                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     AR CE FORT CARSON, CO,                             DOCKET NUMBER
                   Appellants, ∗                        DE-0752-14-0286-I-1

                  v.

     DEPARTMENT OF THE ARMY,                            DATE: May 27, 2016
                 Agency.




           Erwyn Calderon, Matthew B. Ellis, Douglas E. Foster, Robert T. Giles,
             Jeanette Goldsmith, Stephen C. Greeley, Annette C. Hatfield, Melissa R.
             Johnson, Larry J. Kempton, Johnny H. Nguyen, John M. Offen, Lisa W.
             Peters, Martin R. Rasmussen, Justin Scherzberg, Gregory L. Sipes,
             Shauna Smith, Persephone Thomas, Cambrey M. Torres, and Jacob D.
             Wiegmann, pro se.

           Thomas J. Ingram, IV, Esquire, Omaha, Nebraska, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                           ORDER
¶1         The agency has filed a petition for review of an initial decision that
     reversed the furlough actions.     The two Board members cannot agree on the
     disposition of the petition for review. Specifically, the Board members cannot
     agree on the application of the recent decision by the U.S. Court of Appeals for
     the   Federal     Circuit    in    Steffen    v.     Department     of   the    Army,


     ∗
       The appellants that are included in this consolidation are set forth in Appendix A of
     this order.
                                                                                       2

     No. 2015-3205, 2016 WL 692213 (Fed. Cir. Feb. 22, 2016), which was issued
     after the administrative judge’s initial decision in the instant action. 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 appellants’ furloughs effective July 8, 2013.
     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         The agency must pay the appellants 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. The
     appellants 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 its obligations. If there is a
     dispute about the amount of back pay, interest due, and/or other benefits, the
     agency must pay the appellants the undisputed amount no later than 60 calendar
     days after the date of this decision.
¶5         The agency must tell the appellants promptly in writing when it believes it
     has fully carried out its obligations and of the actions it took to carry out its
     obligations.   The appellants, 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 appellants that it has fully
     carried out its obligations, the appellants may file a petition for enforcement with
     the office that issued the initial decision on this appeal if the appellants believe
     that the agency did not fully carry out its obligations. The petition should contain
                                                                                    3

     specific reasons why the appellants believe that the agency has not fully carried
     out its obligations, 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 must 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 APPELLANTS REGARDING
           YOUR RIGHTS 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 APPELLANTS REGARDING
                         YOUR FURTHER REVIEW RIGHTS
           You have the right to request review of this 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
                                                                                  4

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,
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.
                                                     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.
                          APPENDIX A

                      AR CE Fort Carson, CO
                       DE-0752-14-0286-I-1


Annette C. Hatfield                   DE-0752-13-0564-I-1
Cambrey M. Torres                     DE-0752-13-1404-I-1
Douglas E. Foster                     DE-0752-13-1074-I-1
Erwyn Calderon                        DE-0752-13-0581-I-1
Gregory L. Sipes                      DE-0752-13-1070-I-1
Jacob D. Wiegmann                     DE-0752-13-0698-I-1
Jeanette Goldsmith                    DE-0752-13-0737-I-1
John M. Offen                         DE-0752-13-1007-I-1
Johnny H. Nguyen                      DE-0752-13-0565-I-1
Justin Scherzberg                     DE-0752-13-0595-I-1
Larry J. Kempton                      DE-0752-13-0714-I-1
Lisa W. Peters                        DE-0752-13-0659-I-1
Martin R. Rasmussen                   DE-0752-13-0696-I-1
Matthew B. Ellis                      DE-0752-13-0459-I-1
Melissa R. Johnson                    DE-0752-13-0567-I-1
Persephone Thomas                     DE-0752-13-0544-I-1
Robert T. Giles                       DE-0752-13-0582-I-1
Shauna Smith                          DE-0752-13-0832-I-1
Stephen C. Greeley                    DE-0752-13-1019-I-1
