UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD

JOSEPH E. SCHMITZ, Appellant,

v.
OFFICE OF PERSONNEL MANAGEMENT, Agency. DOCKET NUMBER DC

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DATE: January 20, 2016



### THIS FINAL ORDER IS NONPRECEDENTIAL 1

Dennis Dean Kirk , Esquire, Falls Church, Virginia, for the appellant. Tynika Faison Johnson , Washington, D.C., for the agency.

BEFORE
Susan Tsui Grundmann, Chairman Mark A. Robbins, Member

FINAL ORDER ¶1 On July 29, 2015, the administrative judge issued a compliance initial decision finding the agency noncompliant with the final order in the underlying appeal . MSPB Docket No. DC

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- 1, Compliance File (CF), Tab 6 , Compliance Initial Decision. For the reasons discussed below, we now find the

1 A nonprecedential order is one tha t the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Boar d and administrative judges are not required to follow or distinguish them in any future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

agency in compliance and DISMISS the petition for enforcement. We FORWARD the appellant’s October 26, 2015 motion for attorney fees to the Board’s Washington Regional Office for docketing. This is the fina l decision of the Merit Systems Protection Board in this compliance proceeding. Title 5 of the Code of Federal Regulation s, section 1201.183(c)(1) ( 5 C.F.R. § 1201.183 (c)(1)).

DISCUSSION OF ARGUME NTS AND EVIDENCE ON COMPLIANCE ¶2 On June 2, 2014, the administrative judge issued an initial decision in
MSPB Docket No. DC

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reconsideration decision o f the Office of Personnel Management ( OPM ). MSPB
Docket No. DC

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- 1, Initial Appeal File (IAF), Tab 18, Initial Decision (ID). The administrative judge found that OPM miscalculated the amount the appellant owed in military service deposits to his annuity and erred in requiring him to pay additional interest that resulted from OPM’s mistakes. ID

at 3

- 4. The administrative judge ordered OPM to recalculate the deposit requir ed for the appellant to receive credit fo r his military service, cred it to this amount any payments made by the appellant, and refund any overpayment by the appellant. ID at 7. The decision became final after neither party petit ioned
for review. ¶3 The appellant filed a petition for enforcement asserting that OPM had faile d to refund his interest overpayme nt. CF, Tab 1 at 5

- 6. On July 29, 2015, the administrative judge issued a compliance initial decision granting the appellant’s petition for enforcement. The administrative judge found that the appellant paid
additional interest in the amount of $1,466.27, that this overpayment was due to OPM’s mistake, and that OPM had failed to refund it to the appellant

. CF, Tab 6

at 4

. The administrative judge ordered the agency to pay this amount to the appellant

. Id. at 5. The a dministrative judge further directed that the refund of this amount “must not change the calculation of the appellant’s annuity because3

OPM itself must assume responsibility for the additional interest” owed due to
OPM’s miscalculations. Id. ¶4 When the Bo ard finds a personnel action unwarranted or not sustainable, it orders that the appellant be placed, as nearly as possible, in the situation he would have been in had the wrongful personnel action not occurred. House v. Department of the Army
, 98 M.S.P.R. 530 , ¶ 9 (2005). The agency bears the burden to prove its compliance with a Board order. An agency’s assertions of compliance must include a clear explanation of its compl iance actions supported by documentary evidence. Vaughan v. Department of Agriculture
, 116 M.S.P.R.
319 , ¶ 5 (2011). The appellant may rebut the agency’s evidence of compl iance by making “specific, nonconclusory, and supported assertions of continued noncompliance.” Brown v. Office of Personnel Management
, 113 M.S.P.R. 325 , ¶ 5 (2010). ¶5 On September 21, 2015, OPM filed a submission purporting to show full compliance with this order. MSPB Docket No. DC

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- 1, Compliance Referral File ( CRF), Tab 2. The appellant did not file a response, although the Board had issued an order infor ming him that if he failed to respond

to OPM’s compliance evidence, the Board might assume he was satisfied and dismiss his petition for enforcement. CRF , Tab 1 at 3. Because OPM has filed evidence of purported compliance and the appellant has not responded, we assume the appellant is satisfied, find OPM in complianc e, and dismiss the petition for enforcement. ¶6 On October 26, 2015, the appellant submitted a pleading titled “Appellant’s Motion for Prevailing Party Attorney Fees” to the Clerk of the Board. We
forward the appellant’s pleading to the Board’s Washington Regional Office for docketing in accordance with the requirements of 5 C.F.R. § 1201.203

.4

NOTICE TO THE APPELL ANT REGARDING YOUR RIGHT TO REQUES T ATTORNEY FEES AND CO STS You may be entitled to be paid by the agency for your reasonable attorney fees and costs. To be paid, you must meet the requirements set out at title 5 of
the Unit ed S tates Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The regulations may be found at 5 C.F.R. §§ 1201.201 , 1201.202, and 1 201.203. If you believe you meet these requirements, you must file a motion for attorney fees
WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You must file your attorney fees motion with the office that issu ed the initial decision

on your appeal.

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 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 informa tion about your right to appeal this decision to court, you should 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 ) (a s rev. eff. Dec. 27, 2012). You may read this law as well as other sections of the U.S. Code, at our5

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 representati on fo r 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 app ellants 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:

Washington, D.C. ______________ ________________ William D. Spencer Clerk of the Board