Steven Durkee v. Office of Personnel Management ( 2022 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
STEVEN C. DURKEE, DOCKET NUMBER
Appellant, CH-0841-16-0034-X-1
v.
OFFICE OF PERSONNEL DATE: July 5, 2022
MANAGEMENT,
Agency,
and
LISA M. DURKEE (LINDBERG),
Intervenor.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Steven C. Durkee, Litchfield, Minnesota, pro se.
Angerlia D. Johnson and Gwendolyn Johnson, Washington, D.C., for the
agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
FINAL ORDER
¶1 This compliance proceeding was initiated by the appellant’s May 3, 2016
petition for enforcement of the Board’s February 17, 2016 Order, which reversed
the decision by the Office of Personnel Management (OPM) to reduce the
appellant’s retirement annuity to provide an annuity for his former spouse.
Durkee v. Office of Personnel Management, MSPB Docket No. CH-0841-16-
0034-C-1, Compliance File (CF), Tab 1; Durkee v. Office of Personnel
Management, MSPB Docket No. CH-0841-16-0034-I-1, Initial Appeal File,
Tab 19, Initial Decision. On June 23, 2016, the administrative judge issued a
compliance initial decision finding OPM not in compliance with the February 17,
2016 Order, and OPM’s noncompliance was referred to the Board for
consideration. CF, Tab 3, Compliance Initial Decision (CID). For the reasons
discussed below, we now find the agency in compliance and DISMISS the
petition for enforcement.
¶2 The administrative judge’s compliance initial decision found that OPM was
not in compliance because it failed to submit any response to the appellant’s
petition for enforcement. CID at 3. As a result, the administrative judge ordered
OPM to take the following actions: (1) recalculate the appellant’s retirement
annuity in accordance with the Board’s February 17, 2016 Order; (2) issue a final
decision explaining fully the basis for its calculation of the appellant’s annuity;
(3) advise the appellant of his right to file an appeal with the Board if he
disagreed with that new decision; and (4) tell the appellant promptly in writing
when it believed it had fully carried out the Board’s Order and to describe the
actions it took to carry out the Board’s Order. CID at 3-4.
¶3 On July 5, 2016, the appellant submitted a pleading in response to the
compliance initial decision. Durkee v. Office of Personnel Management, MSPB
Docket No. CH-0841-16-0034-X-1, Compliance File (CRF), Tab 1. In the
pleading, the appellant stated that he recently had received a “Notice of Annuity
Adjustment” from OPM, which appeared to indicate that OPM finally had
3
recalculated the appellant’s annuity in accordance with the Board’s Order. Id.
at 1-2. However, OPM’s letter did not satisfy its burden to prove compliance
because the letter lacked an explanation as to how OPM recalculated the
appellant’s annuity in accordance with the Board’s Final Order; an indication as
to whether the document would serve as OPM’s final decision regarding the
appellant’s annuity; a statement describing the appellant’s rights to appeal the
decision; and a statement declaring that OPM had fully carried out the Board’s
Order or describing the actions it took to carry out the Board’s Order. Id. As a
result, on February 24, 2017, the Board ordered OPM to provide this information.
CRF, Tab 4.
¶4 On August 10, 2017, OPM submitted a pleading in response to the Board’s
February 24, 2017 Order. CRF, Tab 5. In its submission, OPM explained its
recalculation of the appellant’s annuity, along with instructions to the appellant
concerning how to request reconsideration of the annuity decision from OPM. Id.
at 4-19. A review of OPM’s submission does not reveal any error in its
recalculation of the appellant’s annuity. Additionally, on August 15, 2017, the
appellant confirmed to a representative of the Board’s Office of the General
Counsel that he was satisfied with OPM’s submission and did not intend to file a
response. Therefore, based on OPM’s submission and the appellant’s statement,
we find that OPM is now in full compliance with the Board’s February 17, 2016
Order. 2
¶5 Accordingly, the Board finds that OPM is in compliance and dismisses the
petition for enforcement. This is the final decision of the Merit Systems
Protection Board in this compliance proceeding. Title 5 of the Code of Federal
Regulations, section 1201.183(b) (5 C.F.R. § 1201.183(b)).
2
Although OPM was required to issue a final decision, we find that OPM’s issuance of
an initial decision with reconsideration rights does not render its effort to reach
compliance deficient because the appellant has indicated his satisfaction with OPM’s
submission.
4
NOTICE OF APPEAL RIGHTS 3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights desc ribed below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
3
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
5
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
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, 10, 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
Board neither endorses the services provided by any att orney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination. This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims—by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. 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
6
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC 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
If you submit a request for review to the EEOC 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, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
7
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction. 4 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeal s for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for t he 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, 10, 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
4
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent ju risdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U .S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
8
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.