UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

AARON L. PATTERSON,

Appellant,

v.

OFFICE OF PERSONNEL 

MANAGEMENT,

Agency.

DOCKET NUMBER

DC-0841-12-0399-C-2

DATE: April 17, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL1

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 1 A nonprecedential order is one that the Board has determined does not add 

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 Parties may cite nonprecedential orders, 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

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.
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¶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. DC0841-12-0399-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 
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rights if he disagreed with the decision. CID at 32; 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 

regulations 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 disability 

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.
5

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:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board