The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CHARLES L. WILLIAMS, DOCKET NUMBER
Appellant, CH-0831-17-0237-I-1
v.
OFFICE OF PERSONNEL DATE: April 26, 2023
MANAGEMENT,
Agency,
and
ROSETTA WILLIAMS-SCOTT,
Intervenor.
THIS ORDER IS NONPRECEDENTIAL 1
Charles L. Williams, East Saint Louis, Illinois, pro se.
Karla W. Yeakle, Washington, D.C., for the agency.
Kevin J. Kubitschek, Belleville, Illinois, for the intervenor.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
vacated a reconsideration decision of the Office of Personnel Management (OPM)
concerning the appellant’s former spouse’s entitlement to a share of his
retirement annuity and remanded the appeal to OPM to issue a new
reconsideration decision. Generally, we grant petitions such as this one only in
the following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous 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 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. 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 under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision.
¶2 On petition for review, the appellant argues that he did not receive the
agency’s file until May 1, 2017, and asserts that the administrative judge erred in
prematurely closing the record. Petition for Review (PFR) File, Tab 1 at 3. 2
However, the appellant has not explained how he was prejudiced by the
administrative judge’s Close of Record Order, which afforded him until June 5,
2
The appellant also submits various documents with his petition for review. PFR File,
Tab 1 at 6-21. However, such evidence is not relevant to the issue of whether the
administrative judge properly remanded the appeal to OPM. T herefore, it provides no
basis to disturb the initial decision. Russo v. Veterans Administration, 3 M.S.P.R. 345,
349 (1980) (holding that the Board will not grant a petition for review based on new
evidence absent a showing that it is of sufficient weight to warrant an outcome different
from that of the initial decision).
3
2017, to file evidence and argument in his case. Initial Appeal File, Tab 12 at 2.
The appellant also contends that the administrative judge “gold plated the pro rate
[sic] share” and “rendered it to the agency by way of a series of bias errors. ” PFR
File, Tab 1 at 2. He also makes various arguments concerning the merits of his
appeal and OPM’s alleged improper computation of his former spouse’s share of
his retirement annuity. Id. at 3-5. Such arguments, however, fail to establish any
error in the initial decision because the administrative judge did not make any
findings regarding whether OPM correctly awarded and computed the
apportionment of the appellant’s retirement annuity to his former spouse. Rather,
the administrative judge found that the Board could not consider the merits of the
appeal because OPM had failed to address the appellant’s arguments raised in his
request for reconsideration or explain the obvious inconsistencies between OPM’s
initial and reconsideration decisions concerning the correct amount of the
appellant’s former spouse’s share of his retirement annuity. Thus, the
administrative judge properly remanded the case to OPM for issuance of a new
reconsideration decision because OPM previously had not addressed all issues
necessary for adjudication of the appeal. 3 See, e.g., Litzenberger v. Office of
Personnel Management, 88 M.S.P.R. 419, ¶¶ 9-10 (2001); Stubblefield v. Office
of Personnel Management, 60 M.S.P.R. 455, 460 (1994).
ORDER
¶3 On remand, OPM is hereby ORDERED to take the following actions:
(1) explain how the Judgment of Dissolution of Marriage meets the requirements
of a court order acceptable for processing and whether the lack of a Qualified
Domestic Relations Order renders the court order unacceptable; (2) determine
3
On April 12, 2019, May 24, 2019, August 29, 2020, March 30, 2021, May 10, 2021,
and December 22, 2021, the appellant filed motions to submit additional pleadings in
which, although unclear, he appears to raise arguments concerning the merits of the
appeal. PFR File, Tabs 9, 12, 23, 27, 30, 34. We deny such motions in light of our
decision, which does not reach the merits but rather remands the appeal to OPM.
4
how much of the appellant’s total Federal and militar y service is creditable for
purposes of computing his annuity; (3) if any of the appellant’s service is not
creditable, determine what effect, if any, this has on OPM’s computation of the
intervenor’s pro rata share of the appellant’s gross annuity; (4) compute the pro
rata share of the appellant’s annuity to which the intervenor is entitled, and
determine whether the intervenor’s share has changed throughout the course of
the appellant’s retirement; and (5) apply the pro rata shares to which the
intervenor was entitled to the gross annuity payments the appellant has received
since his retirement to determine whether the intervenor and/or the appellant have
been overpaid or underpaid; (6) to the extent necessary, adjust the amounts
payable to the intervenor and the appellant to ensure that they receive the
amounts to which they are entitled; (7) take appropriate action as to any
overpayments or underpayments resulting from the determinations and
computations set forth above; and (8) issue a new final decision within 90 days
that addresses the matters set forth above and advises both the intervenor and the
appellant of their Board appeal rights.
¶4 We also ORDER OPM to tell the appellant and the intervenor pr omptly in
writing when it believes it has fully carried out the Board’s Order and of the
actions it has taken to carry out the Board’s Order. We ORDER the appellant and
the intervenor to provide all necessary information OPM requests to help it carry
out the Board’s Order. The appellant, if not notified, should ask OPM about its
progress. See 5 C.F.R. § 1201.181(b).
¶5 No later than 30 days after OPM tells the appellant and the interv enor it has
fully carried out the Board’s Order, the appellant or the intervenor may file a
petition for enforcement with the office that issued the initial decision on this
appeal if the appellant or the intervenor believes that OPM did not fully carry out
the Board’s Order. The petition should contain specific reasons why the
appellant or the intervenor believes that OPM has not fully carried out the
5
Board’s Order, and should include the dates and results of any communications
with OPM. See 5 C.F.R. § 1201.182(a).
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.