UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

MICHELLE GARCIA,

Appellant,

v.

GENERAL SERVICES 

ADMINISTRATION,

Agency.

DOCKET NUMBER

NY-1221-14-0194-W-1

DATE: July 12, 2016

Jesse Rose, Astoria, New York, for the appellant.

Nicole Ludwig, Esquire, New York, New York, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

ORDER

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

granted the appellant’s request for corrective action upon a finding of 

whistleblower reprisal. 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 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: 
2

¶3 The agency must noncompetitively convert the appellant’s appointment—

retroactive to January 28, 2014—to the competitive service position to which she 

would have been assigned under 5 C.F.R. § 362.204 had Mr. H. made the 

conversion at that time.

¶4 The agency must 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. The 

appellant 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 the Board’s Order. If there is 

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

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

days after the date of this decision. 

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

has fully carried out the Board’s Order and of the actions it took to carry out the 

Board’s Order. The appellant, if not notified, should ask the agency about its 

progress. See 5 C.F.R. § 1201.181(b). 

¶6 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).

¶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 
3

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 CONSEQUENTIAL 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 

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). 

If you believe you meet these requirements, 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 then 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), 

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

NOTICE TO THE APPELLANT 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: 
4

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 want to request review of the Board’s decision concerning your 

claims of prohibited personnel practices under 5 U.S.C. § 2302(b)(8), 

(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge 

the Board’s disposition of any other claims of prohibited personnel practices, you 

may request review of the final decision by the U.S. Court of Appeals for the 

Federal Circuit or any court of appeals of competent jurisdiction. The court of 

appeals must receive your petition for review within 60 days after the date of this 

order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If you chose to 

file, be very careful to file on time. You may choose to request review of the 

Board’s decision in the U.S. Court of Appeals for the Federal Circuit or any other 

court of appeals of competent jurisdiction, but not both. Once you choose to seek 

review in one court of appeals, you may be precluded from seeking review in any 

other court. 

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 
5

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 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.

______________________________

Jennifer Everling

Acting Clerk of the Board
DFAS CHECKLIST

INFORMATION REQUIRED BY DFAS IN 

ORDER TO PROCESS PAYMENTS AGREED 

UPON IN SETTLEMENT CASES OR AS 

ORDERED BY THE MERIT SYSTEMS 

PROTECTION BOARD

AS CHECKLIST: INFORMATION REQUIRED 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.
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.