                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     RICHARD M. WILSON,                              DOCKET NUMBER
                   Appellant,                        DC-0831-13-0423-P-1

                  v.

     OFFICE OF PERSONNEL                             DATE: February 6, 2015
       MANAGEMENT,
                   Agency.



                THIS FINAL ORDER IS NO NPRECEDENTIAL 1

           Richard M. Wilson, Fairfax Station, Virginia, pro se.

           Kristine Prentice, Washington, D.C., for the agency.


                                           BEFORE

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


                                       FINAL ORDER

¶1        The appellant has filed a petition for review of the initial decision, which
     denied his request for compensatory and consequential damages. 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        A nonprecedential order is one that the Board has determined does not add
     sign ificantly 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 Parties may cite nonprecedential orders,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 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, and based on the following
     points and authorities, 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. We MODIFY the initial decision to address the
     appellant’s assertions, made for the first time on review, that he is a
     whistleblower and that the Board’s prior order in his retirement appeal constitutes
     an order for corrective action, but we conclude that he is not entitled to
     compensatory or consequential damages. Except as expressly MODIFIED by this
     Final Order, we AFFIRM the initial decision.

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶2        In Wilson v. Office of Personnel Management, MSPB Docket No. DC-0831-
     13-0423-I-1, Final Order (July 24, 2014), the Board granted the appellant’s
     petition for review of an initial decision that affirmed the Office of Personnel
     Management’s (OPM’s) reconsideration decision informing him that his Civil
     Service Retirement System survivor annuity would be offset based on his
     entitlement to benefits under the Social Security Act when he turned 60. The
     Board reversed the initial decision because the appellant was not entitled to social
     security survivor benefits, and it ordered OPM to recalculate the appellant’s
     survivor annuity. Id.
¶3        The   appellant subsequently filed      a   request   for   compensatory and
     consequential damages.     Wilson v. Office of Personnel Management, MSPB
                                                                                       3

     Docket No. DC-0831-13-0423-P-1, Request for Damages File (RDF), Tab 1. The
     administrative judge issued an order to show cause which explained that
     compensatory damages were only available in certain circumstances, stated that
     the appellant’s retirement appeal pursuant to 5 U.S.C. chapter 83 did not
     authorize the Board to award compensatory damages, and ordered him to show
     cause why the appeal should not be dismissed. RDF, Tab 2. The appellant filed a
     response. RDF, Tab 4.
¶4        The administrative judge issued an initial decision that denied the
     appellant’s request for damages.      RDF, Tab 6, Initial Decision (ID).        The
     administrative judge noted that consequential damages are only awarded where
     the Board orders corrective action in a whistleblower appeal or a Special Counsel
     complaint, and compensatory damages are only awarded based on a finding of
     unlawful intentional discrimination or a violation under the Whistleblower
     Protection Enhancement Act of 2012, but she concluded that there were no
     findings of unlawful intentional discrimination or reprisal for whistleblowing in
     connection with the appellant’s retirement appeal. ID at 3.
¶5        The appellant filed a petition for review, the agency filed a response, and
     the appellant filed a reply.   Petition for Review (PFR) File, Tabs 1, 4-5.      On
     petition for review, the appellant alleges that the initial decision was flawed, and
     he accuses OPM of “deliberately embezzl[ing]” money from his retirement
     annuity. PFR File, Tab 1 at 1. For the first time on review, he seems to be trying
     to establish himself as a whistleblower, stating, among other things, that: (1) he
     “expose[d] misconduct” and/or “alleged dishonest or illegal activity in a
     Government agency”; and (2) the Board ordered corrective action in the
     retirement appeal. Id. at 4. In his reply to the agency’s response to the petition
     for review, the appellant also asserts that OPM discriminated against survivor
     annuitants of federal retirees, which he states is a protected class.    PFR File,
     Tab 5 at 2.
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¶6         An award of consequential damages is authorized in only two situations:
     where the Board orders corrective action in a whistleblower appeal under
     5 U.S.C. § 1221, or where the Board orders corrective action in a Special Counsel
     complaint under 5 U.S.C. § 1214.           Seibel v. Department of the Treasury,
     87 M.S.P.R. 260, ¶ 15 n.3 (2000); 5 C.F.R. § 1201.201(c).            An appellant may
     recover compensatory damages when he prevails in a Board appeal based on a
     finding of intentional discrimination under Title VII of the Civil Rights Act of
     1964, a finding that the agency failed to make a reasonable accommodation for a
     qualified disabled person, a finding of illegal retaliation for the appellant’s
     protected equal employment opportunity activity, or where the Board orders
     corrective action in a whistleblower appeal under 5 U.S.C. § 1221. See Rhee v.
     Department of the Treasury, 117 M.S.P.R. 640, ¶ 19 (2012); see also Seibel,
     87 M.S.P.R. 260, ¶ 15; 5 C.F.R. §§ 1201.201(d), 1201.202(c). Because the Board
     did not order corrective action in a whistleblower appeal 2 or a Special Counsel
     complaint, and it did not make a finding of discrimination or retaliation in his
     retirement appeal, the appellant is not entitled to compensatory and/or
     consequential damages.




     2
       The Board generally will not consider an argument raised for the first time on review.
     Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271 (1980). We MODIFY the
     in itial decision, however, to consider the appellant’s efforts to establish himself as a
     whistleblower on review because the administrative judge acknowledged that she did
     not discuss his request for consequential damages in her order to show cause. See ID
     at 2 n.1. Thus, the appellant only received notice of what was required to demonstrate
     his entitlement to consequential damages in the initial decision. See ID at 3; see, e.g.,
     Easterling v. U.S. Postal Service, 110 M.S.P.R. 41, ¶ 11 (2008) (explaining that an
     administrative judge’s failure to provide an appellant with proper jurisdictional notice
     can be cured if the initial decision puts him on notice of what he must do to establish
     jurisdiction, thus affording him the opportunity to meet his jurisdictional burden on
     petition for review). Because the Board’s order in the retirement appeal did not
     constitute an order for corrective action under 5 U.S.C. § 1221, the appellant is not
     entitled to damages, and we need not specifically address whether he made
     whistleblowing disclosures.
                                                                                  5

                 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:
                          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
                                                                           6

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.
