April 1, 2011: Adaire Martinez v Department of Veterans Affairs

8/7/2019 April 1, 2011: Adaire Martinez v Department of Veterans Affairs

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UNITED STATES OF AMERICAMERIT SYSTEMS PROTECTION BOARD

ATLANTA REGIONAL OFFICE

KATHERINE ADAIR MARTINEZ,Appellant,

DOCKET NUMBERAT-0752-10-0474-1-2

v.DEPARTMENT OF VETERANSAFFAIRS, DATE: April 1, 2011

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.

BEFORELynn P. Yovino

Administrative Judge

INITIAL DECISION

INTRODUCTIONOn June 15, 2010, the appellant timely refiled i her appeal of the agency's

action removing her from the position of Deputy Assistant Secretary forInformation Protection and Risk Management, SES, in the Office of Information

i The appeal was initially dismissed as premature because of the timely filing of aformal 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).


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2and Technology, Department of Veterans Affairs in Bay Pines, Florida, effectiveFebruary 5, 2010. Appeal File (AF), Tab 1. The Board has jurisdiction over thisappeal under 5 U.S.C. 7511-13, 7701. The appellant requested a hearing, butthe hearing was cancelled after I notified the parties of the disposition of thisappeal. At that time, and based on that notice, the appellant withdrew heraffirmative defenses conditionally and without prejudice. Refiled Appeal File(RAF), Volume (Vol.) 6, Tab 38. For the reasons below, the agency's action isREVERSED.

ANALYSIS AND FINDINGSBackground

Prior to her removal on February 5, 2010, the appellant had approximately20 years of government service. At the time of her removal, she held a positionin the Senior Executive Service, as the Deputy Assistant Secretary forInformation Protection and Risk Management, for the VA OIT in the Bay PinesField Office, Florida. Initial Appeal File (lAF), Vol. 2, Agency Response (AR),Tab 4A.

On August 18, 2009, the VA Office of Inspector General released aredacted administrative investigation report entitled "Misuse of Position, Abuseof Authority, and Prohibited Personnel Practices" within OIT. IAF, Vol. 4, AR,Tab 4N. In that investigative report, the OIG stated that it substantiated that theappellant misused her position, abused her authority, engaged in prohibitedpersonnel practices, failed to provide proper contract oversight, and did notproperly fulfill her duties as a Contracting Officer's Technical Representative(COTR). IAF, Vol. 4, AR, Tab 4N, p.1. As explained below, that report wasforwarded to Roger Baker, Assistant Secretary for OIT, for concurrence; heconcurred in the "various violations" concernmg the appellant and agreed toensure that appropriate action would be taken.


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3On September 18, 2009, Stephen Warren, the Principal Deputy Assistant

for OIT, proposed the appellant's removal based on four charges: (1) misuse ofyour official position for the personal gain of a friend; (2) engaging in aprohibited personnel practice; (3) inadequate contract oversight; and, (4)inappropriate use of a contractor. IAF, Vol. 6, AR, Tab 40. The notice ofproposed removal identified the deciding official as Mr. Baker-the same officialwho had already concurred in the violations concerning the appellant.

The appellant requested additional information and extensions of time toreply to the notice of proposed removal. IAF, Vol. 3, AR, Tab 4J-M. On orabout November 5, 2009, the appellant presented her oral and written replies toMr. 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 afifth charge: inappropriate sharing of nonpublic contracting information, and theevidence 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 presentedoral and written replies to Mr. Baker regarding charge 5. IAF, Vol. 2, AR, Tab4D andE.

On February 1, 2010, Mr. Baker issued a decision sustaining all fivecharges2 against the appellant and the appellant's removal was effective February5,2010. IAF, Vol. 2, AR, Tabs 4B and C. This appeal followed.

Due ProcessDiscovery 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 possibledue process violation. During a status conference on January 28, 2011, Iinformed 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.


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4with them. RAF, Vol. 5, Tab 29. Subsequently, on January 31,2011, I issued anOrder further defining the issue and allowing the parties to brief the matter.3RAF, Vol. 5, Tab 29. See Robinson v. Department of Veterans Affairs, 72M.S.P.R. 444, 449 n.3 (1996) (due process issue may be raised sua sponte). Bothparties responded, and the appellant responded to the agency's brief. Uponconsidering their briefs and the relevant case law, I conducted a telephonicconference during which I notified the parties that I found that the agency had notafforded the appellant the requisite due process and that I would be issuing adecision reversing the removal. Jd., Tab 20. The appellant then filed a statementindicating 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 forhearing.

The constitutional due process issue concerns whether the appellant wasafforded a meaningful opportunity to reply to the charges levied against her. TheOIG sent its draft investigative report to Mr. Baker, who subsequently served asthe deciding official on the appellant's removal, for concurrence. Mr. Baker thenconcurred in the draft investigative report findings, prepared by the Office ofInspector General, regarding violations committed by the appellant. See AppealFile, Tab 4n. For, on July 30, 2009, he wrote to James J. O'Neill, AssistantInspector General for Investigations, Office of Inspector General:

I have reviewed the Draft inspector General Report entitled"Administrative Investigation Misuse of Position, Abuse ofAuthority, and Prohibited Personnel Practices, Office ofInformation 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 amaterial issue of fact which would warrant a hearing on the due process issue, that partymust describe the material fact(s) in dispute and explain why a limited hearing would benecessary in order to resolve such a factual dispute. Neither party identified a materialfact in dispute.


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5IAF, Vol. 4, AR, Tab 4N, p.22. (Emphasis added). The IG made 11recommendations based on its investigation, only 4 of which pertained to theappellant. They are:

Recommendation 1. We recommend that the Assistant Secretaryfor Information and Technology take appropriate action againstMs. Martinez for the misuse of her position for the personal gainof Ms. Nash.Concur Target Completion Date: 9/15/09Recommendation 2. We recommend that the Assistant Secretaryfor Information and Technology take appropriate action againstMs. Martinez for violating acquisition regulations when sheimproperly shared V A proprietary procurement information withMs. Nash and Mr. Doe.Concur Target Completion Date: 9/15/09Recommendation 3. We recommend that the Assistant Secretaryfor Information and Technology take appropriate action againstMs. Martinez for failing to properly perform her duties as aCOTR and for failing to provide proper contract oversight.Concur Target Completion Date: 9/15/09Recommendation 4. We recommend that the Assistant Secretaryfor Information and Technology take appropriate action againstMs. Martinez for abuse of her authority and engaging in aprohibited 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 therecommendations to take appropriate administrative actionfor these various violat ions. I intend to discuss these matterswith the Office of Human Resources and Administration and theGeneral Counsel to ensure that the actions taken are appropriate.


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6IAF, Vol. 4, AR, Tab 4N, p.24 (Emphasis added). These recommendations thenformed the basis of the agency's charges in the Notice of Proposed Removal,4 thereplies 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 berepresented, 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 protectedproperty interest in her employment and is, therefore, entitled to minimum dueprocess regarding her removal. See id. I f the agency denied the appellantminimum due process in removing her, her removal must be reversed as a matteroflaw due to the constitutional violation. See id., " 1,6.

A federal constitutional due process claim depends on the employee havinga 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 federalemployees have such a property right, since they cannot be dismissed except forcause 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 ofproposed removal were not the same. The agency's argument is unpersuasive, becausebased on my review of the record, the misconduct cited in the specifications of the 5charges of the notice of proposed removal is also contained in its entirety in the IG'sfindings as follows: All three specifications (A, Band C) of Charge I are addressed inIssue 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 inIssue 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 ofProposed Removal). See also Appellant's Brief Regarding the Agency's ConstitutionalDue Process Violations, RAF, Vol. 6, Tab 35, at pages 5-9 of 20, for a detailed, sideby-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 ProposedRemoval.


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7The 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 forhearing appropriate to the nature of the case." ... This principlerequires "some kind of hearing" prior to the discharge of anemployee who has a constitutionally protected property interest inhis employment....[T]he pretermination hearing need not definitively resolve thepropriety of the discharge. It should be an initial check againstmistaken decisions-essentially, a determination of whether there arereasonable grounds to believe that the charges against the employeeare true and support the proposed action ....The essential requirements of due process ... are notice and anopportunity to respond. The opportunity to present reasons, either inperson or in writing, why proposed action should not be taken is afundamental due process requirement. The tenured publicemployee is entitled to oral or written notice of the charges againsthim, an explanation of the employer's evidence, and an opportunityto 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 thecase is important in enabling the agency to reach an accurate result for tworeasons. First, dismissals for cause will often involve factual disputes andconsideration of the employee's response may help clarify such disputes. Inaddition, even if the facts are clear, "the appropriateness or necessity of thedischarge may not be; in such cases, the only meaningful opportunity to invokethe discretion of the decisionmaker is likely to be before the termination takeseffect." Id. at 543.

The Board first applied the holding in Loudermill in Stephen v. Departmentof the Air Force, 47 M.S.P.R. 672, 680-81 (1991), wherein the Board held that anagency's failure to provide a nonprobationary federal employee with prior noticeand an opportunity to present a response to an appealable agency action depriveshim of his property right in his employment and violates his constitutional right


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8to 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 dueprocess is "absolute," and does not depend on the merits of the claim, and that anaction in which such process is not provided must be reversed. Id.The U.S. Court of Appeals for the Federal Circuit has continued to expandupon the due process rights of the tenured employee, finding the right toconstitutional due process in areas other than the opportunity to respond. SeeStone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1374-76 (Fed.Cir. 1999) (ex parte communications); Ward v. U.S. Postal Service, 2011 WL537856 (Fed. Cir.)(Feb. 17, 2011) (ex parte communications as regards penaltyconsiderations ).

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 proceduresan agency must follow in removing a Federal employee entitled to rights, i.e., 5U.S.C. 7513(b), procedural due process requires that one's property rightcannot be deprived except pursuant to constitutionally adequate procedures. InStone, 179 F.3d at 1376, the court noted the importance of procedural fairnessthroughout the pre-termination stage:

It is constitutionally impermissible to allow a deciding official toreceive additional material information that may undermine theobjectivity required to protect the fairness of the process. Oursystem is premised on the procedural fairness at each stage of theremoval proceedings. An employee is entitled to a certain amountof due process rights at each stage and, when these rights areundermined, the employee is entitled to relief regardless of thestage of the proceedings.

Thus, the court in Stone, 179 F.3d at 1377, reaffirmed the court's earlier holdingin Sullivan v. Department of the Navy, 720 F.2d 1266, 1274 (Fed.Cir.1983), thatwhen a procedural due process violation has occurred because of ex partecommunications, such a violation is not subject to the harmless error test. SeeRyder v. United States, 218 Ct.Cl. 289, 585 F.2d 482, 488 (1978) (refusing to


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apply harmless error test: "[W]here a senous procedural curtailment mars anadverse personnel action which deprives the employee of pay, the court hasregularly taken the position that the defect divests the removal (or demotion) oflegality, leaving the employee on the rolls of the employing agency and entitledto his pay until proper procedural steps are taken toward removing or disciplininghim. 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 partecommunications rose to the level of a constitutional due process violation, even ifthe communications concerned the penalty, and not the merits of the charges, theaction 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 SupremeCourt precedent, emphasized the importance of giving an employee notice of anyaggravating factors supporting an enhanced penalty as well as a meaningfulopportunity to address 'whether the level of penalty to be imposed isappropriate. '"

Even before Loudermill, the Board recognized that there was a possibilityof 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 decidingofficial in the adverse action had also been the supervisor who had sustained hisunsatisfactory rating). The Board noted that it would be a violation of dueprocess "to allow an individual's basic rights to be determined either by a biaseddecisionmaker or by a decisionmaker in a situation structured in a manner suchthat '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 aperson who is familiar with the facts of the case and has expressed a


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10predisposition contrary to the appellant's interests.,,5 Id. at 111 (citationomitted). In Svejda, the Board concluded that the appellant failed to show thatthe agency's selection of the specific deciding official posed a risk of unfairnessthat was "intolerably high." Id. at 111-112.I recognize that most of the cases involving the denial of due processinvolve situations where the agency failed to give advance notice of the chargesand/or failed to consider the appellant's reply at all. See, e.g., Stephen, 47M.S.P.R. at 672. However, in Loudermill, the Court held that, while the pretermination hearing need not be a full adversarial hearing, it must afford theemployee a meaningful opportunity to speak in her own defense. See alsoPatkus v. Sangamon-Cass Consortium, 769 F.2d 1251, 1265 (7th Cir. 1985).Indeed, more recently, the U.S. Supreme Court cited its earlier precedent inLoudermill for the proposition that the "core of due process is the right tonotice and a meaningful opportunity to be heard." LaChance v. Erickson, 522U.S. 262 (S. Ct. 1998) (Emphasis added).

Although there is precedent6 that generally allows for the proposing anddeciding official to be the same person, such precedent is not determinative of theissue in this case. The role of the proposing official in an adverse action is tolevy "charges," not "findings," upon review of the evidence. The due processright the proposing official ensures is providing notice of the basis for thecharges, as well as any aggravating factors in enhancing the penalty, in anadverse action. Armed with sufficient notice of the charges the appellant canthen 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 notviolative of constitutional due process rights after Loudermill. In the instant case,however, the deciding official expressed a conclusion based on the evidence, not simplya predisposition.6 See Teichmann v. Department of the Army, 34 M.S.P.R. 447,449-50 (1987), aff'd, 854F.2d 1327 (Fed. Cir. 1988) (Table).


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"meaningful opportunity to respond." Also not determinative here is theprecedent that found that it was permissible for the deciding official to befamiliar with the facts of a case or render prior agreement with the issuance of aproposed action.

7Misconduct does not occur in a vacuum and we cannot expectthat supervisors should walk around with blinders on. However, there is a

significant difference between publishing findings as to the merits of the chargesand having some knowledge of what happened.

In this case, Mr. Baker's written words to the IG about the IG's reportconcerning the appellant's investigation were unambiguous. He stated that hereviewed the draft report and provided his "organizations' response to the IG'sfindings". (Emphasis added). He then stated that he concurred with each of thefour recommendations that appropriate action be taken and that he "concur[red]with the recommendations to take appropriate administrative action for thesevarious violations." Then he stated that he intended to discuss these matters withthe Office of Human Resources and Administration and the General Counsel "toensure that the actions taken are appropriate." What he did not say was that hewas going to discuss whether there were violations-just that he was going toensure that appropriate actions were taken.

Therefore, I disagree with the agency's argument that Mr. Baker wassimply agreeing to take appropriate action but expressed no opinion whether heagreed with the IG's findings. As a high-level official, Mr. Baker's words shouldbe 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, 12M.S.P.R. 200, 205 (1982), Pitt v. Department of the Army, 17 M.S.P.R. 358, 360 (1983)Beatty v. Department ofHousing & Urban Development, 20 M.S.P.R. 436, 438 (1984),aff'd, 765 F.2d 162 (Fed. Cir. 1985) (Table).


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12concurred or non-concurred;8 he responded to the IG's findings and concurrednot only to take appropriate action, but specifically, "for these variousviolations." In any event, the record also shows that Mr. Baker studied theinvestigative reports, evaluated the evidence, and formed definite opinionsregarding the IG's findings. 9

I find that, by concurring in the Inspector General's findings concermngthe appellant's violations, as opposed to finding that appropriate action should betaken, Mr. Baker determined the appellant was guilty of those violations whichthen 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 decidingofficial, who was the agency official in charge of ensuring that she had ameaningful opportunity to present her side of the story concerning not only thepenalty, but also whether she engaged in the cited misconduct.

I recognize that Mr. Baker did not sustain one of the three specificationssupporting charge 1. However, that fact alone does not detract from the fact thatthe constitutional violation occurred prior to his issuance of the decision letter inthis case. In his deposition, Mr. Baker testified that "[h]onestly, I paid no

8See deposition testimony of Linda Fournier, Director of Administrative InvestigationsDivision at VA OIG. RAF, Vol 6, Tab 34, Exhibit 4, p. 70 of 99 (deposition p 96, lines8-16).9 Mr. Baker testified, in his deposition on November 8, 2010, that, at the same time thathe was presented with the IG investigative report concerning the allegations about theappellant, he was presented with an IG report involving two other employees-Ms. Pand 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 notsubstantiated, 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 drewconclusions from it. Therefore, his statement that he did not consider any of the factsin the appellant's case prior to his concurrence runs hollow. More importantly, the factthat he found Ms. D. not guilty of an offense directly contradicts his assertions that hisconcurrence was as to penalty only, and not to facts. RAF, Vol. 5, Tab 28, Exhibit 1,pp.69-72.


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attention to the IG report once [they] had the evidence" and that the IG report wasnot 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 IGreport, 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 ofthe OIG report, it is proposed to remove you from employment with VA based onthe charges and reasons set out below." IAF, Vol. 6, AR, Tab 40. The followingsentence also appears in the notice of proposed removal: "Based on the factualfindings of the OIG report, the VA Office of General Counsel has determined youengaged in violations of Standards of Ethical Conduct and potentially violated acriminal conflict of interest statute." IAF, Vol. 6, AR, Tab 40.More importantly, however, Mr. Baker admitted, in his depositiontestimony, that he had the draft report, and the supporting materials, forapproximately one month before giving his concurrence and that he "absolutely"considered the testimony that the IG gathered as part of the evidence heconsidered in deciding to remove the appellant. RAF, Vol. 5, Tab 28 (November8, 2010 transcript p. 60, lines 19-22, and p. 61-62). Mr. Baker's attempts todistance himself from his detailed review of the investigative report areunpersuaSlVe.

In my view, because Baker's testimony was tainted by his prior review ofthe evidence and concurrence in the violations, his later claim that he nonethelessprovided the appellant with a meaningful opportunity to reply is unavailing. SeeStone, 179 F.3d at 1372 (finding a due process violation even though "[i]n anaffidavit, the deciding official stated that he would have concluded that Mr. Stoneshould be removed whether or not he had seen the ex parte memo from theproposing 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 thecase, Wolverton stated that he formed his own opinion.... We have no doubtthat Wolverton formed his own opinion on what recommendations he should


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14make to General Anderson, just as we have no doubt that General Anderson madeup 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 exparte communication . . . "). 10When the deciding official has painstakingly reviewed evidence, as did Mr.Baker in this case, and then issued findings that he concurred in the variousviolations, the risk of unfairness is dangerously high and is contrary to thedictates of even the minimum of due process. In other words, the risk is too highthat the appellant missed her "only meaningful opportunity invoke the discretionof the decision maker" before her termination took place. See Loudermill, 470U.S. at 543. As such, the agency violated the appellant's constitutional right tominimum due process of law, and its action must be reversed. The appellant isentitled to a "constitutionally correct removal proceeding." See Stone v. FederalDeposit Insurance Corporation, 179 F .3d 1368, 1374-76 (Fed. Cir. 1999).

DECISIONThe agency's action is REVERSED.

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

appellant effective February 5, 2010. This action must be accomplished no laterthan 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 inan unpublished opinion to support the proposition that "[a]n adversary's ex partecommunications to a deciding official render that official's claims of a lack of influenceunavailing." See Kelly v. Department of Agriculture, 225 Fed. Appx. 880 Fed. Cir.2007) (unpublished). Although Kelly is not citable precedent, I have considered it aspersuasive guidance on the issue of whether once an individual improperly considersevidence that is adverse to the appellant, a later claim that it made no difference is, onits face, not credible.


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I ORDER the agency to pay appellant by check or through electronic fundstransfer for the appropriate amount of back pay, with interest and to adjustbenefits with appropriate credits and deductions in accordance with the Office ofPersonnel Management's regulations no later than 60 calendar days after the datethis initial decision becomes final. I ORDER the appellant to cooperate in goodfaith with the agency's efforts to compute the amount of back pay and benefitsdue and to provide all necessary information requested by the agency to help itcomply.

I f there is a dispute about the amount of back pay due, I ORDER theagency to pay appellant by check or through electronic funds transfer for theundisputed amount no later than 60 calendar days after the date this initialdecision becomes final. Appellant may then file a petition for enforcement withthis office to resolve the disputed amount.

I ORDER the agency to inform appellant in writing of all actions taken tocomply with the Board's Order and the date on which it believes it has fullycomplied. I f not notified, appellant must ask the agency about its efforts tocomply before filing a petition for enforcement with this office.

For agencies whose payroll is administered by either the National FinanceCenter of the Department of Agriculture (NFC) or the Defense Finance andAccounting Service (DFAS), two lists of the information and documentationnecessary to process payments and adjustments resulting from a Board decisionare attached. I ORDER the agency to timely provide DFAS or NFC with alldocumentation necessary to process payments and adjustments resulting from theBoard's decision in accordance with the attached lists so that payment can bemade within the 60-day period set forth above.

INTERIM RELIEFI f 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.


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770l(b)(2)(A). The relief shall be effective as of the date of this decision andwill remain in effect until the decision of the Board becomes final.

Any petition for review or cross petition for review filed by the agencymust be accompanied by a certification that the agency has complied with theinterim relief order, either by providing the required interim relief or bysatisfying the requirements of 5 U.S.C. 770l(b)(2)(A)(ii) and (B). I f theappellant challenges this certification, the Board will issue an order affording theagency the opportunity to submit evidence of its compliance. I f an agencypetition or cross petition for review does not include this certification, or if theagency 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 thatbasis.

FOR THE BOARD: ________ ,/S/_____________Lynn P. YovinoAdministrative Judge

NOTICE TO APPELLANTThis 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 apetition for review with the Board. However, if you prove that you received thisinitial decision more than 5 days after the date of issuance, you may file apetition for review within 30 days after the date you actually receive the initialdecision. I f you are represented, the 30-day period begins to run upon either yourreceipt of the initial decision or its receipt by your representative, whichevercomes first. You must establish the date on which you or your representativereceived it. The date on which the initial decision becomes final also controlswhen you can file a petition for review with the Court of Appeals for the Federal


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17Circuit. The paragraphs that follow tell you how and when to file with the Boardor the federal court. These instructions are important because if you wish to filea petition, you must file it within the proper time period.

BOARD REVIEWYou may request Board review of this initial decision by filing a petition

for review. Your petition for review must state your objections to the initialdecision, supported by references to applicable laws, regulations, and the record.You must file your petition with:

The Clerk of the BoardMerit Systems Protection Board

1615 M Street, NW.Washington, DC 20419A petition for reVIew may be filed by mail, facsimile (fax), personal orcommercial delivery, or electronic filing. A petition for review submitted byelectronic filing must comply with the requirements of 5 C.F.R. 1201.14, andmay only be accomplished at the Board's e-Appeal website(https://e-appeal.mspb.gov).

I f you file a petition for review, the Board will obtain the record in yourcase from the administrative judge and you should not submit anything to theBoard that is already part of the record. Your petition must be filed with theClerk of the Board no later than the date this initial decision becomes final, or ifthis initial decision is received by you or your representative more than 5 daysafter the date of issuance, 30 days after the date you or your representativeactually received the initial decision, whichever was first. I f you claim that youand your representative both received this decision more than 5 days after itsissuance, 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 tothe deliberate evasion of receipt. You may meet your burden by filing evidenceand argument, sworn or under penalty of perjury (see 5 C.F.R. Part 1201,


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18Appendix 4) to support your claim. The date of filing by mail is determined bythe postmark date. The date of filing by fax or by electronic filing is the date ofsubmission. The date of filing by personal delivery is the date on which theBoard receives the document. The date of filing by commercial delivery is thedate the document was delivered to the commercial delivery service. Yourpetition may be rejected and returned to you if you fail to provide a statement ofhow you served your petition on the other party. See 5 C.F .R. 1201.4(j). If thepetition is filed electronically, the online process itself will serve the petition onother e-filers. See 5 C.F.R. 1201.14(j)(1).

JUDICIAL REVIEWI f you are dissatisfied with the Board's final decision, you may file a

petition with:The United States Court of Appealsfor the Federal Circuit717 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 60calendar days after the date this initial decision becomes final.

I f you need further information about your right to appeal this decision tocourt, you should refer to the federal law that gives you this right. It is found inTitle 5 of the United States Code, section 7703 (5 U.S.C. 7703). You may readthis law, as well as review the Board's regulations and other related material, atour website, http://www.mspb.gov. Additional information is available at thecourt's website, www.cafc.uscourts.gov. Of particular relevance is the court's"Guide for Pro Se Petitioners and Appellants," which is contained within thecourt's Rules of Practice, and Forms 5, 6, and 11.


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ENFORCEMENTIf, 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 theBoard 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 regardingcompliance, and a statement showing that a copy of the petition was either mailedor hand-delivered to the agency.

Any petition for enforcement must be filed no more than 30 days after thedate of service of the agency's notice that it has complied with the decision. I fyou believe that your petition is filed late, you should include a statement andevidence showing good cause for the delay and a request for an extension of timefor filing.

NOTICE TO AGENCY/INTERVENORThe agency or intervenor may file a petition for review of this initial

decision in accordance with the Board's regulations.


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DFAS CHECKLISTINFORMATION REQUIRED BY DFAS IN

ORDER TO PROCESS PAYMENTS AGREEDUPON IN SETTLEMENT CASES OR ASORDERED BY THE MERIT SYSTEMSN RD

AS CHECKLIST: INFORMATION REQUIRED BY IN ORDER TO PROCESS PAYMENTS AGREED UPON IN SETTLEMENTCASES

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

1. Statement if Unemployment Benefits are to be deducted, with dollar amount, addressand 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. I f Back Pay Settlement was prior to conversion to DCPS (Defense Civilian PaySystem), a statement certifying any lump sum payment with number of hours andamount 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. Elect ion 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, severancepay, VERA/VSIP, retirement annuity payments (if applicable) and if employee withdrewRetirement Funds.

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


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USDA UNITED STATES DEPARTMENT OF~ A G R I C U L T U R E NATIONAL FINANCE CENTER CHECKLIST FOR BACK PAY CASESBelow 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 uordered by the Merit S)'ItcmI Protection BOIrd, EEOC, and colll'tl.1. Inltillta lind submit AD-343 (Pllyroll/Actlon Raquast) with clallr lind conclsaIn1onnatlon describing what to do In accordance with decision.Z. The following In1'onnatlon must be Included on AD-343 fo r Restoration:

a. Employee name and social security number.b. Detailed explanation of request.c. Valid agancy accounting.d. Authorized slgnilture (T;!Ible 63)e. I t Interest Is to be Included.f. Check mailing addresi.g. IndiClite i f cllse is prior to conversion. Computlltions must be attllched.h. Indlcata tha amount of SavaranCIIllnd Lump Sum Annual Laava Paymant tobe collected. (If ilppllc;llble)

Attachment. to AD-3431. Provide pay entitlement to Indude overtime, Night DllTerentlal, Shift Premium, Sund-rPremium, eb:. with number or hours and dates for elch entitlement. (I f applicable)Z. COpies of SF-50's (Personnel Actionl) or list of salary adjustments/changelandIImounts.3. Outslda IIiIrnlngll documantiltlon mtamant from ilglmc:y.4. It employee receIVed retirement annuity or unemployment, provide amount and addressto retum monies.5. Provide forms for FEGU, FEHBA. orTSP deductions. (if applicable)6. I f amployaa WIIS unllbla to work durtngllny or Pllrt or tha parted Involvad, cartlllCll1:lon ofthe 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 AnnualLeave to be paid.NOTE: I f prior to conversion, IIgenc:y must IIttllch Computiltlon Worksheet by PilYParlod ilnd raqulrad dllt;!l In 1-7 ;!Ibova.1.""he followins; information mutt be included on AD-343 for Settlement Cue.: (LumpSum 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.

Documents

April 1, 2011: Adaire Martinez v Department of Veterans Affairs