UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

CHERYL LOVE,

Appellant,

v.

UNITED STATES POSTAL SERVICE,

Agency.

DOCKET NUMBER

CH-0752-17-0218-I-1

DATE: June 20, 2023

THIS FINAL ORDER IS NONPRECEDENTIAL1

Hartley David Alley, Esquire, San Antonio, Texas, for the appellant.

Brian J. Odom, Denver, Colorado, 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

mitigated the appellant’s removal to a 90-day suspension. For the reasons 

discussed below, we GRANT the agency’s petition for review. We AFFIRM the

administrative judge’s findings on the charge, nexus, and the appellant’s 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

affirmative defenses. We REVERSE the administrative judge’s findings 

concerning the maximum reasonable penalty and FIND that a demotion to a 

nonsupervisory position is the maximum reasonable penalty.

BACKGROUND

¶2 The appellant was formerly employed as Postmaster of Des Moines, Iowa, 

until she was removed, effective February 4, 2017. Initial Appeal File (IAF), 

Tab 6 at 15. By letter dated December 5, 2016, the agency proposed the 

appellant’s removal based on a charge of unacceptable conduct. Id. at 23-28. 

The charge was supported by three specifications: (1) failure to properly carry 

out the emergency placement of a subordinate employee on off-duty status; 

(2) failure to safeguard log on credentials; and (3) failure to investigate no-fee

money orders at the South Des Moines station. Id. By letter dated January 20, 

2017, the agency sustained all three specifications and the charge, and removed 

the appellant. Id. at 15-16.

¶3 The appellant filed a Board appeal, disputing the charges. IAF, Tab 1. 

After she withdrew her request for a hearing, IAF, Tab 68, the administrative 

judge issued an initial decision based on the written record, IAF, Tab 83, Initial 

Decision (ID). The administrative judge found that the agency proved 

specifications 2 and 3 of its charge, and thus, sustained the charge. ID at 18-20. 

However, the administrative judge found that the agency failed to prove 

specification 1. ID at 14-18. The administrative judge also found that the 

appellant failed to prove her affirmative defenses of harmful procedural error or 

due process violations. ID at 20-23. After considering the factors set forth in 

Douglas v. Veterans Administration, 5 M.S.P.R. 280, 306 (1981), the 

administrative judge found that the penalty of removal was unreasonable and 

mitigated it to a 90-day suspension. ID at 24-29.
3

¶4 The agency has filed a petition for review. Petition for Review (PFR) File,

Tab 4. The appellant has opposed the agency’s petition, and the agency has filed 

a reply. PFR File, Tabs 16, 19.

DISCUSSION OF ARGUMENTS ON REVIEW

The Board denies the appellant’s motion to dismiss the agency’s petition for 

review for failure to comply with the administrative judge’s interim relief order.

¶5 As part of the interim relief order in the initial decision, the administrative 

judge ordered the agency to effect the appellant’s appointment to the Postmaster 

position and to provide her with pay and benefits of the position, even if the 

agency determined that her return to or presence in the workplace would be 

unduly disruptive. ID at 31. The appellant has moved to dismiss the agency’s 

petition for review on the ground that the agency failed to provide such interim 

relief. PFR File, Tab 6.

¶6 The record reflects that the agency reinstated the appellant to her 

Postmaster position, effective March 13, 2018, but detailed her to a position as a 

Local Operation Center (LOC) Coordinator after it determined that returning her 

as Postmaster would cause an undue disruption. 2PFR File, Tab 10 at 7, 13, 39. 

According to the agency, within hours of issuance of the initial decision,

managers began receiving phone calls from subordinate employees expressing 

their anger and fear that the appellant was returning to the agency. Id. at 39.

¶7 The appellant challenges the merits of the agency’s undue disruption 

determination. PFR File, Tab 11 at 6. However, our reviewing court has held 

that the scope of the Board’s review of an undue disruption determination “is 

 

2

The agency mistakenly reinstated the appellant effective March 13, 2018, the deadline 

for filing a petition for review of the initial decision, instead of February 6, 2018, the 

date of the initial decision. PFR File, Tab 9 at 4, 7; see 5 C.F.R. § 772.102(a) (stating 

that interim personnel actions shall be made effective upon the date of issuance of the 

initial decision). Nonetheless, the record reflects that the agency provided the appellant 

with appropriate back pay from February 6 to March 12, 2018. PFR File, Tab 10 at 5, 

30-35, 40.
4

limited to determining whether the agency actually made an undue disruption 

determination and whether the employee has received appropriate pay and 

benefits.” King v. Jerome, 42 F.3d 1371, 1375 (Fed. Cir. 1994). The Board has 

followed the court’s direction in this regard. E.g., Christopher v. Department of 

the Army, 107 M.S.P.R. 580, ¶ 6 (2008); Cook v. Department of the Army, 

105 M.S.P.R. 178, ¶¶ 7-8 (2007). Because the record reflects that the agency 

made an undue disruption determination and has provided the appellant with pay 

and benefits as of February 6, 2018, we find that the agency has complied with 

the interim relief order. Accordingly, we deny the appellant’s motion to dismiss 

the agency’s petition for review.

The administrative judge properly found that the agency failed to prove 

specification 1 of its charge. 

¶8 In its first specification in support of its unacceptable conduct charge, the 

agency alleged that the appellant failed to timely and properly place a subordinate 

and personal friend in an off-duty status pending an investigation into the 

subordinate’s alleged misconduct. IAF, Tab 6 at 23. In particular, the agency 

alleged that, based on the appellant’s representation that the subordinate 

employee did not work on the weekends, it agreed to date the off-duty letter for 

the following Monday. Id. Despite the appellant’s representation, the 

subordinate reported to work the following Saturday and gave a stand-up talk to 

her employees denying her involvement in the agency’s investigation related to 

overtime pay. Id. When the subordinate reported to work on Monday, she also 

spoke with her employees twice before being escorted off of the premises, once 

before the appellant presented her with the off-duty letter and once after. Id. 

According to the agency, the appellant violated procedures by failing to place the 

employee in an off-duty status on Saturday, permitting the subordinate to twice 

speak with her employees on Monday, and allowing her to enter the 

administrative offices on more than two occasions after she was placed in an 

off-duty status. IAF, Tab 78 at 11-13. The agency also maintained that the 
5

appellant put her friendship with the subordinate ahead of her responsibilities as 

Postmaster. Id. at 12.

¶9 The administrative judge found that the agency failed to identify any 

specific policies, rules, or regulations that the appellant violated, including any 

written policy that set forth explicit instructions regarding the timing or 

procedures for placing an employee in an off-duty status. ID at 15-18. She 

further found that the agency did not present any evidence that the subordinate 

employee or the appellant were scheduled to work that Saturday or that the 

subordinate employee’s off-duty letter prohibited her from speaking with 

employees before leaving the premises on Monday or from subsequently entering 

a Postal Service facility. ID at 15-16.

¶10 On review, the agency reiterates its view that the appellant’s actions were 

generally improper because of her friendship with the subordinate and cites to 

various Employee and Labor Relations Manual (ELM) policies contained in the

appellant’s notice of proposed removal. PFR File, Tab 4 at 16-20. However, as 

the administrative judge properly found, such policies do not establish that the 

appellant’s actions were improper. Rather they relate to addressing performance 

issues, reasons why an employee may be placed on off-duty status, off-duty 

behavior, and general requirements that Federal employees be loyal and maintain 

ethical conduct. Id. at 16-27. 

The administrative judge erred in mitigating the penalty to a 90-day suspension 

instead of a demotion.

¶11 When the Board sustains all of the agency’s charges, it may mitigate the 

agency’s penalty to the maximum reasonable penalty if it finds the agency’s 

original penalty to be too severe. Lachance v. Devall, 178 F.3d 1246, 1260 (Fed.

Cir. 1999). When all of the agency’s charges are sustained, but some of the 

underlying specifications are not sustained, the agency’s penalty determination is 

entitled to deference and should be reviewed only to determine whether it is 

within the parameters of reasonableness. Parker v. U.S. Postal Service, 
6

111 M.S.P.R. 510, ¶ 8, aff’d, 355 F. App’x 410 (Fed. Cir. 2009). In applying this 

standard, the Board must take into consideration the failure of the agency to 

sustain all of its supporting specifications, and such failure may require, or 

contribute to, a finding that the agency’s penalty is not reasonable. Id. In such a 

case, the Board will look for evidence showing that the agency would have

imposed the same penalty for the sustained specification. Id.

¶12 Nevertheless, the Board’s function is not to displace management’s 

responsibility or to decide what penalty it would impose, but to assure that 

management’s judgment has been properly exercised and that the penalty selected 

does not exceed the maximum limits of reasonableness. Id., ¶ 9. Thus, the Board 

will modify a penalty only when it finds that the agency failed to weigh the 

relevant factors or that the penalty imposed clearly exce eded the bounds of 

reasonableness. Id. If the agency’s penalty is beyond the bounds of 

reasonableness, the Board will mitigate only as necessary to bring it within the 

parameters of reasonableness. Id.

¶13 Although the administrative judge sustained the agency’s unacceptable 

conduct charge, she found that mitigation was warranted because the agency did 

not prove specification 1, the deciding official did not properly weigh the nature 

and seriousness of the appellant’s misconduct, and the penalty of removal 

exceeded the tolerable limits of reasonableness. ID at 24-29. After determining 

that removal was unreasonable, the administrative judge considered whether a 

demotion was appropriate, but she found that the record did not reflect that there 

were any vacant positions to which the appellant could be demoted and she 

“lack[ed] confidence that counsel for either party could effectively and efficiently 

navigate (without significant additional cost and resources) such a transition. ” ID 

at 29. Thus, she mitigated the appellant’s removal to a 90-day suspension. Id. 

On review, the agency argues that the administrative judge erred in mitigating the 

removal penalty to a 90-day suspension and, in doing so, she considered 

inappropriate factors. PFR File, Tab 4 at 24-27. We agree. 
7

¶14 The administrative judge found that the agency did not properly weigh the 

nature and seriousness of the offense. Significantly, she cited testimony of the 

proposing and deciding officials that called into question whether they had 

sufficient knowledge to accurately assess the appellant’s role regarding 

specification 3. ID at 28. In this specification, the agency charged the appellant 

with failing to follow up on automatically generated emails containing reports of 

no-fee money orders at the South Des Moines station. IAF Tab 6 at 24-25. An 

investigation by the agency’s Office of the Inspector General (OIG) found that a 

Lead Clerk in the South Des Moines station had committed fraud by issuing 

no-fee money orders to pay her personal bills and later processing fraudulent 

refunds for the same amounts that she had paid. IAF, Tab 11 at 6-12. The Lead 

Clerk’s fraudulent activity cost the agency approximately $160,000. IAF, Tab 6 

at 24.

¶15 Regarding this specification, the administrative judge concluded that “both 

the proposing and deciding officials demonstrated minimal knowledge regarding 

the third specification and thus misjudged the significance of [the] [a]ppellant’s 

role with respect to the loss of $160,000.” ID at 28. She found that the appellant 

was three levels above the Lead Clerk who committed the fraud and that the 

South Des Moines station manager’s failure to verify the no-fee money orders 

mitigated, in some respect, the appellant’s culpability. Id. She also cited to 

evidence that suggested that Postal Service policy charged the station manager 

with verifying that no-fee money orders were legitimate and authorized and noted 

that the actual no-fee money orders were not attached to the emails received by 

the appellant. ID at 19.

¶16 We agree with the administrative judge’s determination that the deciding 

official did not properly weigh the nature and seriousness of the offense. In her 

deposition, the deciding official testified that she did not have an understanding 

of how no-fee money orders are to be processed and issued at a station at the time 

that she made her decision to remove the appellant. IAF, Tab 64 at 44. 
8

Similarly, the proposing official testified that she did not have an understanding 

of the proper procedures for the issuance of no-fee money orders and did not 

inquire as to such procedures in connection with deciding to propose the 

appellant’s removal. Id. at 65, 73, 76. Having reviewed the record, we find that 

there are many unanswered questions concerning the appellant’s role in failing to 

discover the fraudulent no-fee money orders. For example, the agency has not 

clearly explained how, or if, the automatically generated no-fee money order 

email reports raised concerns on their face and, if so, whether it was the 

frequency, amounts, or categories of the no-fee money orders that should have 

raised concerns. Additionally, the record reflects that these emails were sent to a 

group of managers, which included the South Des Moines station manager, the 

appellant, and four other individuals. IAF, Tab 6 at 36. However, the OIG report 

only focused on the station manager’s role in failing to take action regarding 

these emails, without any reference to the appellant or any other individuals who 

also received the emails. IAF, Tab 11 at 6-12. The agency also did not present 

clear evidence concerning the procedures for verifying the accuracy or validity of 

no-fee money orders, including what role if any the appellant was to have in the 

process. Rather, the agency maintained that a detailed explanation of how money 

orders are supposed to be handled was “irrelevant to the charges filed against the 

appellant.” IAF, Tab 79 at 7-8.

¶17 The Board has long held that the nature and seriousness of the offense is the 

most important factor in assessing whether an agency’s selected penalty is 

reasonable. Boo v. Department of Homeland Security, 122 M.S.P.R. 100, ¶ 18 

(2014). In light of the unanswered questions related to the appellant’s conduct 

regarding specification 3, the agency’s failure to prove specification 1, and the 

lack of any direct harm stemming from the appellant’s misconduct in sharing her 

login credentials, we agree with the administrative judge that the penalty of 

removal exceeded the bounds of reasonableness. In so finding, we have also 

considered the appellant’s lengthy 33 years of service to the agency as well as her 
9

positive performance. ID at 2. Nonetheless, we acknowledge the appellant’s 

recent letter of warning for unacceptable conduct. IAF, Tab 6 at 75-76. As a 

high-level Postmaster, the appellant is held to a higher standard of conduct. Seas

v. U.S. Postal Service, 78 M.S.P.R. 569, 576 (1998). We also find the appellant’s 

explanation regarding specification 3 that she delegated financial matters to her 

administrative assistant, ID at 8-9, to be troubling and to show a lack of 

judgment. The appellant’s attempts to deflect blame onto employees under her 

supervision undermined the agency’s trust in her to continue serving as a 

high-level Postmaster. IAF, Tab 78 at 51-54 (declaration of the proposing 

official), 61-62 (declaration of the deciding official). Even if the appellant 

appropriately assigned tasks regarding financial matters to her administrative 

assistant, those matters remained the appellant’s responsibility.

¶18 The Board has held that demotion to a nonsupervisory position is an 

appropriate penalty for a supervisor who has engaged in relatively minor 

misconduct that nevertheless calls into question the employee’s ability to a ct in a 

supervisory role. Fischer v. Department of the Treasury, 69 M.S.P.R. 614, 619 

(1996). Having considered all of the relevant factors, we conclude that a 

demotion to the next highest nonsupervisory position is the maximum reasonable 

penalty under the particular circumstances of this case. 

¶19 We find that the administrative judge’s determination that a demotion was 

not feasible was improperly based on considerations more appropriately 

considered during a compliance proceeding. At this stage, the agency was not 

required to identify available positions to which the appellant could be demoted. 

Further, the Board has ordered demotions of managers generally to 

nonsupervisory positions, affording the agency discretion to select the appropriate 

position. See, e.g., Fischer v. Department of the Treasury, 97 M.S.P.R. 546, ¶ 2 

(2004). Finally, the administrative judge’s speculation concerning the agency’s 

ability to effect the demotion in an efficient and cost effective manner was 

improper. 
10

ORDER

¶20 We ORDER the agency to cancel the appellant’s removal and substitute in 

its place a demotion to the next highest level nonsupervisory position with the 

least reduction in grade and pay within the local commuting area for which the 

appellant is qualified, effective February 4, 2017. 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.

¶21 We also ORDER the agency to pay the appellant the correct amount of back 

pay, interest on back pay, and other benefits under the Back Pay Act and/or Postal 

Service regulations, as appropriate, 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. 

¶22 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). 

¶23 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).

¶24 For agencies whose payroll is administered by either the National Finance 

Center of the Department of Agriculture (NFC) or the Defense Finance and 
11

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 OF APPEAL RIGHTS3

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 

 

3

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.
12

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. 

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 
13

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 ba sed 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 
14

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.4 The court of appeals must receive your petition for 

 

4

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. 
15

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. 

 

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

132 Stat. 1510. 
16

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.