UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

MATHEW HAUPT,

Appellant,

v.

DEPARTMENT OF DEFENSE,

Agency.

DOCKET NUMBER

DE-0752-21-0040-I-1

DATE: August 21, 2023

THIS FINAL ORDER IS NONPRECEDENTIAL1

Aaron Gragg, Fort Huachuca, Arizona, for the appellant.

Brandon Roby, Esquire, Fort Meade, Maryland, 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

reversed the appellant’s indefinite suspension. Generally, we grant petitions such 

as this one only in the following circumstances: the initial decision contains 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

erroneous findings of material fact; the initial decision is based on an erroneous 

interpretation of statute or regulation or the erroneous application of the law to 

the facts of the case; the administrative judge’s rulings during either the course of 

the appeal or the initial decision were not consistent with required procedures or 

involved an abuse of discretion, and the resulting error affected the outcome of 

the case; or new and material evidence or legal argument is available that, despite 

the petitioner’s due diligence, was not available when the record closed. Title 5 

of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). 

After fully considering the filings in this appeal, we conclude that the petitioner 

has not established any basis under section 1201.115 for granting the petition for 

review. Therefore, we DENY the petition for review and AFFIRM the initial 

decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). 

¶2 At all times relevant to this appeal, the appellant held the position of 

Operations Research Analyst with the Department of Defense (DOD), Defense 

Information Systems Agency (DISA). Initial Appeal File (IAF), Tab 1 at 1. The 

position required that he obtain and maintain a security clearance. E.g., IAF, 

Tab 28 at 5, Tab 29 at 14, 19, 22. 

¶3 In July 2020, the appellant plead guilty to a drug-related felony in an 

Arizona court—attempted possession of mushrooms. IAF, Tab 28 at 9, Tab 29 

at 33. Soon thereafter, DISA proposed the suspension of his access to classified 

information. IAF, Tab 28 at 9, Tab 29 at 33-34. After a period in which the 

appellant submitted a response, DISA issued an August 2020 decision to suspend 

his access to classified information and occupancy of a sensitive position. IAF, 

Tab 28 at 9, Tab 29 at 35-36. 

¶4 Days later, the agency proposed the appellant’s indefinite suspension from 

service, “based on the suspension of [his] access to classified information.” IAF, 

Tab 29 at 37-38. The accompanying specification stated that “[a]ll DISA 

employees are required to maintain the ability to access classified information as 

part of their duties” and “the DISA Security Office . . . suspended your access to 
3

classified information pending the final adjudication of your security clearance by 

the DOD [Consolidated Adjudications Facility] CAF.” Id. at 37. Following 

another response period, the agency issued its decision to indefinitely suspend the 

appellant, effective October 2020. IAF, Tab 28 at 9, Tab 29 at 96-98.

¶5 The appellant filed the instant appeal to challenge his indefinite suspension. 

IAF, Tab 30 at 1. He withdrew his hearing request and requested a decision on 

the written record. IAF, Tabs 32-33. The administrative judge reversed the 

action, finding that the agency failed to meet its burden of proof. IAF, Tab 37, 

Initial Decision (ID) at 4-12. He also considered but found no merit to the 

appellant’s harmful error and due process claims. ID at 12-16.

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

Tab 1. The appellant has filed a response and the agency has replied. PFR File, 

Tabs 3, 5.2

The administrative judge properly found that the agency failed to meet its burden.

¶7 An indefinite suspension lasting more than 14 days is an adverse action 

appealable to the Board under 5 U.S.C. § 7513(d). 5 U.S.C. § 7512(2); Palafox v. 

Department of the Navy, 124 M.S.P.R. 54, ¶ 8 (2016). An agency may 

indefinitely suspend an appellant when his access to classified information has 

been suspended and he needs such access to perform his job. Palafox, 

124 M.S.P.R. 54, ¶ 8. In such a case, the Board lacks the authority to review the 

 

2 After the parties’ petition, response, and reply, the appellant filed several additional 

pleadings, PFR File, Tabs 6, 7, 9, 12-13, 15, 17, to which the agency responded, PFR 

File, Tabs 11, 14, 16. The appellant’s additional pleadings appoint a representative and 

request that we either dismiss the agency’s petition for failing to meet its interim relief 

obligations or enforce the administrative judge’s interim relief order. E.g., IAF, Tab 7 

at 4-5, Tab 9 at 4-5, Tab 12 at 7-9, Tab 17 at 7. Because we find no reason to grant the 

agency’s petition for review, the timeliness and merits of the appellant’s arguments 

about interim relief are hereby rendered moot. See, e.g., Elder v. Department of the Air 

Force, 124 M.S.P.R. 12, ¶ 20 (2016) (finding that any dispute over the agency’s 

compliance with the interim relief order was moot upon issuance of the Board’s final 

decision finding that the agency’s petition did not meet the criteria for review).
4

merits of the decision to suspend access. Palafox, 124 M.S.P.R. 54, ¶ 8. 

However, the Board retains the authority to review whether (1) the appellant’s 

position required access to classified information; (2) the appellant’s access to 

classified information was suspended; and (3) the appellant was provided with the 

procedural protections specified in 5 U.S.C. § 7513.

3

 Palafox, 124 M.S.P.R. 54, 

¶ 8. The Board also has the authority under 5 U.S.C. § 7701(c)(2)(A) to review 

whether the agency provided the procedural protections required under its own 

regulations. Palafox, 124 M.S.P.R. 54, ¶ 8. Additionally, because a tenured 

Federal employee has a property interest in continued employment, the Board 

may consider whether the agency provided minimum due process in taking the 

indefinite suspension action. Palafox, 124 M.S.P.R. 54, ¶ 8.

¶8 In this case, the only element in dispute on review is the first—whether the 

appellant’s position required the “access to classified information” the agency 

relied upon for its indefinite suspension. Although the appellant conceded that 

his position requires a security clearance, e.g., IAF, Tab 28 at 5, the appellant 

indicated that his position does not require “access to classified information.” 

IAF, Tab 28 at 5, Tab 31 at 4, Tab 35 at 4-5. Among other things, he explained 

that “access to classified information” was not a condition listed in his hiring or 

onboarding documents. IAF, Tab 28 at 5, Tab 31 at 4, Tab 35 at 5. The appellant 

also indicated that he was “functioning in [his] position perfectly well [], even 

teleworking from home over an unclassified network[,] as were the majority of 

 

3

In some other cases, the Board has utilized a similar standard that refers to the 

employee’s security clearance, rather than their access to classified information. See 

Rogers v. Department of Defense, 122 M.S.P.R. 671, ¶ 5 (2015) (indicating that the 

Board will generally only review whether: (1) the employee’s position required a 

security clearance; (2) the clearance was denied, revoked, or suspended; and (3) the 

employee was provided with the procedural protections specified in 5 U.S.C. § 7313); 

Grimes v. Department of Justice, 122 M.S.P.R. 36, ¶ 7 (2014) (same). Because the 

indefinite suspension action before us was based on the appellant’s suspended access to 

classified information, rather than a suspended security clearance, the Palafox standard 

is the more appropriate one.
5

DISA Personnel,” without access to classified information, before the agency 

acted to suspend his access to classified information. IAF, Tab 35 at 4. 

According to the appellant, he lacked the means to access classified information 

before the suspension of his access to classified information because his 

“SIPRNet” token had “long expired” from a lack of use. IAF, Tab 31 at 4, Tab 35 

at 4.

¶9 After considering the parties’ competing arguments and evidence on this 

point, the administrative judge found that the agency’s charge failed because 

although the appellant’s position required a security clearance, the agency did not 

prove that his position required a favorable “access” determination. ID at 4-12. 

In doing so, he recognized and in part relied upon the distinction between the 

appellant’s “eligibility for access to classified information,” which would be 

decided by CAF, and the appellant’s “access to classified information,” which 

was decided by DISA. Id.

CAF decision

¶10 On review, the agency has directed us to a January 2021 letter, where CAF 

indicated that it was preliminarily revoking the appellant’s eligibility for access 

to classified information. PFR File, Tab 1 at 5-6 (referencing IAF, Tab 29 

at 106-11). According to the agency, the administrative judge “completely 

ignored” that fact in the initial decision. Id. The agency seems to imply that we 

should uphold the appellant’s November 2020 indefinite suspension because his 

eligibility for access to classified information was preliminarily revoked in 

January 2021. Id.

¶11 We disagree. First, the administrative judge did not ignore this evidence; 

he cited and discussed the CAF letter while considering the distinction between 

the appellant’s eligibility for access to classified information and his access to 

classified information. ID at 6 n.3. Second, the Board is required to adjudicate 

an adverse action solely on the grounds invoked by the agency, which, in this 

case, concerned DISA’s August 2020 suspension of the appellant’s “access to 
6

classified information,” not CAF’s January 2021 decision as to the appellant’s 

“eligibility for access to classified information.” IAF, Tab 29 at 96, 106; see 

Gamboa v. Department of the Air Force, 120 M.S.P.R. 594, ¶ 7 (2014) 

(recognizing that the Board is required to adjudicate an adverse action solely on 

the grounds invoked by the agency and may not substitute what it considers to be 

a more appropriate charge). For the same reason, the agency’s related arguments 

about the administrative judge construing its charge too narrowly by focusing on 

the “access” requirement are unavailing. PFR File, Tab 1 at 19-20.

Proposing and deciding officials’ sworn statements 

¶12 The agency’s next arguments concern the sworn statements it presented 

from the proposing and deciding officials regarding any “access to classified 

information” requirement for his position. PFR File, Tab 1 at 6-8; IAF, Tab 34 

at 5-9. Both indicated that all DISA positions, including the appellant’s, required 

a security clearance and access to classified information. IAF, Tab 34 at 5-9.

¶13 The administrative judge did not find these statements persuasive. ID at 6, 

10-11. He observed that they both contained some identical language, including 

specific references to “DISA Instruction 240-220-36,” as they asserted all DISA 

positions required a current security clearance. ID at 6 & n.3; IAF, Tab 34 at 5 -6. 

Yet neither referenced any source as they asserted that the appellant’s position 

and all others within DISA required access to classified information. ID at 10-11; 

IAF, Tab 34 at 5-7. The administrative judge next noted that the declarations 

were post-hoc and specifically prepared for adjudication of this appeal. ID at 11; 

IAF, Tab 34 at 5-9. Finally, he found that the probative value of the declarations 

was diminished by an inaccuracy they both contained—the officials’ reference to 

“DISA Instruction 240-220-36” was erroneous. ID at 6, n.4 & 11; compare IAF, 

Tab 34 at 5-7 (proposing and deciding officials’ sworn statements, referencing 

“DISA Instruction 240-220-36”), with IAF, Tab 29 at 22-27 (agency document 

titled “DISA Instruction 240-110-36”), Tab 36 at 4 (agency representative’s 

unsworn assertion that the references to 240-220-36, rather than 240-110-36, were 
7

mistaken). Also of note, the administrative judge indicated that he was not 

concerned about the officials’ making their sworn statements in bad faith; he 

explained that they may sincerely but mistakenly believe that the appellant’s 

position required access to classified information. ID at 12 n.8. 

¶14 On review, the agency challenges the administrative judge’s findings about 

these sworn statements. PFR File, Tab 1 at 6-8. As further detailed below, we do 

not find the agency’s arguments persuasive and we instead agree with the 

administrative judge’s skepticism of the statements upon which the agency relies.

¶15 The agency first asserts that, although the administrative judge 

characterized the proposing and deciding officials’ sworn statements as post-hoc 

and prepared specifically for this litigation, that was the inevitable result of the 

appellant withdrawing his request for a hearing; the same officials would have 

testified if the hearing had occurred. PFR File, Tab 1 at 6. We acknowledge and 

appreciate the practical impact of the appellant withdrawing his request for 

hearing. But it was the agency’s burden to prove its charge. See, e.g., Rogers v. 

Department of Defense, 122 M.S.P.R. 671, ¶¶ 2, 6 (2015) (finding that an agency 

proved its charge, which was based on the suspension of access to classified 

information); Gamboa, 120 M.S.P.R. 594, ¶ 11 (finding that the agency did not 

prove its charge, which was based on the failure to maintain a security clearance 

as a condition of employment). Here, the agency failed to present any persuasive 

evidence that predated this litigation to support its allegation that the appellant’s 

position required access to classified information. And the evidence specifically 

prepared for this litigation contains several shortcomings about the disputed 

issue, despite being specifically created to address the matter. Compare IAF, 

Tab 1 at 5 (appellant raising this issue in his initial pleading), with IAF, Tab 34 

at 5-9 (agency’s sworn statements, made months later, for purposes of this 

litigation).

¶16 The agency next argues that the sworn statements about the appellant’s 

position requiring access to classified information are bolstered by the same 
8

officials’ similar assertions within their proposal and decision letters. PFR File, 

Tab 1 at 7 (referencing IAF, Tab 29 at 37, 96). But the proposal and decision 

letters are hardly persuasive evidence of allegations contained within. E.g.,

Gamboa, 120 M.S.P.R. 594, ¶ 9 (finding that documents created as part of 

adjudicatory processes, years after an employee was appointed, did not constitute 

preponderant evidence that the agency imposed a security clearance requirement 

at the time of appointment or any other time before the agency took action to 

revoke the clearance and remove him). Plus, we agree with the administrative 

judge’s explanation that these officials may very well have a good faith but 

mistaken belief that all DISA positions require access to classified information. 

We therefore find that these officials’ statements that the appellant’s position 

required access to classified information on two occasions, rather than one, is of 

limited value. 

¶17 Next, the agency argues that the proposing and deciding officials’ assertion 

about access to classified information is consistent with DISA Instruction 

240-110-36 and its indication that all DISA positions are at least “noncritical 

sensitive” and require at least a “secret” level security clearance. PFR File, Tab 1 

at 7 (referencing IAF, Tab 29 at 22-27). However, the agency’s implication that 

these concepts are altogether indistinguishable is unavailing. See Gamboa, 

120 M.S.P.R. 594, ¶ 7 (recognizing that not all sensitive positions require a 

security clearance or entail access to classified information).

¶18 The agency also argues that the sworn statements were made by officials 

who were most qualified to know about the appellant’s position and its 

requirements—the proposing official, who was the appellant’s first-line 

supervisor, and the deciding official, who was the person specifically authorized 

to manage the personnel security program. PFR File, Tab 1 at 7-8. We recognize 

and appreciate the nature of these individuals’ positions. But both inaccurately 

described the underpinnings of the appellant’s security clearance requirement. 

IAF, Tab 34 at 5-6; supra ¶ 15. And neither could definitively describe the level 
9

of clearance the appellant required. They instead described their “understanding” 

as to that issue, which further calls into question the degree to which they 

considered or knew about the requirements of the appellant’s position. Compare

IAF, Tab 34 at 5-6 (agency’s sworn statements about the level of clearance 

required), with IAF, Tab 29 at 14, 19 (appellant’s position description, explicitly 

describing the level of clearance required). Also of note, neither sworn statement 

contains any particularized explanation about the appellant’s position or duties in 

terms of access to classified information. They instead used similar language, 

indicating that “all DISA employees are required to maintain access to classified 

information as part of their duties” and “there are no positions at the Agency for 

which the maintenance of access to classified information is not required.” IAF, 

Tab 34 at 5-7. The absence of any further explanation is especially glaring, given 

the appellant’s repeated assertions that his position did not require access to 

classified information, and he had no means to access classified information, even 

before DISA officially suspended his access. E.g., IAF, Tab 31 at 4, Tab 35 

at 4-5.

¶19 For all these reasons, we are unmoved by the agency’s arguments about the 

persuasiveness of the proposing and deciding officials’ sworn statements.

Appellant’s nondisclosure agreement

¶20 In another argument, the agency asserts that the administrative judge 

ignored another piece of evidence regarding its burden of proving that the 

appellant’s position required access to classified information—a “Classified 

Information Nondisclosure Agreement” signed by the appellant. PFR File, Tab 1 

at 8, 14 (referencing IAF, Tab 29 at 128-29). However, an administrative judge’s 

failure to mention all the evidence of record does not mean that he did not 

consider it in reaching his decision. E.g., Marques v. Department of Health and

Human Services, 22 M.S.P.R. 129, 132 (1984), aff’d, 776 F.2d 1062 (Fed. Cir. 

1985) (Table). More importantly, the agency has overstated the significance of 

this evidence. The agency points us to a provision which states, “I hereby accept 
10

the obligations contained in this Agreement in consideration of my being granted 

access to classified information.” PFR File, Tab 1 at 8; IAF, Tab 29 at 128. The 

agency suggests that this provision shows that access to classified information 

was a requirement of the appellant’s position. PFR File, Tab 1 at 8; IAF, Tab 29 

at 128. We disagree. The referenced provision and remainder of the agreement 

show that the appellant agreed to certain conditions before the agency would give 

him access to classified information; it does not show that his position required 

that access to classified information.

¶21 To conclude, the appellant consistently asserted that although his position 

did require a security clearance, it did not require the “access to classified 

information” the agency cited to indefinitely suspend him from service. The 

agency argued otherwise. However, the little evidence the agency relied upon to 

support its stance is not persuasive. Accordingly, we agree with the 

administrative judge’s determination that the agency failed to satisfy its burden of 

proof.

We will not consider the agency’s new argument that “access to classified 

information” was a prerequisite to the “security clearance” required by the 

appellant’s position. 

¶22 Within its petition for review, the agency has also included another 

argument that is distinct from those already discussed. It concerns the relation 

between the appellant’s “security clearance,” his “eligibility for access to 

classified information,” and his “access to classified information.” PFR File, 

Tab 1 at 11-14. The agency asserts that the appellant’s position requires a 

security clearance that, in turn, requires both eligibility for access to classified 

information and access to classified information. Id. Put another way, the 

agency is arguing that, without the “access to classified information” that was 
11

suspended and relied upon for his indefinite suspension, the appellant is not 

holding the “security clearance” his position required. 4 Id. 

¶23 The Board will not ordinarily consider an argument raised for the first time 

in a petition for review absent a showing that it is based on new and material 

evidence not previously available despite the party’s due diligence. Banks v. 

Department of the Air Force, 4 M.S.P.R. 268, 271 (1980). With that in mind, we 

find that this argument about the appellant’s access to classified information 

being a requirement of his security clearance was not one that the agency clearly 

articulated before the administrative judge. We will illustrate with a few 

examples. First, in its initial arguments, the agency asserted that the “appellant’s 

position requires a security clearance which allows him access to classified 

information.” IAF, Tab 4 at 7. That suggests that the security clearance allows 

for access, rather than access being a prerequisite for the security clearance. This 

pleading also argued that the appellant’s position requires “a security clearance 

and access to classified information,” which suggests that the two are different

requirements, rather than ones in which the former cannot be held or maintained 

without the latter. Id. at 12-13. 

¶24 In a subsequent prehearing statement, the agency repeatedly cited evidence 

to indicate that the appellant’s position required a security clearance, but it 

summarily stated, without citation or explanation, that the position required “a 

security clearance and/or access to classified information.” IAF, Tab 29 at 6. 

The agency then submitted the two sworn statements discussed above, but they 

are similarly devoid of any indication that “access to classified information” is a 

prerequisite for the “security clearance” his position required. IAF, Tab 34 

 

4

This argument directly contradicts another within the agency’s petition. While 

discussing the significance of the CAF decision, which was rendered after the appellant 

filed this appeal but before the initial decision, the agency stated that “it is true that 

appellant had a clearance when he filed this appeal.” PFR File, Tab 1 at 5-6. The 

agency has not explained this contradiction.
12

at 5-9. We found nothing in the agency’s arguments below to assert or even 

suggest that the appellant could not maintain his required “security clearance” if 

he lacked “access to classified information.”

¶25 For these reasons, we find that this argument—that “access to classified 

information” is functionally equivalent to a “security clearance” for purposes of 

this appeal—is a new one that we will not consider for the first time on review.

The agency’s remaining arguments are unavailing.

¶26 The agency has presented a number of other arguments or assertions that do 

not neatly fit within one of the categories already addressed. We have considered 

each, and will explicitly address a few, but do not find that any require a different 

result.

¶27 The agency asserts that the administrative judge’s initial decision in this 

appeal is inconsistent with his initial decision in a separate but factually similar 

appeal involving a different appellant. PFR File, Tab 1 at 9-10. Several of the 

agency’s other arguments rely on the initial decisions of other administrative 

judges. Id. at 15-18. However, the Board is not bound by initial decisions, and 

they have no precedential effect, so we will not address these arguments any 

further. Special Counsel v. Greiner, 117 M.S.P.R. 117, ¶ 11 n.5 (2011).

¶28 The agency’s petition also points out that the administrative judge 

“independently” relied, in part, on provisions from the DOD manual as he 

reversed the agency’s action, even though the appellant’s arguments did not. PFR 

File, Tab 1 at 10-11. To the extent that the agency is implying that it was 

improper for the administrative judge to consider the agency’s evidence to 

determine whether the agency met its burden of proof, without specific prompting 

by the pro se appellant, the agency is incorrect. 

¶29 In another portion of its petition, the agency states that the question in 

dispute in this appeal “is not whether or not the agency has the ability to grant 

access or eligibility, but whether the agency has the ability to revoke or suspend 

it.” Id. at 11. But that is not the question in dispute. The question in dispute is 
13

whether the agency proved the elements of its charge—including proof that the 

appellant’s position required access to classified information. Supra ¶ 7.

¶30 The agency has also asserted that this decision and that of the 

administrative judge are effectively expanding the Board’s review of cases such 

as this, in contravention of binding precedent about the limitation of our 

authority. PFR File, Tab 1 at 19-20. We disagree. The Board’s authority in 

cases such as this is limited. Among other things, the Board may not review the 

merits of an underlying security clearance determination, Department of the Navy 

v. Egan, 484 U.S. 518, 530-31 (1988), an agency’s “judgment that the position 

itself requires the clearance,” Skees v. Department of the Navy, 864 F.2d 1576, 

1578 (Fed. Cir. 1989), or an agency’s determination concerning an individual’s 

eligibility for a “sensitive” position, Kaplan v. Conyers, 733 F.3d 1148, 1155 

(Fed. Cir. 2013). Here, though, we are simply holding the agency responsible for 

proving what it has alleged—that the appellant’s position required “access to 

classified information.” This decision does not constitute a judgment as to the 

propriety of any such requirement.

¶31 Finally, we note that the agency’s petition argues that the administrative 

judge lacked the authority to reinstate the appellant because of the CAF decision 

regarding his eligibility for access to classified information that was issued in 

January 2021, while this appeal was pending. PFR File, Tab 1 at 25-27; see 

supra ¶ 10. However, in the time that has passed since the agency made that 

argument in its petition for review, the appellant has resigned. He did so as part 

of a settlement agreement stemming from a separate Board appeal that arose out 

of a new indefinite suspension the agency imposed after the one at issue in this 

appeal. See Haupt v. Department of Defense, MSPB Docket No. DE-0752-22-

0066-I-1, Initial Appeal File, Tab 36 at 6, Tab 37. Accordingly, the appellant’s 

duty status for the period following the CAF decision is moot.
14

ORDER

¶32 We ORDER the agency to CANCEL the appellant’s indefinite suspension, 

which was effective October 7, 2020. 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.

¶33 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. 

¶34 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). 

¶35 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).

¶36 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 
15

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 RIGHTS5

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 

 

5

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.
16

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 

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. 
17

(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: 
18

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.6 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). 

 

6

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. 
19

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:

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.