                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD



     COE/OFFICE OF COUNSEL,                          DOCKET NUMBER
                   Appellants, *                     SF-0752-14-0434-I-2

                  v.

     DEPARTMENT OF THE ARMY,                         DATE: May 18, 2016
                 Agency.



           Appellants, pro se.
           Emily E. Green, Esquire, Washington, D.C., for the agency.
           Stephan C. Roth, Esquire, New Orleans, Louisiana, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                           ORDER
¶1         The agency’s U.S. Army Corps of Engineers petitions for review of an
     initial decision that reversed the agency’s actions furloughing the appellants. 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, No. 2015-3205, 2016 WL 692213 (Fed. Cir.
     Feb. 22, 2016), which was issued after the administrative judge’s initial decision


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

     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 each of 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 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 an appellant that it has fully
     carried out its obligations, 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 its obligations. The petition should contain
     specific reasons why the appellant believes that the agency has not fully carried
                                                                                       3

     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 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.

                     NOTICE TO THE APPELLANTS REGARDING
                         YOUR FURTHER REVIEW RIGHTS
           You have the right to request review of the final decision by the U.S. Court
     of Appeals for the Federal Circuit. You must submit your request to the court at
     the following address:
                               United States 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 United States 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

                     COE/Office of Counsel
                     SF-0752-14-0434-I-2


Alfred Faustino                      SF-0752-13-1040-I-2
Amanda R. Fuller                     SF-0752-13-4190-I-2
Brian S. Smith                       SF-0752-13-4179-I-2
Carl Olson                           SF-0752-13-1887-I-2
Gregory Vanagel                      SF-0752-13-1950-I-2
Jenny N. Masunaga                    SF-0752-13-4422-I-2
John F. Bazan                        SF-0752-13-4554-I-2
Joseph E. Manahan                    SF-0752-13-4500-I-2
Larry F. Estrada                     SF-0752-13-4508-I-2
Lillian D. Doherty                   SF-0752-13-2108-I-2
