                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     RODNEY HAITH,                                   DOCKET NUMBER
                 Appellant,                          NY-0752-13-0239-X-1

                  v.

     DEPARTMENT OF VETERANS                          DATE: January 16, 2015
       AFFAIRS,
                 Agency.




             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           John P. Varachi, Esquire, White Plains, New York, for the appellant.

           William Davis, Montrose, New York, for the appellant.

           Jack P. Di Teodoro, Esquire, Brooklyn, New York, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         This compliance proceeding was initiated by the appellant’s October 21,
     2013, petition for enforcement of the settlement agreement. On December 11,

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     2013, the administrative judge issued an initial decision recommending that the
     Board find the agency in partial compliance with the final decision, and the
     agency’s noncompliance was referred to the Board for consideration. 2 See MSPB
     Docket No. NY-0752-13-0239-C-1, Compliance File (CF), Tab 13, Initial
     Decision (ID). After fully considering the filings in this appeal, and based on the
     following points and authorities, we find the agency in compliance with the
     settlement agreement.     We DISMISS the appellant’s petition for enforcement,
     based on our finding the agency in compliance. 5 C.F.R. § 1201.114(e), (g).
¶2         In the December 11, 2013 compliance initial decision, the administrative
     judge ordered the agency to take the following actions to be in compliance with
     the settlement agreement: (1) inform the Office of Personnel Management (OPM)
     in writing that the appellant’s separation for medical disability was not the result
     of a resignation from his position; and (2) provide the appellant, his attorney, and
     the Board with a copy of the information that it forwarded to OPM. ID at 6. On
     January 15, 2014, the agency submitted a letter to the Board claiming that it
     informed OPM that the appellant’s separation for medical disability was not the
     result of a resignation. MSPB Docket No. NY-0752-13-0239-X-1, Compliance
     Referral File (CRF), Tab 1 at 1-4. The agency’s submission included a copy of
     the information purportedly sent to OPM. Id. at 3-4. However, the agency’s
     letter did not include any evidence showing that the agency actually provided this
     information to OPM. Id. On November 4, 2014, the agency supplemented its
     submission with unrebutted evidence that it had, in fact, provided the required
     information to OPM on January 13, 2014, as claimed.               CRF, Tab 5 at 3-5.
     Accordingly, we find that the agency is now in full compliance with the terms of
     the settlement agreement.


     2
       The appellant filed a petition for review of the portion of the initial decision finding
     the agency in compliance with the decision. CF, Tab 1. On July 29, 2014, we affirmed
     the initial decision in a separate Final Order. Haith v. Department of Veterans Affairs,
     MSPB Docket No. NY-0752-13-0329-C-1, Final Order (July 29, 2014).
                                                                                       3

¶3        With respect to the appellant’s request for monetary sanctions, we DENY
     the request. The Board’s sanction authority is limited to the sanctions necessary
     to obtain compliance with a Board order.         Mercado v. Office of Personnel
     Management, 115 M.S.P.R. 65, ¶ 8 (2010) (stating that the Board’s ability to
     award sanctions is a means to enforce compliance and once compliance has been
     demonstrated it would be inappropriate to impose sanctions). Here, because the
     agency did comply with the settlement agreement, we are without authority to
     impose sanctions in this matter.
¶4        Nevertheless, even if the Board did have authority to issue sanctions in this
     matter, such an action would be inappropriate under the circumstances.          The
     appellant seeks monetary sanctions due to the agency’s prior noncompliance
     causing a delay in the adjudication of his disability retirement with OPM, but
     such monetary sanctions are unnecessary.       In the event that OPM grants the
     appellant’s disability retirement application, his disability annuity will commence
     “on the day after the [appellant] separates or the day after pay ceases and the
     employee meets the requirements for title to an annuity.” See 5 C.F.R. § 844.301.
     Accordingly, if his application is granted, his annuity will include any retroactive
     pay he is entitled to and will eliminate any loss of funds stemming from the
     agency’s actions.
¶5        Therefore, the Board finds that the agency is in compliance and
     DISMISSES 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(b) (5 C.F.R. § 1201.183(b)).



                     NOTICE TO THE APPELLANT REGARDING
                        YOUR FURTHER REVIEW RIGHTS
           You have the right to request review of this final decision by the United
     States Court of Appeals for the Federal Circuit. You must submit your request to
     the court at the following address:
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                           United States 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 United States 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 United
States     Code,    at   our   website,   http://www.mspb.gov/appeals/uscode/htm.
Additional information 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, and 11.
         If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
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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.
