Aaron L. Patterson v. Office of Personnel Management ( 2015 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
AARON L. PATTERSON, DOCKET NUMBER
Appellant, DC-0841-12-0399-C-2
v.
OFFICE OF PERSONNEL DATE: April 17, 2015
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL 1
Sandra Perry, Virginia Beach, Virginia, for the appellant.
Michael Shipley, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
denied his petition for enforcement. Generally, we grant petitions such as this
one only when: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
1
A nonprecedential order is one that the Board has determined does not add
sign ificantly 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 Parties may cite nonprecedential orders,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
or the erroneous application of the law to the facts of the case; the judge’s rulings
during either the course of the appeal or the initial decision were not consistent
with required procedures or involved an abuse of discretion, and the resulting
error affected the outcome of the case; or new and material evidence or legal
argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. See Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, and based on the following points and authorities, we conclude that the
petitioner has not established any basis under section 1201.115 for granting the
petition for review. Therefore, we DENY the petition for review and AFFIRM
the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
¶2 In March 2012, the appellant filed a Board appeal of the Office of Personnel
Management’s (OPM’s) February 27, 2012 reconsideration decision that denied
his request to recalculate his Federal Employees’ Retirement System (FERS)
disability annuity benefits to eliminate an offset for Social Security
Administration (SSA) disability benefits. See MSPB Docket No. DC-0841-12-
0399-I-1, Initial Appeal File, Tab 1. He alleged that, while he was incarcerated,
he was ineligible for SSA benefits and therefore OPM should have eliminated the
offset for SSA disability benefits for the period of time that he was confined to a
public institution. Id.
¶3 The Board found that the appellant was not entitled (i.e., had no right) to
SSA benefits during his incarceration and remanded the matter to OPM to
recalculate his FERS disability retirement annuity to account for the cessation of
his monthly SSA disability benefits. Patterson v. Office of Personnel
Management, MSPB Docket No. DC-0841-12-0399-I-1, Remand Order (May 30,
2013). The Board ordered OPM to issue a new reconsideration decision within
60 days of the date of the order and to inform the appellant of his right to file a
Board appeal if he disagreed with the new decision. Id. at 4-5.
 3
¶4 In August 2013, the appellant filed a petition for enforcement, alleging that
OPM had not yet complied with the May 30, 2013 Order. MSPB Docket No. DC-
0841-12-0399-C-1, Compliance File, Tab 1. The administrative judge denied the
appellant’s petition for enforcement, finding that OPM complied with the
2013 Order to recalculate the appellant’s FERS disability annuity benefits, and
the appellant petitioned for review. MSPB Docket No. DC-0841-12-0399-C-1,
Compliance Initial Decision (Oct. 23, 2013); MSPB Docket No. DC-0841-12-
0399-C-1, Petition for Review File, Tab 1. The Board found that the May 30,
2013 Order expressly directed OPM to issue a new reconsideration decision in
which it recalculated the appellant’s FERS disability annuity benefits to account
for the cessation of SSA disability benefits. Patterson v. Office of Personnel
Management, MSPB Docket No. DC-0841-12-0399-C-1, Final Order at 4 (July 3,
2014). The Board found that, although OPM recalculated the appellant’s
disability benefits pursuant to the 2013 Order, OPM did so in an initial decision.
Id. Thus, the Board found that OPM had not complied with the 2013 Order, and
ordered OPM, within 60 days of the July 3, 2014 issuance date, to issue a new
reconsideration decision that advised the appellant of his right to appeal to the
Board if he disagreed with that new decision. Id. at 6.
¶5 On September 16, 2014, the appellant filed a second petition for
enforcement. MSPB Docket No. DC-0841-12-0399-C-2, Compliance File (C-2
CF), Tab 1. He alleged that OPM had not issued a reconsideration decision
recalculating his disability benefits within 60 days of the Board’s July 3, 2014
decision. Id. The administrative judge found in a December 24, 2014 compliance
initial decision that OPM actually had issued the reconsideration decision before
the Board’s order, issuing it on May 27, 2014. Id., Tab 7, Compliance Initial
Decision (CID) at 3; see C-2 CF, Tab 3 at 5-6. She further found that OPM’s
May 27, 2014 reconsideration decision provided the appellant with Board appeal
4
rights if he disagreed with the decision. CID at 3 2; see C-2 CF, Tab 3 at 5-6.
Also, she found that sanctions against OPM were not warranted. CID at 4. 3
¶6 In his petition for review, the appellant admits that OPM issued a
reconsideration decision, MSPB Docket No. DC-0841-12-0399-C-2, Petition for
Review File, Tab 1, but he argues that OPM was late in complying with the
Board’s remand order and that this caused him to be recommitted to a state
facility, id. Attached to the appellant’s petition for review of the second
compliance initial decision dated December 24, 2014, is a copy of his petition for
review of the first compliance initial decision. Id.
¶7 Pursuant to 5 U.S.C. § 1204(a)(2), the Board has jurisdiction to consider an
appellant’s claim of agency noncompliance with a Board order. Kerr v. National
Endowment for the Arts, 726 F.2d 730, 733 (Fed. Cir. 1984). The agency bears
the burden of proving that it has complied. Miller v. Department of the
Army, 109 M.S.P.R. 41, ¶ 10 (2008). Based on the evidence of record and the
appellant’s admission in his petition for review, we find that the administrative
judge properly found that OPM is in compliance with the Board’s July 3,
2014 Order to issue the appellant a reconsideration decision recomputing his
FERS disability annuity.
¶8 It appears that the appellant is asserting that the administrative judge erred
in finding that sanctions against OPM were not warranted and is reiterating the
request that he made in his petition for review of the first compliance initial
2
The Board has jurisdiction over appeals from final decisions of OPM. See Lua v.
Office of Personnel Management, 102 M.S.P.R. 108, ¶ 8 (2006). The applicable
regu lations define OPM’s reconsideration decision as a final decision. 5 C.F.R.
§ 841.306(e). It appears that the appellant has not filed a petition for appeal from
OPM’s May 27, 2014 reconsideration decision recalculating his FERS disab ility
annuity.
3
The December 24, 2014 compliance initial decision states that OPM demonstrated that
“it complied with all of the material terms of the [settlement] agreement.” CID at 3.
The administrative judge mistakenly refers to a settlement agreement instead of the
2014 Order; nothing in the record shows that the parties executed a settlement
agreement.
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decision that the Board award him monetary damages for OPM’s delay in issuing
the reconsideration decision. The Board found in its July 3, 2014 nonprecedential
final order that the appellant’s assertions were insufficient to show that OPM
acted in bad faith in failing to comply with the 2013 Order and that sanctions
were warranted. Patterson v. Office of Personnel Management, MSPB Docket
No. DC-0841-12-0399-C-1, Final Order at 5 (July 3, 2014). Here, we find
similarly that the appellant has failed to show that OPM acted in bad faith in the
manner that it complied with the Board’s July 3, 2014 Order. In any event,
although the Board has the authority to impose sanctions for failure to comply
with a Board order, it lacks the authority to impose monetary damages as a
sanction for noncompliance. Cunningham v. Department of Veterans
Affairs, 91 M.S.P.R. 523, ¶ 3 (2002).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States 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
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
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Title 5 of the United States 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 your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. 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.