UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD

KILEY A. CARTER,

Appellant,

v.
OFFICE OF PERSONNEL MANAGEMENT,

Agency. DOCKET NUMBER AT

- 844E

- 14

- 0600

- X

- 1

DATE: April 14, 2022



### THIS FINAL ORDER IS NONPRECEDENTIAL 1

Kiley A. Carter , Athens, Georgia, pro se.
Carl E. Hobbs, II , Washington, D.C., for the agency.

BEFORE Raymond A. Limon , Vice Chair Tristan L. Leavitt , Member

FINAL ORDER ¶1 This compliance proceeding was initiated by the appellant’s December 12, 2016 petition for enforcement of the Board’s Ja nuary 29, 2016 O rder. On
March 2, 2017, th e administrative judge issued a compliance initial decision finding the Office of Personnel Management (OPM) not in compliance with the

1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future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

January 29, 2 016 O rder, and OPM’s non compliance was referred to the Board for
consideration. Carter v. Office of Personnel Management
, MSPB Docket
No. AT

- 844E

- 14

- 0600

- C

- 1, Compliance File, Tab 4 , Compliance Initial Decision (CID)

. For the reasons discussed below, we now find the agency in c ompliance and DISMISS the petition for enforcement. ¶2 In the March 2, 2017 compliance initial decision, the administrative judge
found that OPM was not in compliance with the Board’s January 29, 2016 O rder because it failed to submit any response to the ac knowledgment order issued for
the petition for enforcement. CID at 2

- 3. As a result, the administrative judge
ordered OPM to submit a response demonstrating that it had granted the appellant’s application for disability retiremen t and properly calculated the disability retirement annuity, after factoring in any potential benefits from the
Office of W orkers’ Compensation Programs (OWCP ), and which identified an
OPM official responsible for ensuring that OPM complied with the Board’s
O rder. Id

. at 3

- 4. ¶3 O n April 26, 2017
, OPM submitted a pleading in response to the administrative judge’s ord er. Carter v. Office of Personnel Management
, MSPB
Docket No. AT

- 844E

- 14

- 0600

- X

- 1 , Compliance Referral File (CRF), Tab s 3

- 4

. The pleading included evidence that OPM had granted the appellant’s disability
retirement application and calculated his disability retirement annuity with an accounting for any potential OWCP benefits he was receiving. Id

. While the calculations in the pleading regarding the appellant’s annu ity appeared to be
correct, t he pleading did not explain the average salary used as the basis for
OPM ’s calculations. Id

. The appellant did not file any reply to OPM ’s pleading, but on August 11, 2017, the Board issued an order requiring OPM to explain t he basis for the average salary utilized to calculate the appellant’s benefits. CRF,
Tab 5. ¶4 On August 22, 2017, OPM submitted a pleading explaining the basis for the average salary it utilized to calculate the appellant’s benefits. CRF, Tab 6. The3

plead ing included a detailed accounting of the appellant’s salary, along with evidence supporting its calculation

. Id

. The appellant also did not file a response to this submission . However, our review of OPM ’s calculations regarding the appellant’s salary a nd his disability annuity reveals them to be correct. Id

. Therefore, based on OPM ’s submission, we find that OPM is now in full compliance with the Board’s January 29, 2016 O rder. ¶5 Accordingly, we find that OPM is 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(b) ( 5 C.F.R. § 1201.183 (b)).

NOTICE OF APPEAL RIG HTS 2 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 n ot 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 fin al 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.
Pl ease 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

2 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 w hich option is most appropriate in any matter.4

about whether a particular forum is the appropriate one to review your case, you
should contact that for um 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 issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you m ust 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) J udicial 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 d iscrimination. If so, you may obtain5

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.

____ , 137 S. Ct. 1975 (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 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 prepayme nt 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 representa tive 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. 200136

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 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. 3 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:

3 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 cou rt of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115

- 195, 132 Stat. 1510.7

U.S. Court of Appeals for the Federal Circu it 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 Petit ioners 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 w ebsite 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 attorn ey 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:

Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board