of Investigation (ROI) 

 2 The criminal case was apparently dismissed because the prosecution was unable to 

find and serve the victim witnesses with trial subpoenas. See IAF, Tab 8, Subtab 4a 

at 1.

3 The appellant expressly stated that he was not challenging the original imposition of 

the indefinite suspension. See IAF, Tab 16 at 4. 
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and a January 23, 2015 Notice of Proposed Removal, based on charges of 

Conduct Unbecoming a Federal Law Enforcement Officer (five specifications), 

Lack of Candor (three specifications), and Failure to Follow Instructions (one 

specification). See PFR File, Tabs 1, 3. The agency explains on review that, in 

the course of investigating the January 25, 2014 incident, it discovered 

“numerous additional indications of serious misconduct” by the appellant, 

including that he contacted his spouse “hundreds of times” in violation of the 

protective order, refused to provide witness contact information to agency 

investigators, changed his spouse’s cell phone number, refused service of a State 

court subpoena to his spouse, and instructed his landlord not to respond to the 

agency subpoena. See PFR File, Tab 1 at 6. The agency contends that it “was not 

in a position to know of, and report to the Board” the complex investigation that 

was occurring simultaneously with the instant Board appeal, and that any such 

explanation would have compromised the agency’s investigation. Id. at 10.

DISCUSSION OF ARGUMENTS ON REVIEW

¶6 The only issue before us is whether the administrative judge properly 

terminated the indefinite suspension on August 25, 2014, the day that the criminal 

charges against the appellant were dismissed. An agency may continue an 

indefinite suspension after resolution of criminal charges where the agency 

provides advance notice of possible administrative action in the suspension 

proposal or decision notice and takes action within a reasonable time of the 

conclusion of the criminal proceedings. Camaj v. Department of Homeland 

Security, 119 M.S.P.R. 95, ¶ 11 (2012). However, an agency must provide 

reinstatement to the date of the resolution of criminal charges in an appellant’s 

favor if it fails to implement an adverse action within a reasonable time. Id. 

¶7 We assume, for the purposes of our analysis, that the proposal notice placed 

the appellant on notice of possible administrative action. See IAF, Tab 8, 

Subtab 4e. Based on the agency’s representations in its petition for review, this 
5

case is similar to Camaj in that the agency’s delay in initiating adverse action 

proceedings against the appellant appears to have been, at least in part, the result 

of the agency’s decision to investigate additional alleged misconduct. See 

Camaj, 119 M.S.P.R. 95, ¶ 12. However, the Board held in Camaj that the time 

required for that further investigation did not itself warrant continuation of the 

indefinite suspension because the mere existence of an open agency investigation 

into alleged misconduct does not serve as cause for continuing a chapter 75 

adverse action. Id. (citing Gonzalez v. Department of Homeland Security, 114 

M.S.P.R. 318, ¶ 28 (2010)). Consistent with Camaj, 119 M.S.P.R. 95, ¶ 12, to 

determine if the agency were permitted to continue the indefinite suspension 

beyond August 25, 2014, we must determine whether the delay would have been 

reasonable had the agency instead elected to pursue an adverse action based 

solely on the conduct that formed the basis of the criminal charges. 

¶8 The record reflects that the agency had considerable information pertaining 

to the January 25, 2014 incident before the November 24, 2014 close of record 

date. For instance, the agency investigator interviewed the appellant on 

September 10, 2014. See IAF, Tab 8, Subtab 4a at 2. As of October 29, 2014, the 

agency investigator stated that she had interviewed other witnesses and collected 

relevant documents, and she anticipated that the investigation would be 

completed “within the next couple of weeks.” Id. The administrative judge 

indicated in the initial decision that the November 24, 2014 close of record date 

was selected, in part, so that it would be beyond the “couple of weeks” 

anticipated by the agency. See ID at 12 n.7.

¶9 Because the agency had considerable information about the January 25, 

2014 incident before the close of record date, we agree with the administrative 

judge that an 82-day delay was not reasonable. See, e.g., Camaj, 119 M.S.P.R. 

95, ¶¶ 12-13 (a “nearly” 3-month delay between the resolution of the criminal 

charges and the agency’s proposal notice was not reasonable); Jarvis v. 

Department of Justice, 45 M.S.P.R. 104, 111-12 (1990) (delay of 21⁄2 months to 
6

review files after the indictment was dismissed was not reasonable); Hernandez v. 

Department of Justice, 35 M.S.P.R. 669, 672-73 (1987) (delay of 60 days to issue 

a notice of proposed removal was not reasonable). The agency must therefore 

reinstate the appellant, effective August 25, 2014. See Camaj, 119 M.S.P.R. 95, 

¶ 13. 

¶10 We have considered the agency’s evidence and argument on review, but a 

different outcome is not warranted. Regarding the ROI, to constitute new and 

material evidence, the information contained in the documents, not just the 

documents themselves, must have been unavailable despite due diligence when 

the record closed. Grassell v. Department of Transportation, 40 M.S.P.R. 554, 

564 (1989). There is considerable information contained in the ROI related to the 

January 25, 2014 incident that was known to the agency before the close of the 

record. See, e.g., PFR File, Tab 1, Attachments 1-4, 8, 17-18, 26, 32 (the 

appellant’s arrest warrant, misdemeanor complaint, protective order, the 

appellant’s response to the notice of proposed indefinite suspension (which 

included a statement from his wife and another witness), memoranda regarding 

interviews with Deputy C.Q. and Detective C.V., photos of injuries, and notes 

from the appellant’s September 10, 2014 interview). The other information in the 

ROI appears related to the additional acts of misconduct allegedly committed by 

the appellant. As discussed above, this information has no bearing on the 

relevant matters and our decision in this matter. See Camaj, 119 M.S.P.R. 95, 

¶ 12; see also supra, ¶ 7. Similarly, the agency’s decision to propose the 

appellant’s removal, although technically “new” evidence, does not alter our 

assessment of the propriety of the continuation of the indefinite suspension after 

the dismissal of the criminal charges. See Russo v. Veterans 

Administration, 3 M.S.P.R. 345, 349 (1980). Finally, to the extent that the 

agency contends that it “was not in a position to know of, and report to the 

Board” the complex investigation that was occurring simultaneously with the 

instant Board appeal, and that any such explanation would have compromised the 
7

agency’s investigation, see PFR File, Tab 1 at 10, these arguments do not warrant 

a different outcome. As a result, we affirm the administrative judge’s reversal of 

the continuation of the indefinite suspension beyond August 25, 2014. 

ORDER

¶11 We ORDER the agency to terminate the indefinite suspension and to restore 

the appellant effective August 25, 2014. 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.

¶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).
8

¶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 

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 RIGHT TO REQUEST

COMPENSATORY DAMAGES

You may be entitled to be paid by the agency for your compensatory 

damages, including pecuniary losses, future pecuniary losses, and nonpecuniary 

losses, such as emotional pain, suffering, inconvenience, mental anguish, and loss 

of enjoyment of life. To be paid, you must meet the requirements set out 

at 42 U.S.C. § 1981a. The regulations may be found at 5 C.F.R. §§ 1201.201, 

1201.202, and 1201.204. If you believe you meet these requirements, you must 

file a motion for compensatory damages WITHIN 60 CALENDAR DAYS OF 
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THE DATE OF THIS DECISION. You must file your motion with the office that 

issued the initial decision on your appeal. 

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision by the United 

States Court of Appeals for the Federal Circuit. You must submit your request to 

the court at the following address:

United States Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, DC 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).

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 
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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 B Y 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.