UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

CORPS OF ENGINEERS/SOUTH 

PACIFIC DIVISION,

Appellants,

*

v.

DEPARTMENT OF THE ARMY,

Agency.

DOCKET NUMBER

SF-0752-14-0285-I-1

DATE: April 14, 2016

Janis E. Hulla, Sacramento, California, for Appellants Okuhara, Bastian, 

Biziewski, Sydow, Payton, Thorne, Wehrmann and Carleton P. Fong.

Remaining appellants, pro se.

Annette B. Kuz, Esquire, San Francisco, California, for the agency.

Jason DeRosa, Esquire, Portland, Oregon, for the agency.

Lawrence N. Minch, Los Angeles, California, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

ORDER

¶1 The agency’s U.S. Army Corps of Engineers petitions for review of an 

initial decision that reversed the agency’s actions furloughing the appellants. The 

two Board members cannot agree on the disposition of the petition for review. 

Therefore, the initial decision now becomes the final decision of the Merit 

 

* The appellants that are included in this consolidation are set forth in Appendix A of 

this order.
2

Systems Protection Board in this appeal. Title 5 of the Code of Federal 

Regulations, section 1200.3(b) (5 C.F.R. § 1200.3(b)). This decision shall not be 

considered as precedent by the Board in any other case. 5 C.F.R. § 1200.3(d).

¶2 Based on the initial decision, which now becomes the final decision of the 

Board, the parties’ obligations are set out below:

¶3 The agency must cancel the appellants’ furloughs effective July 8, 2013. 

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.

¶4 The agency must pay the appellants 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. The 

appellants must 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 its obligations. If there is a 

dispute about the amount of back pay, interest due, and/or other benefits, the 

agency must pay the appellants the undisputed amount no later than 60 calendar 

days after the date of this decision.

¶5 The agency must tell the appellants promptly in writing when it believes it 

has fully carried out its obligations and of the actions it took to carry out its 

obligations. The appellants, if not notified, should ask the agency about its 

progress. See 5 C.F.R. § 1201.181(b).

¶6 No later than 30 days after the agency tells the appellants that it has fully 

carried out its obligations, the appellants may file a petition for enforcement with 

the office that issued the initial decision on this appeal if the appellants believe

that the agency did not fully carry out its obligations. The petition should contain 

specific reasons why the appellants believe that the agency has not fully carried 

out its obligations, and should include the dates and results of any 

communications with the agency. 5 C.F.R. § 1201.182(a). 
3

¶7 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 must 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 APPELLANTS REGARDING

YOUR RIGHTS TO REQUEST

ATTORNEY FEES AND COSTS

You may be entitled to be paid by the agency for your reasonable attorney 

fees and costs. To be paid, you must meet the requirements set out at title 5 of 

the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The 

regulations may be found at 5 C.F.R. § 1201.202. If you believe you meet these 

requirements, you must file a motion for attorney fees WITHIN 60 CALENDAR 

DAYS OF THE DATE OF THIS DECISION. You must file your attorney fees 

motion with the office that issued the initial decision on your appeal. 

NOTICE TO APPELLANTS MORROW AND ESPARZA REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request further review of the final decision.

Discrimination Claims: Administrative Review

You may request review of the final decision on your discrimination claims 

by the Equal Employment Opportunity Commission (EEOC). Title 5 of the 

United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you submit 

your request 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
4

If you submit your request 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, NE

Suite 5SW12G

Washington, D.C. 20507

You should send your request to EEOC no later than 30 calendar days after 

your receipt of this order. If you have a representative in this case, and your 

representative receives this order before you do, then you must file with EEOC no 

later than 30 calendar days after receipt by your representative. If you choose to 

file, be very careful to file on time.

Discrimination and Other Claims: Judicial Action

If you do not request EEOC to review this final decision on your 

discrimination claims, you may file a civil action against the agency on both your 

discrimination claims and your other claims in an appropriate U.S. district court. 

See 5 U.S.C. § 7703(b)(2). You must file your civil action with the district court 

no later than 30 calendar days after your receipt of this order. If you have a 

representative in this case, and your representative receives this order before you 

do, then you must file with the district court no later than 30 calendar days after 

receipt by your representative. If you choose to file, be very careful to file on 

time. 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. § 2000e5(f); 29 U.S.C. § 794a.
5

NOTICE TO THE REMAINING APPELLANTS REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of the final decision by the U.S. Court 

of Appeals for the Federal Circuit. You must submit your request to the court at 

the following address:

United States Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, DC 20439

The court must receive your request for review no later than 60 calendar days 

after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27, 

2012). If you choose to file, be very careful to file on time. The court has held 

that normally it does not have the authority to waive this statutory deadline and 

that filings that do not comply with the deadline must be dismissed. See Pinat v. 

Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).

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

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

title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. Dec. 

27, 2012). You may read this law as well as other sections of the United States 

Code, at our website, http://www.mspb.gov/appeals/uscode/htm. Additional 

information is available at the court’s website, www.cafc.uscourts.gov. Of 

particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” 

which is contained within the court’s Rules of Practice, and Forms 5, 6, and 11. 

If you are interested in securing pro bono representation for 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
6

Merit Systems Protection Board neither endorses the services provided by any 

attorney nor warrants that any attorney will accept representation in a given case. 

FOR THE BOARD:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board
7

DFAS CHECKLIST

INFORMATION REQUIRED BY DFAS IN 

ORDER TO PROCESS PAYMENTS AGREED 

UPON IN SETTLEMENT CASES OR AS 

ORDERED BY THE MERIT SYSTEMS 

PROTECTION BOARD

AS CHECKLIST: INFORMATION REQUIRED BY IN ORDER TO PROCESS PAYMENTS AGREED UPON IN SETTLEMENT 

CASES 

CIVILIAN PERSONNEL OFFICE MUST NOTIFY CIVILIAN PAYROLL 

OFFICE VIA COMMAND LETTER WITH THE FOLLOWING:

1. Statement if Unemployment Benefits are to be deducted, with dollar amount, address 

and POC to send.

2. Statement that employee was counseled concerning Health Benefits and TSP and the 

election forms if necessary.

3. Statement concerning entitlement to overtime, night differential, shift premium, 

Sunday Premium, etc, with number of hours and dates for each entitlement.

4. If Back Pay Settlement was prior to conversion to DCPS (Defense Civilian Pay 

System), a statement certifying any lump sum payment with number of hours and 

amount paid and/or any severance pay that was paid with dollar amount.

5. Statement if interest is payable with beginning date of accrual.

6. Corrected Time and Attendance if applicable.

ATTACHMENTS TO THE LETTER SHOULD BE AS FOLLOWS:

1. Copy of Settlement Agreement and/or the MSPB Order. 

2. Corrected or cancelled SF 50's. 

3. Election forms for Health Benefits and/or TSP if applicable.

4. Statement certified to be accurate by the employee which includes: 

 a. Outside earnings with copies of W2's or statement from employer.

b. Statement that employee was ready, willing and able to work during the period. 

c. Statement of erroneous payments employee received such as; lump sum leave, severance 

pay, VERA/VSIP, retirement annuity payments (if applicable) and if employee withdrew 

Retirement Funds.

5. If employee was unable to work during any or part of the period involved, certification of the 

type of leave to be charged and number of hours.
8

NATIONAL FINANCE CENTER CHECKLIST FOR BACK PAY CASES

Below is the information/documentation required by National Finance Center to process 

payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as 

ordered by the Merit Systems Protection Board, EEOC, and courts. 

1. Initiate and submit AD-343 (Payroll/Action Request) with clear and concise 

information describing what to do in accordance with decision. 

2. The following information must be included on AD-343 for Restoration: 

 a. Employee name and social security number. 

 b. Detailed explanation of request. 

 c. Valid agency accounting. 

 d. Authorized signature (Table 63) 

 e. If interest is to be included. 

 f. Check mailing address. 

 g. Indicate if case is prior to conversion. Computations must be attached. 

 h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to 

be collected. (if applicable) 

Attachments to AD-343 

1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday 

Premium, etc. with number of hours and dates for each entitlement. (if applicable) 

2. Copies of SF-50's (Personnel Actions) or list of salary adjustments/changes and 

amounts. 

3. Outside earnings documentation statement from agency. 

4. If employee received retirement annuity or unemployment, provide amount and address 

to return monies. 

5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)

6. If employee was unable to work during any or part of the period involved, certification of 

the type of leave to be charged and number of hours.

7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual 

Leave to be paid.

NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay 

Period and required data in 1-7 above. 

The following information must be included on AD-343 for Settlement Cases: (Lump 

Sum Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.) 

 a. Must provide same data as in 2, a-g above. 

 b. Prior to conversion computation must be provided. 

 c. Lump Sum amount of Settlement, and if taxable or non-taxable. 

If you have any questions or require clarification on the above, please contact NFC’s 

Payroll/Personnel Operations at 504-255-4630. 
9

APPENDIX A

 

CORPS OF ENGINEERS/SOUTH PACIFIC DIVISION

SF-0752-14-0285-I-1

 

 

Anna E. Lopez SF-0752-13-2147-I-1

Betty J. Melendrez SF-0752-13-4486-I-1

Beverly A. Patterson SF-0752-13-4346-I-1

Bruce A. Petrie SF-0752-13-1254-I-1

Carleton P. Fong SF-0752-13-0852-I-1

Deborah M. Biziewski SF-0752-13-1188-I-1

Debra A. Flores SF-0752-13-2082-I-1

Destani M. Hobbs SF-0752-13-1168-I-1

Frederick A. Martin SF-0752-13-2621-I-1

Hyland B. Morrow SF-0752-13-3961-I-1

Janet A. Lynch SF-0752-13-2627-I-1

Janis E. Hulla SF-0752-13-1814-I-1

John Esparza SF-0752-13-0712-I-1

Judy Y. Fong SF-0752-13-1096-I-1

Kataneh Shojaie SF-0752-13-4386-I-1

Kathryn R. Comeau SF-0752-13-2221-I-1

Keiko K. Wilson SF-0752-13-1797-I-1

Linda M. Reyes SF-0752-13-3971-I-1

Marc Sydow SF-0752-13-1781-I-1

May Okuhara SF-0752-13-0832-I-1

Pamela A. Wehrmann SF-0752-13-2403-I-1

R. Curtis Payton SF-0752-13-2141-I-1

Remona R. Aden SF-0752-13-4631-I-1

Rene McGaugh SF-0752-13-2197-I-1
10

Robert Bastian SF-0752-13-1081-I-1

Robert L. Caputo SF-0752-13-4563-I-1

Robert W. Colangelo SF-0752-13-1807-I-1

Russell K. Thorne SF-0752-13-2219-I-1

Theresa A. Gneiting-James SF-0752-13-4792-I-1

Theresa M. Kaplan SF-0752-13-1732-I-1

Thomas J. Field SF-0752-13-4341-I-1