UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

WILLIAM D. GODBY,

Appellant,

v.

DEPARTMENT OF VETERANS 

AFFAIRS,

Agency.

DOCKET NUMBER

CH-1221-21-0147-W-1

DATE: August 14, 2023

THIS FINAL ORDER IS NONPRECEDENTIAL1

David Torchia, Esquire, Cincinnati, Ohio, for the appellant.

Matthew O. Kortjohn, Esquire, Dayton, Ohio, for the agency.

Nicholas Kennedy, Esquire, Akron, Ohio, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

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

granted in part and denied in part the appellant’s request for corrective action 

under 5 U.S.C. § 1221. Generally, we grant petitions such as this one only in 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1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

following circumstances: 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 the law to the facts of the case; the 

administrative 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. 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, 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). 

¶2 Under the evidentiary framework of 5 U.S.C. § 1221, the Board first 

determines whether the appellant has established by preponderant evidence 2that 

he made a protected disclosure under 5 U.S.C. § 2302(b)(8) or engaged in 

protected activity under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C) or (D). See 

5 U.S.C. § 1221(e)(1); Salerno v. Department of the Interior, 123 M.S.P.R. 230, 

¶ 5 (2016); 5 C.F.R. § 1209.7(a). Next, the Board determines whether the 

protected disclosure or protected activity was a contributing factor in the 

personnel action that was threatened, proposed, taken, or not taken. See 5 U.S.C. 

§ 1221(e)(1); Salerno, 123 M.S.P.R. 230, ¶ 5; 5 C.F.R. § 1209.7(a). If the 

respondent makes both of these showings by preponderant evidence, the burden 

of persuasion shifts to the agency to demonstrate by clear and convincing 

 

2

Preponderant evidence is the 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).
3

evidence3that it would have threatened, proposed, taken, or not taken the same 

personnel action in the absence of the disclosure or other protected activity. See 

5 U.S.C. § 1221(e)(2); Salerno, 123 M.S.P.R. 230, ¶ 5; 5 C.F.R. § 1209.7(b); see 

also Carr v. Social Security Administration, 185 F.3d 1318, 1322 (Fed. Cir. 

1999). 

¶3 In determining whether an agency has met its burden by clear and 

convincing evidence, the Board will consider the following factors, which were 

coincidentally first set forth in Carr: (1) the strength of the agency’s evidence in 

support of the personnel action; (2) the existence and strength of any motive to 

retaliate on the part of the agency officials who were involved in the decision; 

and (3) any evidence that the agency takes similar actions against employees who 

are not whistleblowers but who are otherwise similarly situated. Carr, 185 F.3d

at 1323. The Board does not view these factors as discrete elements, each of 

which the agency must prove by clear and convincing evidence, but instead 

weighs the factors together to determine if the evidence is clear and convincing as 

a whole. Elder v. Department of the Air Force, 124 M.S.P.R. 12, ¶ 42 (2016).

Our reviewing court has further clarified that “[e]vidence only clearly and 

convincingly supports a conclusion when it does so in the aggregate considering 

all the pertinent evidence in the record, and despite the evidence that fairly 

detracts from that conclusion.”4 Whitmore v. Department of Labor, 680 F.3d 

1353, 1367-68 (Fed. Cir. 2021).

 

3 Clear and convincing evidence is that measure or degree of proof that produces in the 

mind of a trier of fact a firm belief as to the allegations sought to be established. 

5 C.F.R. § 1209.4(e). 

4

The court made that statement in the course of explaining that Congress imposed a 

heightened burden of proof on the agency to compensate for the “evidentiary 

disadvantages” faced by whistleblowers. Whitmore v. Department of Labor, 680 F.3d 

1353, 1367-68 (Fed. Cir. 2021); see 135 Cong. Rec. H747-48 (daily ed. Mar. 21, 1989) 

(explanatory statement on Senate Amendment S. 20) (explaining that the hi gher burden 

of proof required of the agency “recognizes that when it comes to proving the basis of 

an agency’s decision, the agency controls most of the cards—the drafting of the 

documents supporting the decision, the testimony of witnesses who participate d in the 
4

¶4 In its petition for review, the agency contends that the administrative judge 

did not consider all the record evidence, as required under Whitmore. Petition for 

Review (PFR) File, Tab 1. However, as the administrative judge observed, the 

agency made no attempt below to show by clear and convincing evidence that, in 

the absence of the appellant’s whistleblowing, it still would not have selected him 

for the Operations Manager in 2017.

5

 Rather than acknowledge its burden of 

proof, the agency instead contended that the burden of proof was on the appellant 

to show that his qualifications were “plainly superior” to that of the selectee. 

Hearing Transcript, Day 3 at 623-24. In effect, the agency waived its opportunity 

to rebut the appellant’s prima facie case of retaliation.

¶5 The agency’s attempt to shift the burden of proof to the appellant is 

unavailing. On review, the agency argues that evaluating the select ee’s 

qualifications is “especially vital” in individual right of action (IRA) appeals of 

nonselections, because in nonselection cases arising under Title VII of the Civil 

Rights Act of 1964 (Title VII),6a complainant can only prove an illegal hiring 

practice if his qualifications are “plainly superior” to those of the selectee. This 

is so, the agency argues, because “Title VII is not a vehicle for substituting the 

judgment of a court for that of the employer.” PFR File, Tab 1 at 9 (quoting 

Jiminez v. Mary Wash. Coll., 57 F.3d 369, 377 (4th Cir. 1995)). While the 

agency concedes—as it must—that this case is not governed by Title VII, it 

 

decision, and the records that could document whether similar personnel actions have 

been taken in other cases”). It is evident that in creating and interpreting the “clear and 

convincing evidence” standard, Congress and the Whitmore court were primarily 

concerned with ensuring that the interests of the whistleblower are protected. See 

Whitmore, 680 F.3d at 1368 (observing that the Whistleblower Protection Act “makes 

clear that whistleblowing provides an important public benefit that must be enco uraged 

when necessary by taking away fear of retaliation”). 

5 Conspicuously, the words “clear and convincing” appear nowhere in the hearing 

transcript or any of the agency’s pleadings below.

6

The petition refers to “Title VII of the Rehabilitation Act,” but we assume this was a 

drafting error. 
5

asserts that “the principles underlying Title VII non-selection case law exist with 

equal force in this appeal” and that by failing to consider the qualifications of the 

selectee, “the Board is substituting its judgment for that of the Agency.” PFR 

File, Tab 1 at 9. However, the agency has not cited any authority to support its 

assertion that Title VII standards should apply in an IRA appeal of a 

nonselection, and we are not aware of any. Rather, the relevant st atute makes it 

clear that in an IRA appeal, the burden lies with the agency to prove by clear and 

convincing evidence that it would have taken the same action in the absence of 

the appellant’s whistleblowing. 5 U.S.C. § 1221(e)(2). As discussed above, the 

agency did not accept or attempt to meet that burden. Accordingly, we affirm the 

administrative judge’s finding that the appellant is entitled to corrective action 

with respect to his 2017 nonselection.

ORDER

¶6 We 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. 

¶7 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). 

¶8 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 
6

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).

¶9 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.

NOTICE TO THE APPELLANT REGARDING

YOUR RIGHT TO REQUEST CONSEQUENTIAL AND/OR 

COMPENSATORY DAMAGES

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

damages, including medical costs incurred, travel expenses, and any other 
7

reasonable and foreseeable consequential damages. To be paid, you must meet 

the requirements set out at 5 U.S.C. §§ 1214(g) or 1221(g). The regulations may 

be found at 5 C.F.R. §§ 1201.201, 1201.202 and 1201.204.

In addition, the Whistleblower Protection Enhancement Act of 2012 

authorized the award of compensatory damages including interest, reasonable 

expert witness fees, and costs, 5 U.S.C. § 1214(g)(2), which you may be entitled 

to receive.

If you believe you are entitled to these damages, you must file a motion for 

consequential damages and/or compensatory damages WITHIN 60 CALENDAR 

DAYS OF THE DATE OF THIS DECISION. You must file your motion with the 

office that issued the initial decision on your appeal.

NOTICE TO THE PARTIES

A copy of the decision will be referred to the Special Counsel “to

investigate and take appropriate action under [5 U.S.C.] section 1215,” based on

the determination that “there is reason to believe that a current employee may

have committed a prohibited personnel practice” under 5 U.S.C. § 2302(b)(8) or

section 2302(b)(9)(A)(i), (B), (C), or (D). 5 U.S.C. § 1221(f)(3). Please note

that while any Special Counsel investigation related to this decision is pending,

“no disciplinary action shall be taken against any employee for any alleged

prohibited activity under investigation or for any related activity without the

approval of the Special Counsel.” 5 U.S.C. § 1214(f).

NOTICE OF APPEAL RIGHTS7

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). 

 

7

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.
8

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 and 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). 

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. 
9

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. 420 (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 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 
10

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 

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.8 The court of appeals must receive your petition for 

 

8

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 
11

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 

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. 

 

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. 
12

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.