UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

DAVID FERRY,

Appellant,

v.

DEPARTMENT OF THE AIR FORCE,

Agency.

DOCKET NUMBER

DC-0752-21-0106-I-1

DATE: December 21, 2023

THIS FINAL ORDER IS NONPRECEDENTIAL1

Mary Kuntz, Esquire, Washington, D.C., for the appellant.

Robert P. Erbe, Joint Base Andrews, Maryland, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

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

upheld his removal based on sustained charges of conduct unbecoming a Federal

employee and unacceptable performance. For the reasons discussed below, we

GRANT the appellant’s petition for review. We AFFIRM the administrative

judge’s decision to sustain the charges and her conclusion that the agency proved

nexus. However, we VACATE the administrative judge’s penalty analysis.

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 A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
Instead, based on our assessment of the relevant penalty factors, we FIND that a

30-day suspension is the maximum reasonable penalty for the sustained

misconduct. 

BACKGROUND

The appellant was a Supervisory General Engineer in the Air Force Civil

Engineer Center Design and Construction Office at Ramstein Air Base, Germany,

who was reassigned to a GS-14 General Engineer position for a temporary duty

assignment (TDY) to a 10-month Civilian Developmental Education Program at

the Air War College (AWC) in Montgomery, Alabama. The TDY began on

July 9, 2019. During the 10 months that the appellant was at AWC, he failed to

respond to his supervisor’s repeated attempts to communicate with him

concerning time and attendance matters and outplacement opportunities and

began having problems meeting AWC academic requirements in 2020. Initial

Appeal File (IAF), Tab 37 at 2, 14-16. On February 27, 2020, after the appellant

failed to show progress on a self-led research project, despite counseling and

assignment of a writing coach, the AWC Dean placed the appellant on academic

probation. IAF, Tab 25 at 105. When the appellant continued to struggle to meet

his academic obligations, on March 27, 2020, the Dean placed the appellant on

academic probation a second time for failure to complete final papers for three of

his courses. Id. at 106. The Dean warned the appellant that he could be

disenrolled from AWC if he did not meet the submission dates for his final and

mid-term papers. Id. 

On May 1, 2020, after determining that the appellant had not turned in two

of his final papers, the Dean advised the appellant’s supervisor that the appellant

would be disenrolled from the AWC. IAF, Tab 37 at 16. On May 11, 2020, the

AWC issued to the appellant a Notification of Summary Disenrollment for failure

to meet academic requirements. IAF, Tab 25 at 64. Because the appellant failed

to meet performance expectations that had been tailored to his attendance at

2
AWC, his performance for the rating cycle that ended on March 31, 2020, was

unacceptable on four of the five performance elements, and he received a

summary rating of unacceptable. IAF, Tab 20 at 12-19.

The agency removed the appellant, effective October 28, 2020, based on

charges of failure to maintain his security clearance as a condition of

employment, conduct unbecoming a Federal employee, and unacceptable

performance. IAF, Tab 19 at 10-13, Tab 25 at 5-9. The appellant filed a Board

appeal and withdrew his hearing request. IAF, Tabs 1, 22. The administrative

judge issued an initial decision in which she sustained the conduct unbecoming

and unacceptable performance charges, found that the agency proved nexus, and

concluded that removal was the maximum reasonable penalty for the sustained

misconduct. IAF, Tab 38, Initial Decision (ID) at 10-21. The appellant has filed

a petition for review, and the agency has filed a response. Petition for Review

(PFR) File, Tabs 3, 7.

DISCUSSION OF ARGUMENTS ON REVIEW

An agency must establish the following three things to withstand a

challenge to an adverse action against an employee pursuant to 5 U.S.C.

chapter 75: (1) it must prove by a preponderance of the evidence that the charged

conduct occurred; (2) it must establish a nexus between that conduct and the

efficiency of the service; and (3) it must demonstrate that the penalty imposed is

reasonable. 5 U.S.C. §§ 7513(a), 7701(c)(1)(B); Malloy v. U.S. Postal Service,

578 F.3d 1351, 1356 (Fed. Cir. 2009); Pope v. U.S. Postal Service, 114 F.3d

1144, 1147 (Fed. Cir. 1997). In his petition for review, the appellant concedes

that the agency proved the conduct unbecoming and unacceptable performance

charges, and it proved nexus. PFR File, Tab 3 at 16. We discern no error with

the administrative judge’s conclusions in this regard, and we affirm them herein.

ID at 10-17. The only issue before the Board is the reasonableness of the removal

penalty. PFR File, Tab 3 at 16. 

3
In the initial decision, the administrative judge independently assessed the

relevant penalty factors because she did not sustain all of the charges and the

deciding official did not indicate that he would have imposed a lesser penalty if

fewer than all charges were sustained. ID at 18. In pertinent part, the

administrative judge noted that the unacceptable performance charge was “very

serious,” particularly given the appellant’s high grade level and purpose at the

AWC, a prestigious 10-month program that was to result in the appellant earning

a master’s degree in Strategic Studies. Id. She also noted that successful

completion of the AWC program was the appellant’s singular objective for the

entire performance year, and he failed in this objective when he was placed on

probation twice and disenrolled from AWC. Id. She further noted that the

misconduct was repetitive, but there was no indication that the misconduct was

committed maliciously or for personal gain. ID at 18-19. The administrative

judge found that the sustained misconduct in the conduct unbecoming charge was

“very serious,” particularly since he was a high-level employee who was trusted

to operate remotely during the 10-month AWC program, and he abused that trust.

ID at 19. The administrative judge considered other relevant factors, such as the

appellant’s inability to perform at a satisfactory level, his supervisor’s

significantly diminished confidence in his ability to perform assigned tasks, and

the fact that he was on notice that his actions constituted misconduct. ID

at 19-20. The administrative judge also considered mitigating factors, such as the

appellant’s more than 20 years of Federal service, his history of good

performance, and his “unblemished disciplinary record.” ID at 20. The

administrative judge further considered that the appellant’s mental health

struggles during this time were a “significant mitigating factor.” Id. She noted

that the appellant had potential for rehabilitation because of his commitment to

continued mental health treatment, but she found that a lesser penalty was

unlikely to deter future misconduct. Id. Ultimately, the administrative judge

concluded that the appellant’s misconduct was “too serious, to[o] extensive, and

4
too repetitive” to be mitigated, and she concluded that removal was the maximum

penalty for the sustained misconduct. ID at 20-21. 

On review, the appellant argues that the removal penalty is not reasonable

considering the penalty factors involving the potential for rehabilitation,

mitigating factors, and the adequacy and effectiveness of alternative sanctions to

deter such conduct. PFR File, Tab 3 at 16. For example, the appellant asserts

that the administrative judge erred when she “reviewed quickly” the mitigating

factors and failed to consider the “specific connection” between his diagnoses and

the sustained misconduct.2 Id. at 20. He also asserts that the “substantial

mitigating force of mental impairments regularly outweighs even serious

aggravating factors.” Id. at 21-23 (citing Malloy, 578 F.3d at 1356-57, Bal v.

Department of the Navy, 729 F. App’x 923 (Fed. Cir. 2018), and Bowman v.

Small Business Administration, 122 M.S.P.R. 217 (2015)). The appellant further

asserts that, when mitigating factors are properly evaluated, the maximum

reasonable penalty for the sustained misconduct is a 30-day suspension. Id. at 34.

Legal standard for evaluating the penalty

When the Board sustains fewer than all of the agency’s charges, the Board

may mitigate to the maximum reasonable penalty so long as the agency has not

indicated either in its final decision or during proceedings before the Board that it

desires that a lesser penalty be imposed on fewer charges. 3 Lachance v. Devall,

178 F.3d 1246, 1260 (Fed. Cir. 1999). The U.S. Court of Appeals for the Federal

Circuit recently held that, in a situation in which fewer than all charges are

sustained, the penalty factors should be independently analyzed. Williams v.

2

 Contrary to the petition for review, the administrative judge acknowledged in general

terms the connection between the appellant’s medical conditions and the sustained

misconduct. See ID at 20 (“It is unrebutted in the record that the appellant’s

then-undiagnosed depression and attention deficit disorder . . . significantly impacted

his ability to perform his duties and maintain communications with [his supervisor].”).

3

 The deciding official did not indicate in his decision letter that he would have imposed

a lesser penalty if fewer than all three charges were sustained. ID at 18; IAF, Tab 19

at 10-13.

5
Federal Bureau of Prisons, 72 F.4th 1281, 1284 (Fed. Cir. 2023). Because the

administrative judge only sustained the conduct unbecoming and unacceptable

performance charges, a decision which we have affirmed herein, we will conduct

an independent assessment of the penalty factors as set forth in Douglas v.

Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981). 4 We have considered

the relevant Douglas factors. For the following reasons, we conclude that a

30-day suspension is the maximum reasonable penalty for the sustained

misconduct.

 Discussion of the Douglas factors

The nature and seriousness of the offense, and its relation to the employee’s

duties, position, and responsibilities, including whether the offense was

intentional or technical or inadvertent, or was committed maliciously or for gain,

or was frequently repeated

The nature and seriousness of the offense, and its relation to the appellant’s

duties, position, and responsibilities, is the most important factor in assessing the

reasonableness of a penalty. Singh v. U.S. Postal Service, 2022 MSPB 15, ¶ 18.

There is no doubt that conduct unbecoming a Federal employee and unacceptable

performance are serious charges. Moore v. Department of the Army, 59 M.S.P.R.

261, 267 n.2 (Fed. Cir. 1993); Hellein v. Department of Agriculture, 8 M.S.P.R.

373, 375 (1981). The conduct underlying the sustained charges occurred over the

course of 10 months and was frequently repeated. Moreover, the administrative

judge correctly described that completion of the AWC program was the

appellant’s “singular objective” for the entire performance year. ID at 18. Thus,

his unacceptable performance was directly related to his position. It does not

appear, however, that any of the misconduct was committed maliciously or for

gain. 

4

 Because we are conducting an independent analysis of the penalty factors, we need not

address the appellant’s arguments regarding the agency’s analysis of these factors. PFR

File, Tab 3 at 15-18.

6
The employee’s job level and type of employment, including supervisory or

fiduciary role, contacts with the public, and prominence of the position

The parties do not dispute that, immediately prior to his entry at the AWC,

the appellant was a supervisor, but he was not a supervisor during his time at

AWC. IAF, Tab 19 at 21-22, 94, Tab 20 at 49-54, Tab 25 at 98. However, the

appellant was an experienced GS-14 General Engineer attending a prestigious

program, which would have resulted in a master’s degree in Strategic Studies, and

for which he was entirely remote. 

The employee’s past disciplinary record

The appellant had no prior disciplinary record. IAF, Tab 25 at 98. 

The employee’s past work record, including length of service, performance on the

job, ability to get along with fellow workers, and dependability

The parties do not dispute that the appellant had approximately 23 years of

prior Federal service. The parties acknowledge that, for the two appraisal periods

prior to the 2020 removal, the appellant was rated as Exceptional or Outstanding,

and there was no indication that he did not get along with colleagues or had any

difficulty working with other employees both before and during his time at AWC.

IAF, Tab 19 at 37, 70-84, Tab 25 at 98. In fact, his supervisors for the approximately

9 years prior to his removal, including a lengthy period during which he was stationed in

Germany, all provided overwhelmingly positive statements regarding the appellant’s

performance, leadership, and professionalism. IAF, Tab 19 at 39-41. In short, the

appellant appears to have been an exemplary employee prior to his attendance at AWC.

We acknowledge, however, that the appellant’s failure to maintain contact with

his supervisor or advise her of any of his academic difficulties at AWC is

evidence of a lack of dependability. IAF, Tab 37 at 14-16. 

7
The effect of the offense upon the employee’s ability to perform at a satisfactory

level and its effect upon supervisors’ confidence in the employee’s ability to

perform assigned duties

In her declaration made under penalty of perjury, the appellant’s supervisor

described the “extraordinary measures” that she had to take to “get responses

[from the appellant] to basic questions” from July 2019 to April 2020, and how

she was “blind-sided” by the “devastating news” regarding his academic problems

and disenrollment from the AWC. IAF, Tab 37 at 14-16. Furthermore, she stated

in her Douglas factors analysis that there was “definitely . . . a loss of trust and

confidence” in the appellant’s ability to perform assigned duties. IAF, Tab 25

at 85. The administrative judge found reasonable the supervisor’s statement that

she doubted the appellant’s ability to perform his duties going forward. ID at 19.

While it is understandable that the appellant’s issues during his time at AWC

affected his supervisor’s belief in his ability to perform his duties, in light of the

surrounding circumstances and mitigating factors discussed below, we conclude

that the sustained offenses do not show that the appellant will be unable to

perform at a satisfactory level when performing the duties of his position of

record. 

The consistency of the penalty with those imposed upon other employees for the

same or similar offenses

There is no allegation of disparate penalties in this matter. 

The consistency of the penalty with any applicable agency table of penalties

The proposing official stated that, for a first offense of conduct

unbecoming, the proposed penalty is a reprimand to a removal. IAF, Tab 25

at 87. The deciding official stated in his Douglas factors checklist that the

charged conduct was listed in the table of penalties and that the proposed penalty

was within the range identified therein. Id. at 99. Although we are unable to find

the agency’s table of penalties in the record, the appellant does not contend on

review that removal is inconsistent with the agency’s table of penalties.

8
The notoriety of the offense or its impact upon the reputation of the agency

There is no notoriety involved in this matter.

The clarity with which the employee was on notice of any rules that were violated

in committing the offense, or had been warned about the conduct in question

The appellant does not dispute that he needed to maintain regular contact

with his supervisor while he was at AWC or that he needed to comply with AWC

academic requirements. 

The potential for the employee’s rehabilitation

The Board has found that an appellant seeking treatment for his medical

problems indicates a potential for rehabilitation. Vitanza v. U.S. Postal Service,

89 M.S.P.R. 319, ¶ 6 (2001); Bond v. Department of Energy, 82 M.S.P.R. 534,

545 (1999); see Bal, 729 F. App’x at 929 (finding that Mr. Bal demonstrated a

potential for rehabilitation through “competent evidence” that he, among other

things, continued to seek counseling). As discussed further below, the appellant

had significant potential for rehabilitation because of his commitment to ongoing

mental health treatment. ID at 20; IAF, Tab 19 at 18, 32, 34-35. 

Mitigating circumstances surrounding the offense such as unusual job tensions,

personality problems, mental impairment, harassment, or bad faith, malice or

provocation on the part of others involved in the matter

Evidence that an employee’s mental impairment played a part in the

charged conduct is ordinarily entitled to considerable weight as a mitigating

factor. Malloy, 578 F.3d at 1357; Bowman, 122 M.S.P.R. 217, ¶ 13. We have

considered the evidence in the record relating to the appellant’s mental health

conditions and the sustained misconduct. 

The appellant stated in an August 31, 2020 declaration, made under penalty

of perjury, that he had a “growing sense that I was struggling with some sort of

mental health issue” while at AWC, and in the spring of 2020 he began an initial

evaluation and treatment with a physician on staff at AWC “for what he suspected

(and was later confirmed) was a depressive disorder.” IAF, Tab 21 at 30. After

9
the appellant returned to his duty station in Washington, D.C., in June 2020, he

began seeing a psychologist. Id. at 18. The psychologist diagnosed the appellant

with Major Depressive Disorder, recurrent, moderate, and attention deficit

disorder (ADD), and began treating the appellant’s depression through medication

and psychotherapy. IAF, Tab 19 at 34. 

The psychologist explained how the appellant’s conditions affected him,

stating that “symptoms of depression and [the appellant’s] difficulties with

concentrating, paying attention, and procrastination[] all would likely have

contributed to his recent work difficulties.” Id. at 35. The psychologist further

explained that “depression interferes with a person’s ability to function in all

areas of life,” and the appellant “described . . . having felt hopeless at times over

the last few years due to his depression,” which would have “negatively

impacted . . . his job performance.” Id. He also explained that “[p]eople with

ADD often do well in situations where they are dealing with a stream of novel

stimulation,” such as the appellant’s previous jobs where he had to “put out fires”

and “[deal with] a new problem every day.” Id. However, when the appellant

was at AWC, “he had long stretches when he was on his own, dealing with a

long-term assignment,” and “[p]eople with ADD . . . tend to have difficulty

working in these conditions.” Id. The psychologist further explained that the

appellant’s “depression worsened due to his difficulty coping with school, which

further negatively affected his ability to function.” Id. The appellant’s

psychologist stated that he was “confident that if [the appellant] continues to

receive treatment for his depression and also receives help managing his

difficulties with attention, concentration, and procrastination, his mood will

improve and he will be able to learn and utilize strategies to deal with the

stressors that have negatively impacted on his work performance in recent years”

10
and “he will be able to perform in his job at his previous level of exemplary

functioning.”5 Id. 

In his declaration, the appellant stated that he continues to see his therapist

and take his medication. Id. at 32. He observed that he had “gradual but

measurable” improvement. Id. He stated that receiving the notice of proposed

removal was a “significant additional stressor,” and he increased the frequency of

his therapy sessions as a result. Id. He also observed that his “ability to respond

positively to significant increased stress and continue to function” is “a positive

sign of [his] condition responding to treatment and a return to normalcy.” Id.

In a September 24, 2020 note, the appellant’s psychologist stated that the

appellant “is making progress both in a reduction of symptoms of depression and

in managing the symptoms of his [ADD].” Id. at 18. The psychologist explained

that his assessment was based on his observation of the appellant “being able to

plan and execute action on his behalf,” “[seeking] out and . . . attending a weekly

group to help him successfully manage his difficulties with attention,

concentration, and procrastination,” and continuing to take his prescribed

medication and attend twice weekly therapy sessions. Id. The psychologist

concluded that he was “confident” that the appellant “will continue to diligently

pursue the above steps and continue to make progress.” Id.

We also acknowledge that, when the appellant first began to recognize that

he was having mental health issues, he was away from home while at AWC and

was less able to effectively address his problems than he would have been if he

had been performing his normal duties at his duty station. Moreover, although

the appellant’s difficulties began prior to the COVID-19 pandemic, the record

indicates that his performance and communication issues appear to have peaked

5 The Board has found that a mental impairment is not a significant mitigating factor in

the absence of evidence that the impairment can be remedied or controlled, i.e., when

the potential for rehabilitation is poor. Mingledough v. Department of Veterans Affairs,

88 M.S.P.R. 452, ¶ 12 (2001). Based on the medical documentation, it appears that the

appellant’s mental impairments could be controlled.

11
following the quarantine instituted after the pandemic began in March 2020. The

appellant provided evidence that his isolation during this period exacerbated his

conditions. IAF, Tab 19 at 30.

The adequacy and effectiveness of alternative sanctions to deter such conduct in

the future by the employee or others

The deciding official stated in the decision letter that, considering the

“gravity of the collective misconduct and the adverse impact on the

[G]overnment, alternative/lesser sanctions would be inappropriate, inadequate,

and ineffective in deterring such conduct in the future.” IAF, Tab 19 at 10-11.

The appellant, in his response to the notice of proposed removal, proposed

reinstatement with conditions, including an annual mental health fitness-for-duty

examination, compliance with mental health therapy, and participation in mental

health outreach. Id. at 23-24. Under the unique circumstances of this case,

including the ample evidence that the appellant’s mental health conditions

contributed to the misconduct, his stated commitment to continuing mental health

treatment, and his previous exemplary work record, we conclude that a

suspension would be an adequate deterrent to future misconduct.

A 30-day suspension is the maximum reasonable penalty for the sustained

misconduct.

Based on our review of the Douglas factors, while there are a number of

aggravating factors, there are also significant mitigating factors. Importantly, the

appellant has established that his mental health conditions are connected to the

sustained misconduct, and we agree with his assertion that his conditions should

be considered as a substantial mitigating factor. We have also considered the

appellant’s reliance on Malloy, Bal, Bowman, and other cases to support the

proposition that the removal penalty should be mitigated. PFR File, Tab 3

at 21-23. Indeed, the appellant correctly notes that there are many similarities

between the aggravating and mitigating factors in those cases and in this case. Id.

12
We agree with the appellant that, under the circumstances of this case,

removal exceeds the maximum reasonable penalty. Rather, considering the

unrebutted opinion of the appellant’s psychologist—that the appellant’s mental

health was being treated successfully and he will be able to resume functioning at

a high level in the workplace—as well as the appellant’s excellent past work

record and many years of service without prior discipline, the appellant has a

strong potential for rehabilitation. We therefore conclude that a 30 -day

suspension is the maximum reasonable penalty for the sustained misconduct. See,

e.g., Bowman, 122 M.S.P.R. 217, ¶¶ 13-15 (finding that a 30-day suspension is

the maximum reasonable penalty based on the medical evidence and hearing

testimony regarding the impact of the appellant’s mental illness on the

misconduct and his more than 20 years of successful service). 

ORDER

We ORDER the agency to cancel the removal action and retroactively

restore the appellant, effective October 28, 2020, to his GS-14 General Engineer

position and substitute in its place a 30-day suspension. 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.

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 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). 

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).

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.

14
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

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

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

issued the initial decision on your appeal.

NOTICE OF APPEAL RIGHTS6

The initial decision, as supplemented by this Final Order, constitutes the

Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain

review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of

your claims determines the time limit for seeking such review and the appropriate

forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following

summary of available appeal rights, the Merit Systems Protection Board does not

provide legal advice on which option is most appropriate for your situation 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

6

 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.

15
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. 

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. 

16
(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

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: 

17
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.7 The court of appeals must receive your petition for

review within 60 days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(B). 

7

 The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expired on

December 27, 2017. The All Circuit Review Act, signed into law by the President on

July 7, 2018, permanently allows appellants to file petitions for judicial review of

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,

132 Stat. 1510. 

18
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. 

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: ______________________________

Jennifer Everling

Acting Clerk of the Board

Washington, D.C.

19
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.