                 NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
                 is not citable as precedent. It is a public record.

  United States Court of Appeals for the Federal Circuit

                                       05-3178

                                BRUCE L. WILLIAMS,

                                                  Petitioner,

                                          v.

                     OFFICE OF PERSONNEL MANAGEMENT,

                                                  Respondent.

                               ____________________

                             DECIDED: January 11, 2006
                              ____________________

Before LOURIE, RADER, and LINN, Circuit Judges.

LOURIE, Circuit Judge.

       Bruce L. Williams petitions for review of the final decision of the Merit

Systems Protection Board (the “Board”) denying his petition for enforcement.

Williams v. Office of Pers. Mgmt., No. AT-844E-01-0456-C-1 (M.S.P.B. February

25, 2005) (“Decision”).       We affirm-in-part, vacate-in-part, and remand for

clarification.

                                   BACKGROUND

       In 2001, Williams appealed a reconsideration decision issued by the Office

of Personnel Management (“OPM”) that denied his application for disability

retirement benefits under the Federal Employee Retirement Systems (“FERS”).

Following OPM’s representation that it would rescind its reconsideration decision
in light of new medical evidence presented by Williams and grant him disability

retirement benefits, the Administrative Judge (“AJ”) dismissed the appeal for lack

of jurisdiction.

       In 2004, Williams sent a letter to the Board, alleging that the United States

Postal Service (“Postal Service”) had not complied with its settlement obligations

resulting from the 2001 appeal. Williams asserted that the Postal Service “did

not protect my credit or doctor bills,” that there were errors in the calculation of

his thrift savings plan, that OPM incorrectly calculated his retroactive pay, and

that OPM requested a medical report and informed him that without such a

report, his disability retirement benefits “will be suspended.”

       The Board considered Williams’ letter to be a petition for enforcement, and

it issued an “Acknowledgement Order” that directed OPM to file a written

response to the petition for enforcement and to contact Williams regarding the

matter.     OPM did not file such a response and purportedly did not contact

Williams.

          On February 24, 2005, the AJ issued a decision denying Williams’ petition

for enforcement. The AJ determined that Williams’ allegations with respect to the

Postal Service’s actions or omissions “have no bearing on the underlying

disability retirement appeal at issue here.” Decision, slip op. at 2. The AJ also

concluded that OPM was expressly authorized under FERS regulations to seek

information from Williams concerning his disability. Therefore, according to the

AJ, such activity did not constitute noncompliance with the Board’s final decision.

Thus, the AJ denied William’s petition.




05-3178                                   2
       The initial decision became the final decision of the Board. See 5 C.F.R. §

1201.113.    Williams timely appealed to this court, and we have jurisdiction

pursuant to 28 U.S.C. § 1295(a)(9).

                                    DISCUSSION

       The scope of our review in an appeal from a decision of the Board is

limited. We must affirm the Board’s decision unless it was “(1) arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law; (2)

obtained without procedures required by law, rule, or regulation having been

followed; or (3) unsupported by substantial evidence.”            5 U.S.C. § 7703(c)

(2000); see Briggs v. Merit Sys. Prot. Bd., 331 F.3d 1307, 1311 (Fed. Cir. 2003).

A Board decision is unsupported by substantial evidence when it lacks “such

relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.” Matsushita Elec. Indus. Co. v. United States, 750 F.2d 927, 933

(Fed. Cir. 1984) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 299

(1938)).

       On appeal, Williams contends that he was not given the opportunity to

correspond with the OPM for settlement purposes and that OPM never contacted

him.   Williams also appears to allege that his retirement and social security

benefits were incorrectly calculated for purposes of retroactive pay. Furthermore,

in his initial letter to the Board, Williams alleged that OPM improperly requested

additional medical reports relating to his disability benefits.

       OPM responds that the Board correctly decided that OPM could seek

information from Williams relating to his continuing disability. Furthermore, OPM




05-3178                                    3
asserts that the AJ correctly concluded that allegations relating to whether OPM

calculated Williams’ retroactive pay properly had no bearing on the underlying

disability retirement appeal at issue.         OPM further responds that its alleged

failure to contact Williams pursuant to the “Acknowledgement Order” did not

constitute reversible error.

       We conclude that the Board’s determination that OPM could request such

medical evidence under 5 C.F.R. § 844.401 was not arbitrary or capricious

because the statute expressly allows OPM to request such information. See 5

C.F.R. § 844.401 (“Each annuitant receiving disability annuity from the Fund shall

be examined under the direction of OPM at the end of one year from the date of

the disability retirement and annually thereafter until the annuitant becomes 60

years of age unless the disability is found by OPM to be permanent in character.

OPM may order a medical or other examination at any time to determine the

facts relative to the nature and degree of disability of the annuitant.”).

       However, Williams’ allegation that the AJ failed to consider that OPM did

not contact him as required in the “Acknowledgement Order” seems to be related

to Williams’ argument that his retroactive pay was calculated incorrectly. The

government does not address that argument except to state that it was harmless

error without indicating how OPM’s failure to contact Williams to explain its

calculation of retroactive pay was harmless error. We cannot ascertain from the

Board’s decision why that purported inaction does not relate to the “underlying

disability retirement appeal.” The Board states that there is no relation between

the “acts or omissions” of OPM and the underlying disability appeal, but does not




05-3178                                    4
provide any reasoning for this determination. On the contrary, it would appear

that incorrectly calculating pay from a settlement resulting from the initial

disability appeal would be related to the underlying disability retirement appeal.

The Board, however, found otherwise, without explanation. If the Board believed

that OPM’s acts or omissions relating to the “Acknowledgement Order” had no

bearing on what it considered to be a petition for enforcement of a settlement

agreement, it must elaborate on such a decision by providing proper reasoning.

      The apparent purpose of the “Acknowledgement Order” was to require

OPM to justify to Williams its calculation of retroactive pay. It is not clear to us

that that order was complied with.      Because it is unclear from the Board’s

decision why OPM’s acts or omissions had no bearing on the petition for

enforcement, we vacate and remand to the Board on this issue for further fact-

finding or to explain why the alleged acts or omissions had no bearing on his

disability settlement. We therefore affirm-in-part, vacate-in-part, and remand.




05-3178                                  5
