                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     CLYDE W. BEAL,                                  DOCKET NUMBER
                   Appellant,                        SF-0831-14-0582-C-1

                  v.

     OFFICE OF PERSONNEL                             DATE: February 18, 2016
       MANAGEMENT,
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Clyde W. Beal, Barstow, California, pro se.

           Michael Shipley, Washington, D.C., for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     denied his petition for enforcement of an earlier Board decision. Generally, we
     grant petitions such as this one only when: the initial decision contains erroneous
     findings of material fact; the initial decision is based on an erroneous


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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.           See
     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, which is now the Board’s final decision. 5 C.F.R.
     § 1201.113(b).
¶2             The appellant challenged the reconsideration decision of the Office of
     Personnel Management (OPM) finding that his retirement annuity was properly
     computed without crediting his 8 years of post-1956 military service. On appeal,
     the administrative judge found that, because the appellant’s appointment with the
     Department of the Navy commenced on September 30, 1982, and not on
     October 3, 1982, as OPM found, he was not required to make a deposit to secure
     inclusion of his post-1956 military service in the computation of his annuity. On
     the appellant’s petition for review, the Board agreed, Beal v. Office of Personnel
     Management, 122 M.S.P.R. 210, ¶ 8 (2015), and ordered OPM to recompute his
     annuity from September 30, 1982, including as proper his post-1956 military
     service without requiring him to make a deposit, id., ¶ 9.
¶3             The appellant filed a petition for enforcement claiming that OPM had not
     yet complied with the Board’s decision.            Compliance File (CF), Tab 1.       In
     response, OPM explained that it just had completed the required actions, that it
     had increased the appellant’s gross monthly annuity from $1,754 to $2,362, which
     he would begin receiving with his May 1, 2015 annuity payment, and that it had
     authorized a gross retroactive payment of $32,568 ($26,055 after the withholding
                                                                                       3

     of $6,513 in Federal taxes). CF, Tab 4. In response, the appellant acknowledged
     the deposit into his account of $26,055, but he claimed that he had not received
     an explanation of the computations. CF, Tabs 6-7. After the administrative judge
     convened a status conference with the parties, CF, Tab 8, OPM provided evidence
     that it had shared with the appellant a Paid and Due Calculation document
     explaining how it had arrived at its calculations, CF, Tab 9 at 4-5. The appellant
     replied that the summary of payments was “suspect,” and he questioned the
     amount of taxes withheld. CF, Tab 10.
¶4        The administrative judge denied the appellant’s petition for enforcement.
     CF, Tab 11, Compliance Initial Decision (CID) at 1, 8.       She considered the
     appellant’s claim that the Summary of Payments documents he submitted differed
     somewhat from the Paid and Due Calculation document OPM submitted in that
     the dollar amounts were not identical for the same period.       CID at 5.      The
     administrative judge found, however, that the two documents did not, in fact,
     cover the exact same periods which accounted for the discrepancy, that the
     Summary of Payments documents the appellant presented were otherwise
     consistent with the Paid and Due Calculation document, and that it accurately
     reflects the amount of gross annuity originally paid to him as well as the amount
     of annuity after his post-1956 military service was credited.    CID at 6.      The
     administrative judge further found that the appellant’s bare allegation of
     suspicion regarding OPM’s documentation provided no basis to challenge the
     accuracy of the agency’s Paid and Due Calculation document.         CID at 6.    In
     addressing the appellant’s claim that OPM withheld an excessive amount of taxes,
     the administrative judge found that, to the extent the appellant was correct, he
     could obtain a refund from the Internal Revenue Service (IRS) when he files a tax
     return. CID at 7.
                                                                                     4

¶5        The appellant has filed a petition for review. 2 Petition for Review (PFR)
     File, Tab 1. The agency has responded in opposition. PFR File, Tab 3.
¶6        The agency has the burden of establishing compliance with a final Board
     order. Spates v. U.S. Postal Service, 70 M.S.P.R. 438, 441 (1996). It can meet
     this burden by producing relevant, material, and credible evidence of compliance
     in the form of documentation or affidavits. Id. at 443. The appellant may rebut
     this evidence only by producing nonconclusory and supported allegations to the
     contrary. King v. Department of the Navy, 98 M.S.P.R. 547, 551 (2005), aff’d,
     167 F. App’x 191 (Fed. Cir. 2006). We agree with the administrative judge that
     OPM submitted credible evidence of compliance with the Board’s order;
     specifically, the Past and Due Calculation document, which showed, for periods
     from August 1, 2010, 3 through March 31, 2015, the annuity amounts paid and
     due, the difference between the two over the entire time ($32,568), and that
     amount less taxes withheld ($26,055), which was deposited into the appellant’s
     account.   CID at 6.   We further agree with the administrative judge that the
     appellant has not rebutted this evidence because his allegations are unsupported.
     As noted, the administrative judge considered the appellant’s claim that the
     figures on the Summary of Payments documents were somewhat inconsistent with
     those on the Past and Due Calculation document, but she provided a reasonable
     explanation for the discrepancy, which the appellant has not challenged on
     review.
¶7        The appellant argues, as he did below, that OPM has withheld an excessive
     amount in taxes. PFR File, Tab 1 at 1. If the appellant wishes to contest this

     2
      The appellant also requested an extension of time, explaining that he sought from
     OPM a complete Summary of Payments records and was awaiting a response. PFR File,
     Tab 1 at 1-2, 9. The Clerk of the Board granted the appellant an extension until
     October 2, 2015, PFR File, Tab 2, but he did not submit anything further.
     3
       When the appellant retired, he was in receipt of Office of Workers’ Compensation
     Programs compensation, and he elected to receive a Civil Service Retirement System
     annuity effective August 1, 2010. CID at 2.
                                                                                       5

     matter, he is free to file a claim for a tax refund from the IRS. See Henderson v.
     Office of Personnel Management, 92 M.S.P.R. 383, ¶ 7 n.2 (2002), overruled on
     other grounds by Simpson v. Office of Personnel Management, 96 M.S.P.R. 52
     (2004).
¶8        With his petition for review, the appellant has submitted two of the
     Summary of Payments documents and the Paid and Due Calculation document.
     PFR File, Tab 1 at 11-13.      Because these documents were part of the record
     below, they do not constitute new evidence. Meier v. Department of the Interior,
     3 M.S.P.R. 247, 256 (1980).

                     NOTICE TO THE APPELLANT REGARDING
                        YOUR FURTHER REVIEW RIGHTS
           You have the right to request review of this final decision by the U.S.
     Court of Appeals for the Federal Circuit. You must submit your request to the
     court at the following address:
                                    U.S. Court of Appeals
                                    for the Federal Circuit
                                   717 Madison Place, N.W.
                                    Washington, DC 20439

     The court must receive your request for review no later than 60 calendar days
     after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27,
     2012). If you choose to file, be very careful to file on time. The court has held
     that normally it does not have the authority to waive this statutory deadline and
     that filings that do not comply with the deadline must be dismissed. See Pinat v.
     Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
           If you need further information about your right to appeal this decision to
     court, you should refer to the Federal law that gives you this right. It is found in
     title 5 of the U.S. Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. Dec. 27,
     2012). You may read this law as well as other sections of the U.S. Code, at our
     website, http://www.mspb.gov/appeals/uscode.htm.         Additional information is
                                                                                  6

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, 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
Merit Systems Protection Board neither endorses the services provided by any
attorney nor warrants that any attorney will accept representation in a given case.




FOR THE BOARD:                            ______________________________
                                          William D. Spencer
                                          Clerk of the Board
Washington, D.C.
