Opinion

Michael J. Phillips v. Office of Personnel Management

Court: Merit Systems Protection Board
Filed: Mar 19, 2026
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 39.3%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

MICHAEL JAMES PHILLIPS, DOCKET NUMBER

Appellant, NY-0843-23-0092-X-1

OFFICE OF PERSONNEL DATE: March 19, 2026

MANAGEMENT,

Agency,

and

MICHELLE PHILLIPS,

Intervenor.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Michael James Phillips , Astoria, New York, pro se.

Kevin D. Alexander, Jr. , Esquire, and Michael Shipley , Esquire,

Washington, D.C., for the agency.

Michelle Phillips , Amherst, New York, pro se.

BEFORE

Henry J. Kerner, Vice Chairman

James J. Woodruff II, Member

A nonprecedential order is one that the Board has determined does not add significantly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 Parties may cite nonprecedential orders, but such orders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).

FINAL ORDER

In a July 14, 2025 compliance initial decision, the administrative judge

found the Office of Personnel Management (OPM) in noncompliance with the

Board’s final decision in the underlying appeal ordering OPM to rescind its

reconsideration decision, to stop apportioning the appellant’s annuity supplement,

and to refund all previously apportioned annuity supplement amounts to him.

Phillips v. Office of Personnel Management, MSPB Docket No. NY-0843-23-0092-

C-1, Compliance File, Tab 7, Compliance Initial Decision (CID); Phillips v. Office

of Personnel Management, MSPB Docket No. NY-0843-23-0092-I-1, Final Order

(Feb. 24, 2025). For the reasons discussed below, we now find OPM in compliance

and DISMISS the petition for enforcement.

DISCUSSION OF ARGUMENTS AND EVIDENCE OF COMPLIANCE

The appellant retired from his Federal employment in 2021 and applied for

retirement benefits under the Federal Employees’ Retirement System (FERS).

Phillips v. Office of Personnel Management, MSPB Docket No. NY-0843-23-0092-

I-1, Initial Appeal File (IAF), Tab 5 at 4. In a November 2, 2022 initial decision,

OPM held that it had to divide the appellant’s FERS annuity supplement in the

same way as his FERS basic annuity for purposes of calculating the benefit paid to

his former spouse (the intervenor), even though the Amended Court Order from the

New York State court explicitly provided that his former spouse was not entitled to

any portion of the annuity supplement. Id. at 51-52. After the appellant requested

reconsideration, OPM issued a March 13, 2023 reconsideration decision affirming

its initial decision. Id. at 4-6.

The appellant appealed OPM’s reconsideration decision to the Board. In a

February 24, 2025 Final Order, the Board found that OPM had violated the

applicable FERS statutes by apportioning the annuity supplement where such

apportionment was expressly precluded by the state court order. 2 Final Order at 6.

Accordingly, the Board ordered OPM to rescind the March 13, 2023

reconsideration decision, stop apportioning the annuity supplement, and refund all

previously apportioned annuity supplement amounts to the appellant. Id.

Upon the appellant’s petition for enforcement of the Board’s Final Order, the

administrative judge issued the July 14, 2025 compliance initial decision. The

administrative judge found OPM in noncompliance, granted the petition for

enforcement, and again ordered OPM to take the actions identified in the Board’s

Final Order. CID at 6-7. Neither party petitioned for review of the compliance

initial decision, and the appellant’s petition for enforcement has been referred to

the Board for a final decision on compliance pursuant to 5 C.F.R. § 1201.183(c).

Phillips v. Office of Personnel Management, MSPB Docket No. NY-0843-23-0092-

X-1, Compliance Referral File (CRF), Tab 3.

In two submissions dated August 15, 2025, OPM stated and provided

evidence showing that it rescinded its March 13, 2023 reconsideration decision;

discontinued apportionment of the appellant’s annuity supplement effective

September 1, 2022; and refunded to him the previously withheld annuity

supplement amounts for the period September 1, 2022, through July 30, 2025,

resulting in a payment of $11,323.46, less federal taxes, on August 8, 2025. CRF,

Tabs 1-2. OPM explained that, pursuant to 5 C.F.R. § 838.231, the discontinuation

of the apportionment was effective the first day of the second month after its

July 27, 2022 receipt of the Amended Court Order excluding the annuity

supplement from apportionment, i.e., September 1, 2022, with the first payment on

October 1, 2022. CRF, Tab 1 at 4, Tab 2 at 8-9. Accordingly, OPM did not refund

to the appellant the previously apportioned annuity supplement for the period

December 1, 2021, through August 30, 2022. CRF, Tab 2 at 9.

Subsequently, in Director of Office of Personnel Management v. Moulton , 155 F.4th

1331, 1334-37 (Fed. Cir. 2025), the U.S. Court of Appeals for the Federal Circuit held

that 5 U.S.C. §§ 8421(c) and 8467(a) allow OPM to apportion a retiree’s FERS annuity

supplement only when expressly provided for in a court order.

The appellant responded that OPM was in noncompliance to the extent it did

not refund to him all of the previously apportioned annuity supplement amounts.

CRF, Tab 4.

On September 8, 2025, OPM notified the Board that it had now refunded to

the appellant all of the previously apportioned annuity supplement amounts since

the commencement of the annuity. CRF, Tab 5. In support, OPM provided

evidence showing that it issued to the appellant a refund in the amount of $2,647.92

on September 5, 2025, representing the annuity supplement apportioned to his

former spouse from December 1, 2021, through July 30, 2022. Id. at 5-8. The

appellant did not respond.

ANALYSIS

The agency bears the burden to prove compliance with the Board’s order by a

preponderance of the evidence. 3 Vaughan v. Department of Agriculture,

116 M.S.P.R. 319, ¶ 5 (2011); 5 C.F.R. § 1201.183(d). An agency’s assertions of

compliance must include a clear explanation of its compliance actions supported by

documentary evidence. Vaughan, 116 M.S.P.R. 319, ¶ 5. The appellant may rebut

the agency’s evidence of compliance by making specific, nonconclusory, and

supported assertions of continued noncompliance. Id.

As described above, OPM has provided evidence showing that it has

rescinded its March 13, 2023 reconsideration decision, ceased apportionment of the

appellant’s annuity supplement, and refunded to him all previously apportioned

annuity supplement amounts. CRF, Tabs 1-2, 5. The appellant has not responded

to OPM’s latest compliance submission, and we therefore assume he is satisfied.

See Baumgartner v. Department of Housing and Urban Development, 111 M.S.P.R.

86, ¶ 9 (2009).

A preponderance of the evidence is the degree of relevant evidence that a reasonable

person, considering the record as a whole, would accept as sufficient to find that a

contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).

In light of the foregoing, we find OPM is in compliance with its outstanding

compliance obligations and dismiss the appellant’s 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 RIGHT TO REQUEST

ATTORNEY FEES AND COSTS

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

United States 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 1201.203. 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 issued the initial decision on your

appeal.

NOTICE OF APPEAL RIGHTS 4

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 not 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 final decision, you should immediately review the law

applicable to your claims and carefully follow all filing time limits and

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 which option is most appropriate in any matter.

requirements. Failure to file within the applicable time limit may result in the

dismissal of your case by your chosen forum.

Please 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 about

whether a particular forum is the appropriate one to review your case, you should

contact that forum 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 must 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) Judicial 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 discrimination. If so, you may obtain 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. 420 (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 prepayment 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 representative 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. 20013

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. 5 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:

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 court of appeals of competent jurisdiction. The All

Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat.

1510.