UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD

CLYDE W. BEAL, Appellant,

v

. OFFICE OF PERSONNEL MANAGEMENT, Agency

. DOCKET NUMBER SF

- 0831

- 14

- 0582

- C

- 1

DATE: February 18, 2016



### THIS FINAL ORDER IS NONPRECEDENTIAL 1

Clyde W. Beal , Barstow, Cal ifornia, pro se

. 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 enforcem ent of an earlier Board decision

. 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

1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required t o follow or distinguish them in any future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

interpretation of statute or regulation or the er roneous application of the law to the facts of the case; the administrative 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 er ror 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, we conclude that the petitioner has not established any basis u nder 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 decis ion. 5 C.F.R. § 1201.113 (b)

. ¶2 The appellant challenge d the reconsideration decision of the Office of Personnel Management (OPM) finding that his retirement annuity was properly computed without crediting his 8 years of post

- 1 9 56 military service. On appeal,
the administrative judge found that , because the appellant ’s appointment with the Department of the Navy commenced on September 30, 1982, and not on
October 3, 1982, as OPM found
, he was not required to make a dep osit to secure
inclusion of his post

- 1956 military service in the computation of his annuity. On the appellant ’s petition for review , t he Board agreed, Beal v. Office of Personnel Management , 122 M.S.P.R. 210
, ¶ 8 (2015) , and ordered OPM to recompute his annuity from September 30, 1982, including as proper his post

- 1956 military service without requiring him to make a deposit, id
., ¶ 9

. ¶3 The appellant filed a petition for enforcement claiming that OPM had not yet complied with the Board’s decision. Compliance File (CF) , Tab 1. In response, OPM explained that it just had completed the required actions
, that it
had increased the appellant ’s gross monthly annuity from $1,75 4 to $2,362, which he would begin receiving with his May 1, 2015 a nnuity payment, and that it had authorized a gross retroactive payment of $32,568 ($26,055 after the withholding3

of $6,513 in Federal taxes). CF , Tab 4. In response, the appellant acknowle dged the deposit into his account of $26,055, but he claimed that he had not received

an explanation of the computations. CF , Tabs 6

- 7. After the administrative judge convened a status conference with the parties, CF , Tab 8, OPM provided evidence
that it had shared with the appellant a Paid and Due Calculation document explaining how it had arrived at its calculations, CF , Tab 9 at 4

- 5. The appellant replied that the summary of payments was “suspect
, ” and he questioned the
amount of taxes withheld. CF , Tab 10

. ¶4 The administrative judge denied the appellant ’s petition for enforcement

. CF , Tab 11, Compliance Initial Decision ( C ID) at 1, 8. She considered the appellant ’s claim that the Summary of Payments document s he submitted differed
somewhat from the Paid and Due Calculation document OPM submitted in that
the dollar amounts were not identical for the same period. C ID at 5. The administrative judge found, however, that the two documents did not, in fact,
cover the exact s ame periods which ac counted f or the discrepancy
, that the Summary of Payments documents the appellant presented were otherwise
consistent with the Paid and Due Calculation document, and that it accurately reflects the amount of gross annuity originally paid to him as well as the amoun t of annuity after his post

- 1956 military service wa s credited. C ID at 6. The administrative judge further found that the appellant ’s bare allegation of suspicion regarding OPM’s documentation provided no basis to challenge the accuracy of the agency’s P aid and Due Calculation document

. C ID at 6. In addressing the appellant ’s claim that OPM withheld an excessive amount of taxes,
the administrative judge found that, to the extent the appellant was correct, he
could obtain a refund from the Internal Reven ue Service (IRS) when he files a tax

return. C ID at 7

.4

¶5 The appellant has filed a petition for review

. 2 Petiti on for Review (PFR) File, Tab 1. T he agenc y has responded in opposition. PFR File
, Tab 3

. ¶6 The agency has the burden of establishing complia nce with a final Board
order. Spates v. U.S. Postal Service
, 70 M.S.P.R. 438 , 441 (1996). It can meet this burden by producing relevant, material, and credible evidence of compliance
in the form of documentation or affidavits. Id. at 443. The appellant may rebut this evidence only by producing nonconclusory and supported allegations to the contrary. King v. Department of the Navy
, 98 M.S.P.R. 547 , 551 (2005) , aff’d
, 167 F. App’x 191 (Fed. Cir. 2006)

. We agree with the administrative judge that OPM submitted credible evidence of compliance with the Board’s order; specifically, the Past and Due Calculation document, which showed , for periods
from August 1, 2010, 3 through March 31, 2015, the annuity amounts paid and
due , the difference between the two over the entire time ($32,568), and that amount less taxes withheld ($26,0 55), which was depo sited into the appellant ’s

account. C ID at 6. We further agree with the administrative judge that the appellant has not rebutted this evidence because his allegations are unsupported. As noted, the administrative judge considered the appellant ’s claim t hat the figures on the Summary of Payments document s were somewhat inconsistent with those on the Past and Due Calculation document, but she provided a reasonable explanation for the discrepancy, which the appellant has not challenged on review

. ¶7 The appe llant argues , as he did below, that OPM has withheld an excessive

amount in taxes. PFR File, Tab 1 at 1. If the appellant wishes to conte s t this

2 The appellant also requested an extension of time , explaining that he sought from OPM a complete Summary of Payments records and was awaiting a res ponse . PFR File, Tab 1 at 1

- 2, 9. The Clerk of the Board granted the appellant an extension until October 2, 2015, PFR File, Tab 2, but he did not submit anything further.

3 When the appellant retired, he was in receipt of Office of Workers’ Compensati on Programs compensation, and he elected to receive a Civil Service Retirement System annuity effective August 1, 2010. C ID at 2.5

matter, he is free to file a claim for a tax refund from the IRS. See Henderson v. Office of Personnel Manag ement , 92 M.S.P.R. 383 , ¶ 7 n.2 (2002), overruled on other grounds by Simpson v. Office of Personnel Management
, 96 M.S.P.R. 52 (2004)

. ¶8 With his petition for review
, the appellant has submitted two of the Summary of Payments documents and the Paid and Due Calculation document. PFR File, Tab 1 at 11

- 13. Because these documents were part of th e record below, they do not constitute new evidence. Meier v. Department of the Interior
, 3 M.S.P.R. 247 , 256 (1980)

.

NOTICE TO THE APPELL ANT 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:
U.S. Court of Appeals for the Federal Circuit 717 Madison Plac e, 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,
201 2). 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 sh ould refer to the Federal law that gives y ou this right. It is found in

t itle 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 U.S. Code, at our website, http://www.mspb.gov/appeals/uscode.htm . Additional information is6

available at the court’s website, www.ca fc.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 P ractice , and Forms 5, 6, and 11. If you are interested in securing pro bono representation fo r an appeal to
the U.S. Court of Appeals for the Federal C ircuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board app ellants before the Federal Circuit . The Merit Systems Pro tection Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case.

FOR THE BOARD:

Washington, D.C. ______________________________ William D. Spencer Clerk of the Board