U.S. MERIT SYSTEMS PROTECTION BOARD Office of the Clerk of the Board

1615 M Street, NW Washington, DC 20419-0002

Phone: (202) 653-7200; Fax: (202) 653-7130; E-Mail: mspb@mspb.gov

Clerk of the Board

November 18, 2015 Robert J. MacLean 20 Waltham Road Ladera Ranch, CA 92694 Dear Mr. MacLean: Enclosed please find a new copy of the initial decision issued in your appeal, MSPB Docket No. SF-0752-06-0611-M-1. After review by the Transportation Security Administration’s Sensitive Security Information (SSI) office, it was determined that the initial decision did not contain any SSI, so the enclosed copy has had all protective markings removed. Should you have any questions, please contact my office.

Sincerely, William D. Spencer Clerk of the Board

Enclosure cc: Lawrence A. Berger, Esq.

Mahon and Berger 21 Glen Street, Suite D Glen Cove, NY 11542 Thad M. Guyer, Esq. 116 Mistletoe Street Medford, OR 97501

2

Thomas Devine, Esq. Government Accountability Project 1612 K Street, NW, Suite 1100 Washington, DC 20006 Eileen Dizon Calaguas, Esq. Department of Homeland Security Transportation Security Administration Office of Chief Counsel 450 Golden Gate Avenue, Suite 1-5246 P.O. Box 36018 San Francisco, CA 94102

UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD

WESTERN REGIONAL OFFICE

ROBERT J. MACLEAN, Appellant,

v.

DEPARTMENT OF HOMELAND SECURITY,

Agency.

DOCKET NUMBER SF-0752-06-0611-M-1

DATE: November 3, 2015

Thad M. Guyer, Esquire, Medford, Oregon, for the appellant.

Thomas Devine, Esquire, Washington, D.C., for the appellant.

Eileen Dizon Calaguas, Esquire, San Francisco, California, for the agency.

BEFORE Franklin M. Kang

Administrative Judge

INITIAL DECISION

INTRODUCTION The appellant timely appealed the Transportation Security Administration’s

decision to remove him from the position of Federal Air Marshal (FAM), with

duties in Los Angeles, California, effective April 11, 2006. Initial Appeal File 1

(IAF-1), Tabs 1, 4. On October 5, 2006, an administrative judge dismissed this

appeal without prejudice at the request of the appellant. IAF-1, Tab 29.

On October 15, 2008, the appellant timely refiled this appeal. Initial

Appeal File 2 (IAF-2), Tab 1. On June 22, 2009, the Board issued an Opinion

and Order (O&O) addressing matters certified for interlocutory appeal. MacLean

2

v. Department of Homeland Security, 112 M.S.P.R. 4 (2009); IAF-2, Tab 27. A

hearing was held on November 5, 2009 as specified below. Hearing Compact

Disc (HCD). The appellant traveled from California to Virginia to appear with

his attorneys from the Board’s Washington Regional Office by video-conference,

while the agency appeared from the Board’s Western Regional Office in

California as well as the Washington Regional Office. Id. Through the initial

decision (ID), the agency’s action was affirmed as a matter within the jurisdiction

of the Board. IAF-2, Tab 84; see 5 U.S.C. §§ 7511-7513 and 7701.

Through a subsequent O&O that followed the appellant’s petition for

review, the Board affirmed the ID as modified. MacLean v. Department of

Homeland Security, 116 M.S.P.R. 562 (2011). The U.S. Court of Appeals for the

Federal Circuit (Federal Circuit) thereafter vacated MacLean, 116 M.S.P.R. 562,

and remanded the matter for the Board to determine whether the appellant made a

protected disclosure under the Whistleblower Protection Act (WPA). MacLean v.

Department of Homeland Security, 714 F.3d 1301 (Fed. Cir. 2013); Remand

Appeal File (RAF), Tab 1. The Supreme Court of the United States thereafter

affirmed the judgment of the Federal Circuit, and the Board remanded this case to

the administrative judge for further proceedings. Department of Homeland

Security v. MacLean, 135 S.Ct. 913 (2015); RAF, Tabs 2, 3. For the reasons

explained below, the agency’s action is REVERSED.

ANALYSIS AND FINDINGS Burden of Proof and Applicable Law

The agency bears the burden of proof by preponderant evidence with

respect to the reasons for the action and its choice of penalty. 5 C.F.R.

§ 1201.56(b). Preponderant evidence is defined as the degree of relevant

evidence that a reasonable person, considering the record as a whole, would

accept as sufficient to find that a contested fact is more likely to be true than

untrue. 5 C.F.R. § 1201.4(q).

3

Background

At the time of his removal, the appellant, born in 1970 with a service

computation date in 1992, was a preference eligible FAM, SV-1801-9, assigned

to Los Angeles, California. IAF-1, Tab 4, Subtab 4F; IAF-2, Tab 45, Exhibit S.

It is undisputed that the appellant was an employee pursuant to 5 U.S.C.

§ 7511(a)(1) at the time of his removal.

According to a Report of Investigation in the record evidence, based on a

September 2004 report of an unauthorized media appearance by the appellant, the

agency initiated an investigation. IAF-1, Tab 4, Subtab 4J. Following an

investigative interview conducted by the agency’s Immigration and Customs

Enforcement Office of Professional Responsibility, the agency’s investigators

concluded, inter alia, that the appellant made an unauthorized release of

information to the media. Id.

On September 13, 2005, the appellant received a Proposal to Remove

(proposal or proposed removal), charging the appellant with Unauthorized Media

Appearance, Unauthorized Release of Information to the Media, and

Unauthorized Disclosure of Sensitive Security Information (SSI). Id., Subtab 4G.

On April 10, 2006, Special Agent in Charge Frank Donzanti issued a decision on

the proposed removal, sustaining only the third charge and the proposed penalty.

Id., Subtab 4A. The third charge, Unauthorized Disclosure of SSI, is

accompanied by a single specification. IAF-2, Tab 67 at 5-6. The underlying

specification contains background information and alleges that on July 29, 2003,

the appellant informed the media that all Las Vegas FAMs were sent a text

message on their government-issued mobile phones that all remain overnight

(RON) missions up to a specified date would be cancelled, or words to that effect,

and that this constituted an improper disclosure of SSI because the media person

to whom this information was disclosed was not a covered person within the

meaning of SSI regulations, and the information about RON deployments was

4

protected as SSI. Id. On May 10, 2006, the appellant timely filed his petition for

appeal. IAF-1, Tab 1.

On August 31, 2006, the agency’s SSI Office Director issued a final order

(AFO) on SSI related to this appeal, stating in part that the information in

question constituted SSI under the SSI regulation then in effect, as the

information concerned specific FAM deployments or missions on long-distance

flights. See IAF-1, Tab 29. The first underlying ID explained that the appellant

intended to seek review of the AFO, and dismissed the appellant’s appeal without

prejudice to refiling. Id. The ID thereafter became the final decision of the

Board. See id. On September 16, 2008, the U.S. Court of Appeals for the Ninth

Circuit (9th Circuit) ruled on the appellant’s petition for review of the AFO.

MacLean v. Department of Homeland Security, 543 F.3d 1145 (9th Cir. 2008). In

denying the appellant’s petition, the Court wrote, in part:

In late July, 2003, while working as a Federal Air Marshal in Nevada, MacLean received a text message on his government-issued cell phone stating that “all RON (Remain Overnight) missions ... up to August 9th would be cancelled.” .... [] The information contained in the text message qualifies as “sensitive security information.” The message contained “specific details of aviation security measures” regarding “deployment and missions” of Federal Air Marshals. 49 C.F.R. § 1520.7(j) (2003). .... MacLean has failed to demonstrate what more the TSA needed to show to support the order.

Id. On October 15, 2008, the appellant timely refiled this appeal. IAF-2, Tabs 1,

2. It is undisputed that at the time of the events at issue, inclusive of the

specification before the Board, the appellant was assigned to the FAM service

center in Las Vegas, Nevada. See IAF-2, Tab 45, Exhibit X; IAF-2, Tab 49,

Exhibit PPP. On February 10, 2009, the Board granted a motion to certify

specific rulings for interlocutory appeal affecting the appellant’s affirmative

5

defenses under the WPA that were subsequently addressed by the Court as set

forth below. IAF-2, Tab 23; MacLean, 112 M.S.P.R. 4; RAF, Tabs 1, 2.

The Charge

As set forth above, the sole charge before the Board is Unauthorized

Disclosure of SSI. IAF-2, Tab 67 at 5-6. To prove this charge, the agency must

show that the appellant engaged in the conduct with which he is charged. See,

e.g., Otero v. U.S. Postal Service, 73 M.S.P.R. 198, 201-205 (1997) (charge must

be construed in light of accompanying specifications). The underlying

specification contains background information and alleges that on July 29, 2003,

the appellant informed the media that all Las Vegas FAMs were sent a text

message on their government-issued mobile phones that all RON missions up to

August 9th would be cancelled, or words to that effect, and that this constituted an

improper disclosure of SSI because the media person to whom this information

was disclosed was not a covered person within the meaning of SSI regulations,

and the information about RON deployments was protected as SSI. IAF-2, Tab

67 at 5-6.

Based on a careful review of the record evidence as set forth in greater

detail in the underlying ID, in particular the sworn statement and testimony of the

appellant, I found the agency has shown by preponderant evidence that on July

29, 2003, the appellant informed the reporter that all Las Vegas FAMs were sent

a text message on their government-issued mobile phones that all RON missions

up to August 9th would be cancelled, or words to that effect. Hillen v.

Department of the Army, 35 M.S.P.R. 453, 458 (1987); Hicks v. Department of

the Treasury, 62 M.S.P.R. 71, 74 (1994). With respect to the characterization of

this information, the 9th Circuit ruled that the information contained in the text

message qualifies as SSI because it contained specific details of aviation security

measures regarding deployment and missions of FAMs. MacLean, 543 F.3d

1145. Accordingly, I found that the agency met its burden of proving by

6

preponderant evidence that information on RON deployments at issue was SSI; I

further found that the agency had met its burden of proving by preponderant

evidence that the information disclosed by the appellant to the reporter on July

29, 2003 was SSI. Id.

With respect to the reporter’s status, it was undisputed that the reporter was

not authorized to receive this information. See HCD (testimony of the appellant).

Within the agency’s SSI regulations, it was undisputed that the reporter was not a

person with a “Need to Know” within the meaning of the Interim SSI Policies and

Procedures in effect as of November 13, 2002. IAF-1, Tab 4, Subtab 4N.

Accordingly, I found that the agency had shown by preponderant evidence that

the media person to whom the SSI was disclosed, was not a covered person

within the meaning of SSI regulations. Hicks, 62 M.S.P.R. at 74. Because this

person was not authorized to receive this SSI, I found in the underlying ID that

the agency had shown by preponderant evidence that the disclosure of the SSI by

the appellant to the reporter was unauthorized. Id. Thus, the specification and

charge were sustained by preponderant evidence as set forth in greater detail in

the underlying ID. Id.; see, e.g., Otero, 73 M.S.P.R. at 201-205.

Affirmative Defenses

The appellant alleged that the agency discriminated and retaliated against

him based on his membership and leadership status with a professional

association in violation of 5 U.S.C. § 2302(b)(10); and that this alleged

discrimination and retaliation violated his First Amendment rights. IAF-2, Tab

67 at 5-6. After carefully reviewing the record evidence, I found in that the

appellant failed to prove his claims under section 2302(b)(10) as set forth in the

underlying ID. IAF-2, Tab 84. The appellant next claimed that the agency

violated his rights under the First Amendment. Connick v. Myers, 461 U.S. 138,

142, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983); Pickering v. Board of Educ., 391

U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968); Smith v. Department of

7

Transportation, 106 M.S.P.R. 59, 78-79 (2007). After carefully reviewing the

record evidence, I found that the appellant failed to prove his claim that the

agency violated his rights under the First Amendment as set forth in the

underlying ID.

Judicial Review and Remand

On review, the Board agreed that the charge was correctly sustained, and

the Federal Circuit did not find the appellant’s arguments challenging the

agency’s charge to be persuasive. See RAF, Tab 1; MacLean, 116 M.S.P.R. 562.

The Board agreed that the appellant’s First Amendment right of free speech was

not violated, agreed that the appellant did not prove his claim under section

2302(b)(10), and concluded that the appellant’s disclosure to the reporter was not

protected whistleblowing. Id. The Federal Circuit did not further address the

First Amendment claim, agreed with the Board’s conclusion about the section

2302(b)(10) claim, and found that the appellant’s disclosure may qualify for

WPA protection. Id. The Federal Circuit vacated and remanded this matter to the

Board for a determination of whether the appellant’s disclosure met the other

requirements under section 2302(b)(8)(A), stating in its second footnote that

neither party argued that the Whistleblower Protection Enhancement Act applied

to this appeal. RAF, Tab 1. The Court affirmed the judgment of the Federal

Circuit. RAF, Tab 2. This matter was remanded to the Board for further

proceedings on the WPA as noted above. RAF, Tabs 1-3, 6.

In responding to the Board’s Order for the parties to address the WPA

matters, the appellant argued that his reinstatement is inadequate, and that he is

entitled to additional relief. RAF, Tab 16. While the appellant may file a

petition for enforcement of a final decision of the Board, inclusive of the order

below for reinstatement, filing such a request prior to the issuance of this remand

initial decision addressing the merits of the WPA claim is premature. 5 C.F.R.

§ 1201.182. Similarly, the appellant may move for the initiation of an addendum

8

proceeding after a final decision of the Board to request damages pursuant to

section 1201.204(d), and may file a request for attorney fees pursuant to section

1201.203. These requests are therefore denied as premature for the reasons set

forth above, and the appellant’s claims under the WPA are addressed. See RAF,

Tab 16; 5 C.F.R. §§ 1201.203(a), .204(e).

To establish the affirmative defense of retaliation for whistleblowing, the

appellant must show by a preponderance of the evidence that he made a protected

disclosure under 5 U.S.C. § 2302(b)(8), i.e., a disclosure of information that was

reasonably believed to evidence a violation of law, rule, or regulation, gross

mismanagement, gross waste of funds, abuse of authority, or a substantial and

specific danger to public health or safety; and the disclosure was a contributing

factor in the agency’s personnel action. Shaw v. Department of the Air Force, 80

M.S.P.R. 98, 113 (1998), citing Scott v. Department of Justice, 69 M.S.P.R. 211,

236 (1995), aff'd, 99 F.3d 1160 (Fed. Cir. 1996) (Table).

The appellant presented undisputed testimony that during an agency

briefing, an agency official told him that hijackers were planning “to smuggle

weapons in camera equipment or children’s toys through foreign security” then

“fly into the United States ... into an airport that didn’t require them to be

screened.” HCD (testimony of the appellant). The hijackers would then board

U.S. flights, overpower the crew or FAMs and “fly the planes into East Coast

targets[.]” Id. Within days of the briefing, the appellant and other FAMs

received a text message cancelling all RON missions for a specified period as set

forth above “to save money on hotel costs[.]” See id. The appellant testified that

he believed that cancelling the RON missions “was illegal and dangerous ... to the

public.” Id.

While the agency presented testimony to support its position that the

appellant’s disclosure of information about FAM deployments “created a

vulnerability within the aviation system” because it cannot cover every

commercial passenger flight, the agency did not dispute the appellant’s assertion

9

that he reasonably believed that his disclosure about the cancellation of forward

RON missions out of Las Vegas involved a specific danger to public safety for

those RON missions out of Las Vegas, in light of the agency’s briefing to FAMs

that hijackers were planning the attacks as specified above. Id.; HCD (testimony

of Mr. Donzanti). Further, as pointed out by the Court, the agency is obligated to

place FAMs on flights determined to present high security risks. RAF, Tab 2; 49

U.S.C. 44917(a)(2). In this case, the record reflects that the appellant was

concerned about the timing of the cancellation because “we had just gotten the –

this suicide hijacking alert that was issued.” HCD. While the agency argues that

it must allocate resources based on “intelligence” because it cannot cover every

commercial passenger flight, it does not adequately dispute that the appellant

reasonably believed that his disclosure about the cancellation of forward RON

missions out of Las Vegas evinced a violation of law, rule, or regulation as noted

above, in light of the agency’s briefing to FAMs that hijackers were planning the

attacks as specified above. Id. Following a careful review of the record

evidence, and the undisputed nature of the testimony above, I find that the

appellant has shown by preponderant evidence that he made a protected

disclosure of information that was reasonably believed to evidence a violation of

law, rule, or regulation, and a substantial and specific danger to public safety.

As noted above, the undisputed record reflects that the disclosure of SSI as

specified above involving the contents of the text message was the basis for the

appellant’s removal. HCD (testimony of Mr. Donzanti). Thus, I find that the

appellant has shown by preponderant evidence that the disclosure was a

contributing factor in the agency’s personnel action. Shaw v. Department of the

Air Force, 80 M.S.P.R. 98, 113 (1998), citing Scott v. Department of Justice, 69

M.S.P.R. 211, 236 (1995), aff'd, 99 F.3d 1160 (Fed. Cir. 1996) (Table).

As set forth in the detailed penalty analysis and discussion of the charge in

the underlying ID, the record reflects that the primary reason for the appellant’s

removal was the appellant’s disclosure of SSI information contained in the 2003

10

text message. IAF-2, Tab 84. The sole charge and specification before the Board

center on the agency’s assertion that the appellant made an unauthorized

disclosure of this same information as set forth in the underlying ID while the

testimonial evidence presented by the witnesses reflect that this same disclosure

was the primary basis for the appellant’s removal. See Carr v. Social Security

Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999). To this point, the agency

concedes that it cannot meet its burden under Carr. RAF, Tab 14. Thus, I find

that the agency is unable to meet its burden. Id. Because the agency did not meet

its burden of showing by clear and convincing evidence that it would have

removed the appellant absent his whistleblowing disclosures, the agency action

must be reversed.

DECISION The agency’s action is REVERSED.

ORDER I ORDER the agency to cancel the removal and to retroactively restore the

appellant effective April 11, 2006. This action must be accomplished no later

than 20 calendar days after the date this initial decision becomes final.

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

undisputed amount no later than 60 calendar days after the date this initial

11

decision becomes final. The appellant may then file a petition for enforcement

with this office to resolve the disputed amount.

I ORDER the agency to provide the appellant consequential relief as

appropriate pursuant to 5 C.F.R. § 1201.202(b).

I ORDER the agency to inform the 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, the 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.

§ 7701(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. § 7701(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

12

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: ______________________________ Franklin M. Kang Administrative Judge

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 PARTIES CONCERNING SETTLEMENT The date that this initial decision becomes final, which is set forth below, is

the last day that the parties may file a settlement agreement, but the

administrative judge may vacate the initial decision in order to accept such an

agreement into the record after that date. See 5 C.F.R. § 1201.112(a)(4).

NOTICE TO APPELLANT This initial decision will become final on December 8, 2015, unless a

petition for review is filed by that date. This is an important date because it is

13

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. 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.

If the other party has already filed a timely petition for review, you may

file a cross petition for review. Your petition or cross petition for review must

state your objections to the initial decision, supported by references to applicable

laws, regulations, and the record. You must file it with:

The Clerk of the Board Merit Systems Protection Board

1615 M Street, NW. Washington, DC 20419

A petition or cross petition for review may be filed by mail, facsimile (fax),

personal or commercial delivery, or electronic filing. A petition 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).

Criteria for Granting a Petition or Cross Petition for Review

14

Pursuant to 5 C.F.R. § 1201.115, the Board normally will consider only

issues raised in a timely filed petition or cross petition for review. Situations in

which the Board may grant a petition or cross petition for review include, but are

not limited to, a showing that:

(a) The initial decision contains erroneous findings of material fact. (1)

Any alleged factual error must be material, meaning of sufficient weight to

warrant an outcome different from that of the initial decision. (2) A petitioner

who alleges that the judge made erroneous findings of material fact must explain

why the challenged factual determination is incorrect and identify specific

evidence in the record that demonstrates the error. In reviewing a claim of an

erroneous finding of fact, the Board will give deference to an administrative

judge’s credibility determinations when they are based, explicitly or implicitly,

on the observation of the demeanor of witnesses testifying at a hearing.

(b) 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

petitioner must explain how the error affected the outcome of the case.

(c) The 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.

(d) New and material evidence or legal argument is available that, despite

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

constitute new evidence, the information contained in the documents, not just the

documents themselves, must have been unavailable despite due diligence when

the record closed.

As stated in 5 C.F.R. § 1201.114(h), a petition for review, a cross petition

for review, or a response to a petition for review, whether computer generated,

typed, or handwritten, is limited to 30 pages or 7500 words, whichever is less. A

reply to a response to a petition for review is limited to 15 pages or 3750 words,

whichever is less. Computer generated and typed pleadings must use no less than

15

12 point typeface and 1-inch margins and must be double spaced and only use one

side of a page. The length limitation is exclusive of any table of contents, table of

authorities, attachments, and certificate of service. A request for leave to file a

pleading that exceeds the limitations prescribed in this paragraph must be

received by the Clerk of the Board at least 3 days before the filing deadline. Such

requests must give the reasons for a waiver as well as the desired length of the

pleading and are granted only in exceptional circumstances. The page and word

limits set forth above are maximum limits. Parties are not expected or required to

submit pleadings of the maximum length. Typically, a well-written petition for

review is between 5 and 10 pages long.

If you file a petition or cross 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. A petition for review

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, 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.

16

§ 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).

A cross petition for review must be filed within 25 days after the date of

service of the petition for review.

ATTORNEY FEES If no petition for review is filed, you may ask for the payment of attorney

fees (plus costs, expert witness fees, and litigation expenses, where applicable) by

filing a motion with this office as soon as possible, but no later than 60 calendar

days after the date this initial decision becomes final. Any such motion must be

prepared in accordance with the provisions of 5 C.F.R. Part 1201, Subpart H, and

applicable case law.

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.

NOTICE TO THE APPELLANT REGARDING YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision by the United

States Court of Appeals for the Federal Circuit.

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

days after the date this initial decision becomes final. See 5 U.S.C.

§ 7703(b)(1)(A) (as rev. eff. Dec. 27, 2012). If you choose to file, be very

careful to file on time. The court has held that normally it does not have the

authority to waive this statutory deadline and that filings that do not comply with

the deadline must be dismissed. See Pinat v. Office of Personnel Management,

931 F.2d 1544 (Fed. Cir. 1991).

If you want to request review of this decision concerning your claims of

prohibited personnel practices under 5 U.S.C. § 2302(b)(8), (b)(9)(A)(i),

(b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge the Board’s

17

disposition of any other claims of prohibited personnel practices, you may request

review of this decision only after it becomes final by filing in the United States

Court of Appeals for the Federal Circuit or any court of appeals of competent

jurisdiction. The court of appeals must receive your petition for review within 60

days after the date on which this decision becomes final. See 5 U.S.C.

§ 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If you choose to file, be very careful

to file on time. You may choose to request review of the Board’s decision in the

United States Court of Appeals for the Federal Circuit or any other court of

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

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

court.

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

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

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

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

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

Additional information about the United States 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, and 11.

Additional information about other courts of appeals can be found at their

respective websites, which can be accessed through http://www.uscourts.gov/

Court_Locator/CourtWebsites.aspx.

If you are interested in securing pro bono representation for your court

appeal, that is, representation at no cost to you, the Federal Circuit Bar

Association may be able to assist you in finding an attorney. To find out more,

please click on this link or paste it into the address bar on your browser:

http://www.fedcirbar.org/olc/pub/LVFC/cpages/misc/govt_bono.jsp

18

The Merit Systems Protection Board neither endorses the services provided

by any attorney nor warrants that any attorney will accept representation in a

given case.

DFAS CHECKLIST

INFORMATION REQUIRED BY DFAS IN ORDER TO PROCESS PAYMENTS AGREED

UPON IN SETTLEMENT CASES OR AS ORDERED BY THE MERIT SYSTEMS

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

CASES

CIVILIAN PERSONNEL OFFICE MUST NOTIFY CIVILIAN PAYROLL OFFICE VIA COMMAND LETTER WITH THE FOLLOWING:

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

and POC to send.

2. Statement that employee was counseled concerning Health Benefits and TSP and the election forms if necessary.

3. Statement concerning entitlement to overtime, night differential, shift premium, Sunday Premium, etc, with number of hours and dates for each entitlement.

4. If Back Pay Settlement was prior to conversion to DCPS (Defense Civilian Pay System), a statement certifying any lump sum payment with number of hours and amount paid and/or any severance pay that was paid with dollar amount.

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

6. Corrected Time and Attendance if applicable.

ATTACHMENTS TO THE LETTER SHOULD BE AS FOLLOWS: 1. Copy of Settlement Agreement and/or the MSPB Order.

2. Corrected or cancelled SF 50's.

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

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

a. Outside earnings with copies of W2's or statement from employer. b. Statement that employee was ready, willing and able to work during the period. c. Statement of erroneous payments employee received such as; lump sum leave, severance pay, VERA/VSIP, retirement annuity payments (if applicable) and if employee withdrew Retirement Funds.

5. If employee was unable to work during any or part of the period involved, certification of the type of leave to be charged and number of hours.

NATIONAL FINANCE CENTER CHECKLIST FOR BACK PAY CASES

Below is the information/documentation required by National Finance Center to process payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by the Merit Systems Protection Board, EEOC, and courts. 1. Initiate and submit AD-343 (Payroll/Action Request) with clear and concise information describing what to do in accordance with decision.

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

a. Employee name and social security number. b. Detailed explanation of request. c. Valid agency accounting. d. Authorized signature (Table 63) e. If interest is to be included. f. Check mailing address. g. Indicate if case is prior to conversion. Computations must be attached. h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to be collected. (if applicable)

Attachments to AD-343 1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday Premium, etc. with number of hours and dates for each entitlement. (if applicable) 2. Copies of SF-50's (Personnel Actions) or list of salary adjustments/changes and amounts. 3. Outside earnings documentation statement from agency. 4. If employee received retirement annuity or unemployment, provide amount and address to return monies. 5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable) 6. If employee was unable to work during any or part of the period involved, certification of the type of leave to be charged and number of hours. 7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual Leave to be paid. NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay Period and required data in 1-7 above.

The following information must be included on AD-343 for Settlement Cases: (Lump Sum Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.) a. Must provide same data as in 2, a-g above. b. Prior to conversion computation must be provided. c. Lump Sum amount of Settlement, and if taxable or non-taxable.

If you have any questions or require clarification on the above, please contact NFC’s Payroll/Personnel Operations at 504-255-4630.