Opinion

Timothy Hanke v. Office of Personnel Management

Court: Merit Systems Protection Board
Filed: May 1, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.9%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

TIMOTHY LEWIS HANKE, DOCKET NUMBER

Appellant, PH-0842-22-0187-X-1

OFFICE OF PERSONNEL DATE: May 1, 2024

MANAGEMENT,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Timothy Lewis Hanke , Newburyport, Massachusetts, pro se.

Angerlia D. Johnson , Esquire, Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

FINAL ORDER

On April 26, 2023, the administrative judge found the agency in

noncompliance with the November 30, 2022 initial decision, which ordered the

agency to approve the appellant’s application for immediate retirement and

calculate his annuity accordingly. Hanke v. Office of Personnel Management,

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

MSPB Docket No. PH-0842-22-0187-I-1, Initial Appeal File (IAF), Tab 9, Initial

Decision (ID); Hanke v. Office of Personnel Management, MSPB Docket No.

PH-0842-22-0187-C-1, Compliance File (CF), Tab 5, Compliance Initial Decision

(CID). For the reasons below, we now find the agency in compliance and

DISMISS the appellant’s petition for enforcement.

DISCUSSION OF ARGUMENTS AND EVIDENCE ON COMPLIANCE

On May 5, 2022, the appellant filed an appeal challenging the April 7, 2022

decision of the Office of Personnel Management (OPM) denying his application

for immediate retirement. IAF, Tab 1. In the November 30, 2022 initial decision,

the administrative judge found that the appellant had established that he was

eligible for immediate retirement, and ordered OPM to approve his application

and calculate his annuity accordingly. ID at 4. Because neither party filed a

petition for review, the initial decision became the Board’s final order on

January 4, 2023. See 5 C.F.R. § 1201.113.

On January 19, 2023, the appellant filed a petition for enforcement,

alleging that OPM had failed to take any action to comply with the initial

decision. CF, Tab 1. On April 26, 2023, the administrative judge issued a

compliance initial decision noting that OPM had failed to respond to the

allegations of noncompliance and granting the appellant’s petition for

enforcement. CID at 2-3. 2

The compliance initial decision informed the agency that if it decided to take the

actions required by the decision it must submit to the Clerk of the Board, within the

time limit for filing a petition for review under 5 C.F.R. § 1201.114(e), a statement that

it has taken the actions identified in the compliance initial decision, along with evidence

establishing that it has taken those actions. CID at 4-5; see 5 C.F.R. § 1201.183(a)(6)

(i). The compliance initial decision also informed the parties that they could file a

petition for review if they disagreed with the compliance initial decision. CID at 4, 11;

see 5 C.F.R. §§ 1201.114(e), 1201.183(a)(6)(ii). Neither party petitioned for review of

the compliance initial decision.

ANALYSIS

The agency bears the burden of proving that it has complied with a Board

order. Mercado v. Office of Personnel Management, 115 M.S.P.R. 65, ¶ 4 (2010).

The agency is required to produce relevant, material, and credible evidence of

compliance in the form of documentation or affidavits. Spates v. U.S. Postal

Service, 70 M.S.P.R. 438, ¶ 9 (1996). The appellant may rebut the agency's

evidence of compliance by making “specific, nonconclusory, and supported

assertions of continued noncompliance.” Brown v. Office of Personnel

Management, 113 M.S.P.R. 325, ¶ 5 (2010).

On May 24, 2023, the agency filed a statement of compliance, informing

the Board that it had complied with the final decision by approving the appellant

for immediate retirement and paying his annuity retroactively from November 1,

2021. Hanke v. Office of Personnel Management, MSPB Docket No. PH-0842-

22-0187-X-1, Compliance Referral File (CRF), Tab 1 at 2. As evidence of

compliance, the agency submitted a “master record printout” showing that the

agency had paid the appellant a net amount of $6,586.16 on May 15, 2023, as a

retroactive annuity payment, and had scheduled a net monthly annuity payment of

$433.28. Id. at 5. The agency also included a computation of the gross

retroactive annuity payment due to appellant. Id. at 6.

Also on May 24, 2023, the Board issued an Acknowledgement Order noting

the agency’s filing and informing the appellant that he must file any response

within 20 calendar days. CRF, Tab 2 at 2. The order specifically informed the

appellant that if he failed to file a response, the Board might assume he was

satisfied and dismiss the petition for enforcement. Id.

The appellant has not responded to the agency’s statement of compliance.

Thus, the agency has filed detailed documentation and a narrative statement

asserting compliance to which the appellant has not responded, despite being

apprised that the Board might construe lack of response as satisfaction with the

agency’s actions.

Accordingly, we find that the agency is now in full compliance with the

November 30, 2022 decision, 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(c)(1)

(5 C.F.R. § 1201.183(c)(1)).

NOTICE OF APPEAL RIGHTS 3

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 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 the issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

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.

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. 4 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