                         UNITED STATES OF AMERICA
                      MERIT SYSTEMS PROTECTION BOARD
                                     2015 MSPB 65

                            Docket No. CH-0752-14-0332-I-1

                                       John Doe,
                                       Appellant,
                                            v.
                                Department of Justice,
                                        Agency.
                                   December 21, 2015

           J. Michael Hannon, Esquire, Washington, D.C., for the appellant.

           Jay Macklin, Esquire, and Kimya Jones, Esquire, Washington, D.C., for
             the agency.

                                        BEFORE

                            Susan Tsui Grundmann, Chairman
                               Mark A. Robbins, Member



                                OPINION AND ORDER

¶1         The agency has filed a petition for review of the initial decision that
     reversed the appellant’s removal on harmful error grounds. For the reasons set
     forth below, we DENY the petition for review and AFFIRM the initial decision.

                                    BACKGROUND
¶2         The facts of this case are set forth more fully in Doe v. Department of
     Justice, 118 M.S.P.R. 434, ¶¶ 2-14 (2012).      Briefly, the appellant was an
     Assistant U.S. Attorney (AUSA) for the agency.       Id., ¶ 2.   An AUSA is a
     Special-Sensitive, Level 4 position, meaning that it requires access, or affords
                                                                                          2

     ready opportunity to gain access, to top secret national security information. Id.,
     ¶ 3.
¶3          The agency informed the appellant that it was reassigning him to a
     different work unit. Id., ¶ 2. The appellant submitted a request for reasonable
     accommodation, asking not to be reassigned because it would exacerbate his
     anxiety disorder.    Id.    At the agency’s request, he provided a letter from his
     psychologist in which his psychologist stated that the appellant feared that he
     would develop suicidal or homicidal ideation if he were reassigned. Id. Based on
     this letter, the Chief of the Personnel Security Section for the agency’s Executive
     Office for U.S. Attorneys (EOUSA) determined that the appellant was no longer
     eligible to hold a Special-Sensitive, Level 4 position and that he posed an
     unnecessary and unacceptable operational security risk. Id., ¶¶ 2, 4. The agency
     then removed the appellant based on two charges:           (1) “failure to maintain a
     qualification for your position”; and (2) “posing an operational security risk to
     the office.” Id., ¶¶ 3-4.
¶4          The appellant filed a Board appeal and raised several affirmative defenses,
     including that the agency was required, but failed, to allow him to seek review
     before the Access Review Committee (ARC) of the determination that he was
     ineligible to hold a Special-Sensitive, Level 4 position.          Id., ¶¶ 5-12.   The
     administrative judge merged the charges, finding that they both were based on
     this determination and involved the same conduct. Id., ¶ 6. He further found that
     the requirement that the appellant maintain eligibility to hold a Special-Sensitive,
     Level 4   position    was     functionally   equivalent   to   a   security   clearance
     determination. Id., ¶ 7. After a hearing, the administrative judge issued an initial
     decision affirming the removal. Id., ¶¶ 5-13. The appellant filed a petition for
     review, and the Board found that the agency committed procedural error by
     denying the appellant ARC review. Id., ¶¶ 14, 24-30. Because the Board was
     unable to determine whether the error was harmful, it remanded the appeal to the
     agency to provide ARC review in the first instance. Id., ¶¶ 31-33, 42.
                                                                                           3

¶5         On remand, the ARC reversed the EOUSA’s determination that the
     appellant was ineligible to access classified information.         Initial Appeal File
     (IAF), Tab 22 at 62-67.        The appellant filed the instant appeal, and the
     administrative judge issued an initial decision reversing the removal on harmful
     error grounds. 1 IAF, Tab 1, Tab 45, Initial Decision (ID).
¶6         The agency has filed a petition for review, arguing that its procedural error
     was not harmful because it only implicated Charge 1, and the deciding official
     would have removed the appellant based on Charge 2 alone. Petition for Review
     (PFR) File, Tab 1 at 11-22. 2 The appellant has filed a response, PFR File, Tab 3,
     and the agency has filed a reply, PFR File, Tab 4.

                                          ANALYSIS
¶7         Under 5 U.S.C. § 7701(c)(2)(A), the Board may not sustain an agency’s
     decision to impose an adverse action if the appellant shows harmful error in the
     application of the agency’s procedures in arriving at that decision.             Doe v.
     Department of Justice, 121 M.S.P.R. 596, ¶ 14 (2014). Harmful error cannot be
     presumed; an agency error is harmful only where the record shows that the
     procedural error was likely to have caused the agency to reach a conclusion
     different from the one it would have reached in the absence or cure of the error.
     Stephen v. Department of the Air Force, 47 M.S.P.R. 672, 681, 685 (1991).
¶8         As the Board previously found, the agency committed procedural error by
     denying the appellant ARC review of the EOUSA’s decision that denied him
     eligibility to access classified information.     Doe, 118 M.S.P.R. 434, ¶¶ 26-30.

     1
       The administrative judge properly limited the scope of adjudication to the harmful
     error issue. IAF, Tabs 16-17; Doe v. Department of Justice, 121 M.S.P.R. 596,
     ¶¶ 10-15 (2014). Because the appellant waived his right to a hearing, the administrative
     judge made her decision on the written record. IAF, Tab 38; IAF, Tab 45, Initial
     Decision at 1.
     2
      On petition for review, the agency concedes that it cannot prevail on Charge 1. PFR
     File, Tab 1 at 12.
                                                                                               4

      The administrative judge found that the error was harmful because the ARC
      reversed that decision, thereby upholding the appellant’s eligibility to occupy a
      Special-Sensitive, Level 4 position and vitiating the factual basis for removal
      based on the revocation of that eligibility. ID at 6-9.
¶9             On petition for review, the agency argues that the administrative judge
      erred in applying Board law relating to harmful error because the error only
      affected Charge 1, and the evidence proves that it would have removed the
      appellant based on Charge 2 alone. PFR File, Tab 1 at 7-8, 12-15, 19, Tab 4.
      Thus, it argues that its procedural error was not harmful because it did not result
      in a decision different from the one it would have reached in the absence or cure
      of the error. PFR File, Tab 1 at 11-15; Stephen, 47 M.S.P.R. at 685. It asserts
      that the merger of the charges in the first appeal is irrelevant to the harmful error
      analysis because whether the outcome would be different should be judged at the
      time it made its decision to remove the appellant.           PFR File, Tab 1 at 17-19,
      Tab 4.
¶10            In response, the appellant argues that the agency should be judicially
      estopped from making this argument because it successfully argued before the
      administrative judge in the first appeal that the charges should be merged and that
      the sole issue was whether the agency properly removed the appellant for failing
      to maintain Special-Sensitive, Level 4 eligibility. 3 PFR File, Tab 3 at 7-8 & n.1,
      10-12. The agency has not responded to this argument. PFR File, Tab 4.
¶11            For the following reasons, we agree with the appellant that the agency
      should be judicially estopped from advancing this argument at this stage of the


      3
        The appellant also argues that relitigation of the merger of the charges is barred by the
      law of the case doctrine. PFR File, Tab 3 at 11; see O’Connell v. Department of the
      Navy, 73 M.S.P.R. 235, 240 (1997) (observing that under this doctrine a tribunal
      ordinarily will not revisit issues that already have been decided in an appeal). Because
      we decide this issue on other grounds, as discussed below, we decline to reach this
      alternative argument here.
                                                                                                 5

      appeal.    “Judicial estoppel generally prevents a party from prevailing in one
      phase of a case on an argument and then relying on a contradictory argument to
      prevail in another phase.” Pegram v. Herdrich, 530 U.S. 211, 227 n.8 (2000); see
      Data General Corp. v. Johnson, 78 F.3d 1556, 1565 (1996) (observing that a
      tribunal may judicially estop a party from arguing a position contrary to one that
      it successfully argued in an earlier proceeding). The decision of whether to apply
      judicial estoppel lies within the discretion of the adjudicating court or
      administrative agency. See Data General Corp., 78 F.3d at 1565. Although the
      test for judicial estoppel is “not reducible to any general formulation of
      principle,” the U.S. Supreme Court has identified three factors that are generally
      relevant: (1) a party’s later position must be clearly inconsistent with the same
      party’s prior position; (2) in the earlier proceeding, the party was successful in
      persuading the adjudicating body of its position, such that “judicial acceptance of
      an inconsistent position in a later proceeding would create ‘the perception that
      either the first or the second court was misled’”; and (3) “the party seeking to
      assert an inconsistent position would derive an unfair advantage or impose an
      unfair detriment on the opposing party if not estopped.”                New Hampshire v.
      Maine, 532 U.S. 742, 750-51 (2001) (citations omitted); Kavaliauskas v.
      Department of the Treasury, 120 M.S.P.R. 509, ¶ 9 (2014). The purpose of the
      doctrine    is   to   protect   the     integrity   of   the        adjudicative   process.
      Kavaliauskas,    120 M.S.P.R.    509,     ¶ 9;   Tompkins      v.    Department    of     the
      Navy, 80 M.S.P.R. 529, ¶ 8 (1999).
¶12         First, we find that the position that the agency is now taking is clearly
      inconsistent with the position that it took in the first appeal. There, the agency
      argued that because “the adverse action at issue is based exclusively on the
      Agency’s determination that the Appellant failed to maintain a security-related
      qualification of his position,” Doe v. Department of Justice, MSPB Docket
      No. CH-0752-09-0404-I-1, Initial Appeal File (0404 IAF), Tab 68 at 7, the Board
      could not consider the appellant’s affirmative defenses, id. at 5, 7.                   After
                                                                                       6

      succeeding in merging the charges before the administrative judge, the agency
      argued in response to the appellant’s petition for review that the charges were
      properly merged because they arose out of the same security clearance
      determination. Doe v. Department of Justice, MSPB Docket No. CH-0752-09-
      0404-I-1, Petition for Review File, Tab 5 at 7 & n.4.
¶13         The agency now argues that the charges are “completely independent” of
      each other and “questions whether merger of the two charges was proper at all”
      because “a person might be an operational security risk without imperiling
      national security.” PFR File, Tab 1 at 12-13, 18 n.3. Thus, when the agency
      hoped to benefit from the limited scope of Board review for security clearance
      determinations, it argued that both charges were based on the EOUSA’s security
      clearance eligibility ruling and that they were properly merged. See Department
      of the Navy v. Egan, 484 U.S. 518, 530-31 (1988) (holding that, in an appeal
      under 5 U.S.C. § 7513 based on the denial or revocation of a security clearance,
      the Board does not have authority to review the substance of the underlying
      security clearance determination).    Only later, when it became clear that the
      security clearance determination was the product of procedural error, did the
      agency argue that Charge 1 alone was based on the EOUSA’s security clearance
      eligibility ruling, Charge 2 was based on separate considerations, and the charges
      were not properly merged.
¶14         Second, we find that the agency succeeded in persuading the Board, over
      the appellant’s objections, to adopt its earlier position. The administrative judge
      merged the charges and limited his adjudication of the agency’s case in chief as
      though it were an adverse action based solely on a security clearance
      determination.   0404 IAF, Tab 96, Initial Decision (0404 ID) at 1-2, 8.        On
      review, the Board found it unnecessary to determine whether it was proper to
      merge the charges.    Doe, 118 M.S.P.R. 434, ¶¶ 15-16.       However, the Board
      accepted the agency’s position that this was essentially a security clearance case.
      It applied Egan’s limited scope of review to the appellant’s harmful error
                                                                                         7

      defense, id., ¶ 35, found that it lacked jurisdiction over the appellant’s
      whistleblower and disability discrimination claims because resolution of those
      claims would have required the Board to examine the merits of the security
      clearance determination, id., ¶¶ 39-40, and rejected the appellant’s arguments
      concerning the removal penalty on the basis that mitigation is not appropriate in a
      security clearance-related appeal, id., ¶ 41.
¶15         The Board likewise found on interlocutory review in the instant appeal that
      it is not permitted to adjudicate the appellant’s claims of discrimination and
      reprisal   because his removal was premised upon a security clearance
      determination.   Doe, 121 M.S.P.R. 596, ¶ 10 & n.5.       Thus, the administrative
      judge’s decision in the instant appeal was limited to the issue of harmful
      procedural error. ID at 6. If the Board were to rule at this stage that Charge 2
      was independent from Charge 1, it would contradict the analytical framework that
      it previously applied to the appellant’s removal appeal at the agency’s request.
¶16         Third, we find that the agency would stand to impose an unfair detriment
      on the appellant if not estopped from relitigating the issue of merger. The agency
      essentially is requesting that the Board render summary judgment in its favor on
      review based upon a charge that was not fully adjudicated in either appeal.
      Summary judgment, however, is not available in Board proceedings. Crispin v.
      Department of Commerce, 732 F.2d 919, 922 (Fed. Cir. 1984); see Savage v.
      Department of the Army, 122 M.S.P.R. 612, ¶ 46 (2015) (observing that the Board
      has no authority to grant summary judgment on claims of discrimination). The
      agency also apparently is requesting that the Board forgo merits determinations
      on the appellant’s whistleblower and disability discrimination defenses even
      though it now argues that the only remaining charge was not based on a security
      clearance determination. 4 PFR File, Tab 1 at 9, 22. The alternative would be for

      4
        Although the administrative judge in the first appeal reached the merits of these
      defenses, he did so after treating the charges as merged and declining to examine the
                                                                                           8

      the Board to remand this appeal for adjudication of Charge 2 under the agency’s
      current theory, including relitigation of the appellant’s affirmative defenses and
      the penalty. This alternative is unacceptable, not only because it would give the
      agency a second chance to litigate its case under a legal theory it calculatedly
      chose not to pursue earlier, but also because this case has already been under
      adjudication for more than 6½ years. See 0404 IAF, Tab 1. Thus, we find that
      the application of judicial estoppel is appropriate to preserve the integrity of the
      Board’s adjudicative process and that the agency therefore is barred from
      asserting on petition for review, contrary to its prior position, that Charge 2 is
      independent of Charge 1 and provides a separate basis for the appellant’s
      removal. 5   Accordingly, we affirm the administrative judge’s finding that the
      appellant proved his claim of harmful procedural error by preponderant evidence.

                                             ORDER
¶17         We ORDER the agency to cancel the appellant’s removal and to restore the
      appellant effective January 16, 2009. 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.


      merits of the agency’s security clearance determination. 0404 ID at 10-15. Similarly,
      he limited his penalty discussion to whether reassignment was possible. 0404 ID
      at 8-10.
      5
        The agency argues that the issue of merger is immaterial to whether the appellant
      proved his harmful error defense because the analysis must focus on the procedures
      leading up to the time that the agency made its removal decision regardless of what
      happened subsequently during litigation. PFR File, Tab 1 at 17-19, Tab 4. We
      disagree. The charges did not carry one meaning for purposes of the agency’s decision
      and a different one for purposes of the Board’s decision. Although the Board’s charge
      analysis necessarily postdated the agency’s decision, it was based on the objective
      meaning of the charges as urged by the agency and therefore applies with equal force to
      the meaning of the charges as they were pending with the deciding official. See
      Gottlieb v. Veterans Administration, 39 M.S.P.R. 606, 609 (1989) (finding that the
      Board is required to review the agency’s decision on an adverse action solely on the
      grounds invoked by the agency).
                                                                                      9

¶18         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.
¶19         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 to describe 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).
¶20         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 in 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).
¶21         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.
                                                                                    10

¶22         This is the final decision of the Merit Systems Protection Board in this
      appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R.
      § 1201.113(c)).

                             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 U.S. Code (U.S.C.), sections 7701(g), 1221(g), 1214(g) or 3330c(b);
      or 38 U.S.C. § 4324(c)(4).       The regulations may be found at 5 C.F.R.
      §§ 1201.201, 1202.202, 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.

                        NOTICE TO THE APPELLANT REGARDING
                           YOUR FURTHER REVIEW RIGHTS
            You have the right to request further review of this final decision. There
      are several options for further review set forth in the paragraphs below. You may
      choose only one of these options, and once you elect to pursue one of the avenues
      of review set forth below, you may be precluded from pursuing any other avenue
      of review.

      Discrimination Claims: Administrative Review
            You may request review of this final decision on your discrimination
      claims by the Equal Employment Opportunity Commission (EEOC). See Title 5
      of the U.S. Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you submit your
      request by regular U.S. mail, the address of the EEOC is:
                                Office of Federal Operations
                         Equal Employment Opportunity Commission
                                      P.O. Box 77960
                                 Washington, D.C. 20013
                                                                                   11

If you submit your request via commercial delivery or by a method requiring a
signature, it must be addressed to:
                           Office of Federal Operations
                    Equal Employment Opportunity Commission
                                131 M Street, NE
                                  Suite 5SW12G
                            Washington, D.C. 20507

        You should send your request to EEOC no later than 30 calendar days after
your receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.

Discrimination and Other Claims: Judicial Action
        If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate U.S. district court.
See 5 U.S.C. § 7703(b)(2). You must file your civil action with the district court
no later than 30 calendar days after your receipt of this order. If you have a
representative in this case, and your representative receives this order before you
do, then you must file with the district court no later than 30 calendar days after
receipt by your representative. If you choose to file, be very careful to file on
time.    If the action involves a claim of discrimination based on race, color,
religion, sex, national origin, or a disabling condition, you may be entitled to
representation by a court-appointed lawyer and to waiver of any requirement of
prepayment     of   fees,   costs,   or   other   security.   42 U.S.C.   § 2000e-5(f)
and 29 U.S.C. § 794a.

Other Claims: Judicial Review
        If you want to request review of the Board’s decision concerning your
claims of prohibited personnel practices described in 5 U.S.C. § 2302(b)(8),
                                                                                      12

(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request the U.S. Court of Appeals for the Federal Circuit or any court of
appeals of competent jurisdiction to review this final decision.            The court of
appeals must receive your petition for review within 60 days after the date of this
order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If you choose
to file, be very careful to file on time.
      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 about
the U.S. Court of Appeals for the Federal Circuit 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. Additional information about
other courts of appeals can be found at their respective websites, which can be
accessed through http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
      If you are interested in securing pro bono representation for your 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
                                                                                 13

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.
