UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

ANTONIO LAMAR SINCLAIR,

Appellant,

v.

DEPARTMENT OF THE AIR FORCE,

Agency.

DOCKET NUMBER

AT-0752-16-0376-I-1

DATE: July 22, 2022

THIS FINAL ORDER IS NONPRECEDENTIAL1

David C. Jones, Warner Robins, Georgia, for the appellant.

Biron Ross, Warner Robins, Georgia, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

FINAL ORDER

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

mitigated the appellant’s removal to a 5-day suspension. Generally, we grant 

petitions such as this one only in the following circumstances: the initial decision 

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

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

BACKGROUND

¶2 The appellant was employed as a GS-07 Production Support Technician at

Robins Air Force Base (Robins AFB), Georgia. Initial Appeal File (IAF), Tab 6 

at 18. On August 7, 2015, the agency proposed to suspend him for 5 calendar 

days based on charges of failure to properly request leave (7 specifications), 

unauthorized absence (5 specifications), tardiness, and failure to report for 

scheduled overtime. Id. at 114-15. The agency subsequently rescinded the notice 

of proposed suspension and proposed the appellant’s removal based on the 

following six charges: (1) misuse of a Government owned vehicle (GOV); 

(2) failure to follow instructions; (3) failure to properly request leave

(10 specifications); (4) unauthorized absence (10 specifications); (5) tardiness; 

and (6) failure to report for scheduled overtime. Id. at 42-46, 113. The deciding 

official affirmed the proposed action and the appellant’s removal was effective

January 29, 2016. Id. at 18, 22-23. The appellant timely filed a Board appeal in 

which he requested a hearing and alleged that he was denied due process. IAF, 

Tab 1. 
3

¶3 After holding a hearing, the administrative judge issued an initial decision 

mitigating the removal action to a 5-day suspension. IAF, Tab 33, Initial 

Decision (ID) at 1, 17. She found that the agency proved only three of its six 

charges. ID at 2-14. Regarding the charge of misuse of a GOV, she found that 

the agency failed to prove that the appellant willfully, deliberately, or negligently 

misused a GOV, and thus failed to prove the charge. ID at 2-7. In particular, she 

found that the appellant’s nonofficial use of the GOV to drive one mile to his 

home to change clothes he had soiled due to incontinence, with the intent to 

return to continue to perform his duties, fell within the minor personal use 

exception. ID at 6. She also found that the agency did not meet its burden of 

proving that the appellant failed to follow instructions to report that his driver’s 

license had been suspended because he established that he did not know of the 

suspension earlier than when it was reported to the agency. ID at 7. The 

administrative judge sustained the failure to properly request leave charge but 

found that the agency proved only 5 of the 10 specifications underlying the 

charge. ID at 8-10. She also sustained the unauthorized absence charge, but 

sustained only two and a half of the specifications underlying the charge. ID 

at 10-13. The administrative judge did not sustain the tardiness charge but found 

that the agency proved the charge of failing to report for overtime. ID at 13-14. 

She further found that the appellant failed to prove that the agency denied him 

due process. ID at 14-15. Finally, she found that the agency failed to prove that 

the penalty of removal was within the bounds of reasonableness for the sustained 

charges, and she mitigated the penalty to a 5-day suspension. ID at 15-17. She 

ordered interim relief. ID at 18.

¶4 The agency has petitioned for review. Petition for Review (PFR) File, 

Tab 1. In its petition, the agency argues that it proved that the appellant willfully 

and negligently misused a GOV. Id. at 9-13. The agency asserts that, under the 

circumstances, the administrative judge erred in applying the minor personal use 

exception to the appellant’s use of a GOV. Id. Regarding the charge of failure to 
4

follow instructions, the agency asserts that the administrative judge erred in 

finding that the appellant credibly testified that he did not report the suspension

of his driver’s license because he was unaware that it had been suspended. Id.

at 13-15. The agency also argues that the administrative judge applied an 

incorrect legal standard in assessing this charge. Id. Additionally, the agency 

contends that the administrative judge erred in finding that it did not prove some 

of the specifications under the charges of unauthorized absence and failure to 

properly request leave. Id. at 16-24. The agency argues, moreover, that the 

administrative judge misapplied the law in finding that the agency failed to prove 

its tardiness charge. Id. at 23-24. The appellant has filed what appears to be a 

request that the agency comply with the administrative judge’s interim relief

order by issuing him a card that would give him access to his personal records 

and allow him to use base facilities such as the Child Development Center and the 

base exchange. PFR File, Tab 3. 

DISCUSSION OF ARGUMENTS ON REVIEW

The administrative judge properly found that the agency failed to prove misuse of 

a GOV.

¶5 The agency provided the following specification in support of this charge:

On 19 September 2015, your supervisor, [D.H.] was notified by a 

Warner Robins Police Officer that you had been apprehended due to 

an outstanding warrant for your arrest at an off base location. At the 

time you were apprehended you were driving government owned 

vehicle # AF06B00642. You did not have permission to drive the 

government owned vehicle off of Robins Air Force Base. This is a 

violation of Air Force Instruction (AFI) 24-301, Transportation, 

Vehicle Operations, dated 1 November 2008, Chapter 3, 

[paragraph] 3.1, and in violation of WR-ALC Operating Instruction 

24-2, Management and Use of Vehicles, dated 1 October 2015, 

Chapter 2, paragraph 2.6.5.

IAF, Tab 6 at 42. 

¶6 The administrative judge found that both regulatory provisions cited by the 

agency in its charge prohibit the use of GOVs for other than official use, and that 
5

AFI 24-301 provides that the penalty for negligent, willful misconduct, or 

deliberate unauthorized misuse, may result in “[s]uspension from duty . . . 

without pay, for not less than 1 month, suspension, or removal.” ID at 3; IAF, 

Tab 6 at 88. She further found that the agency’s regulation specifically refers to 

and, therefore, incorporates by reference 31 U.S.C. § 1344, to which 31 U.S.C. 

§ 1349(b) relates. ID at 4-5. Section 1344 of title 31 sets forth certain 

circumstances under which GOVs are authorized, and section 1349(b) provides 

that those who violate section 1344 or willfully misuse a GOV for other than 

official purposes “shall be suspended without pay . . . for at least one month.” 

31 U.S.C. § 1349(b). The administrative judge therefore found that, for the 

agency to impose the statutory mandatory 30-day punishment, the agency must 

prove the “willful” misuse of the GOV. ID at 4-5.

¶7 The administrative judge also acknowledged, however, that the agency’s 

regulation regarding misuse of a GOV is broader than section 1349(b) because in 

addition to the willful and deliberate elements, it makes negligent misuse a 

violation of the regulation. ID at 5; IAF, Tab 6 at 88. She interpreted the 

agency’s regulation to mean that in the case of negligent misuse of a GOV, the 

agency could impose a suspension of less than 30 days. ID at 5. On petition for 

review, the agency does not disagree with the administrative judge’s 

interpretation of its regulations and we find no basis for doing so. Thus, in 

determining whether the agency proved that the appellant misused a GOV, we 

have considered whether it proved either willful or negligent misuse. 

¶8 To establish misuse of a GOV under section 1349(b) of title 31, the agency 

has to show that the appellant had actual knowledge that the use in question 

would be characterized as nonofficial or that he acted in reckless disregard as to 

whether the use was for nonofficial purposes. See Kimm v. Department of the 

Treasury, 61 F.3d 888, 891-92 (Fed. Cir. 1995). However, the Board will not 

sustain a charge of misuse of a GOV if the conduct at issue involved a minor 

personal use and if the vehicle was used primarily to further agency business. 
6

Fischer v. Department of the Treasury, 69 M.S.P.R. 614, 617 (1996); see D’Elia 

v. Department of the Treasury, 14 M.S.P.R. 54, 56 (1982) (finding that a stop at a 

disco on the return route to a motel while on temporary duty was minor personal 

use); Ferguson v. Department of the Army, 8 M.S.P.R. 615, 617-18 (1981) 

(finding that a stop at the employee’s residence with a GOV to pick up his own 

vehicle constituted minor personal use).

¶9 As the administrative judge found, the facts surrounding the appellant’s

misuse of a GOV charge are largely undisputed. The appellant’s supervisor 

authorized the appellant’s use of a GOV for transport to a different area of the 

base so that the appellant could check equipment for the agency’s annual 

inventory. IAF, Tab 6 at 78. However, when the appellant arrived at the site 

where he was to conduct the inventory, he encountered stomach pains related to 

his gastrointestinal conditions and experienced a bout of diarrhea. Id. at 84. He 

went to the bathroom and determined that he needed to go home to clean up. Id. 

The administrative judge noted that the appellant testified that he was

embarrassed by his predicament and did not want to call attention to his situation. 

ID at 3. The appellant therefore drove the GOV home, a mile or less away, to 

clean up and change clothes. Id. He testified that, given the situation, he did not 

believe that his taking the vehicle a short distance to get cleaned up would be 

deemed an unauthorized use. ID at 4. 

¶10 We agree with the administrative judge that, under the unique 

circumstances of this case, the appellant’s nonofficial use of the GOV fell within 

the boundaries of the minor personal use exception. Even though the appellant 

left his official duty site to drive the short distance to his personal re sidence, he 

did so under difficult and distressing circumstances. The agency cannot have 

reasonably expected him to continue his duties in that particular state. The 

evidence reflects that the appellant did not do anything other than clean himself 

and change his clothes while at his home so that he could return and resume his 

official duties, thus using the GOV to continue conducting the inventory, the 
7

Government’s business that he was charged with performing. Given the 

appellant’s harrowing situation, and the fact that his deviation from the base in 

the GOV was short in distance and duration, and expedited Government business, 

we agree with the administrative judge that the minor personal use exception 

applies, and that the willful or deliberate misuse charge cannot be sustained. See 

Fischer, 69 M.S.P.R. at 617.

¶11 Next, to prove negligent misuse, the agency must show a failure to exercise 

the degree of care required under the particular circumstances, which a person of 

ordinary prudence in the same situation and with equal experience would not 

commit. See, e.g., Mendez v. Department of the Treasury, 88 M.S.P.R. 596, ¶ 26 

(2001). We agree with the administrative judge that, for the same reasons that the 

agency failed to prove willful misuse of a GOV, it also failed to prove negligent 

misuse. We find that the appellant exercised the degree of care required under 

the particular circumstances of this case. He used the GOV to go to his nearby 

home to change his soiled clothing so that he could quickly continue with his duty 

of conducting an inventory. We find that the appellant’s actions are not outside 

the degree of care expected of a person of ordinary prudence in the same situation 

with equal experience. Under the circumstances, we find that the appellant could 

reasonably have determined that his GOV use would promote the successful 

operation of the agency’s mission by saving considerable time in completing the 

inventory. We therefore agree with the administrative judge’s finding that the 

agency failed to prove its charge of misuse of a GOV.

The administrative judge correctly found that the agency did not establish that the 

appellant failed to follow instructions.

¶12 In support of this second charge, the agency provided the following 

specification:

On 19 September 2015, [D.H.] became aware that during 

March 2015, your state driver’s license had been suspended. You 

failed to notify [your] supervisor of your suspended state driver’s 

license and to turn in Air Force Form 2293. This is in violation of 
8

WR-ALC Operating Instruction 24-2, Management and Use of 

Vehicles, dated 1 October 2015, Chapter 2, [paragraph] 2.6.4.

IAF, Tab 6 at 42-43. 

¶13 The administrative judge found that the appellant credibly testified that he 

did not inform his supervisor of the suspension because he did not know his 

license had been suspended. ID at 7. She similarly found credible his testimony

that he had appeared in court for traffic violations, had completed all the 

court-mandated requirements, and that no one had ever informed him that his 

license had been suspended. Id. 

¶14 The agency offered no evidence to refute the appellant’s claim. The 

administrative judge noted the agency’s argument that whether the appellant 

knew his license was suspended is irrelevant because a charge of failure to follow 

instructions does not require proof of intent. Id. The administrative judge agreed 

with the agency’s statement of the law, citing Hamilton v. U.S. Postal Service,

71 M.S.P.R. 547, 555 (1996). She found, however, that although the failure-toreport charge can be sustained without the agency proving the appellant 

intentionally failed to follow instructions, the agency must nevertheless prove 

that he appellant was aware that the act that would trigger the reporting 

requirement had occurred. ID at 7. 

¶15 As the administrative judge properly found, the agency has failed to rebut 

the appellant’s credible testimony that he was not aware that his license had been 

revoked. The Board must defer to an administrative judge’s credibility 

determinations when they are based, explicitly or implicitly, on observing the 

demeanor of witnesses testifying at a hearing; the Board may overturn such 

determinations only when it has “sufficiently sound” reasons for doing so. Haebe 

v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002). The agency has 

not proven a sufficiently sound reason to overturn the administrative judge ’s

finding that the appellant testified credibly that he did not know that his license 

had been revoked. Id. 
9

¶16 Moreover, we agree with the administrative judge that, if it is true that the 

appellant did not know his license had been revoked, he could not reasonably 

have been expected to report the matter. The agency’s argument that the 

administrative judge improperly incorporated an intent requirement into the 

applicable legal standard, PFR File, Tab 1 at 13-14, constitutes mere 

disagreement with her well-reasoned findings on this issue, and therefore does not 

provide a basis for review, see Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 106 

(1997) (finding no reason to disturb the administrative judge’s findings when she 

considered the evidence as a whole, drew appropriate inferences, and made 

reasoned conclusions); Broughton v. Department of Health & Human Services, 

33 M.S.P.R. 357, 359 (1987) (same). 

The administrative judge properly found that the agency failed to prove its charge 

of tardiness.

¶17 In support of this charge, the agency provided the following specifica tion:

On 8 July 2015, from 0700 to 0900, you were absent, without 

authorization, from 559 AMXS, Robins AFB, your required duty 

station; you [did] not request leave for that period. Your absence 

was not authorized nor did you request leave for that period. You 

reported for duty at approximately 0830. You had no annual or sick 

leave available and you were carried in an [Absence Without Leave]

(AWOL) status for 1.5 hours on 8 July 2015.

IAF, Tab 6 at 45.

¶18 The agency’s contention, that the administrative judge misapplied 

applicable law when she found that it failed to prove that the appellant was tardy,

is unavailing. The administrative judge determined that the appellant’s 

supervisor carried the appellant in an AWOL status on July 8, 2015, solely 

because he had no available sick or annual leave. ID at 13. We find that the 

administrative judge properly found that the supervisor abused his discretion in 

automatically carrying the appellant in an AWOL status without weighing other 

factors that might have warranted a grant of leave without pay. See White v. 

Department of Housing & Urban Development, 95 M.S.P.R. 299, ¶ 17 (2003) 
10

(stating that, even when the employee lacks sufficient leave to cover his absence s, 

an AWOL charge based on those absences cannot be sustained if the agency 

abused its discretion in denying the employee’s request for leave without pay); 

Murray v. Department of the Navy, 41 M.S.P.R. 260, 263-65 (1989) (finding an 

abuse of discretion when an agency denied leave without pay for 69 hours of 

absence for which the employee did not have sufficient sick and annual leave

because the agency knew that his absence stemmed from an on-the-job injury).

We need not address the agency’s assertions that the administrative judge erred in 

failing to sustain some of the specifications underlying the unauthorized absence

and failure to properly request leave charges.

¶19 When more than one event or factual specification supports a charge, proof 

of one or more, but not all, of the supporting specifications is sufficient to sustain 

the charge. Burroughs v. Department of the Army, 918 F.2d 170, 172 (Fed. Cir.

1990). Here, each of the charges of unauthorized absence and failure to properly 

request leave had more than one factual specification, and the administrative 

judge found that the agency proved one or more of those specifications for each 

charge. IAF, Tab 6 at 42-45; ID at 8-13. Because proof of at least one 

specification is sufficient to sustain each of these charges, we do not address 

whether the administrative judge erred in not sustaining certain specifications.

A 5-day suspension is a reasonable penalty for the sustained misconduct.

¶20 When the Board sustains fewer than all of the agency’s charges, it may 

mitigate the agency’s penalty to the maximum reasonable penalty, so long as the 

agency has not indicated in either its final decision or in proceedings before the 

Board that it desires that a lesser penalty be imposed on fewer charges. Lachance 

v. Devall, 178 F.3d 1246, 1260 (Fed. Cir. 1999); Edwards v. U.S. Postal Service, 

116 M.S.P.R. 173, ¶ 7 (2010). Here, the administrative judge found that the 

agency did not indicate that it desired a lesser penalty be imposed if all the

charges were not sustained. ID at 16.
11

¶21 The deciding official may not have indicated whether he would have 

imposed a lesser penalty if fewer than all the charges were sustained. Yet, it is 

nonetheless significant for purposes of our penalty analysis that, prior to issuing 

the notice of proposed removal, the agency issued a notice of proposed 5-day 

suspension based only on the charges of failure to properly request leave, 

unauthorized absence, tardiness, and failure to report for unscheduled overtime. 

IAF, Tab 6 at 114-15. Subsequently, the agency added additional specifications 

of misconduct to the failure to properly request leave and unauthorized absence 

charges when proposing the appellant’s removal. Notably, though, three of the

charges that formed the basis of the proposed 5-day suspension are exactly the 

same charges that the administrative judge sustained. Thus, the fact that the 

agency previously proposed the appellant’s suspension based on these same 

sustained charges weighs in favor of mitigation.

¶22 Moreover, as the administrative judge indicated, there are compelling 

factors in this case that warrant strong mitigating weight. Three of the six 

charges, including the serious charges of misuse of a GOV and failure to follow 

instructions, were not sustained. Undoubtedly, the sustained charges of failure to 

properly request leave, unauthorized absence, and failure to report for 

unscheduled overtime are also serious. See Wilkinson v. Department of the Air 

Force, 68 M.S.P.R. 4, 7 (1995) (sustaining the appellant’s removal when he failed 

to follow leave-requesting procedures). However, we agree with the 

administrative judge’s finding that the agency had information in its possession

that should have put it on notice that the appellant was suffering from serious 

medical conditions that might have entitled him to leave under the Family and 

Medical Leave Act of 1993 (FMLA). ID at 16. The administrative judge noted 

that the appellant testified that he was suffering from depression, and that the

appellant’s first-line supervisor acknowledged that the appellant had discussed 

medical issues with him. ID at 9, 16. In addition, the record reflects that this 
12

supervisor was concerned about the appellant’s well-being and had referred him 

to the Employee Assistance Program (EAP). IAF, Tab 6 at 76. 

¶23 The record also contains a memorandum from another agency supervisor

stating that in July 2015, he received a call from the appellant during which the 

appellant stated he was experiencing stress and felt the need to consume alcohol, 

but had not. Id. at 71. This supervisor explained that he was aware that the 

appellant was a recovering alcoholic, and that he later called back the appellant to 

express concern about his situation. Id. The following day, this supervisor met 

with the appellant’s first and second-line supervisors to discuss the call. Id. In 

addition, the record also reflects that the appellant’s second-line supervisor

suggested to the appellant that he contact the EAP. Id. at 73. In light of the 

testimonial and record evidence indicating that the appellant’s supervisors were 

aware that he was suffering from medical conditions, we agree with the 

administrative judge’s finding that the agency’s failure to provide the appellant 

with information on how he could request leave under the FMLA constituted a 

mitigating factor in this case. 

¶24 In addition, the administrative judge found that the appellant’s depression 

likely contributed to some or all of the misconduct in this case. In reaching this 

finding, the administrative judge considered the appellant’s testimony that he did 

not report for work because of his depression. ID at 9. The appellant’s testimony 

that he was suffering from depression is corroborated by the record. For 

example, the appellant submitted records from the EAP indicating that he had 

reported suffering from depression. IAF, Tab 10 at 5. The appellant also 

furnished medical documentation reflecting that he was initially prescribed 

medication for depression in June 2015. Id. at 26. Evidence that an employee’s 

medical condition or mental impairment played a part in the charged misconduct 

is entitled to considerable weight as a mitigating factor. See Malloy v. U.S. 

Postal Service, 578 F.3d 1351, 1356-57 (Fed. Cir. 2009).
13

¶25 In balancing the seriousness of the sustained misconduct against the 

mitigating factors and circumstances in this case, we agree with the 

administrative judge’s determination that mitigating the agency-imposed penalty 

is warranted. 

The appellant’s challenge to the agency’s certification of compliance with the 

interim relief order

¶26 With its petition for review, the agency submitted a statement that, in 

accordance with the instructions in the Board’s initial decision, it placed the 

appellant on an interim appointment, effective the date of the initial decision was 

issued, pending resolution of the petition for review. PFR File, Tab 1 at 29. 

Accompanying the agency’s statement is a Standard Form 50 giving the appellant 

an interim appointment. Id. at 26. After the agency submitted its certification of 

compliance with the interim relief order, the appellant submitted a pleading 

alleging that the agency has not provided him with a card by which he can gain 

access to certain of his records and to base facilities. PFR File, Tab 3.

¶27 We have considered the appellant’s pleading as a challenge to the agency’s

certification of compliance. 5 C.F.R. § 1201.116(b). Ordinarily, when an 

appellant challenges the agency’s certification of compliance with an interim 

relief order, the Board will issue an order affording the agency the opportunity to 

submit evidence of compliance. Id. If the agency fails to provide evidence of 

compliance in response to such an order, the Board may, at its discretion, dismiss 

the agency’s petition for review. 5 C.F.R. § 1201.116(e). In this case, however, 

we find that the agency’s petition does not meet the criteria for review in any 

event, and issuing our final decision renders moot any dispute concerning the 

agency’s compliance with the interim relief order. See Elder v. Department of the 

Air Force, 124 M.S.P.R. 12, ¶ 20 (2016). If the appellant believes that the agency 

is in noncompliance with the Board’s final order, he may file a petition for 

enforcement in accordance with the instructions provided below. Id. 
14

ORDER

¶28 We ORDER the agency to cancel the removal and substitute a 5-day 

suspension. See Kerr v. National Endowment for the Arts, 726 F.2d 730 (Fed. 

Cir. 1984). The agency must complete this action no later than 20 days after the 

date of this decision.

¶29 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. 

¶30 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). 

¶31 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).

¶32 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 RIGHTS2

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 

 

2

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. ____ , 137 S. Ct. 1975 (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. 3The 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). 

 

3

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.
20

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.