UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ATLANTA REGIONAL OFFICE

KATHERINE ADAIR MARTINEZ, DOCKET NUMBER

Appellant, AT -0752-10-0474-1-2

v.

DEPARTMENT OF VETERANS DATE: April 1, 2011

AFFAIRS,
Agency.

Kevin L. Owen, Esquire, and Zach Wright, Esquire, Silver Spring,

Maryland, for the appellant.

John L. Pressly, Jr., Esquire., Columbia, South Carolina, and Judith G.

Valois, Esquire, Sarasota, Florida, for the agency.

BEFORE
Lynn P. Yovino
Administrative Judge

INITIAL DECISION

INTRODUCTION
On June 15, 2010, the appellant timely refiled i her appeal of the agency's
action removing her from the position of Deputy Assistant Secretary for
Information Protection and Risk Management, SES, in the Office of Information

i The appeal was initially dismissed as premature because of the timely filing of a
formal EEO complaint prior to the filing of the appeal to the Board. See Martinez v.
Department of Veterans Affairs, MSPB Docket No. AT-0752-10-0474-I-l (March 31,
2010 Initial Decision).
 2

and Technology, Department of Veterans Affairs in Bay Pines, Florida, effective

February 5, 2010. Appeal File (AF), Tab 1. The Board has jurisdiction over this
appeal under 5 U.S.C. §§ 7511-13, 7701. The appellant requested a hearing, but
the hearing was cancelled after I notified the parties of the disposition of this
appeal. At that time, and based on that notice, the appellant withdrew her
affirmative defenses conditionally and without prejudice. Refiled Appeal File
(RAF), Volume (Vol.) 6, Tab 38. For the reasons below, the agency's action is
REVERSED.

ANALYSIS AND FINDINGS

Background
Prior to her removal on February 5, 2010, the appellant had approximately
20 years of government service. At the time of her removal, she held a position
in the Senior Executive Service, as the Deputy Assistant Secretary for
Information Protection and Risk Management, for the VA OIT in the Bay Pines
Field Office, Florida. Initial Appeal File (lAF), Vol. 2, Agency Response (AR),
Tab 4A.
On August 18, 2009, the VA Office of Inspector General released a
redacted administrative investigation report entitled "Misuse of Position, Abuse
of Authority, and Prohibited Personnel Practices" within OIT. IAF, Vol. 4, AR,
Tab 4N. In that investigative report, the OIG stated that it substantiated that the
appellant misused her position, abused her authority, engaged in prohibited
personnel practices, failed to provide proper contract oversight, and did not
properly fulfill her duties as a Contracting Officer's Technical Representative
(COTR). IAF, Vol. 4, AR, Tab 4N, p.1. As explained below, that report was
forwarded to Roger Baker, Assistant Secretary for OIT, for concurrence; he
concurred in the "various violations" concernmg the appellant and agreed to
ensure that appropriate action would be taken.
 3

On September 18, 2009, Stephen Warren, the Principal Deputy Assistant

for OIT, proposed the appellant's removal based on four charges: (1) misuse of
your official position for the personal gain of a friend; (2) engaging in a
prohibited personnel practice; (3) inadequate contract oversight; and, (4)
inappropriate use of a contractor. IAF, Vol. 6, AR, Tab 40. The notice of
proposed removal identified the deciding official as Mr. Baker-the same official
who had already concurred in the violations concerning the appellant.
The appellant requested additional information and extensions of time to
reply to the notice of proposed removal. IAF, Vol. 3, AR, Tab 4J-M. On or
about November 5, 2009, the appellant presented her oral and written replies to
Mr. Baker on charges 1-4. IAF, Vol. 3, AR, Tab 4H-I. On December 7, 2009,
the agency issued a Notice of Amendment to the Proposed Removal, adding a
fifth charge: inappropriate sharing of nonpublic contracting information, and the
evidence relied upon to support that charge was provided to the appellant. IAF,
Vol. 2-3, AF, Tabs 4F-G. On or about January 15, 2010, the appellant presented
oral and written replies to Mr. Baker regarding charge 5. IAF, Vol. 2, AR, Tab
4D andE.
On February 1, 2010, Mr. Baker issued a decision sustaining all five
charges 2 against the appellant and the appellant's removal was effective February
5,2010. IAF, Vol. 2, AR, Tabs 4B and C. This appeal followed.

Due Process
Discovery in this case was complex and protracted. In ruling upon motions
to compel, I identified an issue in Mr. Baker's deposition testimony of a possible
due process violation. During a status conference on January 28, 2011, I
informed the parties that I had identified such an issue and discussed the matter

2 Mr. Baker sustained only two of the three specifications supporting charge 1.
 4

with them. RAF, Vol. 5, Tab 29. Subsequently, on January 31,2011, I issued an
Order further defining the issue and allowing the parties to brief the matter. 3
RAF, Vol. 5, Tab 29. See Robinson v. Department of Veterans Affairs, 72
M.S.P.R. 444, 449 n.3 (1996) (due process issue may be raised sua sponte). Both
parties responded, and the appellant responded to the agency's brief. Upon
considering their briefs and the relevant case law, I conducted a telephonic
conference during which I notified the parties that I found that the agency had not
afforded the appellant the requisite due process and that I would be issuing a
decision reversing the removal. Jd., Tab 20. The appellant then filed a statement
indicating that she was withdrawing her affirmative defense based on this finding,
and requesting that she be able to re-raise this claim if the appeal is remanded for
hearing.
The constitutional due process issue concerns whether the appellant was
afforded a meaningful opportunity to reply to the charges levied against her. The
OIG sent its draft investigative report to Mr. Baker, who subsequently served as
the deciding official on the appellant's removal, for concurrence. Mr. Baker then
concurred in the draft investigative report findings, prepared by the Office of
Inspector General, regarding violations committed by the appellant. See Appeal
File, Tab 4n. For, on July 30, 2009, he wrote to James J. O'Neill, Assistant
Inspector General for Investigations, Office of Inspector General:
I have reviewed the Draft inspector General Report entitled
"Administrative Investigation Misuse of Position, Abuse of
Authority, and Prohibited Personnel Practices, Office of
Information Technology, Washington, DC. My organizations'
response to the IG's findings follows.

3 The parties were advised in that Order that, if either party believed that there was a
material issue of fact which would warrant a hearing on the due process issue, that party
must describe the material fact(s) in dispute and explain why a limited hearing would be
necessary in order to resolve such a factual dispute. Neither party identified a material
fact in dispute.
 5

IAF, Vol. 4, AR, Tab 4N, p.22. (Emphasis added). The IG made 11
recommendations based on its investigation, only 4 of which pertained to the
appellant. They are:
Recommendation 1. We recommend that the Assistant Secretary
for Information and Technology take appropriate action against
Ms. Martinez for the misuse of her position for the personal gain
of Ms. Nash.
Concur Target Completion Date: 9/15/09
Recommendation 2. We recommend that the Assistant Secretary
for Information and Technology take appropriate action against
Ms. Martinez for violating acquisition regulations when she
improperly shared V A proprietary procurement information with
Ms. Nash and Mr. Doe.
Concur Target Completion Date: 9/15/09
Recommendation 3. We recommend that the Assistant Secretary
for Information and Technology take appropriate action against
Ms. Martinez for failing to properly perform her duties as a
COTR and for failing to provide proper contract oversight.
Concur Target Completion Date: 9/15/09
Recommendation 4. We recommend that the Assistant Secretary
for Information and Technology take appropriate action against
Ms. Martinez for abuse of her authority and engaging in a
prohibited personnel practice.
Concur Target Completion Date: 9/15/09
IAF, Vol. 4, AR, Tab 4N, pp.23-24 (Emphasis in original). Then he added:
I concur in recommendations 1-4. I concur with the
recommendations to take appropriate administrative action
for these various violations. I intend to discuss these matters
with the Office of Human Resources and Administration and the
General Counsel to ensure that the actions taken are appropriate.
 6

IAF, Vol. 4, AR, Tab 4N, p.24 (Emphasis added). These recommendations then
formed the basis of the agency's charges in the Notice of Proposed Removal,4 the
replies to which were presented to Mr. Baker.
Because the appellant is an "employee" under 5 U.S.C. § 75 11 (a)(I)(A),
she is not only entitled to the statutory rights of due process set out in 5 U.S.C.
§ 7513(b)(I) (advance written notice, an opportunity to reply, the right to be
represented, and a written decision), but, as noted in See Cleveland Bd. of Educ.
v. Loudermill, 470 U.S. 532 (1985), she also has a constitutionally protected
property interest in her employment and is, therefore, entitled to minimum due
process regarding her removal. See id. If the agency denied the appellant
minimum due process in removing her, her removal must be reversed as a matter
oflaw due to the constitutional violation. See id., " 1,6.
A federal constitutional due process claim depends on the employee having
a property right in continued employment. See Loudermill, 470 U.S. at 538;
Board of Regents v. Roth, 408 U.S. 564, 576-578. And, tenured federal
employees have such a property right, since they cannot be dismissed except for
cause or unacceptable performance. See 5 U.S.C. §§ 7513(a) and 4303.

4 In its brief, the agency argued that the IG's findings and the charges in the notice of
proposed removal were not the same. The agency's argument is unpersuasive, because
based on my review of the record, the misconduct cited in the specifications of the 5
charges of the notice of proposed removal is also contained in its entirety in the IG's
findings as follows: All three specifications (A, Band C) of Charge I are addressed in
Issue I of the IG Report; Charge 2 is fully addressed in Issue 3 of the IG Report;
Charge 3 is fully addressed in Issue 2 of the IG Report; Charge 4 is fully addressed in
Issue 3 of the IG Report; and, Charge 5 is fully addressed in Issue I of the IG Report.
Cf IAF, Vol. 4, AR, Tab 4N (IG Investigative Report), with IAF, Vol. 6, AR, Tab 40
(Notice of Proposed Removal), and IAF, Vol. 3, AR, Tab 4G (Amendment to Notice of
Proposed Removal). See also Appellant's Brief Regarding the Agency's Constitutional
Due Process Violations, RAF, Vol. 6, Tab 35, at pages 5-9 of 20, for a detailed, side-
by-side comparison of the allegations in the proposed removal and OIG report. I note,
however, that the IG found additional violations not cited in the Notice of Proposed
Removal.
 7

The process due a public employee prior to removal from office has been
explained in Loudermill, 470 U.S. at 542-46, as:
An essential principle of due process is that a deprivation of life,
liberty, or property "be preceded by notice and opportunity for
hearing appropriate to the nature of the case." ... This principle
requires "some kind of hearing" prior to the discharge of an
employee who has a constitutionally protected property interest in
his employment ....
[T]he pretermination hearing need not definitively resolve the
propriety of the discharge. It should be an initial check against
mistaken decisions-essentially, a determination of whether there are
reasonable grounds to believe that the charges against the employee
are true and support the proposed action ....
The essential requirements of due process ... are notice and an
opportunity to respond. The opportunity to present reasons, either in
person or in writing, why proposed action should not be taken is a
fundamental due process requirement. The tenured public
employee is entitled to oral or written notice of the charges against
him, an explanation of the employer's evidence, and an opportunity
to present his side of the story. . ..
In Loudermill, the Supreme Court expressly noted that the need for a
meaningful opportunity for the public employee to present his or her side of the
case is important in enabling the agency to reach an accurate result for two
reasons. First, dismissals for cause will often involve factual disputes and
consideration of the employee's response may help clarify such disputes. In
addition, even if the facts are clear, "the appropriateness or necessity of the
discharge may not be; in such cases, the only meaningful opportunity to invoke
the discretion of the decisionmaker is likely to be before the termination takes
effect." Id. at 543.
The Board first applied the holding in Loudermill in Stephen v. Department
of the Air Force, 47 M.S.P.R. 672, 680-81 (1991), wherein the Board held that an
agency's failure to provide a nonprobationary federal employee with prior notice
and an opportunity to present a response to an appealable agency action deprives
him of his property right in his employment and violates his constitutional right
 8

to minimum due process of law, i.e., prior notice and an opportunity to respond.
In Stephen, 47 M.S.P.R. at 681, the Board stated that the right to minimum due
process is "absolute," and does not depend on the merits of the claim, and that an
action in which such process is not provided must be reversed. Id.
The U.S. Court of Appeals for the Federal Circuit has continued to expand
upon the due process rights of the tenured employee, finding the right to
constitutional due process in areas other than the opportunity to respond. See
Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1374-76 (Fed.
Cir. 1999) (ex parte communications); Ward v. U.S. Postal Service, 2011 WL
537856 (Fed. Cir.)(Feb. 17, 2011) (ex parte communications as regards penalty
considerations ).
In Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1374-
76 (Fed. Cir. 1999), the court noted that, in addition to the statutory procedures
an agency must follow in removing a Federal employee entitled to rights, i.e., 5
U.S.C. § 7513(b), procedural due process requires that one's property right
cannot be deprived except pursuant to constitutionally adequate procedures. In
Stone, 179 F.3d at 1376, the court noted the importance of procedural fairness
throughout the pre-termination stage:
It is constitutionally impermissible to allow a deciding official to
receive additional material information that may undermine the
objectivity required to protect the fairness of the process. Our
system is premised on the procedural fairness at each stage of the
removal proceedings. An employee is entitled to a certain amount
of due process rights at each stage and, when these rights are
undermined, the employee is entitled to relief regardless of the
stage of the proceedings.
Thus, the court in Stone, 179 F.3d at 1377, reaffirmed the court's earlier holding
in Sullivan v. Department of the Navy, 720 F.2d 1266, 1274 (Fed.Cir.1983), that
when a procedural due process violation has occurred because of ex parte
communications, such a violation is not subject to the harmless error test. See
Ryder v. United States, 218 Ct.Cl. 289, 585 F.2d 482, 488 (1978) (refusing to
 9

apply harmless error test: "[W]here a senous procedural curtailment mars an

adverse personnel action which deprives the employee of pay, the court has
regularly taken the position that the defect divests the removal (or demotion) of
legality, leaving the employee on the rolls of the employing agency and entitled
to his pay until proper procedural steps are taken toward removing or disciplining
him. In that situation, the merits of the adverse action are wholly disregarded.");
Camero v. United States, 375 F.2d 777,780 (Ct. Cl. 1967).
Most recently, in Ward, the court re-affirmed that, if the ex parte
communications rose to the level of a constitutional due process violation, even if
the communications concerned the penalty, and not the merits of the charges, the
action would have to be reversed based on a denial of constitutional due process.
In Ward, the court pointed out that the court in Stone, "referencing Supreme
Court precedent, emphasized the importance of giving an employee notice of any
aggravating factors supporting an enhanced penalty as well as a meaningful
opportunity to address 'whether the level of penalty to be imposed is
appropriate. '"
Even before Loudermill, the Board recognized that there was a possibility
of a statutory due process violation where the "risk of unfairness" was
"intolerably high." See Svejda v. Department of the Interior, 7 M.S.P.R. 108-09
(1981) (employee, who was removed on a charge of unsatisfactory performance,
contended that his due process rights had been violated because the deciding
official in the adverse action had also been the supervisor who had sustained his
unsatisfactory rating). The Board noted that it would be a violation of due
process "to allow an individual's basic rights to be determined either by a biased
decisionmaker or by a decisionmaker in a situation structured in a manner such
that 'risk of unfairness is intolerably high. '" Id. at 111 (citing Withrow v. Larkin,
421 U.S. 35, 58 (1975». In discussing the appellant's claim, the Board held that
"there is no general proscription of the appointment as a deciding official of a
person who is familiar with the facts of the case and has expressed a
 10

predisposition contrary to the appellant's interests.,,5 Id. at 111 (citation

omitted). In Svejda, the Board concluded that the appellant failed to show that
the agency's selection of the specific deciding official posed a risk of unfairness
that was "intolerably high." Id. at 111-112.
I recognize that most of the cases involving the denial of due process
involve situations where the agency failed to give advance notice of the charges
and/or failed to consider the appellant's reply at all. See, e.g., Stephen, 47
M.S.P.R. at 672. However, in Loudermill, the Court held that, while the pre-
termination hearing need not be a full adversarial hearing, it must afford the
employee a meaningful opportunity to speak in her own defense. See also
Patkus v. Sangamon-Cass Consortium, 769 F.2d 1251, 1265 (7th Cir. 1985).
Indeed, more recently, the U.S. Supreme Court cited its earlier precedent in
Loudermill for the proposition that the "core of due process is the right to
notice and a meaningful opportunity to be heard." LaChance v. Erickson, 522
U.S. 262 (S. Ct. 1998) (Emphasis added).
Although there is precedent6 that generally allows for the proposing and
deciding official to be the same person, such precedent is not determinative of the
issue in this case. The role of the proposing official in an adverse action is to
levy "charges," not "findings," upon review of the evidence. The due process
right the proposing official ensures is providing notice of the basis for the
charges, as well as any aggravating factors in enhancing the penalty, in an
adverse action. Armed with sufficient notice of the charges the appellant can
then attempt to present "her side of the story" in what she is entitled to-a

5 I express no OpInIOn as to whether such an expression of a predisposition is not

violative of constitutional due process rights after Loudermill. In the instant case,
however, the deciding official expressed a conclusion based on the evidence, not simply
a predisposition.

6See Teichmann v. Department of the Army, 34 M.S.P.R. 447,449-50 (1987), aff'd, 854
F.2d 1327 (Fed. Cir. 1988) (Table).
 11

"meaningful opportunity to respond." Also not determinative here is the

precedent that found that it was permissible for the deciding official to be
familiar with the facts of a case or render prior agreement with the issuance of a
proposed action. 7 Misconduct does not occur in a vacuum and we cannot expect
that supervisors should walk around with blinders on. However, there is a
significant difference between publishing findings as to the merits of the charges
and having some knowledge of what happened.
In this case, Mr. Baker's written words to the IG about the IG's report
concerning the appellant's investigation were unambiguous. He stated that he
reviewed the draft report and provided his "organizations' response to the IG's
findings". (Emphasis added). He then stated that he concurred with each of the
four recommendations that appropriate action be taken and that he "concur[red]
with the recommendations to take appropriate administrative action for these
various violations." Then he stated that he intended to discuss these matters with
the Office of Human Resources and Administration and the General Counsel "to
ensure that the actions taken are appropriate." What he did not say was that he
was going to discuss whether there were violations-just that he was going to
ensure that appropriate actions were taken.
Therefore, I disagree with the agency's argument that Mr. Baker was
simply agreeing to take appropriate action but expressed no opinion whether he
agreed with the IG's findings. As a high-level official, Mr. Baker's words should
be given their ordinary meaning. The evidence reflects that Mr. Baker could have

7See, e.g, Svejda, 7 M.S.P.R. at 108-09; Gellerman v. Veterans Administration, 12

M.S.P.R. 200, 205 (1982), Pitt v. Department of the Army, 17 M.S.P.R. 358, 360 (1983)
Beatty v. Department of Housing & Urban Development, 20 M.S.P.R. 436, 438 (1984),
aff'd, 765 F.2d 162 (Fed. Cir. 1985) (Table).
 12

concurred or non-concurred;8 he responded to the IG's findings and concurred-

not only to take appropriate action, but specifically, "for these various
violations." In any event, the record also shows that Mr. Baker studied the
investigative reports, evaluated the evidence, and formed definite opinions
regarding the IG's findings. 9
I find that, by concurring in the Inspector General's findings concermng
the appellant's violations, as opposed to finding that appropriate action should be
taken, Mr. Baker determined the appellant was guilty of those violations which
then formed the basis of the charges in the notice of proposed removal. Then,
after issuance of the notice of proposed removal, he served as the deciding
official, who was the agency official in charge of ensuring that she had a
meaningful opportunity to present her side of the story concerning not only the
penalty, but also whether she engaged in the cited misconduct.
I recognize that Mr. Baker did not sustain one of the three specifications
supporting charge 1. However, that fact alone does not detract from the fact that
the constitutional violation occurred prior to his issuance of the decision letter in
this case. In his deposition, Mr. Baker testified that "[h]onestly, I paid no

8 See deposition testimony of Linda Fournier, Director of Administrative Investigations

Division at VA OIG. RAF, Vol 6, Tab 34, Exhibit 4, p. 70 of 99 (deposition p 96, lines
8-16).

9 Mr. Baker testified, in his deposition on November 8, 2010, that, at the same time that
he was presented with the IG investigative report concerning the allegations about the
appellant, he was presented with an IG report involving two other employees-Ms. P
and Ms. D (names withheld for privacy reasons). RAF, Vol. 5, Tab 28, Exhibit 1, p. 62.
He reviewed the evidence and concluded that some of the findings were not only not
substantiated, but he disagreed with the IG's conclusion that a witness was untruthful.
RAF, Vol. 5, Tab 28, Exhibit p. 65. Thus, Mr. Baker evaluated the evidence and drew
conclusions from it. Therefore, his statement that he did not consider any of the facts
in the appellant's case prior to his concurrence runs hollow. More importantly, the fact
that he found Ms. D. not guilty of an offense directly contradicts his assertions that his
concurrence was as to penalty only, and not to facts. RAF, Vol. 5, Tab 28, Exhibit 1,
pp.69-72.
 13

attention to the IG report once [they] had the evidence" and that the IG report was
not part of the evidence he considered in deciding to remove the appellant. RAF,
Vol. 5, Tab 28, Exhibit 1 (November 8, 2010 transcript p. 60, lines 9-18). The IG
report, however, serves as the predicate for the entire notice of proposed removal.
Indeed, the opening paragraph of the notice states that "[b]ased on the results of
the OIG report, it is proposed to remove you from employment with VA based on
the charges and reasons set out below." IAF, Vol. 6, AR, Tab 40. The following
sentence also appears in the notice of proposed removal: "Based on the factual
findings of the OIG report, the VA Office of General Counsel has determined you
engaged in violations of Standards of Ethical Conduct and potentially violated a
criminal conflict of interest statute." IAF, Vol. 6, AR, Tab 40.
More importantly, however, Mr. Baker admitted, in his deposition
testimony, that he had the draft report, and the supporting materials, for
approximately one month before giving his concurrence and that he "absolutely"
considered the testimony that the IG gathered as part of the evidence he
considered in deciding to remove the appellant. RAF, Vol. 5, Tab 28 (November
8, 2010 transcript p. 60, lines 19-22, and p. 61-62). Mr. Baker's attempts to
distance himself from his detailed review of the investigative report are
unpersuaSlVe.
In my view, because Baker's testimony was tainted by his prior review of
the evidence and concurrence in the violations, his later claim that he nonetheless
provided the appellant with a meaningful opportunity to reply is unavailing. See
Stone, 179 F.3d at 1372 (finding a due process violation even though "[i]n an
affidavit, the deciding official stated that he would have concluded that Mr. Stone
should be removed whether or not he had seen the ex parte memo from the
proposing official"); see aso Camero v. United States, 375 F.2d 777, 780 (Ct. Cl.
1967) ("After listening to and discussing with each attorney his views on the
case, Wolverton stated that he formed his own opinion.... We have no doubt
that Wolverton formed his own opinion on what recommendations he should
 14

make to General Anderson, just as we have no doubt that General Anderson made
up his own mind when he decided to sustain plaintiffs removal. The problem is,
however, that both decisions were made, at least in part, on the basis of the ex
parte communication ... "). 10
When the deciding official has painstakingly reviewed evidence, as did Mr.
Baker in this case, and then issued findings that he concurred in the various
violations, the risk of unfairness is dangerously high and is contrary to the
dictates of even the minimum of due process. In other words, the risk is too high
that the appellant missed her "only meaningful opportunity invoke the discretion
of the decision maker" before her termination took place. See Loudermill, 470
U.S. at 543. As such, the agency violated the appellant's constitutional right to
minimum due process of law, and its action must be reversed. The appellant is
entitled to a "constitutionally correct removal proceeding." See Stone v. Federal
Deposit Insurance Corporation, 179 F .3d 1368, 1374-76 (Fed. Cir. 1999).

DECISION
The agency's action is REVERSED.

ORDER
I ORDER the agency to cancel the removal and to retroactively restore
appellant effective February 5, 2010. This action must be accomplished no later
than 20 calendar days after the date this initial decision becomes final.

10 Stone and Camero were cited by the U.S. Court of Appeals for the Federal Circuit in
an unpublished opinion to support the proposition that "[a]n adversary's ex parte
communications to a deciding official render that official's claims of a lack of influence
unavailing." See Kelly v. Department of Agriculture, 225 Fed. Appx. 880 «Fed. Cir.
2007) (unpublished). Although Kelly is not citable precedent, I have considered it as
persuasive guidance on the issue of whether once an individual improperly considers
evidence that is adverse to the appellant, a later claim that it made no difference is, on
its face, not credible.
 15

I ORDER the agency to pay appellant by check or through electronic funds

transfer for the appropriate amount of back pay, with interest and to adjust
benefits with appropriate credits and deductions in accordance with the Office of
Personnel Management's regulations no later than 60 calendar days after the date
this initial decision becomes final. I ORDER the appellant to cooperate in good
faith with the agency's efforts to compute the amount of back pay and benefits
due and to provide all necessary information requested by the agency to help it
comply.
If there is a dispute about the amount of back pay due, I ORDER the
agency to pay appellant by check or through electronic funds transfer for the
undisputed amount no later than 60 calendar days after the date this initial
decision becomes final. Appellant may then file a petition for enforcement with
this office to resolve the disputed amount.
I ORDER the agency to inform appellant in writing of all actions taken to
comply with the Board's Order and the date on which it believes it has fully
complied. If not notified, appellant must ask the agency about its efforts to
comply before filing a petition for enforcement with this office.
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. I ORDER the agency 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.

INTERIM RELIEF
If a petition for review is filed by either party, I ORDER the agency to
provide interim relief to the appellant In accordance with 5 U.S.C.
 16

§ 770l(b)(2)(A). The relief shall be effective as of the date of this decision and
will remain in effect until the decision of the Board becomes final.
Any petition for review or cross petition for review filed by the agency
must be accompanied by a certification that the agency has complied with the
interim relief order, either by providing the required interim relief or by
satisfying the requirements of 5 U.S.C. § 770l(b)(2)(A)(ii) and (B). If the
appellant challenges this certification, the Board will issue an order affording the
agency the opportunity to submit evidence of its compliance. If an agency
petition or cross petition for review does not include this certification, or if the
agency does not provide evidence of compliance in response to the Board's order,
the Board may dismiss the agency's petition or cross petition for review on that
basis.

FOR THE BOARD: ________ ,/S/_____________

Lynn P. Yovino
Administrative Judge

NOTICE TO APPELLANT
This initial decision will become final on May 6, 2011, unless a petition
for review is filed by that date or the Board reopens the case on its own motion.
This is an important date because it is usually the last day on which you can file a
petition for review with the Board. However, if you prove that you received this
initial decision more than 5 days after the date of issuance, you may file a
petition for review within 30 days after the date you actually receive the initial
decision. If you are represented, the 30-day period begins to run upon either your
receipt of the initial decision or its receipt by your representative, whichever
comes first. You must establish the date on which you or your representative
received it. The date on which the initial decision becomes final also controls
when you can file a petition for review with the Court of Appeals for the Federal
 17

Circuit. The paragraphs that follow tell you how and when to file with the Board
or the federal court. These instructions are important because if you wish to file
a petition, you must file it within the proper time period.

BOARD REVIEW
You may request Board review of this initial decision by filing a petition
for review. Your petition for review must state your objections to the initial
decision, supported by references to applicable laws, regulations, and the record.
You must file your petition with:
The Clerk of the Board
Merit Systems Protection Board
1615 M Street, NW.
Washington, DC 20419

A petition for reVIew may be filed by mail, facsimile (fax), personal or

commercial delivery, or electronic filing. A petition for review submitted by
electronic filing must comply with the requirements of 5 C.F.R. § 1201.14, and
may only be accomplished at the Board's e-Appeal website
(https://e-appeal.mspb.gov).
If you file a petition for review, the Board will obtain the record in your
case from the administrative judge and you should not submit anything to the
Board that is already part of the record. Your petition must be filed with the
Clerk of the Board no later than the date this initial decision becomes final, or if
this initial decision is received by you or your representative more than 5 days
after the date of issuance, 30 days after the date you or your representative
actually received the initial decision, whichever was first. If you claim that you
and your representative both received this decision more than 5 days after its
issuance, you have the burden to prove to the Board the earlier date of receipt.
You must also show that any delay in receiving the initial decision was not due to
the deliberate evasion of receipt. You may meet your burden by filing evidence
and argument, sworn or under penalty of perjury (see 5 C.F.R. Part 1201,
 18

Appendix 4) to support your claim. The date of filing by mail is determined by

the postmark date. The date of filing by fax or by electronic filing is the date of
submission. The date of filing by personal delivery is the date on which the
Board receives the document. The date of filing by commercial delivery is the
date the document was delivered to the commercial delivery service. Your
petition may be rejected and returned to you if you fail to provide a statement of
how you served your petition on the other party. See 5 C.F .R. § 1201.4(j). If the
petition is filed electronically, the online process itself will serve the petition on
other e-filers. See 5 C.F.R. § 1201.14(j)(1).

JUDICIAL REVIEW
If you are dissatisfied with the Board's final decision, you may file a
petition with:
The United States Court of Appeals
for the Federal Circuit
717 Madison Place, NW.
Washington, DC 20439

You may not file your petition with the court before this decision becomes final.
To be timely, your petition must be received by the court no later than 60
calendar days after the date this initial decision becomes final.
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). You may read
this law, as well as review the Board's regulations and other related material, at
our website, http://www.mspb.gov. Additional information is available at the
court's website, www.cafc.uscourts.gov. Of particular relevance is the court's
"Guide for Pro Se Petitioners and Appellants," which is contained within the
court's Rules of Practice, and Forms 5, 6, and 11.
 19

ENFORCEMENT
If, after the agency has informed you that it has fully complied with this
decision, you believe that there has not been full compliance, you may ask the
Board to enforce its decision by filing a petition for enforcement with this office,
describing specifically the reasons why you believe there is noncompliance.
Your petition must include the date and results of any communications regarding
compliance, and a statement showing that a copy of the petition was either mailed
or hand-delivered to the agency.
Any petition for enforcement must be filed no more than 30 days after the
date of service of the agency's notice that it has complied with the decision. If
you believe that your petition is filed late, you should include a statement and
evidence showing good cause for the delay and a request for an extension of time
for filing.

NOTICE TO AGENCY/INTERVENOR
The agency or intervenor may file a petition for review of this initial
decision in accordance with the Board's regulations.
 DFAS CHECKLIST
INFORMATION REQUIRED BY DFAS IN
ORDER TO PROCESS PAYMENTS AGREED
UPON IN SETTLEMENT CASES OR AS
ORDERED BY THE MERIT SYSTEMS
N RD
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 ofW2'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 ofleave to be charged and number of hours.
USDA UNITED STATES DEPARTMENT OF

~AGRICULTURE
NATIONAL FINANCE CENTER CHECKLIST FOR BACK PAY CASES
Below i. the inform.tion/document.tion required by N.tional Finance Center to proCCl.
paymenbladjutmentl aped on in B.ck Pay Cue. (.ettlemeD.tl, reltoratioDl) or u
ordered by the Merit S)'ItcmI Protection BOIrd, EEOC, and colll'tl.
1. Inltillta lind submit AD-343 (Pllyroll/Actlon Raquast) with clallr lind conclsa
In1onnatlon describing what to do In accordance with decision.
Z. The following In1'onnatlon must be Included on AD-343 for Restoration:
a. Employee name and social security number.
b. Detailed explanation of request.
c. Valid agancy accounting.
d. Authorized slgnilture (T;!Ible 63)
e. It Interest Is to be Included.
f. Check mailing addresi.
g. IndiClite if cllse is prior to conversion. Computlltions must be attllched.
h. Indlcata tha amount of SavaranCIIllnd Lump Sum Annual Laava Paymant to
be collected. (If ilppllc;llble)
Attachment. to AD-343
1. Provide pay entitlement to Indude overtime, Night DllTerentlal, Shift Premium, Sund-r
Premium, eb:. with number or hours and dates for elch entitlement. (If applicable)
Z. COpies of SF-50's (Personnel Actionl) or list of salary adjustments/changeland
IImounts.
3. Outslda IIiIrnlngll documantiltlon mtamant from ilglmc:y.
4. It employee receIVed retirement annuity or unemployment, provide amount and address
to retum monies.
5. Provide forms for FEGU, FEHBA. orTSP deductions. (if applicable)
or
6. If amployaa WIIS unllbla to work durtngllny or Pllrt tha parted Involvad, cartlllCll1:lon of
the type of le;!IVe to be charged and number of hours.
7. It employee retires at end of Restoration Pertod, provide hours of Lump Sum Annual
Leave to be paid.
NOTE: If prior to conversion, IIgenc:y must IIttllch Computiltlon Worksheet by PilY
Parlod ilnd raqulrad dllt;!l In 1-7 ;!Ibova.
1.""he followins; information mutt be included on AD-343 for Settlement Cue.: (Lump
Sum P'yment, Corrcetioa to Promotion, Wlge Grade Increue, FLSA, etc.)
II. Must provlda slIma dlltll liS In 2, a-gllbova.
b. Prior to conversion computiltlon must be provided.
c. Lump Sum amount of Settlement, and If taxable or non-taxable.
If you blve any que.tion. or require clarification on the above, pleue contact NFC'.
PayrolllPersonnel Operationl at 504-255-4630.