Timothy Hanke v. Office of Personnel Management ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TIMOTHY LEWIS HANKE, DOCKET NUMBER
Appellant, PH-0842-22-0187-X-1
v.
OFFICE OF PERSONNEL DATE: May 1, 2024
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Timothy Lewis Hanke , Newburyport, Massachusetts, pro se.
Angerlia D. Johnson , Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
On April 26, 2023, the administrative judge found the agency in
noncompliance with the November 30, 2022 initial decision, which ordered the
agency to approve the appellant’s application for immediate retirement and
calculate his annuity accordingly. Hanke v. Office of Personnel Management,
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
MSPB Docket No. PH-0842-22-0187-I-1, Initial Appeal File (IAF), Tab 9, Initial
Decision (ID); Hanke v. Office of Personnel Management, MSPB Docket No.
PH-0842-22-0187-C-1, Compliance File (CF), Tab 5, Compliance Initial Decision
(CID). For the reasons below, we now find the agency in compliance and
DISMISS the appellant’s petition for enforcement.
DISCUSSION OF ARGUMENTS AND EVIDENCE ON COMPLIANCE
On May 5, 2022, the appellant filed an appeal challenging the April 7, 2022
decision of the Office of Personnel Management (OPM) denying his application
for immediate retirement. IAF, Tab 1. In the November 30, 2022 initial decision,
the administrative judge found that the appellant had established that he was
eligible for immediate retirement, and ordered OPM to approve his application
and calculate his annuity accordingly. ID at 4. Because neither party filed a
petition for review, the initial decision became the Board’s final order on
January 4, 2023. See 5 C.F.R. § 1201.113.
On January 19, 2023, the appellant filed a petition for enforcement,
alleging that OPM had failed to take any action to comply with the initial
decision. CF, Tab 1. On April 26, 2023, the administrative judge issued a
compliance initial decision noting that OPM had failed to respond to the
allegations of noncompliance and granting the appellant’s petition for
enforcement. CID at 2-3. 2
2
The compliance initial decision informed the agency that if it decided to take the
actions required by the decision it must submit to the Clerk of the Board, within the
time limit for filing a petition for review under 5 C.F.R. § 1201.114(e), a statement that
it has taken the actions identified in the compliance initial decision, along with evidence
establishing that it has taken those actions. CID at 4-5; see 5 C.F.R. § 1201.183(a)(6)
(i). The compliance initial decision also informed the parties that they could file a
petition for review if they disagreed with the compliance initial decision. CID at 4, 11;
see 5 C.F.R. §§ 1201.114(e), 1201.183(a)(6)(ii). Neither party petitioned for review of
the compliance initial decision.
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ANALYSIS
The agency bears the burden of proving that it has complied with a Board
order. Mercado v. Office of Personnel Management, 115 M.S.P.R. 65, ¶ 4 (2010).
The agency is required to produce relevant, material, and credible evidence of
compliance in the form of documentation or affidavits. Spates v. U.S. Postal
Service, 70 M.S.P.R. 438, ¶ 9 (1996). The appellant may rebut the agency's
evidence of compliance by making “specific, nonconclusory, and supported
assertions of continued noncompliance.” Brown v. Office of Personnel
Management, 113 M.S.P.R. 325, ¶ 5 (2010).
On May 24, 2023, the agency filed a statement of compliance, informing
the Board that it had complied with the final decision by approving the appellant
for immediate retirement and paying his annuity retroactively from November 1,
2021. Hanke v. Office of Personnel Management, MSPB Docket No. PH-0842-
22-0187-X-1, Compliance Referral File (CRF), Tab 1 at 2. As evidence of
compliance, the agency submitted a “master record printout” showing that the
agency had paid the appellant a net amount of $6,586.16 on May 15, 2023, as a
retroactive annuity payment, and had scheduled a net monthly annuity payment of
$433.28. Id. at 5. The agency also included a computation of the gross
retroactive annuity payment due to appellant. Id. at 6.
Also on May 24, 2023, the Board issued an Acknowledgement Order noting
the agency’s filing and informing the appellant that he must file any response
within 20 calendar days. CRF, Tab 2 at 2. The order specifically informed the
appellant that if he failed to file a response, the Board might assume he was
satisfied and dismiss the petition for enforcement. Id.The appellant has not responded to the agency’s statement of compliance.
Thus, the agency has filed detailed documentation and a narrative statement
asserting compliance to which the appellant has not responded, despite being
apprised that the Board might construe lack of response as satisfaction with the
agency’s actions.
4
Accordingly, we find that the agency is now in full compliance with the
November 30, 2022 decision, and dismiss 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(c)(1)
(5 C.F.R. § 1201.183(c)(1)).
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 described 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 the issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
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
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:
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 attorney 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. 420 (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
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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. 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
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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
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 Appeals 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 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
4
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction 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: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.