                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     REYNALDO ALVARA,                                MSPB DOCKET NUMBER
                 Appellant,                          DA-0752-10-0223-R-1

                  v.                                 EEOC DOCKET NUMBER
                                                     0321110053
     DEPARTMENT OF HOMELAND
       SECURITY,
                 Agency.
                                                     DATE: October 21, 2014


                       THIS ORDER IS NONPRECEDENTIAL 1

           Gary M. Gilbert, Esquire, Ernest C. Hadley, Esquire, Julie E. Rook,
             Esquire, and Shannon C. Leary, Esquire, Silver Spring, Maryland, for
             the appellant.

           Lamont D. Nahrgang, Esquire, and Peter Arcuri, El Paso, Texas, for the
             agency.


                                           BEFORE

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


                                           ORDER

¶1         The Equal Employment Opportunity Commission (EEOC) referred this case
     to the Board for further consideration under 5 U.S.C. § 7702(b)(5)(B) because the

     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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     EEOC did not agree with the Board’s final order in this appeal.          The Board
     disagreed with the EEOC’s decision, reaffirmed its prior decision, and certified
     the case to the Special Panel pursuant to 5 U.S.C. § 7702(d)(1).          Alvara v.
     Department of Homeland Security, 121 M.S.P.R. 453 (2014). The Special Panel
     adopted the EEOC’s decision 2 and referred the case back to the Board pursuant to
     5 U.S.C. § 7702(d)(3), directing that it forward the case to the administrative
     judge to adjudicate the appellant’s compensatory damages claim, order the agency
     to take appropriate action including cancellation of the removal and the award of
     all payments and benefits to which the appellant is entitled as a result of the
     Special Panel’s decision, and notify the parties that enforcement of the decision
     and this Order is the responsibility of the Board.          Alvara v. Department of
     Homeland Security, 2014 MSPB 77, ¶ 46 (Spec. Pan.).
¶2           Accordingly, we FORWARD this case to the regional office for docketing
     of the appellant’s claim for compensatory damages.          The administrative judge
     shall permit the appellant to present evidence and argument in support of his
     claim and shall issue a decision resolving the claim.
¶3           We ORDER the agency to cancel the appellant’s removal action and restore
     the appellant effective January 7, 2010. 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.
¶4           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,

     2
         Vice Chairman Wagner dissented from the Special Panel’s decision.
                                                                                      3

     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.
¶5        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).
¶6        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).
¶7        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.

                     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
                                                                                  4

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.
                                                                                            2




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.
