Frank J. Pasetti v. Office of Personnel Management

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
FRANK J. PASETTI, DOCKET NUMBER
Appellant, PH-844E-13-0465-X-1
v.
OFFICE OF PERSONNEL DATE: September 21, 2016
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL *
Frank J. Pasetti, Westerly, Rhode Island, pro se.
Michael Shipley, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 On July 21, 2015, the administrative judge issued a compliance initial
decision finding the Office of Personnel Management (OPM) in noncompliance
with her prior initial decision issued on August 5, 2014, which became the
Board’s final decision on September 9, 2014. MSPB Docket No. PH-844E-13-
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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0465-C-1, Compliance File, Tab 5, Compliance Initial Decision (CID). That
decision reversed OPM’s reconsideration decision holding that the appellant
was not entitled to disability retirement benefits under the Federal Employees’
Retirement System. MSPB Docket No. PH-844E-13-0465-I-2, Appeal File,
Tab 8, Initial Decision. The matter was referred to the Board for consideration.
See 5 C.F.R. § 1201.183. The administrative judge’s July 21, 2015 decision
found that OPM had not established its compliance because it had not ascertained
from the U.S. Postal Service the appellant’s last day in a pay status, and that there
was no evidence indicating that his annuity had been made retroactive to the day
following his last day in a pay status, or that the necessary computations had been
made. CID at 3.
¶2 On September 1, 2015, OPM submitted evidence stating that, although the
appellant’s last day in a pay status initially had been certified as October 23,
2013, it subsequently had been corrected as January 27, 2012. MSPB Docket
No. PH-844E-13-0465-X-1, Compliance Referral File (CRF), Tab 1. OPM
attested that it consequently had reissued the appellant’s annuity with a
commencing date of January 28, 2012. Id. OPM stated that, as a result, it
authorized a gross payment of $14,589.10 to the appellant on August 10, 2015.
Id. at 1.
¶3 On September 4, 2015, the Board issued an acknowledgment order
informing the appellant that any response to OPM’s evidence of compliance must
be filed within 20 calendar days of the date of service of OPM’s submission.
CRF, Tab 2 at 2. The order notified the appellant that, if he chose not to respond,
the Board might assume he was satisfied and dismiss the petition for enforcement.
Id. The appellant did not respond.
¶4 On February 25, 2016, the Board issued another order informing the
appellant that if he was still not satisfied with OPM’s compliance in this matter,
he could respond to OPM’s submission by filing written argument with the Clerk
of the Board within 20 calendar days of the date of the order. CRF, Tab 3. The
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order again stated that if the appellant did not respond, the Board would assume
that he was satisfied with OPM’s compliance. The appellant has not filed
a response.
¶5 We find that OPM has produced sufficient evidence to establish that it paid
the appellant the appropriate amount of disability retirement benefits. In light of
OPM’s evidence of compliance, and the appellant’s failure to respond, we find
OPM in compliance 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 TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this 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
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 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
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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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.