                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     ANNA V. PEREZ,                                  DOCKET NUMBER
                         Appellant,                  NY-0752-11-0254-I-2

                  v.

     DEPARTMENT OF HOMELAND                          DATE: September 11, 2014
       SECURITY,
                 Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Albert Loew, Esquire, Merrick, New York, for the appellant.

           Cheryl Scott-Johnson, Esquire, Philadelphia, Pennsylvania, for the agency.

           Michael W. Gaches, Esquire, Arlington, Virginia, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The agency has filed a petition for review of the initial decision that
     reversed its May 19, 2011 indefinite suspension action.          Generally, we grant


     1
        A nonprecedential order is one that the Board has determined does not add
     significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
     but such orders have no precedential value; the Board and administrative judges are not
     required to follow or distinguish them in any future decisions. In contrast, a
     precedential decision issued as an Opinion and Order has been identified by the Board
     as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
                                                                                       2

     petitions such as this one only when:      the initial decision contains erroneous
     findings of material fact; 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 judge’s rulings during either the course of the appeal or
     the initial decision were not consistent with required procedures or involved an
     abuse of discretion, and the resulting error affected the outcome of the case; or
     new and material evidence or legal argument is available that, despite the
     petitioner’s due diligence, was not available when the record closed. See Title 5
     of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
     After fully considering the filings in this appeal, and based on the following
     points and authorities, we conclude that the petitioner has not established any
     basis under section 1201.115 for granting the petition for review. Therefore, we
     DENY the petition for review. Except as expressly modified by this Final Order,
     we AFFIRM the initial decision.

                                       BACKGROUND
¶2        The appellant was employed as a Federal Air Marshal (FAM) with the
     Transportation Security Administration (TSA), Federal Air Marshal Service
     (FAMS), at the agency’s New York Field Office (NYFO). MSPB Docket No.
     NY-0752-11-0254-I-1 (I-1), Initial Appeal File (IAF), Tab 7, Subtab 4J. As a
     condition of employment, the appellant was required to maintain a top secret
     security clearance, and was subject to drug and alcohol testing. Id., Subtab 4I.
     On February 9, 2011, the appellant underwent a random drug test and tested
     positive for cocaine.     Id., Subtab 4F.      As a result, she was placed on
     administrative leave effective February 17, 2011.             MSPB Docket No.
     NY-0752-11-0254-I-2 (I-2), Petition for Review (PFR) File, Tab 1 at 23-24.
     Following reconfirmation testing, a FAMS medical review officer certified the
     positive test result on March 1, 2011. I-1, IAF, Tab 7, Subtab 4F.
                                                                                      3

¶3        On March 11, 2011, the agency’s Office of Personnel Security Division
     (PERSEC) issued the appellant a Notice of Determination to Revoke Access to
     Classified Information. Id., Subtab 4E. The notice indicated that the revocation
     decision was not final, but that the appellant’s top secret clearance was
     suspended, effective immediately. Id. PERSEC explained that its determination
     was based on appellant’s positive test result for cocaine on February 9, 2011, and
     the reconfirmation and certification of that result on March 1, 2011.      Id. The
     notice further explained that, under agency guidelines for determining eligibility
     for access to classified information, the appellant’s conduct was a disqualifying
     security concern because it called into question her judgment, reliability, and
     willingness to comply with rules and regulations, and caused doubt about her
     ability to protect classified information. Id. The appellant was afforded 30 days
     to make a reply in writing and/or in person to the Chief Security Officer (CSO),
     Office of Security Services and Assessments, and request review of the
     determination. Id.
¶4        On March 28, 2011, Sam Luongo, Supervisory FAM, NYFO, issued a notice
     proposing the appellant’s indefinite suspension based on the March 11, 2011
     suspension of her security clearance. Id., Subtab 4D. The appellant was afforded
     7 calendar days from her receipt of the notice to make an oral and/or written reply
     together with any supporting evidence. Id. The appellant requested and received
     a 14-day extension to respond. See id., Subtab 4B.
¶5        Meanwhile, on April 11, 2011, the appellant’s representative sent a letter to
     Lewis Oakcrum, Personnel Security Specialist, PERSEC, requesting the
     following: (1) an extension of time in which to reply to the March 11, 2011
     determination; (2) copies of all the policies and procedures which the agency used
     regarding security clearance revocations; (3) all materials which the agency relied
     on to support its March 11 decision; and (4) the right to make a personal reply to
     the determination.    I-1, IAF, Tab 17, Exhibit C.        Mr. Oakcrum did not
     immediately respond to the letter. On April 15, 2011, the appellant requested an
                                                                                       4

     additional extension of time to respond to the March 28, 2011 proposal notice,
     and the agency extended the deadline until May 2, 2011. See I-1, IAF, Tab 7,
     Subtab 4B. The appellant subsequently requested that the deadline be further
     extended until 3 days after her receipt of additional information from PERSEC,
     but the agency denied that request. See id.
¶6        On May 2, 2012, while she was still awaiting a response from Mr. Oakcrum,
     the appellant responded to the proposal notice orally and in writing.       See id.,
     Subtabs 4B, 4C.     In her oral reply, the appellant stated that she never used
     cocaine. See id., Subtab 4B. In her written reply, the appellant argued, inter alia,
     that the agency violated due process by failing to provide her with documents and
     materials necessary to defend against the allegations underlying the suspension of
     her security clearance. Id., Subtab 4C. She requested to remain on administrative
     leave pending the outcome of further review concerning the revocation of her
     security clearance. Id.
¶7        On May 17, 2011, Larry Saez, Assistant Supervisory Air Marshal in Charge,
     NYFO, issued a decision upholding the proposed indefinite suspension.           Id.,
     Subtabs 4B. The letter indicated that the indefinite suspension would remain in
     effect “pending the resolution of the revocation of your Top Secret Security
     Clearance, or our investigation shows there is sufficient evidence either to return
     you to duty or support an administrative action against you.” Id. In denying the
     appellant’s request to remain on administrative leave, Mr. Saez explained that
     PERSEC exercises the function of determining suitability for maintaining access
     to classified information, and that his own review authority is limited to the
     appellant’s “actual access to classified information and its relationship to [her]
     ability to perform the duties of a FAM.” Id. Mr. Saez stated that the decision to
     indefinitely suspend the appellant was in accordance with TSA policy, and that
     “FAMs are placed on indefinite suspension when they do not have access to
     classified information because they are unable to perform their duties without
                                                                                          5

     such access.” Id. The appellant was indefinitely suspended beginning May 19,
     2011. Id., Subtab 4A.
¶8        On June 15, 2011, the appellant filed a timely appeal of her indefinite
     suspension.   I-1, IAF, Tab 1.    In her appeal, she argued that the agency had
     committed harmful error and violated her due process rights by failing to provide
     her with the documents on which PERSEC relied before placing her on indefinite
     suspension. See I-1, IAF, Tabs 1, 11, 15; I-2, IAF, Tab 8. 2
¶9        Meanwhile, on June 21, 2011, Mr. Oakcrum responded to the appellant’s
     letter of April 11, 2011.      I-1, IAF, Tab 17, Exhibit C.         He informed the
     appellant’s representative that in making its March 11, 2011 determination to
     suspend and revoke her clearance, PERSEC relied on the following documents:
     (1) Incident Tracking Report, dated February 9, 2011; (2) FAM Medical Officer’s
     Reconfirmation, dated March 1, 2011; and (3) Federal Drug Testing Custody and
     Control Form. Id. In addition to these documents, the appellant was provided:
     (4) the Security Clearance Granted letter, dated August 18, 2009; (5) TSA
     Management Directive 1100.37-5, Employee Responsibilities and Conduct;
     (6) TSA FAMS Directive ADM 3700, Employee Responsibilities and Conduct;
     and (7) Executive Order 12563, Drug-Free Federal Workplace. Id. The appellant
     was again afforded an opportunity to respond to the March 11, 2011 notice of
     determination. Id. Following the appellant’s oral and written responses, CSO
     Thomas Wiley issued a Notice of Review of Determination, dated January 18,

     2
       On October 10, 2011, the administrative judge dismissed the appeal without prejudice
     to await the outcome of the petitions for review then pending in McGriff v. Department
     of the Navy, 118 M.S.P.R. 89 (2012); Gaitan v. Department of Homeland Security,
     118 M.S.P.R. 180 (201); Gargiulo v. Department of Homeland Security, 118 M.S.P.R.
     137 (2012), aff’d, 727 F.3d 1181 (Fed. Cir. 2013); and Buelna v. Department of
     Homeland Security, 118 M.S.P.R. 115 (2012). I-1, IAF, Tab 31, Initial Decision.
     Following the issuance of the Board’s final decision in McGriff on April 26, 2012, the
     appellant’s initial appeal was deemed automatically refiled, and the parties were
     provided the opportunity to address the due process issues discussed in McGriff and its
     companion cases. I-2, IAF, Tabs 1, 3-4. The decisions in question have since been
     modified by Buelna v. Department of Homeland Security, 121 M.S.P.R. 262 (2014).
                                                                                         6

      2012, upholding the Notice of Determination and revoking the appellant’s
      security clearance. See I-2, IAF, Tab 11. The appellant subsequently appealed
      Mr. Wiley’s decision to the agency’s Security Appeals Board (SAB). Id.
¶10         On July 13, 2012, the administrative judge issued an initial decision
      reversing the indefinite suspension on due process grounds. I-2, IAF, Tab 12,
      Initial Decision (ID).    In doing so, the administrative judge cited Gaitan,
      118 M.S.P.R. 180, ¶ 23, for the proposition that “due process requires . . . that the
      appellant receive a meaningful opportunity to respond to someone with authority
      to change the outcome of the security clearance determination in either the
      security clearance proceeding or the adverse action proceeding.” ID at 19. The
      administrative judge found that the appellant did not receive a meaningful
      opportunity to contest the clearance suspension prior to the imposition of
      indefinite suspension, because she had not yet received the materials on which
      PERSEC relied in suspending her clearance, and because Mr. Saez had no
      authority to consider her claims regarding the accuracy of her drug test. ID at
      14-20. The administrative judge ordered the agency to cancel the indefinite
      suspension and restore the appellant effective May 19, 2011. ID at 14-20. He
      further directed that, in the event either party filed a petition for review, the
      agency     should   provide   interim   relief   in   accordance   with   5   U.S.C.
      § 7701(b)(2)(A).
¶11            On August 17, 2012, the agency filed the instant petition for review,
      contesting the administrative judge’s finding that the appellant had been denied
      due process. PFR File, Tab 1. As evidence of compliance with the interim relief
      order, the agency provided a declaration from the Chief of the FAMS Business
      Management Office, who stated that the appellant had been restored to paid
      administrative leave status effective July 13, 2012, but could not be returned to
      full operational duty due to her lack of a security clearance. Id. at 20-21. The
      agency also provided a copy of the February 16, 2011 notice placing the appellant
      on administrative leave, the Standard Form 50 recording her return to duty, and
                                                                                          7

      an earnings and leave statement indicating her return to pay status. Id. at 23-28.
      However, on September 11, 2012, the agency again proposed to indefinitely
      suspend the appellant based on the revocation of her clearance, pending the result
      of her appeal to SAB.       See PFR File, Tab 1 at 13-14; see also Perez v.
      Department of Homeland Security, MSPB Docket No. NY-0752-13-0061-I-1,
      Initial Decision (Mar. 7, 2013).
¶12         On November 5, 2012, following a series of extensions, the appellant filed
      her response to the agency’s petition for review in this appeal. PFR File, Tab 8. 3
      In her response, she argued, inter alia, that the agency had violated the interim
      relief order by issuing the second notice of proposed indefinite suspension. Id. at
      13-14.   Shortly thereafter, the agency issued a decision upholding the second
      proposed indefinite suspension, effective November 21, 2012. See Perez, MSPB
      Docket No. NY-0752-13-0061-I-1. The appellant again appealed to the Board,
      and her appeal was dismissed without prejudice pending the outcome of the
      instant petition for review. Id.
¶13         On January 9, 2014, following the issuance of the U.S. Court of Appeals for
      the Federal Circuit’s decision in Gargiulo, 727 F.3d 1181, the Board invited the
      parties to address the possible application of Gargiulo to the appellant’s due
      process claim. PFR File, Tab 11. Both parties responded. PFR File, Tabs 14, 16.

                                          ANALYSIS
      The agency complied with the interim relief order.
¶14         Under 5 U.S.C. § 7701(b)(2)(A), an appellant who obtains relief in an
      initial decision is entitled to the relief provided in the decision effective upon the
      making of the decision and remaining in effect pending the outcome of the
      petition for review, unless (i) the administrative judge determines that granting


      3
        Although the deadline for the appellant’s response was October 29, 2012, see PFR
      File, Tab 6, we find that she has established good cause for the delay in filing, and
      therefore GRANT her motion to accept the pleading.
                                                                                            8

      such relief is not appropriate, or (ii) the relief granted in the decision provides
      that the employee return or be present at the place of employment, and the agency
      determines that the return or presence of the employee would be unduly
      disruptive to the work environment.        In the latter event, the appellant must
      receive pay, compensation, and all other benefits as terms or conditions of
      employment during the period pending the outcome of any petition for review.
      5 U.S.C. § 7701(b)(2)(B). Here, the agency has presented unrebutted evidence
      that as of August 17, 2012, when it filed its petition for review, it had complied
      with the interim relief order by restoring the appellant to her original position,
      albeit on administrative leave status, retroactive to the date of the initial
      decision. 4 However, the interim order was still in effect when the agency later
      proposed and effected the appellant’s second indefinite suspension.
¶15         The Board has held that an interim relief order does not insulate an
      appellant from a subsequent adverse action, so long as that action is not
      inconsistent with the interim relief order. Barcliff v. Department of the Navy,
      62 M.S.P.R. 428, 433 (1994). The appellant contends that the second proposed
      indefinite suspension is inconsistent with the interim relief order because it was
      based on “the same facts and laws that existed at the time of the issuance of the
      first decision of Indefinite Suspension.”      PFR File, Tab 8 at 13.        However,
      nothing in the initial decision precludes the agency from initiating a second
      indefinite suspension action. See Barcliff, 62 M.S.P.R. at 432-33.          Moreover,
      whereas the indefinite suspension on appeal was based on the suspension of the
      appellant’s clearance on March 11, 2011, the second indefinite suspension was


      4
        The record reflects that the appellant was already on administrative leave at the time
      the indefinite suspension was proposed. See PFR File, Tab 1 at 23-24. However,
      assuming arguendo that the interim relief order required the appellant’s return to duty,
      we would find that the agency made an implicit undue disruption determination by
      providing a compelling reason for the appellant’s placement on administrative leave,
      i.e., her lack of a security clearance. See Lambert v. Department of the Navy,
      85 M.S.P.R. 130, 137 (2000) (Vice Chair Slavet, concurring).
                                                                                          9

      proposed and effected on different grounds, namely the revocation of her
      clearance on January 18, 2012. Although we do not presently address the merits
      of the second indefinite suspension, which is the subject of a separate appeal, we
      find that it is not inconsistent with the interim relief order, and therefore does not
      warrant dismissal of the agency’s petition.

      The appellant was denied due process with respect to the indefinite suspension.
¶16         While it is well established that no one has a right to a security clearance or
      access to classified information, a tenured federal employee nonetheless has a
      property interest in continued employment.       King v. Alston, 75 F.3d 657, 661
      (Fed. Cir. 1996). Typically, this is so because the statutory federal employment
      scheme provides that the agency may take an adverse action against the employee
      only for unacceptable performance, pursuant to 5 U.S.C. § 4303, or for such cause
      as will promote the efficiency of the service, pursuant to 5 U.S.C. § 7513. Stone
      v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1375 (Fed. Cir. 1999).
      In this case, the adverse action on appeal is not governed by statute, but rather by
      the provisions of TSA Management Directive (MD) 1000.75-3 and the
      accompanying Handbook, which govern disciplinary actions against TSA
      employees.    See Buelna, 121 M.S.P.R. 262, ¶ 13.         However, MD 1100.75-3,
      § 6(E) similarly provides that a tenured TSA employee may only be suspended,
      removed, or demoted for unacceptable performance or for such cause as will
      promote the efficiency of the service. Consequently, the appellant’s indefinite
      suspension deprived her of a property interest cognizable under the Fifth
      Amendment. See Buelna, 121 M.S.P.R. 262, ¶ 13. The Board has authority to
      determine whether the agency provided the appellant due process rights in
      connection with that action. Id., ¶ 15.
¶17         At the time the initial decision was issued, the Board had recently held that,
      in an indefinite suspension based on the suspension of a security clearance, due
      process requires that the employee receive a meaningful opportunity to respond to
                                                                                      10

      someone with authority to change the outcome of the security clearance
      determination in either the security clearance proceeding or adverse action
      proceeding. Gaitan, 118 M.S.P.R. 180, ¶ 23; Gargiulo, 118 M.S.P.R. 137, ¶ 20.
      Relying on Gaitan, the administrative judge concluded that the appellant was
      deprived of due process because she did not receive a meaningful opportunity to
      contest the suspension of her security clearance prior to being indefinitely
      suspended. However, the Board has since held that the holding of Gaitan was
      incorrect, because an employee has no property interest in a security clearance.
      Buelna, 121 M.S.P.R. 262, ¶ 24 (citing Gargiulo, 727 F.3d at 1185).             We
      therefore modify the initial decision to consider the appellant’s due process claim
      in light of Buelna.
¶18         Due process requires, at a minimum, that an employee being deprived of her
      property interest be given “the opportunity to be heard ‘at a meaningful time and
      in a meaningful manner.’”      Mathews v. Eldridge, 424 U.S. 319, 333 (1976)
      (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). Because the appellant
      was afforded an opportunity to respond to the proposed adverse action prior to
      being suspended, we conclude that the hearing occurred at a “meaningful time.”
      See Buelna, 121 M.S.P.R. 262, ¶ 21. Our inquiry therefore proceeds to whether
      the appellant was heard in a “meaningful manner” that provided sufficient
      protection against an erroneous deprivation of her property interest. See id.
¶19         In Cleveland Board of Education v. Loudermill, 470 U.S. 532, 542-46
      (1985), the U.S. Supreme Court explained that for purposes of reaching an
      accurate decision, the opportunity to respond to a proposed removal is important
      for two reasons. First, an adverse action will often involve factual disputes and
      consideration of the employee’s response may clarify such disputes. Id.; Stone,
      179 F.3d at 1376. Second, “[e]ven where the facts are clear, the appropriateness
      or necessity of the [penalty] may not be,” and “in such cases” the employee must
      receive a “meaningful opportunity to invoke the discretion of the decision
      maker.”    Loudermill, 470 U.S. at 543.      Thus, “the employee’s response is
                                                                                             11

      essential not only to the issue of whether the allegations are true, but also with
      regard to whether the level of penalty to be imposed is appropriate.”              Stone,
      179 F.3d at 1367. Although the appellant in this case was not removed, the same
      considerations identified in Loudermill are present in determining whether an
      employee who is indefinitely suspended based upon the loss of a security
      clearance received an adequate opportunity to contest the proposed action. See
      Buelna, 121 M.S.P.R. 262, ¶ 22. 5 We address them in turn.
¶20         As to the facts underlying the agency’s charge, the record reflects, and the
      parties do not dispute, that the indefinite suspension was based on the suspension
      of the appellant’s clearance, not the merits or factual predicate of the clearance
      suspension. I-1, IAF, Tab 7, Subtabs 4B, 4D. Consequently, the only relevant
      factual disputes that could have been raised with respect to the charge were
      whether the appellant’s position required a security clearance and whether the
      clearance was suspended.       See Buelna, 121 M.S.P.R. 262, ¶ 23.          Because the
      merits of the agency’s charge do not hinge on any factual disputes concerning the
      merits of the clearance suspension, the appellant’s due process right to contest the
      charge was not compromised by the agency’s failure to provide her with the
      documentation on which PERSEC relied prior to indefinitely suspending her.
¶21         With regard to penalty, an employee has a due process right to invoke the
      deciding official’s discretion to the extent that the appropriateness or necessity of
      the penalty is in doubt.     Id., ¶ 27 (citing Loudermill, 470 U.S. at 543).         Due
      process does not require that the deciding official consider alternatives that are
      prohibited, impracticable, or outside management’s purview.                 See Buelna,
      121 M.S.P.R. 262, ¶ 27.       Thus, the appellant’s due process rights were not

      5
        In reaching that conclusion in Buelna, we considered the factors set forth in Mathews,
      424 U.S. at 335, namely: (1) the private interest affected by the official action; (2) the
      risk of erroneous deprivation of the interest through the procedures used, and the
      probable value, if any, of additional or substitute safeguards; and (3) the government’s
      interest. See Buelna, 121 M.S.P.R.262, ¶¶ 16-22. It is unnecessary to reiterate the
      Mathews factors analysis in this appeal. See id., ¶ 18.
                                                                                            12

      compromised by the deciding official’s inability to reverse the suspension of her
      clearance, as that decision was solely within the purview of PERSEC.
¶22            However, to the extent there may have existed other alternatives to
      suspension without pay, the appellant had a due process right to invoke the
      discretion of a deciding official with authority to select such alternatives. Id.,
      ¶ 28. In this regard, we note that TSA policy does not explicitly require that an
      indefinite suspension be imposed in every case where an employee’s required
      security clearance has been suspended. Rather, it provides only that an indefinite
      suspension “may be imposed” in such cases. See I-1, IAF, Tab 7, Subtab 4G, MD
      1100.75-3 Handbook (2009), § J(1). 6 We therefore conclude that management
      was not precluded from choosing an alternative course of action, such as leaving
      the appellant on administrative leave pending the outcome of her response to the
      CSO.      The question therefore arises whether the appellant had a meaningful
      opportunity to invoke the discretion of a deciding official with authority to select
      such an alternative.
¶23           We find that the appellant did not receive such an opportunity because at
      the time Mr. Saez issued the decision, he did not regard himself as having
      authority to do anything other than impose the proposed indefinite suspension. In
      his decision letter, Mr. Saez quoted the TSA policy described above, but
      incorrectly paraphrased it as a blanket requirement that “FAMs are placed on
      indefinite suspension when they do not have access to classified information
      because they are unable to perform their duties without such access.” I-1, IAF,
      Tab 7, Subtab 4B. In addition, Mr. Saez stated that his review authority was
      strictly limited to review of the appellant’s actual access to classified information
      and its relation to her ability to perform FAM duties, and that the “sole purpose”
      of his meeting with the appellant “was to address the suspension of [the
      appellant’s] security clearance” and render a decision. Id. Thus, it appears that

      6
          This provision is located at § I(1) in the most recent edition of the Handbook.
                                                                                     13

      Mr. Saez erroneously believed that TSA policy required the appellant’s indefinite
      suspension, and that he lacked the authority to consider mitigating factors that
      might weigh in favor of the appellant’s request to remain on administrative leave.
      Indeed, at the hearing, Mr. Saez conceded that he questioned the need to have an
      oral reply to the proposal notice other than simply because appellant had a right
      to have one. Hearing Transcript at 19.
¶24         When pressed as to whether there were any circumstances in which he
      might not have imposed the proposed indefinite suspension, Mr. Saez speculated
      that if he had determined that a “clear mistake” was made, e.g., if the appellant
      claimed that she was absent when the test was administered, or was taking
      medication for an injury, he would have forwarded the matter back to PERSEC
      for further inquiry.     See id. at 30-33, 39-57.   However, even if Mr. Saez’s
      testimony could be reconciled with the language of the decision letter, in which
      he denied having any authority to review the factual basis for the clearance
      suspension, any discretion he may have had to consider a claim of “clear mistake”
      was insufficient to provide due process.    Because TSA policy did not mandate
      that Mr. Saez indefinitely suspend the appellant based on the suspension of her
      clearance, it was an open question whether an indefinite suspension was
      appropriate or necessary, even in the absence of a factual dispute concerning the
      charge. Under these circumstances, the appellant was entitled to a meaningful
      opportunity to invoke the decision maker’s discretion to choose an alternative.
      See Loudermill, 470 U.S. at 543; Stone, 179 F.3d at 1376. The appellant did not
      receive that opportunity, and was thus deprived of due process.

                                           ORDER
¶25         We ORDER the agency to cancel the suspension and restore the appellant
      effective May 19, 2012. See Kerr v. National Endowment for the Arts, 726 F.2d
      730 (Fed. Cir. 1984). The agency must complete this action no later than 20 days
      after the date of this decision.
                                                                                      14

¶26        We also ORDER the agency to pay the appellant the correct amount of back
      pay, interest on back pay, and other benefits under the Office of Personnel
      Management’s regulations, no later than 60 calendar days after the date of this
      decision. We ORDER the appellant to cooperate in good faith in the agency’s
      efforts to calculate the amount of back pay, interest, and benefits due, and to
      provide all necessary information the agency requests to help it carry out the
      Board’s Order. If there is a dispute about the amount of back pay, interest due,
      and/or other benefits, we ORDER the agency to pay the appellant the undisputed
      amount no later than 60 calendar days after the date of this decision.
¶27        We further ORDER the agency to tell the appellant promptly in writing
      when it believes it has fully carried out the Board’s Order and of the actions it
      took to carry out the Board’s Order. The appellant, if not notified, should ask the
      agency about its progress. See 5 C.F.R. § 1201.181(b).
¶28        No later than 30 days after the agency tells the appellant that it has fully
      carried out the Board’s Order, the appellant may file a petition for enforcement
      with the office that issued the initial decision on this appeal if the appellant
      believes that the agency did not fully carry out the Board’s Order. The petition
      should contain specific reasons why the appellant believes that the agency has not
      fully carried out the Board’s Order, and should include the dates and results of
      any communications with the agency. 5 C.F.R. § 1201.182(a).
¶29        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 is ORDERED to timely provide DFAS or NFC with all
      documentation necessary to process payments and adjustments resulting from the
      Board’s decision in accordance with the attached lists so that payment can be
      made within the 60-day period set forth above.
                                                                                 15

                  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. §§ 1201.201, 1201.202, and 1201.203. 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.




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