                              UNITED STATES OF AMERICA
                           MERIT SYSTEMS PROTECTION BOARD


     STEPHEN JUDY,                                  DOCKET NUMBER
                            Appellant,              AT-0752-14-0938-I-1

                    v.

     DEPARTMENT OF JUSTICE,                         DATE: February 23, 2016
                 Agency.




           Adam Jerome Conti, Atlanta, Georgia, for the appellant.

           Kathleen Harne, Washington, D.C., for the agency.


                                            BEFORE

                                Susan Tsui Grundmann, Chairman
                                   Mark A. Robbins, Member


                                            ORDER

¶1        The agency has filed a petition for review of the initial decision, which
     mitigated the appellant’s removal to a 7-day suspension. The two Board members
     cannot agree on the disposition of the petition for review. Therefore, the initial
     decision now becomes the final decision of the Merit Systems Protection Board in
     this appeal.        Title 5 of the Code of Federal Regulations, section 1200.3(b)
     (5 C.F.R. § 1200.3(b)). This decision shall not be considered as precedent by the
     Board in any other case. 5 C.F.R. § 1200.3(d).
¶2        Based on the initial decision, which now becomes the final decision of the
     Board, the parties’ obligations are set out below:
¶3        The agency must cancel the removal and substitute in its place a 7-day
     suspension without pay effective July 28, 2014. See Kerr v. National Endowment
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     for the Arts, 726 F.2d 730 (Fed. Cir. 1984).       The agency must complete this
     action no later than 20 days after the date of this decision.
¶4         The agency must pay the appellant the correct amount of back pay, interest
     on back pay, and other benefits under the Office of Personnel Management’s
     regulations, no later than 60 calendar days after the date of this decision.
¶5         The appellant must cooperate in good faith in the agency’s efforts to
     calculate the amount of back pay, interest, and benefits due, and to provide all
     necessary information the agency requests to help it carry out the final decision of
     the Board. If there is a dispute about the amount of back pay, interest due, and/or
     other benefits, the agency must pay the appellant the undisputed amount no later
     than 60 calendar days after the date of this decision.
¶6         The agency must tell the appellant promptly in writing when it believes it
     has fully carried out the Order in the final decision of the Board and to describe
     the actions it took to carry out the Order. The appellant, if not notified, should
     ask the agency about its progress. See 5 C.F.R. § 1201.181(b).
¶7         No later than 30 days after the agency tells the appellant that it has fully
     carried out the Order, the appellant may file a petition for enforcement with the
     office that issued the initial decision in this appeal if the appellant believes that
     the agency did not fully carry out the Order. The petition should contain specific
     reasons why the appellant believes that the agency has not fully carried out the
     Order, and should include the dates and results of any communications with the
     agency. 5 C.F.R. § 1201.182(a).
¶8         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.     The agency must timely provide DFAS or NFC with all
     documentation necessary to process payments and adjustments resulting from the
                                                                                  3

Board’s final decision in accordance with the attached lists so that payment can
be made within the 60-day period set forth above.

                NOTICE TO THE APPELLANT REGARDING
                      YOUR RIGHT TO REQUEST
                     ATTORNEY FEES AND COSTS
      You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set out at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. § 1201.202. If you believe you meet these
requirements, you must file a motion for attorney fees WITHIN 60 CALENDAR
DAYS OF THE DATE OF THIS DECISION. You must file your attorney fees
motion with the office that issued the initial decision on your appeal.

                NOTICE TO THE APPELLANT REGARDING
                   YOUR FURTHER REVIEW RIGHTS
      You have the right to request review of the final decision by the U.S. Court
of Appeals for the Federal Circuit. You must submit your request to the court at
the following address:
                              U.S. Court of Appeals
                              for the Federal Circuit
                             717 Madison Place, N.W.
                              Washington, DC 20439

The court must receive your request for review no later than 60 calendar days
after the date of this order. 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 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 U.S. Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. Dec. 27,
                                                                                  4

2012). You may read this law as well as other sections of the U.S. Code, at our
website, http://www.mspb.gov/appeals/uscode.htm.        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.
      If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Merit Systems Protection Board neither endorses the services provided by any
attorney nor warrants that any attorney will accept representation in a given case.




FOR THE BOARD:                            ______________________________
                                          William D. Spencer
                                          Clerk of the Board
Washington, D.C.
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                                                     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.
